Singh v A1 Home Builders Pty Ltd

These proceedings involve a dispute about whether an adjudication determination made or purportedly made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) should be declared void on the grounds of jurisdictional error.

The plaintiffs – Mr Gurnam Singh and Ms Surjit Kaur – are the owners of property at 16 Bromly Grove, Parklea, New South Wales. On or about 3 November 2021, they entered into a contract with the first defendant – A1 Home Builders Pty Ltd – for the construction of a dwelling on the property. I will refer to the first defendant as the builder. The second defendant – Mr Jaswinder Bhogal – is the sole director of the builder. It is not clear why he was joined as a party to these proceedings, but he has had common legal representation with the builder throughout.

Item 3 of Schedule 1 to the building contract specified email addresses for each of the plaintiffs. The specified email address for Mr Gurnam Singh is xxxxxxxxxx@outlook.com (the Singh email address). The specified email address for Ms Kaur is xxxxxxxxxxxxxx@hotmail.com, which is an address used by the plaintiffs’ son, Mr Sandeep Singh (the Kaur email address). Item 4 of Schedule 1 specified xxx@a1homebuilders.com.au as the email address for the builder (the builder’s email address).

Clause 23 of the building contract provided for the giving of notices under the contract. Relevantly, clause 23.2 provided that the means by which a notice may be given include “by sending it by email to the party’s email address shown in Item 3 or Item 4 of Schedule 1 or the email address that is last notified in writing”.

The plaintiffs allege, and the builder disputes, that Mr Gurnam Singh has difficulty operating computers and that there was an understanding between the plaintiffs and the builder that Mr Sandeep Singh was to be copied on all email correspondence sent by or on behalf of the builder to Mr Gurnam Singh. For reasons that will become apparent, it is not necessary to make any finding about those matters.

The plaintiffs and the builder fell into dispute. The plaintiffs alleged, and the builder denied, that the building works were defective.

The plaintiffs commenced proceedings against the builder in the NSW Civil and Administrative Tribunal (NCAT) on 5 October 2024.

On 3 April 2025, the builder issued a final invoice to the plaintiffs as a payment claim under the SOP Act in the amount of $254,846.00 (plus GST). The plaintiffs do not dispute that this was a payment claim within the meaning of s 13 of the SOP Act and that it was served on them by email sent by the builder’s solicitor to the Singh email address and the Kaur email address on 3 April 2025.

The plaintiffs did not serve a payment schedule under s 14 of the SOP Act in reply to the payment claim. Nor did the plaintiffs pay the payment claim. The builder therefore became entitled to make an adjudication application pursuant to ss 15(2)(a)(ii) and 17(1)(b) of the SOP Act, subject to complying with s 17(2) of the SOP Act.

Section 17(2) of the SOP Act provides that an adjudication application to which s 17(1)(b) applies:

On 23 April 2025, the builder’s solicitor sent a notice under s 17(2)(a) of the SOP Act by email to the Singh email address and the Kaur email address. The plaintiffs do not dispute that this was a valid notice under s 17(2)(a) and that it was served on them by email on that date.

The plaintiffs did not issue a payment schedule in response to the s 17(2)(a) notice.

On 11 May 2025, the builder made an adjudication application under the SOP Act. The adjudication application form completed by the builder was signed by Mr Bhogal on behalf of the claimant and nominated the email builder’s email address as the email address for the claimant.

The adjudication application form named Mr Gurnam Singh and Ms Kaur as the respondents, and nominated a misspelled email address (similar to the Singh email address, but with the erroneous inclusion of one additional letter) as the only email address for both respondents.

The unchallenged evidence of Mr Gurnam Singh is that his email address is as specified in item 3 of Schedule 1 to the building contract – and that he does not have access to the misspelled Singh email address that the builder nominated for the respondents in the adjudication application form.

On 12 May 2025 at 5:50pm, the builder’s solicitor sent an email to the misspelled Singh email address and the Kaur email address stating:

A Dropbox link appeared immediately below that text in the email.

I infer that this email was not received by Mr Gurnam Singh due to the use of the misspelled Singh email address. It is implicit in Mr Sandeep Singh’s evidence that he did not receive the email at the Kaur email address, although there is no apparent reason why it would not have been transmitted to that address. However, nothing turns on this because the plaintiffs acknowledge that Mr Gurnam Singh did receive a further email sent by the builder’s solicitors at 6:34pm on 12 May 2025 containing the same text as the first email and also containing a Dropbox link. That second email was sent to the correct Singh email address.

