Email service under SOPA - what you need to know

A recent New South Wales District Court decision is a timely reminder that, under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA), the validity of service may turn on how the parties have actually conducted themselves during a project. In Reform Projects Pty Ltd v Burge St Developments Pty Ltd [2026] NSWDC 96, the Court held that an email address may be specified for service of a payment claim by implication, even where the contract does not expressly nominate an email address for that purpose. The decision highlights the significant consequences that can follow where a payment claim served by email is not identified and no payment schedule is issued in time.

Facts

Reform Projects Pty Ltd (Reform) and Burge St Developments Pty Ltd (Burge St) entered into a contract under which Reform was to design and construct a residential building in Vaucluse (Project).

Reform designed and constructed the Project between October 2021 and June 2024. Practical completion was achieved on 21 June 2024 – triggering the release of retention monies in stages (50% upon practical completion and the balance of 50% at the end of the defects liability period).

Throughout the Project (which took several years), all progress claims, schedules and certification documents were exchanged by email between Reform and Burge St’s representative, Mr David Goldman of Aspire Development Management Pty Ltd, using Mr Goldman’s email address. A number of payment claims were issued by Reform to Burge St by serving the payment claim via email to Mr Goldman’s email address – these claims were certified and paid without issue.

On 30 September 2025, after the expiry of the defects liability period, Reform issued a progress claim seeking the remainder of the retention monies in the sum of $260,737.82 (including GST) (Claimed Amount) (Payment Claim). The Payment Claim was emailed to Mr Goldman and others. Burge St did not make payment or issue a payment schedule in response to the Payment Claim.

As many would be aware, section 14(4) of the SOPA states that if a respondent does not provide a payment schedule to the claimant within the time required by the relevant construction contract or within 10 business days after the payment claim is served, whichever time expires earlier, the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.

On 29 October 2025, Reform’s solicitor issued a letter of demand seeking payment of the Claimed Amount. As no payment was made, Reform commenced the proceedings under section 15(2)(a)(i) of the SOPA (which allows a claimant to recover the unpaid portion of a claimed amount from the respondent in a court of competent jurisdiction, in circumstances where a payment schedule has not been served, as a debt due to the claimant) seeking judgment for the Claimed Amount.

Burge St did not dispute the quantum of the Claimed Amount but rather argued that Reform had failed to validly serve the Payment Claim, particularly given that the contract did not specify an email address for service and therefore, email service was not proper service.

Key issue

The key issue was whether the Payment Claim was validly served within the meaning of section 31 of the SOPA and the notice provisions of the contract (notwithstanding the contract did not include an express email address for service).

Section 31 of the SOPA states that any document under the SOPA may be served by personal delivery, lodgement during normal office hours at the recipient’s ordinary place of business, by sending it by post addressed to the person’s ordinary place of business, by email to an email address specified by the person for the service of documents of that kind, any other method authorised by the regulations for service of documents of that kind, or in the manner that may be provided under the construction contract.

What the Court decided

The Court held that the Payment Claim had been validly served.

Applying the reasoning in Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103, the Court held that Burge St had specified Mr Goldman’s email address for service of payment claims, by implication. This conclusion was reached as the evidence clearly showed a history, over the course of several years, of payment claims being emailed to Mr Goldman’s email address throughout the duration of the Project, which were acted upon without dispute.

Further, the Court held that service was also effective according to clause 7 of the contract. As Mr Goldman’s email address was frequently used for serving payment claims and engaging in formal contractual communications, the email address was considered to be a relevant address for the purpose of serving payment claims under the contract. This was particularly so because another provision of the contract set out the time at which a communication by email was served (notwithstanding no specific email address had been nominated in the contract).

As Burge St did not serve a payment schedule in response to the Payment Claim, it became liable under section 14(4) of the SOPA to pay the Claimed Amount.

Judgment was entered for Reform in the sum of $260,737.82 plus interest.

Key takeaways

The case highlights that courts will generally prefer a commercial and practical interpretation of service provisions that align with the objectives of the SOPA, particularly where the parties have consistently used a particular email address for contractual communications.

1. consistent use of an email address may imply nomination for service

2. contract silence on a service email may not be decisive

3. failure to issue a payment schedule can result in immediate debt exposure

4. parties should actively monitor project email addresses (including email addresses of external project managers/representatives), especially near final claim milestones.

The consequences of not promptly identifying a payment claim, and failing to issue a payment schedule, can be dire and lead to a judgment being recorded against the respondent.

If you have any questions or require any assistance regarding service of payment claims and payment schedules under the SOPA, or in respect of the SOPA process generally, please do not hesitate to contact Anish Wilson, Special Counsel, or Barbara Farhat, Lawyer.

Authors: Anish Wilson & Barbara Farhat

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.