In Parkview Constructions Pty Limited v Total Lifestyle
Windows Pty Ltd1, the Supreme Court of NSW recently
found that the delivery of copy of an adjudication application
under the Building and Construction Industry Security of Payment
Act 1999 (Act) saved on a USB enclosed under a covering letter was
not alone sufficient to effect service under the Act. Service only
occurred when the respondent accessed the documents on the USB
(which in this case occurred a day after delivery). The reasoning
will also apply to service of other documentation under the Act,
including payment claims, payment schedules and adjudication
The delay between delivery and access can be very significant in
the context of the short timeframes imposed by the Act. Indeed in
this case the delay resulted in the determination being found to be
void for jurisdictional error and lack of procedural fairness.
The decision turned on whether delivery of a USB constituted
delivery of the adjudication application "in writing".
The Court found it did not. Hammerschlag J reasoned that the USB
itself did not represent or reproduce the words of the adjudication
application, being "only a small piece of plastic, perhaps
with some circuitry on it." The USB was described
as "a device which, if actioned, is capable of
representing or reproducing what is stored on it in visible
form", and in this way found to be analogous to provision of a
file-share link, ie. an object (in this case physical) that if
"actioned" by the recipient through use of a compatible
computer would allow the recipient to become aware of the content.
Following the Queensland Supreme Court decision in Conveyor
& General Engineering Pty Ltd v Basetec Services Pty
Ltd2, the Court held that the time at which the
respondent accessed (as opposed received) the USB was the time at
which it was served.
The rationale presented for this finding is that there should be
no assumption that the recipient has the technology to access the
USB3. This does not sit particularly well with modern
construction industry practices. Further, delay in accessing
documents served by USB or file-share link (i.e. Box, Dropbox
or the like) may be motivated by the recipient being aware that the
delay will assist it in avoiding the application of the Act. The
lack of compatible technology rationale and emphasis on receipt of
a document "in writing" also jars somewhat with the
earlier judicial guidance that 'actual service does not require
the recipient to read the document4.
Nevertheless, until such time as there are amendments to the
Act, parties relying upon it need to understand the risks involved
with electronic service and service by USB. Provided it is properly
documented, delivery of printed documents (whether to the recipient
personally or to the recipient's ordinary place of business
during normal business hours) with acknowledgement of receipt, when
available, remains the safest method of service available under the
Act5. Stakeholders need to be aware that service by
electronic means, whether by facsimile, email etc, while allowing
greater efficiencies in terms of printing and productive use of the
Act's very limited time frames can, if not handled carefully,
easily lead to complications and litigated challenges.
1.  NSWSC 194
2.  1Qd R 265
3. See  - to access information on a USB stick, the
recipient must have compatible technology. This cannot be regarded
as an inevitability, even today.
4. See  of Conveyor & General Engineering Pty Ltd
v Basetec Services Pty Ltd
5. Service by post, facsimile, or other methods permitted
under the construction contract are other methods permitted under
section 31(1) of the Act.
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