Reward Interiors Pty Ltd t/s Reward Group v Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust [2026] NSWCA 133

Tom French  |  Briony Whyte | Sasha Thomas  |  Helen Do

Key takeouts

Parties applying for an adjudication review under the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOP Act) must ensure strict compliance with the one business day service requirement.

Parties should not rely on online file-sharing links to serve documents under the SOP Act unless that method is expressed in the contract or authorised by regulation.

Parties should consider contractual mechanisms under s 113(2)(a) of the SOP Act to agree on permissible electronic methods of service for voluminous applications.

Background

On 2 December 2024, Tackelly No 8 Pty Ltd (Tackelly), applied for an adjudication review and purported to serve a copy its application (Review Application) on Reward Interiors Pty Ltd (Reward) by sending an email containing a Mimecast link from which the documents could be downloaded.

The review adjudicator determined that he had no jurisdiction to determine the Review Application because Tackelly had not given Reward a copy in the time allowed under s 42(3) of the SOP Act due to the manner of service being by an email with a Mimecast link to the application. Tackelly applied for judicial review on the basis that the review adjudicator had made a jurisdictional error, and the primary judge (in Tackelly No 8 Pty Ltd as trustee for Tackelly No 8 Trust v Reward Interiors Pty Ltd t/as Reward Group [2025] NSWSC 300) overturned the review determination, holding that although Tackelly had not complied with s 42(3), strict compliance was not a precondition to jurisdiction.

Reward appealed, arguing that the primary judge was wrong to find that the one-day timeframe for service was not a precondition to jurisdiction (jurisdiction issue). On appeal, Tackelly sought a determination on whether providing the documents via Mimecast link amounted to a failure to comply with the service requirements in s 42(3) (service issue).

Decision

The Court of Appeal allowed Reward’s appeal and rejected Tackelly’s notice of contention, partially setting aside the primary judge’s decision.

The jurisdiction issue

The Court of Appeal unanimously held that s 42(3) of the SOP Act is a jurisdictional precondition to a review adjudicator’s ability to make a determination under the SOP Act and that the primary judge erred in concluding otherwise, holding that the timeframes in the review process have been ‘carefully calibrated’ and are ‘intentionally…brutally fast’ to ensure the timely determination of payment claims.

The service issue

The Court of Appeal unanimously held that the contractual provisions prescribing agreed methods for service were not relevant for the purposes of s 113(2)(a) of the SOP Act as the review application documents were not documents ‘given under the contract’. The majority also held that Tackelly did not ‘give’ Reward a copy of the adjudication review application before 3 December 2024 because the documents were not attached to the email and could only be accessed after the recipient took additional steps to download them. Accordingly, the Court of Appeal held that Tackelly did not comply with s 113(3)(d) of the SOP Act and, while s 113(e) contemplates the possibility that a document could be given ‘by providing a means “by which a document can be accessed electronically”‘, the regulations do not currently authorise that method of ‘giving’ documents (other than to an authorised nominating authority).