Although the plaintiffs acknowledge that this second email was received, Mr Gurnam Singh’s unchallenged evidence is that it did not come to his attention at the time because, amongst other reasons, it was sent by a person in the firm of solicitors acting for the builder with whom he had no prior dealings. Mr Gurnam Singh also gave evidence about his mistrust of emails containing links because he has previously been warned about phishing scams and finds it difficult to know what might be a scam and what is legitimate.

On 14 May 2025, the builder’s solicitors sent a further email to the Singh email address and the Kaur email address containing a further Dropbox link which was described as a sealed copy of the adjudication application “by way of service”.

The plaintiffs do not dispute that this email was received at the Singh and Kaur email addresses to which it was sent. However, it is implicit in the evidence given by Mr Gurnam Singh and Mr Sandeep Singh that the email did not come to their attention at the time. Each of them has deposed that they did not “receive” any emails concerning an adjudication process until, and Mr Gurnam Singh has deposed that he had no knowledge that an adjudication process had been commenced until, they received the email from the builder’s solicitors on 18 June 2025 to which I refer at [32] below. That evidence is unchallenged, as counsel for the builder did not cross-examine Mr Gurnam Singh and Mr Sandeep Singh.

On 21 May 2025, the Adjudication Coordinator at Adjudicate Today wrote a memorandum addressed to the plaintiffs and the builder confirming that the adjudicator’s fees had been paid and attaching the adjudication. Those documents were sent by email to the builder’s email address and the misspelled Singh email address.

The adjudicator determined that the builder was entitled to a progress payment in the amount claimed, being $280,330.60 (including GST).

The adjudicator’s reasons recorded the parties’ entry into the building contract, the service of the payment claim on 3 April 2025, the plaintiffs’ failure to serve a payment schedule in reply to the payment claim, the service of the s 17(2) notice on 23 April 2025, the plaintiffs’ failure to serve a payment schedule within five business days thereafter, the plaintiffs’ failure to pay the payment claim, and the builder’s adjudication application made on 12 May 2025. The adjudicator’s reasons also stated:

It is implicit in Mr Gurnam Singh’s unchallenged evidence to which I have referred at [21] above that he did not receive any email on 15 May 2025, or at any other time, notifying him of the adjudicator’s acceptance of the adjudication application.

The builder did not tender a copy of any email received from the adjudicator and addressed to the builder’s email address and to the correct Singh email address and/or the Kaur email address notifying the claimant and the respondents of the adjudicator’s acceptance of the adjudication application. It is inherently probable that any such email would have been sent by the adjudicator, or by Adjudicate Today on behalf of the adjudicator, to the builder’s email address and the misspelled Singh email address that the builder had nominated for the respondents on the adjudication application.

The builder submitted that the Court should infer the adjudicator and Adjudicate Today would have used the correct Singh email address from about 14 May 2025 when the builder complied with the request from Adjudicate Today to provide evidence of service of the adjudication application on the plaintiffs. In support of that submission, it was submitted that the Court should draw a further inference that the builder’s solicitor responded to that request by sending to Adjudicate Today a copy of either the second 12 May 2025 email or the 14 May 2025 email referred to at [18]-[21] above, and not the first 12 May 2025 email referred to at [16] above which the builder’s solicitor had sent to the misspelled email address for Mr Gurnam Singh.

I reject those submissions. The second suggested inference – which was the sole basis for the first inference – would involve impermissible speculation in favour of the builder, which could have adduced evidence of the contents of its communication with Adjudicate Today evidencing service of the adjudication application on the plaintiffs, but did not do so. More importantly, the first suggested inference is highly improbable given that the evidence establishes that the adjudication was sent to the misspelled Singh email address just one week later on 21 May 2025.

On the basis of the evidence of the adjudication application form completed by the builder, the unchallenged evidence of Mr Gurnam Singh and Mr Sandeep Singh to which I have referred at [21] above, the evidence that the adjudication was sent to the misspelled Singh email address on 21 May 2025, and the inherent probabilities referred to above, I find that the email communication intended to notify the plaintiffs and the builder of the adjudicator’s acceptance of the adjudication application was not sent to the email address of either of the plaintiffs and so was not received by them on 15 May 2025 or at all.

