The NSW Supreme Court in Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd recently considered the validity of an Adjudicator’s decision finding that a payment claim had been effectively served on the respondent by email and that the parties had entered to some ‘other arrangement’ for the purposes of s4 of the NSW SOP Act.
On the issue of service, the Court held there was no valid service of the payment claim. A hardcopy payment claim had been posted to an incorrect address and the email claim was sent to an addressee who was not nominated as the respondent’s representative for the purposes of s31(d) of the Act and was not an employee of the respondent. There was also no evidence the payment claim came to the addressee’s attention. Accordingly, the Adjudicator had no jurisdiction and his decision was void.
Although it was unnecessary to go further, the Court also considered the Adjudicator’s finding of some other arrangement between the parties for purposes of s4 of the Act for reasons not contended for by either party and without inviting submissions on those matters. The Court held the Adjudicator went beyond the submissions he was required to consider and failed to afford natural justice to the respondent by failing to invite submissions on those issues. This decision serves as a useful reminder the whole adjudication process can be thwarted if the first step in the process (service of the payment claim) is not properly executed.
