The Court of Appeal of Western Australia has dismissed the appeal in Co-Operative Bulk Handling Ltd (ABN 29 256 604 947) v Martinus Rail Pty Ltd [2026] WASCA 82 and confirmed that parties cannot rely on contractual notice provisions to defer the time a payment claim is ‘made’ under the Building and Construction Industry (Security of Payment) Act 2021 (WA) (the Act).

The appeal upholds the decision at first instance, considered in our earlier update here.

Martinus emailed a payment claim to CBH on Saturday, 31 August 2024 and 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 Supreme Court of Western Australia agreed with Martinus that the payment claim was received on the Saturday in accordance with the Act, the Building and Construction Industry (Security of Payment) Regulations 2022 (WA) (the Regulations) and the Electronic Transactions Act 2011 (WA) (the ETA), and that the parties could not alter this by agreement. CBH appealed the decision.

The Court of Appeal agreed with the trial judge and held that the Regulations require the time of receipt of an electronic payment claim to be determined in accordance with the ETA. The Court confirmed that deeming contractual provisions which defer or alter the deemed time of receipt of a notice do not govern when a payment claim is ‘made’ under the Act.

Accordingly, Martinus’ payment claim was ‘made’ when it became capable of being retrieved, with the consequence that CBH’s payment schedule was issued outside the statutory 15 business day time period, and the full amount claimed by Martinus became payable.

While the Court of Appeal considered that its construction was consistent with the policy of the Act, including the objective of an expedited and certain payment regime, it emphasised those generalised policy considerations should not be given ‘great weight’ and the issue ultimately turned on the content of the Regulations.

The decision can be found here.