Hickory Developments v Schiavello (Vic) Pty Ltd  VSC
(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).
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 Court's Decision
The Supreme Court of Victoria held that the adjudication
application which had been served by e-mail was a valid
The Court concluded:
"there appears to be no
reason in principle why an adjudication application cannot be
commenced by the filing of the appropriate documents electronically
with the authorised nominating authority... In my opinion, under
the Act it was open to Adjudicate Today to have the adjudication
application lodged by email and to treat the adjudication
application as having been made at the time when it arrived at its
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."
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.
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