A recent Queensland Supreme Court case has held that uploading files to an electronic file uploading facility such as Dropbox and providing a link to another party does not constitute service of those documents on the other party. The result would be the same where parties use a web-based third party hosted document or project management system such as Project Centre or Aconex.

Parties should, if they intend to serve each other with documents in electronic form, including via email and web-based systems, make express provision in their contract for the particular method of service.

Background Facts

In Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30, Basetec Services Pty Ltd (Basetec) was a supplier of pre-assembled pipe rack units to Conveyor & General Engineering Pty Ltd (CGE) for the construction of water treatment facilities in Queensland.

On 30 July 2013 Basetec delivered a payment claim to CGE under s17 of BCIPA in the amount of $403,680.20. On 12 August 2013 the solicitors for CGE provided a payment schedule in response, disputing the entirety of the payment claim.

On 23 August 2013 Basetec made an adjudication application and Basetec sent to the solicitors for CGE an email that included a copy of the email that Basetec had sent to the Authorised Nominating Authority (ANA) that day and attached to the email a letter, the adjudication application forms and a Dropbox link to the relevant adjudication application submissions and supporting documents.

On 23 August 2013 the recipient of the email read the email and its attachments but did not look at the documents that were viewable upon opening the Dropbox files.

On 26 August 2013 Basetec sent a similar email directly to a member of staff of CGE, which email also contained the Dropbox link to the adjudication application submissions and supporting documents. That person also read only the email and attachments and did not look at the documents within the Dropbox files.

The Service Question

CGE and its solicitors only became aware of the content of the Dropbox files on Monday 2 September 2013. On that same day, CGE provided an adjudication response to the ANA and Basetec.

On 2 September 2013, Basetec emailed to the adjudicator and the solicitors for CGE submissions regarding the service of the adjudication application.

The adjudicator determined that he was precluded from considering any submission from CGE which was received after 30 August.

CGE complained that it had been denied the opportunity to provide an adjudication response because the adjudicator erred in concluding that the time for that response started running on 23 August – that being the date on which the adjudicator concluded that Basetec’s application was served.

The case turned on the question of when the adjudication application was served on CGE for the purposes of s103 of BCIPA.

The contract between the parties did not make provision for the service of a document and it was not argued by either party that the parties had agreed that the adjudication application could be served by Dropbox.

McMurdo J found that “…some of the documentation comprising the adjudication application was not itself within the email [of 23 August 2013]. In my conclusion, that puts paid to the possibility that this adjudication application could be regarded as duly served”.

Author: Tony Britt  

Contacts:

Melbourne
Stephen Natoli, Partner
T: +61 3 9321 9796
E: stephen.natoli@holdingredlich.com

Sydney
Tony Britt, Partner
T: +61 2 8083 0497
E: tony.britt@holdingredlich.com

Brisbane
Troy Lewis, Partner
T: +61 7 3135 0614
E: troy.lewis@holdingredlich.com

Disclaimer

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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