Martinus Rail Pty Ltd v CO-OPERATIVE Bulk Handling Ltd - [2025] WASC 373

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MARTINUS RAIL PTY LTD -v- CO-OPERATIVE BULK HANDLING LTD [2025] WASC 373
CORAM:   PALMER J
HEARD:   3 JULY 2025, WRITTEN SUBMISSIONS 10 JULY 2025, 31 JULY 2025 AND 5 AUGUST 2025
DELIVERED          :   11 SEPTEMBER 2025
FILE NO/S:   CIV 2245 of 2024
BETWEEN:   MARTINUS RAIL PTY LTD
Plaintiff
AND
CO-OPERATIVE BULK HANDLING LTD (ABN 29 256 604 947)
Defendant

Catchwords:

Building and construction - When payment claim taken to be served

Legislation:

Building and Construction Industry (Security of Payment) Act 2021 (WA)
Building and Construction Industry (Security of Payment) Regulations 2022 (WA)
Electronic Transactions Act 2000 (Vic)
Town Planning and Development Act 1928 (WA)

Result:

Judgment for the plaintiff against the defendant

Representation:

Counsel:

Plaintiff	:	Mr Scott Robertson SC, Ms J Moore & Mr D Pratt
Defendant	:	Ms J K Taylor SC & Mr A L Mason

Solicitors:

Plaintiff	:	Jackson McDonald
Defendant	:	Corrs Chambers Westgarth

Case(s) referred to in decision(s):

A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289
BCS Infrastructure Support [2020] VSC 739
BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739
City of Bayswater v Minister for Family and Children's Services [2000] WASCA 151; [2000] 108 LGERA 182
Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36
Hope v Hope (1854) 43 ER 534
Probuild Constructions (Aust) Pty Ltd v Shade System Pty Ltd (2018) 264 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161
Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 602

PALMER J:

Introduction

The outcome of these proceedings turns upon when a 'payment claim' emailed by the plaintiff (Martinus) to the defendant (CBH) is taken to have been made for the purposes of the Building and Construction Industry (Security of Payment) Act 2021 (WA) (the Act).
By a contract made on 2 February 2023 and varied on 18 July 2023, Martinus and CBH agreed that Martinus would construct a rail siding and associated infrastructure at Broomehill in Western Australia (the Contract).
The Act permits a party to a construction contract to make a 'payment claim' for a 'progress payment' that it claims is due under the Act. The Act requires the party responding to the payment claim to respond by giving a 'payment schedule' within a maximum of 15 'business days'.[1] Section 26 of the Act provides that the respondent to the payment claim becomes liable to pay the amount claimed if the payment schedule is not given within the time allowed.
[1] See s 25(1) of the Act.
Martinus emailed its payment claim to CBH on Saturday 31 August 2024. CBH responded with a payment schedule on 24 September 2024. Whether that response was within time depends on whether the 15 business days allowed under the Act is calculated from the Saturday the email was sent, or the following Monday.
Clause 47.4 of the Contract provides that if communications are received under cl 47.2 on a non-business day, they are taken to be received at 9.00 am on the next business day. Clause 47.2 addresses when a 'Notice' given in accordance with cl 47 is treated as having been given and received.
Martinus argued that cl 47 was irrelevant for the purposes of the Act. It contended that properly construed s 113(4) of the Act, reg 23(d) of the Building and Construction Industry (Security of Payment) Regulations 2022 (WA) (the Regulations) and s 14 of the Electronic Transaction Act 2011 (WA) (the Electronic Transactions Act) had the effect that the 15 business days for the purposes of the Act was to be calculated from the Saturday.
CBH disputed this and contended that properly construed, reg 23(d) of the Regulations and s 14 of the Electronic Transactions Act provided that the parties can agree when a payment claim was taken to be given for the purposes of the Act. CBH contended that by cl 47.4 the parties had agreed that the payment claim was to be taken as given on the Monday (the next business day).
In response, Martinus argued that when the Contract was properly construed, cl 47 was concerned with the service of Notices and was not an agreement about when a payment claim was given under the Act.
For the reasons that follow, I consider that properly construed, reg 23(d) of the Regulations and s 14 of the Electronic Transactions Act:
(a)had the effect that the 15 business days for the purposes of the Act was to be calculated from the Saturday (as it was capable of being retrieved then); and
(b)the Act does not provide that the parties to a contract may agree when a payment claim is given under the Act.
Given my conclusions, Martinus is entitled to judgment as it has otherwise established its claim.

The payment claim that Martinus made

I make the following findings about the payment claim made by Martinus and CBH's response.
On 31 August 2024 at around 4.35 pm, Varchas Vasist of Martinus sent an email to Zachary Gonzales titled 'Progress Claim 020' attaching a payment claim in the amount of $22,646,617.21 (excl. GST) (Claimed Amount) titled 'Progress Claim 020 Rev0' (August Payment Claim Email).[2]
[2] Exhibit 1 (Statement of Agreed Facts), par 12.
CBH had previously given Martinus notice that Mr Gonzales was the Principal's Representative.[3]
[3] Statement of Agreed Facts, par 10.
The August Payment Claim Email and attachment reached Mr Gonzales' email address and became capable of being retrieved on 31 August 2024 at around 4.36 pm (AWST).[4]
[4] Statement of Agreed Facts, par 13.
On 2 September 2024 at around 6.42 am (AWST), Mr Gonzales opened and read the August Payment Claim Email and attachment.[5]
[5] Statement of Agreed Facts, par 14.
On 24 September 2024 at about 4.32 pm, Matthew Hudson of CBH sent an email to Matthew Wood copying others titled 'CW21283-CBHMAR-L250 - Progress Claim August 2024' attaching a payment schedule in relation to the August Payment Claim (August Payment Schedule) certifying the amount of $5,425,550.66 (excl. GST) as owing by Martinus to CBH.[6]
[6] Statement of Agreed Facts, par 15.
At 4.32 pm on 24 September 2024, SharePoint sent an auto-generated email notification on behalf of Mr Hudson to Mr Wood containing a link to an attachment referred to in the August Payment Schedule email described in the preceding paragraph (Sharefile Email).[7]
[7] Statement of Agreed Facts, par 16.
Between 4.32 pm and 4.47 pm on 24 September 2024, Matthew Wood of Martinus received and opened the Payment Schedule attached to the Payment Schedule Email.[8]
[8] Statement of Agreed Facts, par 17.
On 25 September 2024, Martinus gave to CBH a tax invoice in respect of the Claimed Amount by way of a letter dated 25 September 2024 (Ref: CN275) attaching invoice No SUMR-INV-001 (SOPA Claim Invoice).[9]
[9] Statement of Agreed Facts, par 18.
CBH has refused to pay to Martinus the entirety of the Claimed Amount pursuant to the SOPA Claim Invoice.[10]
[10] Statement of Agreed Facts, par 19.

