File On Time, Every Time

Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161

FACTS

Sharvain Facades, the firm that designed the new Sydney Fish Market’s ‘wave’ roof, served a $3.2 million payment claim on Roberts via the document management system Payapps at 7:18pm on Friday, 28 February 2025.

The construction contract included a “Deeming Clause” that delayed service of documents sent after 5pm to 9am the next business day.

Roberts issued its payment schedule on 17 March 2025 which was within time if the clause was effective to extend the time for service, but late if service occurred on 28 February.

Sharvain sued under s 14(4) and s 15(2) of the SOPA seeking judgment for the full amount for failure to serve a payment schedule in time and was successful at first instance before Justice Stevenson.

ISSUE

Can parties contractually delay the time of service of a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW)?

FINDING…