It is inherently probable, and implicit in Mr Gurnam Singh’s unchallenged evidence to which I have referred at [21] above, that the plaintiffs did not receive the adjudication determination which was sent to the misspelled Singh email address on 21 May 2025, and I so find.

The builder filed the adjudication certificate in the District Court pursuant to s 25 of the SOP Act. On 17 June 2025, judgment was entered in District Court proceedings 2025/231116 in favour of the builder (as plaintiff) against the plaintiffs (as first and second defendants) in the sum of $290,166.50.

On 18 June 2025, the builder’s solicitor sent an email to the Singh email address and the Kaur email address attaching a copy of the District Court judgment, asserting that the plaintiffs had incurred a further $10,000 in interest and filing fees following the adjudicator’s determination on 21 May 2025 because no payment had been made, and stating that the solicitor had instructions to “file a garnishee order against your property” if payment was not made by the following day, 19 June 2025.

The plaintiffs commenced these proceedings by Summons filed on 18 August 2025.

The plaintiffs filed an Amended Summons on 12 September 2025.

The plaintiffs paid the adjudicated amount of $280,330.60 into Court on or about 5 December 2025 and that sum was received shortly prior to the hearing of the Amended Summons on 10 December 2025.

The Amended Summons contains numerous prayers for relief.

By the conclusion of the hearing, it was clear that the plaintiffs sought a declaration that the adjudication determination is void and an order setting aside the District Court judgment on the basis of:

It is convenient to begin with the second issue referred to above.

The general purpose and policy of the SOP Act and the key features of the legislative scheme for progress payments in the building and construction industry were explained by the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (Probuild). [1] The SOP Act confers upon those who carry out construction work under construction contracts a statutory entitlement to receive, and to promptly recover, progress payments for that work, while preserving the parties’ rights under the construction contract. The SOP Act “achieves that objective by setting up a scheme, including a ‘unique form of adjudication of disputes over the amount due for payment’, which is … ‘coherent, expeditious and self-contained’. The intended result is that ‘each party knows precisely where they stand at any point of time’.” [2] The SOP Act imposes “‘brutally fast’ deadlines on the claimant, the respondent and the adjudicator to ensure the prompt resolution of payment disputes”. [3]

Section 17(3) of the SOP Act sets out requirements for the making of an adjudication application, which include that it must be made to an authorised nominating authority. Section 17(5) provides that a copy of the adjudication application “must be served on the respondent concerned”. The authorised nominating authority has a duty under s 17(6) to refer the application to an adjudicator who meets the eligibility criteria in s 18.

Section 19 of the SOP Act provides:

Service on the claimant and the respondent of notice of the adjudicator’s acceptance of the adjudication application is important because the adjudicator is required to afford procedural fairness to the parties. This requires, inter alia, that the adjudication be free of actual or apprehended bias. [4] Because the SOP Act requires the claimant to make the adjudication to an authorised nominating authority, and it is that authority which nominates a particular adjudicator, neither the claimant nor the respondent are aware of the identity of the nominated adjudicator unless and until that adjudicator serves notice of their acceptance of the adjudication application. Upon receiving that notice and thereby learning the identity of the adjudicator taken to have been appointed to determine the application under s 19(2), either the claimant or the respondent may apply to the Court for orders declaring invalid or setting aside the nominating authority’s referral of the adjudication application to the adjudicator, or the adjudicator’s purported acceptance of the adjudication application, on the grounds of actual or apprehended bias, that being a substantial denial of the measure of procedural fairness which the SOP Act requires be given to the claimant and the respondent. That is what occurred in Quickway Constructions Pty Ltd v Hick. [5] If the adjudicator’s notice of acceptance of the application is not served on the claimant and the respondent, they may not become aware of the identity of the adjudicator until they receive the adjudicator’s determination.

In the absence of any alleged actual or apprehended bias, the time of service of the notice of the adjudicator’s acceptance of the application is important because it affects the time that is afforded to the respondent to lodge an adjudication response under s 20(1) of the SOP Act (assuming that they are not precluded from lodging a response by reason of s 20(2A)), and is the reference point for the commencement of the 10-business-day period within which the adjudicator must determine the adjudication application under s 21. Having regard to the brutally fast but carefully calibrated time periods that apply to each stage of an adjudication process under the SOP Act, [6] it is important that those timeframes are objectively ascertainable by the adjudicator, the claimant and the respondent during the adjudication process.

