Receipt of SOPA Claims by Email – Ignorance is not Bliss

Service of SOPA Payment Claims By Email

The New South Wales Court of Appeal recently delivered a judgment, Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103 [Rewais v BPB], which clarified how the provisions dealing with means of electronic delivery of documents under SOPA legislation are to be construed. While it remains possible (albeit difficult) for the Western Australian Supreme Court to disagree with the NSWCA, parties operating in the SOPA environment in Western Australia ought to proceed on the basis that the Rewais v BPB will be followed in Western Australia. Unless and until the Western Australian Supreme Court decides to the contrary, it must be followed in adjudications.

Rewais v BPB

The facts of the case are quite simple, but has elicited the need to consider the implications of the electronic delivery of documents under SOPA legislation. BPB issued a payment claim to the Rewais’s by email. The Rewais’s claimed not to have seen the email until their solicitors received it almost 11 weeks later and, therefore, claimed not to have been served with the payment claim prior to that date. Accordingly, when BPB lodged an adjudication application two days later, on 13 June 2024, the Rewais’s objected to the adjudicator’s jurisdiction on the basis that the payment dispute had not yet arisen and, thus, the application was made too early. Although the primary judge of the Supreme Court, McGrath J, found that the Rewais’s had not specified the email address for service, such that the payment claim was not served until 11 June 2024, his Honour held that the adjudicator nonetheless had jurisdiction.

Rewais v BPB found its way to the NSWCA on appeal from McGrath J’s decision. The plaintiffs (the Rewaises) were seeking to set aside an adjudication determination made in favour of BPB. Justice McGrath refused to set it aside and, while the Court of Appeal dismissed the appeal, its reasons for doing so differed from those of Justice McGrath. This note only deals with the reasons of the Court of Appeal, particularly those of Mitchelmore JA, with whom Leeming and McHugh JJA agreed.

The Rewais’s argued that the Adjudicator lacked the jurisdiction either because the payment claim was not served or (if had been served) because, the time for making an application for adjudication had not arisen because Mr Rewais had not read the claim until weeks after it had been served. On either basis, they argued that the Determination was void. The Court of Appeal’s decision is interesting because they found that, had McGrath J’s findings about service stood, the Determination should have been declared void. However, they disagreed with his findings on service and, therefore, dismissed the appeal. Although, Leeming and McHugh JJA wrote some short reasons themselves, they agreed with the reasons of Mitchelmore JA. However, Leeming JA’s analysis of section 31(1)(d) of the NSW SOP Act is well worth reading. His Honour carefully and thoroughly explains how one should approach construction of legislation and then applies this approach to the relevant provisions.

With respect to Mitchelmore JA’s reasons, this note focuses on the service provisions of the NSW SOP Act and the Electronic Transactions Act 2000 (NSW) referred to by his Honour, which have analogues in Western Australian.  This is why this decision, despite the differences that otherwise exist between the equivalent legislation in Western Australia, is worthy of attention.

Before examining the two critical provisions, another matter of note is that there was no written agreement between the parties. This is important for reasons I will explain below.

The Service Provisions

Both the NSW SOP Act and the Western Australia SOP Act include provisions providing for the method of service of a number of relevant documents, including payment claims.  They are relevantly identical as set out below:

I have not included subsection (2) of section 113 of the WA SOP Act in the table above because the case we are considering here involves no written contract. However, for completeness, subsection 2 provides:

Any document that by or under this Act is authorised or required to be given by a party to a construction contract to another party to the contract in relation to matters arising under the contract — 

• must be given in the manner (if any) provided in the contract if it is reasonably practicable to do so; or
• in any other case — must be given in a manner provided by subsection (3). [Emphasis added}

Without going into depth, it is probable that in some cases where there is a written contract but it is not possible to comply with the prescribed service provisions for some reason, subsection (3) will still apply and Rewais v BPB will still be relevant. For example, the contract might provide for hand delivery to a certain person who is no longer with the organisation that has to be served at a certain address in circumstances when the party to be served has moved addresses. In these circumstances, subsection (3) might apply.

The other provision that was essential to Mitchelmore JA’s reason was section 13A of the Electronic Transactions Act 2000 (NSW). The equivalent provisions in Western Australia is section 14 of the Electronic Transactions Act 2011 (WA). The two provisions are fairly identical.

