The NSW Supreme Court recently considered the effect of s31 of the NSW SOP Act, and what constitutes effective service of a payment claim under that provision (view here). At issue was whether the subject payment claims were effectively served by the claimant on 3 or 4 February 2021. This issue was critical because if effectively served on the earlier date, the claimant’s suspension under s15(2)(b) of the SOP Act was valid, otherwise if served on the later date, the suspension was invalid as the respondent’s payment schedule was served within time. The Court acknowledged there is no authority on the question of when a document is delivered “personally” to a corporation for the purposes of s 31(1)(a), or what constitutes the “lodging” of a document at a persons’ ordinary place of business for the purposes of s31(1)(b). Applying authorities concerning service of documents (otherwise than under s109X of the Corporations Act) the Court found for a document to be served “personally” on a corporation, more is required than simply leaving the document with an employee, no matter what that employee’s functions, at any location within the corporation’s business premises.
Instead, some further step must be taken to bring the document to the attention of a relevantly responsible person within the corporation. Although the payment claims were addressed to the responsible persons and delivered by hand on 3 February 2021, evidence revealed the payment claims didn’t come to the attention of those responsible persons until 4 February 2021. Accordingly, the claimant’s suspension was invalid. Had the claimant instead elected to serve the payment claims by leaving at the registered office on 3 February 2021 (instead of the ordinary place of business) under s109X of the Corporations Act, service of the claims and the suspension would have been effective.
