Email Is Enough: ACT Supreme Court Reinforces Practical Approach to Payment Claims

By James Fitzgibbon

The decision in WNA Constructions Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17 was handed down by the ACT Court of Appeal on 4 June 2025. It concerned a dispute over the validity of a payment claim issued under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (the SOP Act). The appellant, WNA Constructions, challenged the earlier decision of Canberra Building and Maintenance Pty Ltd v WNA Construction Pty Ltd on two grounds – that the appeal judge erred in finding:

  • The respondent, Canberra Building and Maintenance, had “given” a valid payment claim within the meaning of the SOP Act; and
  • The payment claim was specific enough to be valid under the SOP Act.

Both grounds of the appeal were dismissed by the Court.

The Facts

WNA Constructions (WNA) is a construction company specialising in residential properties. In October 2019 Canberra Building and Maintenance (CBM) was retained to oversee a number of properties being developed across the ACT. A contract was prepared but was not signed. Work was carried out by CBM for WNA, and invoices were emailed by CBM to WNA at two different WNA email addresses. Those invoices were paid. In January 2020 WNA inspected CBM’s work and deemed it defective and terminated the arrangement with WNA. CBM issued its final payment claim; it sent it to another WNA email address (the “accounts” email). WNA did not provide a payment schedule in response to this final claim and made no further payments to CBM.

Issue 1: The Payment Claim’s Validity of Service

Under s 15(1) of the SOP Act, a subcontractor must “give” a payment claim to the person who is liable to pay. The SOP Act does not define “give” or require a party to specify an email address for a payment claim.

Through reference to the Legislation Act 2001 (ACT), the Court determined that:

  • As per s 248(1)(d), a payment claim may be given, or served, on a corporation via email.
  • As per s 250(3) if a sender has no reason to suspect that an email was not received then it is presumed to have been sent.

The Court held that on the balance of probabilities the “accounts” email was a valid email address as:

  • there was no conclusive evidence presented by CBM where the accounts email was obtained;
  • WNA did not demonstrate that it was not a valid email address for the company; and
  • CBM did not need to prove that the WNA, or any other employees at WNA, had received the payment claim to prove it was ‘given’ to WNA within the meaning of the SOP Act.

Accordingly, a payment claim is validly “given” under s 15(1) of the SOP Act where it is emailed to an address reasonably believed to belong to the respondent and there is no reason to suspect non-receipt.

Issue 2: Specificity of the Payment Claim

S 15(2) of the SOP Act provides that:

(2) A payment claim must

(a) Identify the construction work or related goods and services to which the progress payment relates; and

(b) state the amount of the progress payment that the claimant claims; and

(c) state that it is made under the SOP Act.

The SOP Act is designed for fast, interim dispute resolution via adjudication without costly court intervention (see Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd). As such, the requirements of 15(2) are not overly demanding.

As set out in Multiplex Construction, payment claims:

  • do not need to be “as precise and as particularised as a pleading in the Supreme Court;”
  • do not need to explain exactly how each item has been calculated; and
  • Are not necessarily rendered non-compliant by errors or inaccuracies but must identify the work to which the claim relates “sufficiently to enable the respondent to understand the basis of the claim.” (see Multiplex Constructions Pty Ltd v Luikens)

The Court discussed Nepean Engineering in obiter to explain a crucial point in SOP Act disputes. That if a payment claim doesn’t include enough detail for the respondent to know how much is owed or whether a payment is owed, a respondent should respond with a ‘can’t identify’ payment schedule. This payment schedule should state that the respondent “does not propose to make any payment in respect of that work because it cannot identify the work” (see Nepean Engineering Pty ltd v Total Process Services Pty Ltd (In Liq)). WNA’s primary complaint was that the invoices associated with the payment claim covered a number of individual work sites. In response, the Court found:

  • that a single payment claim relating to multiple construction sites does not need to separate out labour/materials for each site; and
  • it is unnecessary to set out on a time-charging basis the particular work done on a building site at any given time for contractually defined roles like foremen. To provide such level of detail would frustrate the statutory purpose of the SOP Act.

As a rule, the Court held that a payment claim satisfies s 15(2) where identifies the work and amount claimed sufficiently to enable the respondent to understand the basis of the claim and does not require detailed itemisation or a precise breakdown. Therefore, CMB’s was payment claim was valid under the SOP Act.

Furthermore, where the payment claim lacked detail – WNA should have a responded with a “can’t identify” payment schedule- indicating the contents of the claim to which they could not identify.

Key Takeaways

  • Service via email is valid– unless there is a reason to suspect that it was not delivered. Ensure that email addresses used to receive payment schedules and claims are current and monitored- and retain proof of transmission to rebut any later dispute about service.
  • A payment claim does not need exhaustive detail – it just needs to make the basis of the claim understandable.
  • Always issue a payment schedule- even if the claim seems vague, issuing a ‘can’t identify’ payment schedule will protect your position both at adjudication and in court proceedings.
  • Courts continue to interpret the SOP Act liberally and practically – favouring the continuation of cash flow for contractors over precision.

References

Building and Construction Industry (Security of Payment) Act 2009 (ACT)

Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42

Legislation Act 2001 (ACT)

Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140

Nepean Engineering Pty ltd v Total Process Services Pty Ltd (In Liq) [2005] NSWCA 409

WNA Constructions Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17

Photo by RONNAKORN TRIRAGANON on Unsplash

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