In Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 606, Justice Stevenson of the Supreme Court of New South Wales was asked to consider whether a notice deeming provision in the Contract entered into between the parties modified the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), such that the contractual provision was void for all purposes.

On Friday, 28 February 2025 at approximately 7:17pm, Sharvain Facades sent an email to Roberts Co with a payment claim pursuant to the Act for $3.2 million. The Contract contained a provision to the effect that if a notice was sent after 5pm on a business day, the notice would be treated to have been given to, and received by, the addressee at 9am on the next business day (the deeming provision). On 17 March 2025, Roberts Co issued Sharvain Facades a payment schedule pursuant to s 14 of the Act.

The crucial question before the Court was whether the payment claim was served on 28 February 2025 or 3 March 2025. This was because Sharvain Facades had issued its payment schedule on 17 March 2025, which was more than 10 business days after 28 February 2025, but within 10 business days of 3 March 2025. Section 14(4) of the Act states that if a claimant serves a payment claim on a respondent, and the respondent does not provide a payment schedule to the claimant within the time required under the Contract or within 10 business days after the claim is served (whichever expires earlier), the respondent becomes liable to pay the claimed amount to the claimant. If the court were to determine that the payment schedule was not served within 10 business days of the payment claim being served, Sharvain Facades was entitled to judgment for the full amount claimed under s 15 of the Act.

In considering the issues, Stevenson J noted that under the Act a document can be served at any time during a business day, whereas, under the Contract, the deeming provision had the effect of ending the business day at 5pm and thereby postponing the date on which a payment claim is taken to be served. In light of this, his Honour held that the deeming provision had the effect of modifying the operation of the Act and was therefore void for all purposes.

Sharvain Facades’ payment claim was taken to be served on 28 February 2025 meaning that Roberts Co had failed to serve a payment schedule in respect of that payment claim within the timeframe prescribed by the Act. In those circumstances, no valid payment schedule was provided and Sharvain Facades was entitled to seek judgment under s 15 of the Act for the full amount of its claim.

The decision can be found here.