Canadian Solar Construction Pty Ltd v Re Oakey Pty Ltd [2023] QSC 288

Sarah Ferrett  |  Matt Hammond  |  Lochlan Andrew

Key takeout

If a contract does not contain express provisions requiring an exclusive mode of service, a payment claim will be validly served if it has actually been received and come to the attention of a person to be served or provided with the document.

Where a payment claim is sent by email to multiple recipients, the fact that the email to one of the recipients bounces will not prevent service if the other recipients receive the email, particularly if each of the recipients has an active role in the review and assessment of payment claims.

Facts

Canadian Solar Construction Pty Ltd (CSC) and Re Oakey Pty Ltd (Oakey) are the contractor and principal on the Oakey 2 Solar Farm Project (Project). Oakey is a special-purpose vehicle with no employees of its own.  The contract between CSC and Oakey appointed Foresight Group Australia Pty Ltd (Foresight) as the Project Manager and Oakey’s agent for all functions under the contract.  Aurecon was also appointed as a manager on the Project. The contract nominated Mr Wang (Foresight’s employee) as Oakey’s representative.

On 26 June 2023 Mr Rutledge, a representative of CSC, sent Mr Wang an email attaching a payment claim seeking $4 million from Oakey pursuant to s 75 of the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act). The email to Mr Wang bounced and Mr Rutledge, although he did not notice it, received a ‘bounce back’ email.

The email to Mr Wang was also copied to five other executives, three of whom were Foresight employees and two were Aurecon employees.  The five other executives received Mr Rutledge’s email.

Mr Wang did not realise that he had not received the email and accordingly, Oakey did not respond to the payment claim within the required time. CSC alleged that the failure to respond meant that Oakey became liable to pay the $4 million under s 77 of the BIF Act.

Oakey submitted that, on its proper interpretation, the contract prescribed an exclusive mode of service which required payment claims to be served to the email address in Annexure A to the contract (which was associated with its ordinary place of business), or by hand, pre-paid post or via EDMS.

Decision

The court allowed CSC’s application.

The disputes concerning the proper interpretation of the contract were resolved in favour of CSC. The court determined that the purpose of the provisions relied upon by Oakey was to specify an equivalence between Oakey’s ordinary place of business and the relevant email address in Annexure A. The provisions did not otherwise expressly provide for the giving of, or the service of payment claims, or any other documents.

The objective of notice regimes was to facilitate service, not to restrict the means by which service might be effected. Without clear words, the court would not imply that an exclusive mode of service for the giving of payment claims was agreed by the parties.

In considering whether the payment claim was ‘given’ to Mr Wang pursuant to s 75 of the BIF Act, the court stated that the essential requirement is that the document came to Mr Wang’s attention, and in this case it did not. The correct question was whether the payment claim was given to Oakey or its agent, as it was Foresight that was obliged to assess the payment claim and to issue a valuation certificate in response to the payment claim.

The role of the each of the Foresight representatives who were copied into Mr Rutledge’s email was that each recipient had an active role in the review and/or assessment of payment claims, particularly the Project Manager’s representative, who had previously reviewed and approved payment claims. The parties had a practice of ensuring that payment claims were emailed to six recipients – this was not a mere formality – and the fact that the email to one of the six recipients bounced did not detract from the reality that the document was actually received and came to the attention of the other five recipients. The legislative intent behind the BIF Act is to operate in a realistic fashion and in a manner that avoids arid technical disputes relating to the service of documents.

The court rejected Oakey’s defences based upon conventional estoppel, misleading or deceptive conduct and unconscionable conduct. Oakey failed to persuade the court that there was a common assumption between the parties that payment claims could not be served unless delivered by email to Mr Wang. The mere appearance of names within the ‘To’ and ‘cc’ fields of an email does not represent that the email has in fact been delivered to the names listed, as was contended by Oakey, it merely represents that the sender has attempted to send the email to those persons.