Service of notice of the adjudicator’s acceptance of the application is not an onerous requirement, having regard to the broad definition of “serve” in s 31(4) of the SOP Act as including to “give, send or otherwise provide”, and the non-exhaustive list in s 31(1) of the means by which documents may be “served”. Indeed, it is difficult to conceive of a means of notifying the claimant and the respondent of the adjudicator’s acceptance so as to bring it to their attention that is not covered by s 31(1).

Reading s 19(1) literally, the word “may” signifies that the adjudicator is not obliged to accept an adjudication application. If the adjudicator decides to accept, s 19(1) prescribes the sole means by which they may do so: by causing notice of acceptance to be served on the claimant and respondent. The legal meaning of s 19(1), being the meaning that the legislature is taken to have intended the words to have, must be ascertained having regard to the language of the statute viewed as a whole and the context, general purpose and policy of the statute. [7] In my opinion, having regard to the general purpose and policy and the provisions of the SOP Act as a whole, as explained by the High Court in Probuild, and the role of service of the notice of acceptance in marking the final opportunity for the respondent to lodge an adjudication response (subject to s 20(2A)) following which the adjudicator may begin the process of determining the adjudication application within the 10-business-day period imposed by s 21(3) of the SOP Act, the literal and grammatical meaning of s 19(1) aligns with its legal meaning.

The effect of s 19(2) is that the adjudicator is not appointed to determine the adjudication application unless and until they accept the adjudication application by serving notice of their acceptance on the claimant and the respondent as required by s 19(1).

Judicial review of an adjudicator’s determination is available for jurisdictional error, [8] which includes a failure to comply with one or more of the “preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process”, and a failure to comply with one or more of the “conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind”. [9]

Since Brodyn Pty Ltd t/as Time and Cost Quality v Davenport [10] (Brodyn), it has been established that the “basic and essential requirements” that are “conditions laid down for the existence of an adjudicator’s determination” under the SOP Act include: “The reference of the application to an eligible adjudicator, who accepts the application (ss 18 and 19)”. [11]

The written submissions presented on behalf of the builder erroneously described this “basic and essential requirement” articulated by Hodgson JA in Brodyn as “the appointment of an eligible adjudicator”, omitting his Honour’s reference to the adjudicator’s acceptance of the application as part of that requirement. Counsel for the builder then referred to cases that were said to stand as authority for the proposition that the timing of the respondent’s receipt of the adjudication application is not an essential condition, and asserted that the same reasoning “must apply to alleged imperfections in service of the adjudicator’s acceptance”, without referring to any of the cases in this Court and the Court of Appeal which have approved and applied Hodgson JA’s inclusion of the adjudicator’s acceptance of the adjudication application in the essential conditions for the existence of an adjudication determination under the SOP Act. [12] I reject those submissions as contrary to s 19(2), and contrary to authority.

I have found that the adjudicator’s acceptance of the adjudication application was not served on either of the plaintiffs. [13] For the reasons explained above, it follows that the adjudicator had no jurisdiction to embark on the adjudication process and to make a determination. The adjudication determination is therefore legally a nullity, and must be declared void. It follows that the District Court judgment must be set aside.

It is not necessary to consider the three alternative bases of the plaintiffs’ claim identified at [37] above. I decline to express any views about those alternative bases in circumstances where I regret to say that the Court did not have the benefit of cogent submissions from the plaintiffs or the builder. In particular, both parties were given an opportunity to make further written submissions after the hearing in relation to: (1) whether service of an adjudication application can be effected by sending an email with a hyperlink which, when the respondent clicks on it so as to access its contents, reveals the adjudication application; [14] and (2) whether the requirement in s 17(5) of the SOP Act for a copy of an adjudication application to be served on the respondent concerned is a precondition to a valid adjudication. [15] Those supplementary submissions addressed the first of those issues, but failed to address the second issue in any meaningful way. Counsel for the plaintiffs advanced a contention that s 17(5) is a precondition to the adjudicator’s jurisdiction “[o]n a contextual analysis”, without articulating the contextual analysis or other reasoning in support of that contention save for referring to authorities concerning s 17(2) and the word “must” in s 17(5). Counsel for the builder referred to cases in which doubts have been expressed in obiter dicta that s 17(5) is a precondition to jurisdiction, but did not articulate any reasons in support of the (implied) contention that the Court should follow those remarks. Counsel for the plaintiffs did not refer to those cases at all.

For the foregoing reasons, the declaration and orders of the Court are: