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15 May 2014 Court says ‘game over’ on incomplete adjudication application

By Swaab Attorneys


In Brief

This article looks at the recent case of Conveyor & General Engineering v Basetec Services with regards to service of documents. In this case, the court gave a timely reminder that when serving a document you must follow the rules on service (either under the contract or under statute) otherwise it could be 'game over'.


Most modern day construction contracts have terms regarding service of documents including the form, substance and timeframe for their submission. In circumstances where the contract is silent on service of documents, certain statutory provisions can provide assistance, depending on the type and nature of the document.

In the recent case of Conveyor & General Engineering v Basetec Services the court gave a timely reminder that when serving a document you must follow the rules on service (either under the contract or under statute) otherwise it could be 'game over'.

The facts

CGE entered into contracts with Basetec for the supply of pipe rack units for a number of water treatment facilities at Condabri and Reedy Creek. On 30 July 2013, Basetec delivered payment claims for each project under s 17 of the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”). On 12 August 2013, CGE submitted payment schedules disputing the entirety of each payment claim.

On 23 August 2013, Basetec attempted to serve adjudication applications for each payment claim. In doing so, Basetec sent emails to CGE and its lawyer attaching a letter, an adjudication application form and a link to a Dropbox. For whatever reason, the recipients of the Basetec emails didn’t open the link to the Dropbox until 2 September 2013.

When CGE opened the Dropbox, much to their surprise they found it contained Basetec’s submissions to the adjudicator and documentation, which was described as “evidence of contract”. It would appear CGE immediately put pen to paper and prepared and served its response submissions that day.

The adjudicator for the Condabri adjudication concluded that the adjudication application had been served on 23 August 2013; therefore, the deadline for any adjudication response was 30 August 2013. The adjudicator further determined that CGE’s adjudication response dated 2 September 2013 was out of time and could not be considered.

As you can imagine, CGE complained and suggested it had been denied the opportunity to put a response to the adjudicator. The dispute headed to court.

The decision

The court stated that notices may be served in the way, if any, provided under the construction contract and, if no provision exists in the contract (as was the case here), service of documents can be by leaving them at or sending them by post or similar facility to a company’s head office.

Whilst it remains open to debate as to whether email is allowable under s 103(2) of BCIPA, the court determined that given only part of the adjudication application was included in the email this “…puts paid to the possibility that [the] adjudication application could be regarded as duly served…”. It followed that the adjudication application was not served correctly and, on the best view for Basetec, it was served no earlier than 2 September 2013.

It appeared then that the adjudicator erred in concluding that CGE was out of time to provide an adjudication response. Consequently, the adjudicator erred in depriving CGE of the opportunity to put submissions and any relevant evidence. The court concluded that the adjudication decision had no effect.

The lesson

If parties intend to adopt email and other electronic means of serving documents on a project then this should be reflected in the drafting of the construction contract. In addition, when preparing any notice or application during the life of the project, it is vital to ensure you carefully and accurately follow the requirements in the contract or, where no requirements exist, follow the default statutory provisions.

For further information, please contact us.


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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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