In the above table, I have bolded the words “electronic address designated by the addressee” because this is similar to the wording the two SOPA Acts of “email address specified by the person for the service of documents of that kind”.  I deal with this below.

How the two Acts work together

The missing element in the discussion thus far is how Mitchelmore JA married the two provisions together and why he did so.

As noted above, there was no written contract between the Rewaises and BPB so there was no argument that the parties had “specified” an email address in writing.  The conclusion of Mitchelmore JA was that the nature and volume of correspondence to Mr Rewais at the relevant email address was such that it could be concluded that, by conduct, the Rewaises had “specified” Mr Rewais’s email address for the service of payment claims. Having done so, his Honour made a broad conclusion at paragraph [139] in the following terms:

In my view, the evidence disclosed that Dr Rewais had specified the email address for service of documents of the kind that the Security of Payment Act requires or authorises to be served, so as to enable BPB to serve the payment claim and adjudication notice by sending them to that email address pursuant to s 31(1)(d).

It is worth noting that Leeming JA’s conclusion was probably narrower than that of Mitchelmore JA. At paragraph [25], his Honour concluded:

Further, the notice under s 17(2) is sufficiently similar in nature to a payment claim that I would likewise conclude that it too is a document to which s 31(1)(d) applies. Both are documents which refer to claimed indebtedness under the construction contract, which create legal rights under the Security of Payment Act calculated by non-payment after a small number of days after service. Another way of putting this is that the conclusion that by their course of conduct the appellants are taken to have specified email for the service of payment claims, but with a limitation that such service is not effective for any notice under s 17(2) in the event that there is no response to the payment claim, is one that would be quite artificial.

As I read it, Leeming JA’s view is limited to the service of payment claims and notices under section 17(2) of the NSW SOP Act, which is narrower than the conclusion reached by Mitchelmore JA which applied to “documents of the kind that the Security for Payment Act requires or authorises to be served”.  It didn’t matter in this case, but one should be cautious about assuming the broader view reached by Mitchelmore JA will prevail in future cases, especially in light of Leeming JA’s careful analysis of section 31(1).

Having found that, by conduct, the Rewaies had specified an email address, the next question was, when was the payment claim delivered: was it delivered when it was sent by BPB or was it only delivered when it was opened by Mr Rewais? It was at this point at which Mitchelmore JA turned to section 13A(1)(a) of the Electronic Transactions Act 2000 (NSW). At paragraph [142], following the decision of Sackar J in Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123, his Honour found that all BPB had to do was show that the email was “capable of being retrieved”. This language is found in subsection 13A(1)(a) of the Electronic Transactions Act 2000 (NSW) and His Honour was satisfied that BPB had done so. Although his Honour did not cross-reference his reasons in this regard, I suspect that he was referring to the email correspondence referred to at paragraphs [66] to [68]. Though not specifically addressed in his Honour’s reasons, it can be concluded that, if an email address is “specified” by conduct under section 31(1), then it also satisfies the requirement of being “designated” for the purpose of section 13A(1)(a).

Given that the provisions are almost identical to equivalent provisions in Western Australia, one should operate under the assumption that Rewais v BPB will apply here such that “specified” in section 113 of the WA SOP Act is the equivalent of “designated” in section 14(1)(a) of the Electronic Transactions Act 2011 (WA).

Conclusion

The two conclusions that should be drawn from this case are both best put in the negative sense:

1. Given that the Rewaises had two pretty good bites at setting the determination aside and were perilously close to winning in the Court of Appeal, one should not come away from this affair with a “she’ll be right” attitude. Having a written contract with clearly specified addresses for service for both parties is by far a preferable position. Even though BPB won each challenge, the legal costs incurred in resisting the challenges, even after an award of costs, will erode the sum otherwise payable to them.
2. Ignorance is not bliss where the arrangement is informal. If you are someone not regularly involved in the construction business, take it seriously. You might, for example, set up a specific email address for your project so that a project document does not get lost in your daily barrage of spam and general non-project email traffic. Disputing claims on the basis that you did not see a document can be a risky and costly approach.

Lastly, note that section 14 of the Electronic Transactions Act 2011 (WA) does not only apply to construction matters or SOPA disputes.

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