Endeavour Constructions Pty Ltd v Down Under Piling Australia Pty Ltd [2023] VSC 424

Nikki Miller   |  Michael Lo  |  Henry Chesterman

Key takeout

• A notice may satisfy s 18(2) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act) if it is received by the respondent and it conveys to the respondent the claimant’s intention to apply for adjudication of a payment claim. 
• It is not necessary for the notice to be clearly marked or identified when served.

Facts

Endeavour Constructions Pty Ltd (respondent) engaged Down Under Piling Australia Pty Ltd (claimant) to perform excavation and piling works at an apartment building.

The contract made no express provision for the making of a claim for final payment. 

On 6 July 2022, the claimant issued its final payment claim under the SOP Act.  The payment claim identified that the last day works were performed on site was 7 April 2022.  The respondent did not serve a payment schedule in response to the payment claim.  On 25 July 2022, the claimant issued the respondent a new version of the payment claim which included a statement stating to be a s 18(2) notice pursuant to the SOP Act, and that the respondent had two business days to provide a payment schedule before an adjudication application.  The notice was not specifically identified in the covering email and was included among other attached documents requested by the respondent.

The respondent did not provide a payment schedule and on 3 August 2022 the claimant applied for adjudication.

The adjudicator determined in favour of the claimant.

The respondent sought an order quashing the adjudicator’s determination on the basis that:

• the payment claim did not have a valid reference date under s 9(2)(d)(iii) of the SOP Act because the day it last performed construction work was 4 April 2022, meaning the reference date arising was 5 July 2022; and
• the claimant did not service a valid notice under s 18(2) of the SOP Act.

Decision

The court rejected the respondent’s submissions and upheld the adjudicator’s determination in favour of the claimant.

It is well established that contravention of s 18(2)(a) of the SOP Act will invalidate an adjudication application.

The court found that while the claimant’s notice was not identified as an attachment in the covering email, this in itself was not fatal to render the notice invalid, and hence the claimant’s adjudication application. 

The court held that the claimant’s notice was sufficient to satisfy s 18(2) of the SOP Act because:

• it was not in dispute that the relevant document had been received by the respondent;
• was noticeably different from the original payment claim; and
• it was apparent that the respondent had regard to the notice. 

The court held that the payment claim was supported by a valid reference date because on the balance of probabilities (taking account of affidavit evidence from multiple witnesses and cross-examination and re-examination of witnesses during the hearing), the claimant had performed work under the construction contract on 7 April 2022.