An overview the relevant provisions

It is useful to begin with an overview of the relevant provisions.

The objects of the act

Section 3 of the Act sets out the objects of the Act.
Section 3(1) states that the object of the Act is to provide an effective and fair process for securing payments to persons who undertake to carry out construction work, or to supply related goods and services, in the building and construction industry.
Section 3(2) of the Act provides that the object is achieved primarily by four matters, the first two relevant matters being:
(a)giving those persons a statutory entitlement to progress payments; and
(b)establishing an expedited procedure for making claims for progress payments, for responding to those claims and for the adjudication of disputed claims.

The right to progress payments

The right to progress payments is addressed in div 2 of pt 2 of the Act.
Section 17(1) of the Act provides that a person who, under a construction contract, has undertaken to carry out construction work, or to supply related goods and services, is entitled to receive payment under that section.
Section 17(4) of the Act provides that the entitlement to receive a progress payment under the section is, subject to s 55(3) (which is not presently relevant), a separate and additional entitlement to any entitlement to payment under a construction contract, and a reference in the Act to a progress payment is a reference to a progress payment to which a person is entitled under s 17.

How payment claims are made

The procedure for obtaining progress payments is addressed in pt 3 of the Act. Division 1 of pt 3 addresses payment claims and schedules.
Section 22 of the Act addresses how payment claims are made.
Section 22(1) of the Act provides that a person who is or claims to be entitled to a progress payment may give a claim for the progress payment (which is defined as a payment claim) to the person who, under the relevant construction contract, is or may be liable to make the progress payment. Section 22(2) of the Act provides that a payment claim is made for the purposes of this Act when the claim is given under subsection (1).
Section 23(2) of the Act provides that a payment claim for a progress payment may be made:
(a)on or after the last day of the named month in which construction work was first carried out, or related goods and services were first supplied, under the construction contract; and
(b)on or after the last day of each subsequent named month.
Section 23(2) of the Act provides that if the construction contract provides that a payment claim for a particular named month may be made on or after an earlier date, then the payment claim may be made on or after that earlier date.

The time for responding to a payment claim

Section 25(1) of the Act provides that the respondent may respond to a payment claim by giving a schedule (defined as a payment schedule) to the claimant before the earlier of the following:
(a)the time required by the construction contract; and
(b)15 business days after the payment claim is made.
Certain formal requirements of a payment claim are set out in s 25(2) of the Act.

Liability if a payment claim is not responded to within time

Section 26 of the Act provides that the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates if the respondent does not respond to the claim by giving a payment schedule to the claimant within the time allowed for the response.
Section 27(2)(a) of the Act provides that if a claimant makes a payment claim for a progress payment and the respondent does not pay the claimed or scheduled amount owed to the claimant in full on or before the due date for the progress payment, the claimant may recover from the respondent the unpaid portion of the claimed or scheduled amount owed as a debt due to the claimant in a court of competent jurisdiction.
Section 27(3) of the Act provides that if the claimant commences proceedings under this section in a court of competent jurisdiction to recover from the respondent the unpaid portion of the claimed or scheduled amount owed:
(a)judgment in favour of the claimant is not to be given unless the court is satisfied that the relevant circumstances exist; and
(b)the respondent is not, in those proceedings, entitled:
(i)to bring any cross-claim against the claimant; or
(ii)to raise any defence in relation to matters arising under the construction contract.
Section 27(3) of the Act provides that the relevant circumstances for the purposes of subsection (3)(a) are as follows:
(a)the respondent:
(i)did not respond to the payment claim by giving a payment schedule to the claimant within the time allowed for the response; or
(ii)did respond to the payment claim by giving a payment schedule to the claimant within the time allowed for the response, and the payment schedule indicates the scheduled amount that the respondent proposes to pay to the claimant;
(b)the respondent has not paid the claimed or scheduled amount owed to the claimant in full on or before the due date for the progress payment;
(c)if the payment of the claimed or scheduled amount owed is dependent on the substitution of performance security under Division 6 - the requisite compliant performance bond has been duly executed by an authorised issuing institution as referred to in that Division.

No contracting out of the Act

Section 111 of the Act address contracting out of the Act.
Section 111(1) of the Act provides that the Act has effect despite any provision in any contract agreement or arrangement.
Section 111(2) of the Act provides that a provision of any contract, agreement or other arrangement is void to the extent that it:
(a)is inconsistent with this Act; or
(b)purports to exclude, modify or restrict the operation of this Act or has the effect of excluding, modifying or restricting the operation of this Act; or
(c)requires a party to a construction contract to reimburse the other party to the contract for any costs or expenses incurred in connection with the taking of action under this Act, except as authorised by this Act; or
(d)may be reasonably construed as an attempt to deter a person from taking action under this Act.

How documents are served under the Act

Section 113 of the Act is concerned with service of documents.
Section 113(2) of the Act provides that any document that by or under this Act is authorised or required to be given by a party to a construction contract to another party to the contract in relation to matters arising under the contract:
(a)must be given in the manner (if any) provided in the contract if it is reasonably practicable to do so; or
(b)in any other case - must be given in a manner provided by subsection (3).
Section 113(2) of the Act provides that any document that by or under this Act is authorised or required to be given to a person may, subject to subsection (2), be given to the person -
(a)by delivering the document to the person personally; or
(b)by leaving the document for the person at the person's ordinary place of business; or
(c)by sending the document by post to the person's ordinary place of business; or
(d)by email to an email address specified by the person for giving documents of that kind to the person; or
(e)by any other method (including the use of an electronic database, document system or any other means by which a document can be accessed electronically) authorised by the regulations for giving documents of that kind to the person.

The time when a document is given under the Act

Section 113(4) of the Act

Section 113(4) of the Act provides that the regulations may make provision for or in relation to the time at which a document that is given in a particular manner is taken to have been given.

