Last month we reported on the New South Wales Supreme Court decision in Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 606 here. The Supreme Court held that a provision under a construction contract deeming that notices sent after 5pm were received on the subsequent business day (the deeming provision) was void for effectively extending the time for service of a payment schedule under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act).

In Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161, Roberts Co appealed against the primary judge’s finding that the deeming provision was entirely void, claiming that it should only be considered void to the extent that it is inconsistent with the Act. Further, Roberts argued that the parties were free to contract as to the date on which service is deemed to occur. Roberts sought a determination by the Court of Appeal on the extent to which the clause was in fact void.

The primary judge’s decision was upheld by the Court of Appeal on the basis that a payment claim served electronically after 5pm was “capable of being retrieved” on the date that it was sent. Hammerschlag CJ cited the High Court decision in Prowse v McIntyre (1961) 111 CLR 264 in clarifying that “the law does not recognise fractions of a day and treats a day to be twenty-four hours”. Accordingly, the payment claim was served on the date the email was sent and received subject to how the deeming clause was to apply.

In this regard, the Court of Appeal observed that under s 14(4) of the Act the parties could contractually shorten the amount of time required to provide a payment schedule but could not extend it beyond the 10 business day period and contract out of the time limited under the Act. In the circumstances the deeming clause would have operated to extend the time to serve the payment schedule beyond the 10 business days. Accordingly, the Court concluded that the payment schedule had not been served within the time provided in s14(4) of the Act.

The Court of Appeal did not resolve the question of the extent to which the deeming provision was void and should be severed from the contract, as it held that the payment schedule was out of time under the Act regardless of the extent to which the clause was invalid.

The decision is available here.