Case Note
Hickory Developments v Schiavello (Vic) Pty Ltd [2009] VSC 156
(Vickery J, Supreme Court of Victoria, April 2009)
The Supreme Court of Victoria recently considered whether an adjudication application provided to an authorised nominating body and the respondent by e-mail was a valid adjudication application for the purposes of the Building and Construction Industry Security of Payment Act 2002 (Vic).
Facts
Hickory Developments Pty Ltd, as the main contractor, engaged Schiavello, as subcontractor, to design and construct the base building works and fit out works for the TAC headquaters, for a lump sum price of $9,413,330.
On 3 February 2009, Hickory received in the ordinary post a payment claim from Schiavello made under the Act in the amount of $2,106,828.98. On 9 February 2009, Hickory served a payment claim on Schiavello, certifying that "$NIL" was payable.
On 23 February 2009, (ie, the 10th "business day" after receipt of the payment schedule), Schiavello printed out and completed an application form from the Adjudicate Today website. At 4.01pm, Schiavello emailed the completed application form, along with Schiavello's adjudication submissions, to Adjudicate Today (an authorised nominating body) at Adjudicate Today's e-mail address. The documents referred to in the submissions were not, however, included as attachments to that e-mail. Shortly after, Adjudicate Today responded by e-mail saying that Schiavello needed to also send copies of the attachments. Schiavello scanned the attachments and sent them by e-mail to Adjudicate Today at 9.50pm and 9.59pm. At the same time, Schiavello also sent an e-mail to Hickory with the same attachments.
On 29 March 2009, the Adjudicator determined the amount owing to Schiavello as being $1,812,566.
Hickory applied to the Supreme Court of Victoria, arguing that the adjudication determination was void as Schiavello had failed to submit an adjudication application within the timeframe required by the Act.
The Court's Decision
The Supreme Court of Victoria held that the adjudication application which had been served by e-mail was a valid adjudication application.
The Court concluded:
In relation to the time at which the e-mails containing the attachments had been sent (namely, 9.50pm and 9.59pm), the Court stated that these documents were "still sent within the "business day"" of 23 February."
Commentary
This decision stresses the importance of carefully serving documents under the Security of Payment legislation in your state/jurisdiction. Despite the Court holding, in this case, that the adjudication application had been validly made, in order to avoid disputes about the validity of notices served under the Act, it is crucial for both parties to ensure that notices are properly served on the other side and the nominating authority: caution suggests that serving documents several ways (such as by fax, email and courier), is always safer, and bare in mind all service requirements stipulated by the contract as well as the Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
