Years of payment claims emailed and paid made that email address one for service

What happened

Source: the judgment on NSW Caselaw. Numbers in [brackets] are the judgment’s paragraphs.

1. 13 October 2021 — Reform Projects and Burge St sign a contract for Reform to design and build a residential building in Vaucluse [4]. The contract gives the owner’s street address and no email address [20]. Its notice clause allows email to “the relevant address in the Contract or last communicated in writing” [19].
2. Throughout the job, Reform emails its progress claims to Mr Goldman, the owner’s representative. He certifies them from the same address, and they are paid [8], [10], [30].
3. 21 June 2024 — the building reaches practical completion. Half the retention is released on a certificate exchanged at the same email address [5], [10].
4. 20 June 2025 — the defects liability period ends [11].
5. 30 September 2025 — Reform emails Mr Goldman a progress claim for the rest of the retention, $260,737.82 [15].
6. Burge St serves no payment schedule and pays nothing [16]. Reform’s solicitors send a letter of demand on 29 October 2025 [17].
7. Burge St argues the claim was never served, because no email address was stated in the contract or given in writing for notices [21], [22]. The court orders Burge St to pay $260,737.82, with interest [36], [37].

The rule

The Act allows a payment claim to be served “by email to an email address specified by the person for the service of documents of that kind” (s 31(1)(d)) [18]. In Rewais v BPB Earthmoving, the Court of Appeal held that a person can specify an address by conduct. Leeming JA gave the example of payment claims sent to an address and paid without complaint [29].

The court held that this case was that example. Numerous payment claims over several years were sent to the address and dealt with promptly, without complaint, including by payment. So the claim was served on 30 September 2025 under s 31(1)(d) [32], [33].

The court held, as a second ground, that the claim was also served under the contract. Clause 7 said: “A notice (and other documents) shall be deemed to have been given and received: (a) if addressed or delivered to the relevant address in the Contract or last communicated in writing to the person giving the notice” [19]. Years of payment claims sent to the address, and the replies from it, were that communication in writing [34].

So the court treated a clause about “a notice (and other documents)” as reaching a payment claim under the Act. The judgment does not name s 31(1)(e), which allows service in the manner the contract provides, but that is its effect. It is a District Court decision with brief reasons on this point, so it persuades rather than binds.

Because Burge St served no payment schedule, s 14(4) made it liable for the claimed amount, which Reform recovered as a debt under s 15(2)(a)(i) [36], [37].

What it means for you

If you serve claims by email: on this decision, a history of claims sent to one address and paid can make it an address for service, even where the contract names none. Read your contract’s notice clause too: on this decision, a clause that covers “other documents” may reach a payment claim. The safer course is still to have the other side confirm in writing that you may use the address for documents under the Act. In Kumar v Frankies Cranes there was no such history, and the claim was never served.

If you receive claims by email: if you have dealt with payment claims at an address, expect a court to hold the next claim sent there was served. Serve a payment schedule within the time, whatever you think of the contract’s notice clause. Burge St relied on the clause, served nothing, and had to pay the whole claim.