Regulation 23 of the Regulations

Regulation 23 of the Regulations provides for the time for service of documents and states as follows:
The time when a document that is authorised or required by or under the Act to be given to a person is taken to have been given is as follows ‑
(a)in the case of a document delivered to the person personally - when the document is accepted by the person or, if the person refuses to accept the document, when the document is put down in the person's presence and the person is informed of the nature of the document;
(b)in the case of a document left for the person at the person's ordinary place of business - when the document is left at the premises concerned with a person who appears to work there;
(c)in the case of a document sent by post to the person's ordinary place of business - when the letter would have been delivered in the ordinary course of post unless a different time of actual delivery is established;
(d)in the case of a document sent to a person by email or any other form of electronic communication - when the electronic communication is taken to be received by the person in accordance with the Electronic Transactions Act 2011 section 14;
(e)in the case of a document given by uploading it to a lock-box as provided for under regulation 22 - when the document is uploaded to the lock-box.

Section 14 of the Electronic Transactions Act

Section 14 of the Electronic Transactions Act provides as follows:
(1)For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication -
(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b)the time of receipt of the electronic communication at another electronic address of the addressee is the time when both -
(i)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become aware that the electronic communication has been sent to that address.
(2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
(3)Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 15.
(emphasis added)

Some potentially relevant decisions from other jurisdictions

The proper construction of s 113(4) of the Act, regulation 23(d) of the Regulations and s 14 of the Electronic Transactions Act is yet to be the subject of judicial consideration.
Both parties referred to decisions of courts in other Australian jurisdictions considering similar legislation in similar factual situations. Martinus's submissions in particular, emphasised the significance of these decisions.
Martinus argued that the Act adopts what has been described as the 'East Coast model' of security of payments legislation typified in the Building and Construction Industry Security of Payment Act 1999 (NSW) (NSW SOP ACT), the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (Qld SOP Act) and their analogues in Victoria, South Australia, Tasmania and the Australian Capital Territory. It argued that the Act departs significantly from the predecessor legislation, the Construction Contracts Act 2004 (WA).[11]
[11] Plaintiff's Outline of Submissions dated 20 June 2025 (Plaintiff's Submissions), par 17.
Martinus submitted that although there is not yet a substantial body of case law dealing with the Act, the considerable body of case law dealing with other legislation that adopts the 'East Coast model' of security of payments legislation is of assistance in understanding the scheme and operation of the Act.[12]
[12] Plaintiff's Submissions, par 17.
Four particular decisions assumed some significance in the submissions that were made. Three of those decisions were decided in New South Wales and one in Victoria. It is useful to say something about those decisions before turning to consider the parties' submissions about the proper construction of the Act.

All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd

The first decision is a decision of the New South Wales Court of Appeal (comprised of Leeming, Payne and White JJA) in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd.[13] That case concerned whether a clause in a contract that deemed that early progress claims were made on the date specified in the contract for making such claims, also had effect for purposes of the NSW SOP Act.
[13] All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289 (All Seasons).
Clause 37 of the relevant contract provided that progress claims were to be made on the '20^th day of the month'. However, the same clause also provided that an 'early progress claim shall be deemed to have been made on the date for making that claim'.
On 12 July 2016, All Seasons (the contractor) made a progress claim that it claimed was made pursuant to s 13(1) of the NSW SOP Act. That section of the NSW SOP Act permits a person who claims to be entitled to a progress payment under s 8 of the NSW SOP Act to make a payment claim.
Section 8 of the NSW SOP Act entitles a person to a progress payment 'on and from' each 'reference date'. Section 8(1) of the NSW SOP Act provides that the reference date means the date determined in accordance with the terms of the contract as the date on which a claim for a progress payment may be made. In this case, this was the 20th day of the month.
Regal (the principal) responded to All Seasons' claim by issuing a payment schedule disputing liability, including on the basis that there was no available reference date, because All Seasons had already served a payment claim based on the reference date 20 June 2016, and the next reference date (20 July 2016) had not accrued at the time All Seasons served the payment claim.
The question which then arose was whether cl 37 of the contract had the effect that the payment claim that All Seasons made on 12 July 2016 was deemed to be made on 20 July 2016, for the purposes of the NSW SOP Act.
Leeming and Payne JJA (with whom White JA agreed) accepted that cl 37 had such a deeming effect for the purposes of the contract between All Seasons and Regal but they said that the fact that such a position was binding between them as a matter of contract did not mean that the clause also had effect for the NSW SOP Act.[14]
[14] All Seasons [33].
Leeming and Payne JJA observed that the service of a payment claim under s 13(1) of the NSW SOP Act was an essential precondition to taking subsequence steps in the procedure. They said that the legislative regime turned upon two things: the reference date, only on and from which date a person may have an entitlement to a progress payment, and the service of a payment claim by a person so entitled.[15]
[15] All Seasons [34] - [36].
Leeming and Payne JJA said that while the NSW SOP Act addresses the manner of service permissible under the NSW SOP Act, it does not otherwise address time at which service is effected, other than where there has been service by post. They said the fact that the NSW SOP Act expressly picks up the parties' agreement about the last day on which a payment claim may be served, and the manner by which it may be served, but says nothing about the consequences of agreement about the early service of a purported payment claim, told against the applicant's construction.[16]
[16] All Seasons [37] - [38].
Leeming and Payne JJA also considered that All Seasons's construction sat awkwardly in light of s 13(5) the NSW SOP Act which imposed a prohibition upon the service of more than one payment claim in respect of each reference date. They said that just as they doubted that the proper construction of the Act permits a deemed service which did not occur in fact to engage s 13(1), they also doubted that the contravention of s 13(5) by the actual service of a purported payment claim can be avoided by a deeming provision.[17]
[17] All Seasons [39].
Further, Leeming and Payne JJA said that they did not consider that All Seasons's construction promoted the purposes of the NSW SOP Act as it would lead to uncertainty.[18]
[18] All Seasons [41].
Leeming and Payne JJA referred to submission that All Seasons had made about the legislative purpose being to benefit subcontractors. They referred to an observation made in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd[19] that legislation rarely pursues a single purpose at all costs. They considered that the beneficial purpose of the legislation did not assist All Seasons.[20]

BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd

[19] Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 [40].

[20] All Seasons [42] - [44].

