USBs An Unreliable Medium For Service Under Security Of Payment Act

In Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd¹, the Supreme Court of NSW recently found that the delivery of copy of an adjudication application under the Building and Construction Industry Security of Payment Act 1999 (Act) saved on a USB enclosed under a covering letter was not alone sufficient to effect service under the Act. Service only occurred when the respondent accessed the documents on the USB (which in this case occurred a day after delivery). The reasoning will also apply to service of other documentation under the Act, including payment claims, payment schedules and adjudication responses.

The delay between delivery and access can be very significant in the context of the short timeframes imposed by the Act. Indeed in this case the delay resulted in the determination being found to be void for jurisdictional error and lack of procedural fairness.