Kumar v Frankies Cranes Pty Ltd [2025] NSWSC 1264

Ben Fuller  |  Andrew Black | Elizabeth Harris

Key takeouts

Service requirements are strict: Providing a business card alone does not constitute ‘specification’ of an email address for service under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). Contractors must obtain express confirmation from principals that a specific email address may be used for serving SOP Act documents.

Informal agreements are less likely to satisfy a court that an agreement exists on the balance of probabilities: Courts examine commercial realities when determining whether a construction contract exists. Key factors include lack of written confirmation, delayed invoicing, and personal liability arrangements inconsistent with corporate business structures.

Actual receipt may cure defective service: Effective service can occur even without strict compliance if the document actually comes to the attention of the person to be served. However, parties should not rely on this exception and should ensure that proper service methods are followed.

Facts

This dispute arose from a crane located on property owned by Mr Kumar.

Frankies Cranes had placed the crane on the property after it was hired by SK Homes Pty Ltd, a former builder on the site. Frank Azzopardi, director of Frankies Cranes, claimed he reached an oral agreement with Mr Kumar for weekly crane hire at $1,700. After this alleged conversation, Mr Azzopardi requested Mr Kumar’s contact details, and Mr Kumar provided his Elante Homes business card.

Mr Kumar disputed this version of events. He maintained that Mr Azzopardi had simply requested the crane remain on the property until needed elsewhere to avoid demobilisation costs, and that he provided his business card only when asked.

After several months, Frankies Cranes served a payment claim on Mr Kumar under the SOP Act by email to the address on the business card, claiming $142,120. Frankies Cranes successfully obtained an adjudicator’s determination for the full amount.

Mr Kumar challenged the determination on the basis that the adjudicator lacked jurisdiction because no construction contract existed (the Contractual Question). As a preliminary matter, the Court needed to determine whether it had jurisdiction to review the adjudicator’s determination on the existence of a construction contract (the Jurisdictional Question).

Decision

Peden J found in favour of Mr Kumar, holding that the adjudicator’s determination was void on the basis that there was no construction contract.

The Jurisdictional Question

On the preliminary issue of its own jurisdiction to review the adjudicator’s determination, the Court reaffirmed that the existence of a construction contract is a jurisdictional fact that may be subject to judicial review. The Court rejected arguments that it could only review an adjudicator’s finding on the existence of a construction contract if the adjudicator acted capriciously, unreasonably, or considered irrelevant factors.

  The Contractual Question

Having determined that it had jurisdiction to review whether a construction contract existed, the Court held that no construction contract had been formed and the adjudicator therefore lacked jurisdiction. The Court accepted Mr Kumar’s version of events and examined the commercial realities, finding several factors inconsistent with contract formation:

1. no written confirmation of the alleged agreement;
2. significant delay before the first invoice was sent to Mr Kumar;
3. Mr Kumar had no need for, or keys to, the crane; and
4. it was unlikely Mr Kumar would have agreed to be personally liable for crane hire given that he operated his business through corporate entities.

Service issue

The Court also found that even if a construction contract existed, the payment claim and adjudication notice were not validly served. Valid service under sections 13(1) and 17(2) of the SOP Act are preconditions to an adjudicator’s jurisdiction.

Section 31(1)(d) provides that a document required to be served may be served ‘by email to an email address specified by the person for the service of documents of that kind’.  However, if a document actually comes to the attention of the person to be served, it constitutes effective service even if not in accordance with section 31: QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095 at [47] (QC Communications), citing Falgat Constructions Pty Ltd v Equity Australia Corporation Ltd [2006] NSWCA 259 at [58].

The Court held that Mr Kumar did not specify the email address on his business card for SOP Act service purposes. Citing Rewais v BPB Earthmoving Pty Ltd [2025] NSWCA 103 at [173], the Court noted that while specification under section 31(1)(d) may be express or implied, contractors should obtain express confirmation that a given email address may be used for SOP Act service.

Simply providing a business card, without more, did not constitute specification of an email address for SOP Act service. The Court accepted Mr Kumar’s evidence that he never received the payment claim and only discovered the section 17(2) notice after adjudication. Therefore, there was no effective service pursuant to QC Communications.

This contrasts with the recent ACT decision in WNA Construction Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17 (4 June 2025), which held that payment claims sent to any email address of the respondent (whether ‘specified’ or not) are validly served. This is due to the different operation of sections 248(1)(d)) and 250(3) of the Legislation Act 2001 (ACT) which, unlike section 31 of NSW SOP Act, refers to emailing to ‘an email address of the corporation’ (emphasis added), rather than requiring service to an address specified for the service of documents of that kind.