The second decision is BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd,[21] a decision of Stynes J in the Supreme Court of Victoria.
[21] BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739 (BCS Infrastructure Support).
Amongst the issues considered by Stynes J in that case was when a payment claim made under the Building andConstruction Industry Security of Payment Act 2002 (Vic) (the VIC SOP Act) that was uploaded to a cloud based electronic management system, was served for the purposes of the Act. The evidence was that the payment claim was available to be accessed as soon as it had been uploaded. Although the payment claim was uploaded on 16 January 2020, however, it was not read until 11 February 2020. The issue that arose was whether the payment claim was served when it was uploaded, or when it was read. As in this case, a payment schedule was served within time if the payment claim was received on the former date but not the latter.
Stynes J referred to the decision of the Lord Chancellor in Hope v Hope[22] where he observed that the object of service is to give notice to the party being served of the claim made.[23] Her Honour considered that the payment claim had not been served at common law when it was uploaded on 16 January 2020 because the recipient would have taken a number of steps to read it and did not take those steps until 11 February 2020.[24]
[22] Hope v Hope (1854) 43 ER 534, 539 - 540.
[23] BCS Infrastructure Support [111].
[24] BCS Infrastructure Support [119] - [123].
Stynes J then turned to consider whether the position at common law was displaced by the Contract. Her Honour noted that the relevant contract contained a provision (cl. 34.5) which addressed when notices served in accordance with another provision (cl 34.4) were deemed served. Her Honour observed that as the payment claim was not served pursuant to cl 34.4, cl 34.5 had no application. In this regard, her Honour considered that uploading onto the payment management system was an address for notices identified in the contract.[25]
[25] BCS Infrastructure Support [124] - [128].
Stynes J also observed that in any event, if her Honour was wrong the application of cl 34.5 made no difference to the outcome as it relevantly provided that the payment claim was received when it came to the recipient's attention.[26]
[26] BCS Infrastructure Support [124] - [128].
Stynes J then turned to consider whether the position at common law was displaced by 13A of the Electronic Transactions Act 2000 (Vic) (the VIC Electronic Transactions Act). That provision is in the same terms as s 14 of the Electronic Transactions Act.[27]
[27] BCS Infrastructure Support [135].
Stynes J found that s 13A(1)(a) of the VIC Electronic Transactions Act had no application because an electronic address had not been designated by the addressee. Her Honour observed that if she was wrong and a designated address had been agreed, s 13A is subject to any agreement and cl 34.5 of the contract would apply.[28]

Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd

[28] BCS Infrastructure Support [134], [142] - [146].

The third decision was a decision of Stevenson J in New South Wales in Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd.[29]
[29] Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 602 (Sharvain)
Sharvain concerned when a payment claim under the NSW SOP Act was served. The payment claim in that case was sent by an agreed electronic message system at 7.17 pm on Friday 28 February 2025. The relevant contract contained a provision to the effect that if a 'Notice' was sent after 5 pm on a business day, it 'will be treated to have been given to and received' by the addressee at 9.00 am on the next business day. The issue was whether the payment claim was served on 28 February 2025, or on the next business day after which was 3 March 2025 (because of the intervening weekend). Again, as in this case, a payment schedule was served within time if the payment claim was received on the former date but not the latter.
Stevenson J observed that while the NSW SOP Act permitted different means of service it did not specify when service by a means permitted by the NSW SOP Act occurs (other than when service was effected by post) and he referred to observations made by the Court of Appeal in All Seasons to this effect.[30]
[30] Sharvain [31] - [34].
Stevenson J noted that differing views have been expressed about when under the general law an email sent to a particular email address is taken to have been received at that email address and he identified a number of possibilities and also referred to the decision of Stynes J in BCS Infrastructure Support.[31] His Honour also noted that the effect of s 13A of the Electronic Transactions Act 2000 (NSW) (the NSW Electronic Transactions Act) was that the email was received when it was capable of being retrieved (because unlike BCS Infrastructure Support, the address was a designated address) 'unless otherwise agreed'.[32]
[31] Sharvain [37] - [38].
[32] Sharvain [43] - [44].
Stevenson J observed that the parties had purported to 'otherwise agree' by agreeing the relevant deeming clause. His Honour referred to the Court of Appeal's decision in All Seasons and said that it appeared to him that there is nothing in the Act which operated to give effect to the deeming clause.[33]
[33] Sharvain [45] - [46].
Stevenson J then noted that in All Seasons the Court of Appeal observed, in obiter, that the clause in that case equivalent to the deeming clause might well have been void by reason of s 34 of the NSW SOP Act as, in the particular circumstances in that case, it had the effect of modifying the operation of the Act.[34]
[34] Sharvain [47].
Stevenson J considered that the purported effect of the deeming clause was to modify the operation of the NSW SOP Act by changing the meaning of business day and it was therefore inconsistent with the NSW SOP Act.[35] His Honour observed:[36]
Were the Deeming Clause in this case not to be seen as purporting to modify the operation of the Act, there would be no reason why the parties could not agree that if a document is served after 5pm, it should be taken to have been served any number of days later, thus leaving it to the parties to decide with what speed the processes under the Act should operate.
[35] Sharvain [48] - [53].
[36] Sharvain [54].
Stevenson J considered that the relevant clause of the contract was therefore void.[37]

Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed)

[37] Sharvain [56].

The fourth decision is the decision of the New South Wales Court of appeal in the appeal from Stevenson J's decision: Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed).[38] That decision was delivered after the trial of these proceedings but the parties were given leave to file further written submissions after the New South Wales Court of Appeal delivered its reasons.
[38] Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 (Sharvain Appeal).
On appeal, the appellant argued that as the NSW SOP Act was concerned with the manner of service and not the time of it, the parties were free to agree the timing of service. It argued that such a conclusion was reinforced by s 13A of the NSW Electronic Transactions Act and that Stevenson J erred in finding the deeming provision void.[39]
[39] Sharvain Appeal [33] - [34].
Hammerschlag CJ in Eq (with whom Griffiths AJA agreed) considered that the claim was given on the day it was uploaded and was therefore served at that time within the plain English meaning of s 31(4) of the NSW SOP Act. His Honour said that the claim was sent after business hours was irrelevant because the law does not recognise fractions of a day.[40]
[40] Sharvain Appeal [36].
His Honour observed that where s 14(4)(b)(ii) refers to '10 business days after the payment claim is served' that plainly meant served within the terms of the NSW SOP Act within a period specified in the Act unaffected by some inter partes contractual variation such as that contemplated by s 14(4)(b)(i). His Honour said that the overall effect of s 14(4), and one consistent with the policy of the NSW SOP Act of quick resolution, is that the period for providing a payment schedule can be contractually shortened, but not lengthened.[41]
[41] Sharvain Appeal [37].
Hammerschlag CJ in Eq considered that even if the deeming clause worked, the conclusion of Stevenson J was correct and it was therefore not necessary to consider whether the clause was void.[42]
[42] Sharvain Appeal [42] - [43].
McHugh JA gave separate reasons but indicated that he considered that they were substantially consistent with those given by Hammerschlag CJ in Eq.[43]
[43] Sharvain Appeal [47].
Like Hammerschlag CJ in Eq, McHugh JA considered that the relevant deeming provision did not have any effect for the purposes of the NSW SOP Act. He observed that if parties 'otherwise agree', the consequence is not that s 13A(1) of the NSW Electronic Transactions Act gives statutory force to that agreement but rather that s 13A(1) does not apply.[44]
[44] Sharvain Appeal [49] - [53].

