WNA Construction Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17 (4 June 2025)

Ben Fuller  |  Andrew Black  |  Elizabeth Harris

Key takeouts

Valid email service: Under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (SOP Act), a payment claim sent to an email address of the respondent will be validly “given”. It is not necessary to send the payment claim to a specified or nominated address.

Low detail threshold: Consistent with the SOP Act’s objective of enabling swift interim payments, a payment claim does not need to include exhaustive detail. Basic information identifying the construction work and the sum claimed will be sufficient.

No further particularisation: The Court (in obiter) supported an interpretation of section 19 of the SOP Act that a claimant cannot introduce new substantive matters or further particulars in an adjudication application. The adjudication application must be based solely on the original payment claim and payment schedule.

Facts

In October 2019, WNA Construction Pty Ltd (WNA) engaged Canberra Building and Maintenance Pty Ltd (CBM) as a subcontractor to oversee work on multiple ACT construction sites. A written contract was prepared but never signed. CBM performed construction work for WNA over the next few months and issued periodic invoices via email to two known email contacts at WNA (an employee, Ms Campos, and a bookkeeper). WNA paid those invoices.

In January 2020, WNA’s manager inspected CBM’s work and deemed it defective. WNA then terminated the arrangement. In April 2020, CBM sent its final payment claim (comprising a final invoice and copies of previous unpaid invoices) to “accounts@wnaconstruction.com.au” (the Accounts Email). This was the first time this email address was used. CBM’s director gave evidence that he could not recall why he used the Accounts Email, but that it had been provided to him by WNA.

WNA did not provide a payment schedule in response to the payment claim and made no further payments to CBM. As a result, CBM commenced proceedings to recover the unpaid amount.

At first instance, the magistrate (Theakston LCM) found that email service of the final claim was not valid and the claim lacked sufficient detail and was therefore not a valid payment claim under the SOP Act. CBM appealed this decision and the Supreme Court (Curtin AJ) reversed the magistrate’s decision.

WNA then appealed to the ACT Court of Appeal. The two main issues on appeal were:

1. Whether the final payment claim was properly “given” to WNA under the SOP Act (despite using a new email address); and
2. Whether the payment claim described the work performed with sufficient detail to enliven WNA’s obligations to respond with a payment schedule under the SOP Act.

Decision

McCallum CJ, Loukas-Karlsson and Baker JJ dismissed WNA’s appeal.

Service

The Court confirmed that CBM’s final claim email was validly “given” to WNA. It found, with reference to certain provisions of the Legislation Act 2001 (ACT) that:

• a document may be served on a corporation “by emailing it to an email address of the corporation” (s 248(1)(d)); and
• if the sender has no reason to suspect the email was not received, it is presumed served when sent (s 250(3)).

Accordingly, CBM did not need to prove that WNA read or received the email, only that it was sent to a an address “of” WNA

The Court considered that the Accounts Email had the same domain as WNA’s other addresses and no “bounce-back” or other error was indicated. While CBM had not conclusively shown when the Accounts Email had been obtained, WNA provided no evidence that the Accounts Email was invalid or not monitored. Further, WNA provided no evidence that the payment claim had not been received.

The Court observed that it would have been easy for WNA to adduce evidence that the Accounts Email was not theirs, or that the payment claim had not been received. Given the unchallenged evidence of CBM and the logical inference that the Accounts Email was an address of the company, the Court was satisfied on the balance of probabilities that the payment claim email was sent to a valid address.

Specificity

The Court held that the payment claim contained enough information to satisfy the SOPA’s minimal requirements. Section 15(2) of the SOPA requires identification of the construction work and the amount claimed, but the Court held that this did not extend to requiring the level of detail found in formal pleadings or to requiring calculations to be explained in every respect. The Court emphasised the SOPA’s purpose of enabling swift interim payments to subcontractors (supporting a low threshold for the content of a payment claim).

It is sufficient that the claim reasonably identifies the work done and the basis of the amount, so that the recipient can recognise the claim and decide whether to pay or respond. Here, considering the parties’ prior dealings and the documentation already exchanged, the Court held that WNA could ascertain the nature of the claim (although there was no complete breakdown of tasks performed). The Court found this met the specificity required by the SOPA, especially since WNA had enough context to know what the claim covered (and could have responded if it found something unidentifiable). Therefore, the specificity ground of appeal was also rejected.

Additional considerations:

The Court endorsed (in obiter) the approach that, even if a claim lacks detail, the respondent should not ignore it. Instead, the respondent should issue a “can’t identify” payment schedule in response indicating which parts of the work outlined in the claim the respondent cannot identify.

Addressing the potential prejudice suffered by respondents in issuing a “can’t identify” response, the Court stated “where a respondent files a payment schedule that indicates that a payment claim is disputed because the respondent cannot identify the work that was performed, and that contention is accepted…it would amount to a breach of procedural fairness for the adjudicator to then make an adjudication in favour of the claimant on the basis of matters to which the respondent has not had (and cannot have) an opportunity to respond”.