TAYLOR PROJECTS GROUP PTY LIMITED V BRICK DEPT. PTY LIMITED & ORS
Supreme Court of New South Wales – 5 May 2005
Taylor Project Group Pty Ltd (‘Taylor’) entered into a construction contract with Brick Dept. Pty Limited (‘Brick’) for the carrying out of brick and block laying work at a site in Holden Street, Ashfield. Brick faxed a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) on 5 January 2005 at 10:41pm for $158,490.82. However, Taylor did not receive the Payment Claim until 10 January 2005 when the office re-opened after the Christmas vacation.
Taylor delivered a Payment Schedule under the Act stating the amount payable as $NIL on 20 January 2005, that is, 10 business days from 6 January 2005. The matter proceeded to Adjudication, the Adjudicator determining that Taylor should pay$101,459.31 and that the Payment Schedule was out of time.
Taylor says that the earliest that time under section 14 of the Act could have begun to run was 6 January 2005, or alternatively, on 10 January when the Payment Claim came to its attention. In particular, Taylor submitted that service under section 13(1) of the Act should be construed to mean “brought to the attention of the person served”. Accordingly, Taylor submitted that the Adjudicator had failed to satisfy an essential requirement of the Act and the determination should be declared void.
What is the meaning of “serve” within section 13(1) of the Act?