Does the Act permit agreement about when a payment claim is given?

Martinus's construction of the statutory provisions

Martinus's submissions emphasised the purpose of the Act. It referred to the purpose set out in s 3(2) of the Act. It also referred to the explanatory memorandum to the bill that became the Act, where the purpose of the Act was said to be 'to provide better payment protections to contractors working in WA's building and construction industry to ensure they get paid on time, every time'. Martinus argued that these objects are largely consistent across the 'East Coast model'. It referred to the observations made by the High Court in ProbuildConstructions v Shade Systems[45] and the New South Wales Court of Appeal in A‑Civil Aust v Ceerose[46] about the statutory scheme.
[45] ProbuildConstructions (Aust) Pty Ltd v Shade System Pty Ltd (2018) 264 CLR 1 (Probuild) [3] - [18] and [36] ‑ [44].
[46] A-Civil Aust Pty Ltd v CeerosePty Ltd [2023] NSWCA 144 [19].
Martinus submitted that consistent with the objects of security of payments legislation, courts have usually taken a very strict view about time requirements imposed by security of payments legislation. It acknowledged that this might lead to potentially harsh outcomes but submitted that this harshness was tempered by the fact that the Act only has an interim pro tem operation.
Martinus argued that on their proper construction s 113(4) of the Act, reg 23(d) of the Regulations and s 14(1)(a) of the Electronic Transaction Act, the time for receipt of a payment claim sent by email was the time when the electronic communication becomes capable of being retrieved by the addressee at the electronic address designated by the addressee. It submitted that this meant that the August 2024 Payment Claim was received for the purposes of the Act on the day it was sent.
Martinus contended that this meant that the 15 business days that CBH had to respond to the August 2024 Payment Claim expired on 20 September 2024. It argued that this meant that the August Payment Schedule (sent on 24 September 2024) was sent too late.
Martinus argued that properly construed s 113(4) of the Act, reg 23(d) of the Regulations and s 14(1)(a) of the Electronic Transaction Act did not allow the parties to agree when a payment claim is given and made.
Martinus submitted that reg 23(d) of the Regulations did not pick up the words 'unless otherwise agreed' that appear in the chapeau of s 14(1) of the Electronic Transaction Act. Martinus argued that if the parties could 'otherwise agree' when a payment claim was received, they could agree to extend the period for a response to a payment claim beyond the maximum 15 days provided for in s 25(1) of the Act. Martinus contended that this cannot have been what was intended.
Martinus referred to a submission that CBH made that where one Act incorporates another, absent some manifest discrepancy, the provision must be construed as if each and every part were included in one Act. It argued that the principle did not apply because the words 'unless otherwise agreed' were not incorporated.
Martinus submitted that CBH's construction failed to proffer any stable and intelligible qualification or exception to the scope of the parties' capacity to agree. It submitted that the absence of any such control revealed that the construction was flawed.
Martinus argued that if s 14 of the Electronic Transactions Act was given as broad a construction as that advanced by CBH it would be inconsistent with s 25 of the Act because it would be apt to defeat the purpose of the Act.
Martinus submitted that the correct approach was to construe s 113(4) of the Act in its full legislative context, particularly s 25 of the Act, and to construe what the regulation purports to do on its proper construction. It argued that it may be necessary to consider whether the proper construction of the regulation goes beyond the enabling power. It was submitted that unless there was no other construction, the regulation would not be construed as going beyond the enabling power and reference was made to s 43 of the Interpretation Act 1984 (WA) (the Interpretation Act).
Martinus submitted that the Electronic Transactions Act is an act only of general application and because of that it was necessary to construe the Act first. It argued that the first question was not to construe s 14 of the Electronic Transactions Act first and the way it works generally but rather the first question was to construe reg 23 first and what it was intended to achieve. It was contended that this might mean that s 14 of the Electronic Transactions Act may operate differently in relation to the Act and other different legislation.
Martinus submitted that reg 23(a)-(c) and (e) provides that documents are served when they are received by the recipient. It was argued that it would be an incongruous result for reg 23(d) to be construed so as to produce a different outcome.
Martinus submitted that as the Act did not pick up the words 'unless otherwise agreed' in s 14 of the Electronic Transaction, there was nothing in the Act which gave any force to any agreement between the parties for the purposes of the Act. Martinus said that the position was therefore similar to that considered by the New South Wales Court of Appeal in All Seasons where the Court concluded that an agreement between the parties might have effect for contractual purposes but not for the purposes of the Act.
Martinus referred to obiter dicta observations[47] made by the Court of Appeal in All Seasons that the clause in that case might have been rendered void by the NSW SOP Act. Martinus did not suggest that the relevant contractual provision was void in this case, however. It accepted that if the words 'unless otherwise agreed' were picked up by reg 23 and the Act therefore permitted an agreement, such an agreement could not be rendered void by s 111 of the Act.
[47] All Seasons [37(2)] (Leeming and Payne JJA, White JA agreeing).

Martinus submitted, however, that s 111 was relevant to the proper construction of the Act. It argued that the breadth of the prohibition on contracting out was of significant contextual relevance to the proper construction of s 113(4) and reg 23.
Martinus referred to Sharvain[48] but submitted that while Stevenson J's conclusion was correct, the method of reasoning adopted by the Court of Appeal in All Seasons was to be preferred and that the clause in this case was not void for the reasons already discussed. Martinus also relied upon the judgments of both Hammerschlag CJ in Eq and McHugh JA in the Sharvain Appeal.
[48] Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 602 (Sharvain).
Martinus also referred to observations made in Project Blue Sky Inc v Australian Broadcasting Authority[49] about the need to give the provisions of legislation a harmonious reading. It submitted that the construction advanced by CBH would defeat the purpose of s 25.

