In Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373, the Supreme Court of Western Australia considered when a payment claim emailed by the plaintiff (Martinus) to the defendant (CBH) was taken to have been served under the Building and Construction Industry (Security of Payment) Act 2021 (WA) (the Act).

Martinus emailed a payment claim for over $22 million to CBH on the afternoon of Saturday, 31 August 2024. CBH responded with a payment schedule on 24 September 2024. Whether the payment schedule was issued within the 15- business day timeframe specified by the Act depended on whether the payment claim was ‘made’ on the Saturday the email was sent and received, or the following Monday.

The Court was required to consider the following provisions:

• Clause 47.4 of the parties’ construction contract provides that if communications are received on a non-business day, they are taken to be received at 9am on the next business day.
• Section 113(4) of the Act sets out how documents under the Act may be served, and provides for regulations to prescribe when documents given in a particular manner are taken to have been given.
• Regulation 23(d) of the Building and Construction Industry (Security of Payment) Regulations 2022 (WA) provides a document sent by email is taken to have been received when it is ‘taken to be given’ in accordance with s 14 of the Electronic Transactions Act 2011 (WA) (the ETA).
• Section 14(1)(a) of the ETA provides that an electronic communication is received at the time it becomes capable of being retrieved by the addressee.

Noting that this was the first judicial interpretation of the relevant provisions, Palmer J examined the provisions and relevant East Coast authorities in some detail, and ultimately agreed with Martinus that the payment claim was received on Saturday 31 August. His Honour held that the Act (together with the ETA) prescribes when an electronic communication is taken to be received, and the parties cannot alter this by agreement. His Honour observed that to find otherwise:

would have the potential to undermine the expedited procedure established by the Act because it would permit parties to agree to defer the start of the relevant time period and thereby extend that period (potentially indefinitely) … such a construction would not be consistent with the policy of the Act. 

As Martinus’ payment claim was served on Saturday 31 August, CBH’s payment schedule was submitted outside the statutory timeframe and Martinus was entitled to recover the full claimed amount under s 27(2)(a) of the Act.

The decision can be found here.