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Home › Court cases › Rewais v BPB Earthmoving

Court case · Security of Payment · NSW

A payment claim emailed to the owners was served the day it arrived, even though they never read it

Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2025] NSWCA 103 — NSW Court of Appeal, Leeming JA, Mitchelmore JA and McHugh JA, 16 May 2025. Two owners gave their earthmoving contractor an email address by text message. The owners then paid and argued about invoices the contractor sent to that address. The contractor sent a $277,007.16 payment claim to the same address, and the claim sat unread for seven weeks. The court held that the owners had specified the address by their conduct, and that the claim was served when it could be retrieved from the inbox. The adjudicator’s $277,007.16 determination stood.

Reviewed by · 2 October 2026

What happened

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

  1. March 2023 — BPB Earthmoving, the contractor, agrees orally to do earthworks on the owners’ 103-acre property, as the owners ask from time to time [39], [42]. There is no written contract.
  2. 26 June 2023 — While chasing a costing, Dr Rewais texts the contractor’s director a message that contains only his email address. Dr Rewais does not open every email that comes to that address, and does not check it regularly [46].
  3. From 11 August 2023 — The contractor emails its invoices to that address. Each invoice says “This claim has been made under the Building and Construction Industry Security of Payment Act” [49]–[51].
  4. October and December 2023 — The owners pay $80,000 and then $44,000 into the bank account shown on the invoices [55], [58]. Dr Rewais queries and disputes invoices by email, from the same address [60], [68].
  5. 24 April 2024 — The contractor withdraws its unpaid invoices. It emails one payment claim for $277,007.16 to the same address, split across four emails [77], [78]. The owners do not give a payment schedule (the written reply saying how much they will pay and why) in time [79].
  6. 22 May 2024 — The contractor’s solicitors send a notice that the contractor intends to apply for adjudication, under s 17(2) of the Act. They send it by email to the same address and by express post [82]. Under the Act, that notice gives the owners a second chance: 5 business days to provide a payment schedule.
  7. 11 June 2024 — The owners first learn of the claim and the notice, through their solicitors [84].
  8. 13 June 2024 — The contractor applies for adjudication. The owners give a payment schedule on 18 June. On 7 July 2024 the adjudicator publishes a determination for $277,007.16 [85], [86], [88].
  9. The trial judge finds that both documents were served only on 11 June, but holds that the determination is valid anyway [31]. The Court of Appeal holds that the claim was served on 24 April and the notice on 22 May. It dismisses the owners’ appeal and orders them to pay the costs [144], [165].

The rule

Under s 31(1)(d) of the Act, a document may be served “by email to an email address specified by the person for the service of documents of that kind” [12].

A person can specify an address by words or by conduct. They can specify it for every document under the Act, or only for some kinds of document [19], [137]. In this case the owners had paid, queried and disputed invoices that said they were claims under the Act, and they had done all of that through the one address. By that conduct, the owners specified the address for payment claims. The court held that a notice under s 17(2) is close enough to a payment claim to fall in the same class of document [24], [25], [139], [172].

An email sent to a specified address is received when it can be retrieved from that address. It does not have to be opened or read (Electronic Transactions Act 2000 (NSW) s 13A) [142].

Whether the claim was served decides whether the adjudicator had jurisdiction (the power to decide the claim), and the court decides that question for itself. If the claim had been served only on 11 June, the determination would have been void [9], [123].

The court also held that, before 20 August 2024, the Home Building Act did not stop an unlicensed, uninsured contractor from enforcing a determination [163]. Since that date, s 8(2) of the Act denies a progress payment to a contractor in that position [154].

What it means for you

If you serve claims by email: before you send a claim, get the other side to confirm, in so many words, that you may use the address for documents under the Act. McHugh JA said contractors “would be well advised” to do this first [173]. He also said a home owner’s conduct may less readily amount to specifying an address than a head contractor’s conduct [171]. The contractor kept its determination in this case, but only after a trial and an appeal.

If you receive claims by email: treat any address you have used for invoices as an address for service. In this case, the owners’ 10 business days to give a payment schedule ran from 24 April, the day the claim could be retrieved. They did not run from 11 June, the day the owners found out about the claim [142], [144]. Check that inbox, or tell the other side in writing which address to use.

If you’re the owner: the Act applies to work on your home. On this decision, an address you have used to pay and argue about claims can be an address for service, even if you rarely check it.

When does the clock start?

Put in the date your claim was served and the calculator gives you every date the Act sets: when a payment schedule is due, when payment is due, and what you can do if you’re not paid. Two minutes.

I sent a claim — when do I get paid? → I received a claim — show my deadline →

This page explains one court decision. It isn’t legal advice about your contract.