CBH's construction of the statutory provisions

[49] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) [70].

CBH submitted that reg 23 of the Regulations authorises the parties to agree when documents under the Act are taken to be given.
CBH accepted that the objects of the Act might be to ensure timely payment to contractors and to provide a statutory entitlement to expedited progress payments but it argued that Martinus had failed to explain how these dual purposes were served by a reckoning of time that would require notices served on a Saturday afternoon, or outside of work hours, deemed to be delivered at that time. It was submitted that the objective of 'ensuring that each party knows precisely where they stand' is better achieved by giving effect to the parties' agreement on the timing of receipt of communications.
While CBH accepted that the Court should favour a construction that promotes the purpose or object of a written law as required by s 18 of the Interpretation Act, it argued, however, that this was a case where stating the purpose of the Act does not solve the problem and that it was ultimately the text of the provision that controlled the meaning. CBH submitted that the Court should arrive at a construction which produces a harmonious operation of the relevant provisions and gives them full force and effect.
CBH emphasised observations made in Project Blue Sky Inc[50] that the primary object of construction is to construe the provision so that it is consistent with the language and purpose, and the need for meaning to be determined by reference to the language of the instruments as a whole and the purpose and policy of the provision. CBH also referred to an observation that a court must strive to give meaning to every word of the provision.[51]
[50] Project Blue Sky [69], [71].
[51] Project Blue Sky [69], [71].
CBH referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[52] where Hayne, Heydon, Crennan and Kiefell JJ observed that historical consideration and extrinsic materials cannot be relied upon to displace the clear meaning of the text.
[52] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 [47].
CBH disputed Martinus's contention that there was some anterior step which would involve consideration of whether the particular parts of the incorporated Act were picked up.
CBH argued that the correct starting position was to construe the words of the applicable legislation together and it referred to the decisions of City of Bayswater v Minister for Family and Children's Services.[53] CBH submitted that the provisions should be construed as if they were included in the same Act, unless there is a manifest discrepancy such that it can be seen that the later of these two acts impliedly repealed part of the earlier Act. It submitted that this aligns with the principle that, to the extent possible, all words in a statutory provision should be given their full force and effect.
[53] City of Bayswater v Minister for Family and Children's Services [2000] WASCA 151; [2000] 108 LGERA 182 (City of Bayswater).
CBH contended that Martinus's construction failed to give effect to these principles. It argued that CBH had not identified any manifest discrepancy and its construction failed to give effect to the chapeau to s 14(1) of the Electronic Transactions Act.
CBH submitted that the mischief that s 113(4) of the Act, reg 23(d) of the Regulations and s 14 of the Electronic Transactions Act is intended to address was to fix the time when documents are given and not to come up with a regime that favours either contractors or principals. It argued that the provision stipulating the time of receipt of a document was neutral in advancing that broad purpose.
CBH referred to the observations made in All Seasons[54] that legislation rarely pursues a single purpose at all costs and that stating the purpose is unlikely to solve the problem where there is doubt about the purpose. It argued that the purpose of s 113(4) of the Act, reg 23(d) of the Regulations and s 14 of the Electronic Transactions Act was achieved by giving effect to those provisions.
[54] All Seasons [43].
CBH referred to the explanatory memorandum to the bill which became the Electronic Transactions Act and a statement made there that nothing in the Bill affects the principle that contracting parties should be free to agree on matters affecting the formation and performance of the contract. CBH argued that the purpose of s 14 of the Electronic Transactions Act is to continue to permit contracting parties to agree on matters affecting the performance between them, but to provide certainty in the commercial sphere.
CBH submitted that this was not inconsistent with s 25 of the Act because although that clause provides for 15 business days for a response, it does not stipulate the date from which that period is counted. It argued that the time at which the document is taken to be given is left open by s 25 and this is left to be addressed by regulation.
CBH argued that the capacity of parties to agree an extension to the regime for the service of payment schedules was not a manifest discrepancy.
CBH submitted that s 113(4) of the Act provides that regulations may be made dealing with the time at which a document is taken to have been given. It argued that in the exercise of that power reg 23(d) provides that a document sent by email or other electronic communication is taken to have been received by the person in accordance with s 14 of the Electronic Transaction Act. It submitted that s 14(1) of the Electronic Transaction Act does this by giving effect to the parties' agreement as to the time of receipt, or if there is no agreement, relatively stipulating the time of receipt being when the communication become capable of being received.
CBH submitted that Sharvain could be distinguished on two grounds.
First, it was submitted that the NSW SOP Act does not contain a provision addressed to altering the time, as opposed to the manner of service. CBH submitted that there was no equivalent to s 113(4) of the Act in the NSW SOP Act. It argued that even where legislation can be regarded as uniform, differences in the text of the local legislation may demand different results.
Secondly, CBH argued that Sharvain was concerned with the service of a document on a business day, while the present case involved the service of a document on a non-business day. It was contended that it was not clear whether Sharvain would be decided the same way on the facts of this case.
Finally, CBH argued that even if Sharvain was not distinguishable, it was not binding on this court, was plainly wrong and should not be followed. CBH submitted that the deeming provision did not purport to modify or change the meaning of business day because it simply provided for the time for which notices were to be given.
CBH argued that the decision in the Sharvain Appeal was similarly distinguishable.
CBH submitted that McHugh JA's reasoning was not adopted by the majority. It further submitted that such reasoning overlooked that s 14(1) of the Electronic Transaction Act provides that receipt occurs when an electronic communication is capable of being retrieved, or as otherwise agreed by the parties and disregarded the terms of s 113(4) of the Act and reg 23(d). It contended that this contradicted the intention evident in the Explanatory Memorandum to the Electronic Transactions Bill 2010 (WA).
CBH referred to the decision of Stynes J in BCS Infrastructure Support[55] and argued that her Honour expressed the view that s 13A of the VIC Electronic Transactions Act was subject to any agreement between the parties. It contended that McHugh JA's reasoning in the Sharvain Appeal was inconsistent with that of Stynes J.
[55] [2020] VSC 739 [147].
CBH submitted that s 22, s 23, s 24 and s 25 of the Act do not stipulate how the time for 'giving' a payment schedule or 'making' a payment claim are calculated, and that is left to s 113(4) of the Act, reg 23(d) of the Regulations and s 14 of the Electronic Transactions Act. CBH argued that cl 47.4 does not modify or restrict the operation of the Act as it was permitted by s 113 of the Act. It was contended that the provision was therefore not rendered void by s 111(2)(b) of the Act.
CBH submitted that in any event cl 47.4 did not give rise to an agreement which would purport to extend the timeframes in the Act. Rather, CBH argued that cl 47.4 merely stipulated when notices given by both parties are taken to be received and that does not give rise to any exclusion, modification, or restriction of the Act which continues to have its full force.
CBH submitted that the operation of cl 47.4 was neutral because in some instances it would operate to the benefit of the contractor.
CBH acknowledged that the rights conferred by the Act favoured contractors but submitted that that was not universally so. It argued that the ability for parties to agree upon the time for the receipt of documents is not a matter that will automatically favour one party of the other.
CBH submitted that s 111 of the Act is concerned with avoiding contracts insofar as they are inconsistent, modify or exclude that Act and was not relevant to any anterior consideration of whether the words 'unless otherwise agreed' were picked up.
CBH referred to the object of the Act to provide an effective and fair process for securing payment to contractors set out in s 3(1) of the Act and submitted that there was nothing in the deeming provision in cl 47.4 that was inconsistent with such an object. It argued that the construction that it advanced of the Contract and the Act resulted in greater predictability.
CBH disputed that its construction of reg 23(d) would result in different outcomes than those provided for in reg 23(a)-(c).
It submitted that reg 23(a) deemed receipt when the person accepts the document, the document is put down in the person's presence or the person becomes aware of the document. It was submitted this would have been the Monday.
CBH submitted that reg 23(b) provided that where the document is left at a person's ordinary place of business, receipt is when the document is left. CBH submitted that this would be the Saturday.
CBH submitted reg 23(c) deemed receipt on the day delivery occurs, which it said was the Monday.
CBH argued that its construction only affected when the time began running.

