Security of payment technicalities, service

CLIENT
Structural Steel Contractor (“Subcontractor”)

OTHER PARTY
Head contractor (“Head Contractor”)

CONTRACT
Construction of a large grocery chain in Melbourne

PAYMENT CLAIM
$249,723.52 including GST

PAYMENT SCHEDULE
$110,884.50

ADJUDICATION AWARD
$249,723.52 including GST

BACKGROUND
The contract was for the steel detailing, supply and installation of structural steel for a commercial shopping centre.

The Head Contractor had been engaged using a design and construct contract with the developer.

The design changes required to complete the project resulted in numerous variations. The Head Contractor refused to award variations requested by the Subcontractor. Under the contract, the Subcontractor was legally required to complete all variations.

The Subcontractor made an adjudication application on the final claim.

The Head Contractor claimed that email service was not effective service.

The Adjudicator quoted Justice Vikery in Metacorp Australia Pty Ltdv Andeco Construction Group Pty Ltd & Ors [2010] VSC 199: Service under section 14(1) of the Act may include delivery into the possession of the intended recipient, by whatever means, which may be taken to be effected upon receipt of the document by that person.”

Further, section 13A of the Electronic Transactions (Victoria) Act 2000 (Vic) provides that the time of receipt of an electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee.

Accordingly, in reliance of the postal service, the Head Contractor delivered its adjudication response out of time.

CONCLUSION
Carefully review timeframes. Always serve notices using multiple methods, i.e. fax, email and/or registered post.