The correct approach to construction of the provisions

The parties did not agree about whether s 14 of the Electronic Transactions Act should be read as incorporated into the Act. Martinus argued that an anterior analysis was necessary to consider whether the words 'unless otherwise agreed' were picked up. CBH disputed this and argued that the provisions should be construed as if they were included in the same Act, unless there is a manifest discrepancy such that it can be seen that the later of these two acts impliedly repealed part of the earlier Act.
In support of its argument CBH referred to the decision of the Full Court of Western Australia (Kennedy, Anderson and Steytler JJ) in City of Bayswater. That case concerned the interaction between the Town Planning and Development Act 1928 (WA) (Planning Act) and the subsequently enacted Metropolitan Region Town Planning Scheme Act 1959 (WA) (Scheme Act).
The Scheme Act required approvals from the City of Baywater to be obtained before building work was undertaken. Provisions in the Scheme Act provided that it was binding on the Crown. Section 3 of that the Scheme Act also provided that:
This Act shall be construed in conjunction with the [Planning Act], as if the provisions of this Act were incorporated with and formed part of that Act, but where the provisions of this Act are in conflict or are inconsistent with the provisions of that Act, the provisions of this Act prevail to the extent to which they are so in conflict or inconsistent.
Section 32 of the Planning Act provided that nothing in the Act would be deemed to interfere with the government's ability to undertake public works.
Kennedy and Steytler JJ concluded that the Planning Act and the Scheme Act were inconsistent and the Scheme Act prevailed. Anderson J dissented.
Both Anderson J[56] and Steytler J[57] agreed that the effect of the s 3 of the Scheme Act was to require the two acts to be read together as if they were one act. Anderson J referred to the relevant paragraph in Pearce and Geddes in the 4th ed of Statutory Construction in Australia and various relevant authorities concerning statutes which state that they are to 'be read as one with, or to be read and construed with, or to be incorporated with another [a]ct'.
[56] City of Bayswater [16] - [25].
[57] City of Bayswater [47].
In City of Bayswater, there was no doubt that the Scheme Act was to be construed in conjunction with the Planning Act, as if the provisions of the Scheme Act were incorporated with and formed part of that Planning Act because s 3 of the Scheme Act expressly provided as much.
Regulation 23(d) is less explicit than s 3 of the Scheme Act. It does not state that the Act is to be read in conjunction with the Electronic Transactions Act, as if s 14 of the Electronic Transactions Act is incorporated into the Act. Rather, it provides that the time when an electronic communication given under the Act is taken to have been given, is 'when the electronic communication is taken to have been received by the person in accordance with the Electronic Transactions Act 2011 section 14'.
The difference between the wording of reg 23(d) and a term like s 3 of the Scheme Act in City of Bayswater, means that it is necessary to consider the intent behind the words used in the regulation, and whether those words reveal an intention that s 14 of the Electronic Transactions Act is to be read as if it was incorporated into the Act. That intention is to be discerned by construing the relevant provisions.

The Act does not provide for the parties to agree when a payment schedule is given for the purposes of the Act

Regulation 23 was made pursuant to s 113(4) of the Act. Section 113(4) provides that regulations may make provision for when a document is 'taken' to have been given.
Regulation 23 provides that the time when an email or electronic communication is 'taken to be received' is when it is 'taken to be given in accordance with' s 14 of the Electronic Transactions Act.
The word 'accordance' is defined in the Shorter Oxford Dictionary[58] as meaning:
Agreement; conformity; harmony. Esp in in accordance with
[58] Shorter Oxford English Dictionary, Sixth Edition, Oxford University Press, 2007.
In my view, the plain and ordinary meaning of the words used in reg 23(d) are that when an email or electronic communication is 'taken to be received' is to be determined in 'conformity' with when it is 'taken to be given' under s 14 of the Electronic Transactions Act. The provision therefore applies the relevant part of s 14 of the Electronic Transactions Act to the Act but does not incorporate it into the Act.
Significantly, reg 23(d) applies when an email or electronic communication is 'taken to be given' by s 14 of the Electronic Transactions Act. It is therefore necessary to identify when s 14 provides that an email or electronic communication is 'taken to be given'. This requires attention to the provisions of the section.
Each of s 14(1)(a), s14(1)(b), s 14(1)(c), s 14(2) and s 14(3) of the Electronic Transactions Act make provision for when an electronic communication is received. Each of s 14(1)(a) and s 14(1)(b) make express provision when an electronic communication is received. Section 14(2) then provides for an assumption as to when an electronic communication is retrieved for the purposes of s 14(1). Section 14(3) removes any ambiguity that might arise from the location of information system supporting an electronic address.
The construction advanced by CBH also contends that the chapeau to s 14(1) makes provision for when an email, or electronic communication, is 'taken to be given'. That construction assumes that the words 'unless otherwise agreed' used in the chapeau have the effect of giving statutory force to any agreement between the parties for the purposes of the Act.
The wording of the chapeau to s 14(1) may be contrasted to the wording of s 14(1)(a) and s 14(1)(b). Each of those sections expressly provides for the 'time of receipt of an electronic communication'. The chapeau to s 14(1) does not expressly provide for the time of receipt of an electronic communication. Nor does it expressly provide (in similar terms to s 14(1)(a) and s 14(1)(b)) that a communication is received when the parties have agreed it is taken to be received.
The wording of the chapeau to s 14(1) may also be contrasted to the wording of reg 23(d). As already discussed, reg 23(d) expressly applies to the Act, the relevant part of s 14 of the Electronic Transactions Act. The chapeau lacks such express language.
The chapeau to s 14(1) provides that s 14 applies 'unless otherwise agreed'. In context, those words mean that s 14 does not apply where the parties have agreed something inconsistent with s 14. The consequence of an agreement is that s 14 has no operation, not that the agreement is picked up by s 14 and given statutory force. In this regard, I respectfully agree with the observations made by McHugh JA in the Sharvin Appeal.
I do not accept that such a construction contradicts the legislature's intent in enacting s 14(1), as CBH submitted. The explanatory memorandum that CBH relies upon does not go as far as to say that the parties' agreement must be given statutory force. The explanatory memorandum only states that contracting parties should be free to agree on matters affecting the formation and performance of a contract.
A construction of s 14(1) which results in the section not applying where the parties have agreed something inconsistent with s 14, preserves the parties' freedom to agree on matters affecting the formation and performance of a contract. It achieves this by permitting them to agree that the section does not apply. Subject to any other legal constraints,[59] the parties may then agree something inconsistent with the section that may govern the legal relationship between them.
[59] Like for example, s 111(2) of the Act.
Further, it is important to recall that s 14 expressly applies generally for the purposes of a law in this jurisdiction. If s 14 gave statutory force to agreements, so that they would take precedence over prior statute law, it would have the potential to permit parties to agree to avoid otherwise compulsory statutory time periods. This seems unlikely to have been what was intended.
Nor do I accept that McHugh JA's reasoning in the Sharvin Appeal is necessarily inconsistent with that of Stynes J in BCS Infrastructure Support. Her Honour only dealt with the issue in passing and did not explain her reasoning in any detail. Her Honour did not expressly say that s 13A of the NSW Electronic Transactions Act gives statutory force to the parties' agreement. However, if Stynes J's view was inconsistent with that of McHugh JA, I respectfully prefer McHugh JA's view.

Ultimately, the essential question is what is meant by the words 'when the electronic communication is taken to be received by the person in accordance with the Electronic Transactions Act 2011 section 14' used in reg 23(d).
The evident intent of the regulation is to permit the determination of when an electronic communication is taken to be received by reference to s 14.
The words 'unless otherwise agreed' that appear in the chapeau to s 14(1) do not assist to determine when an electronic communication is taken to be received. This is because the words do not give any statutory force to an agreement and instead permit the parties to agree that s 14 does not apply.
Given this, if reg 23(d) applied the words 'unless otherwise agreed' the effect of the regulation would be that where the parties have otherwise agreed, the regulation would not permit the determination of when an electronic communication is taken to be received. This would defeat the intention of the regulation and cannot have been what was intended.
I consider that reg 23(d) does not apply the chapeau of s 14(1) to the Act. This is because reg 23(d) applies when an email or electronic communication is 'taken to be given' by s 14. As the chapeau of s 14(1) does not provide for when an email or electronic communication is 'taken to be given', the chapeau has no relevant application.
Such a construction is consistent with the policy of the Act.
The object of the Act is to provide an effective and fair process for securing payments to persons who undertake to carry out construction work, or to supply related goods and services, in the building and construction industry.[60]
[60] Section 3(1) of the Act.
Section 3(2) of the Act provides that that object is achieved primarily by, amongst other things, establishing an expedited procedure for making claims for progress payments, for responding to those claims and for the adjudication of disputed claims.
Section 25(1) of the Act establishes an expedited procedure for responding to claims for progress payments that limits the time in which a respondent may give a payment schedule to the earlier of, the time required by the construction contract and 15 business days after the payment claim is made.
While I acknowledge that legislation rarely pursues a single purpose at all costs, it seems to me that the policy evident from s 25(1) and 3(2) of the Act is to ensure expedition by strictly limiting the time for a response to those time limits set out in the Act. My construction of reg 23(d) and s 14 of the Electronic Transactions Act is consistent with that policy as it leaves the time limits in s 25(1) of the Act undisturbed.
The construction advanced by CBH would have the potential to undermine the expedited procedure established by the Act because it would permit parties to agree to defer the start of the relevant time period and thereby extend that period (potentially indefinitely). In my view, such a construction would not be consistent with the policy of the Act.
Given the conclusion that I have reached about the proper construction of the Act, what parties have agreed by cl 47.4 is irrelevant.
Regulation 23(d) and s 14(1)(a) of the Electronic Transactions Act have the effect that the August Payment Claim was made on 31 August 2024. Even if the parties agreed something different, that agreement is not given force by the Act. In this regard, the position is analogous to that considered in All Seasons.[61]
[61] All Seasons [33].
Further, even if I am wrong and what the parties did have a binding effect for the purposes of the Act and they agreed something inconsistent with the Act, then that provision would be rendered void by s 111 of the Act.

Whether Martinus is entitled to judgment

It was not in dispute that the Contract was a construction contract within the meaning of s 5 of the Act.[62]
[62] Statement of Agreed Facts, par 6.
The August Payment Claim was made on 31 August 2024. That payment claim was therefore not responded to within the 15 business day period allowed for a response. It follows that Martinus is entitled to recover the unpaid portion of the Claimed Amount pursuant to s 27(2)(a) of the Act.

Conclusion

Martinus is entitled to judgment together with interest.
I will hear from the parties on the question of costs and the orders necessary to give effect to this judgment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Judge
11 SEPTEMBER 2025