Jackson McDonald wins key SOPA ruling for Martinus Rail

The first decision from the WA Supreme Court following a final hearing on the operation of s27(3) of the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOPA) is here! 

By way of background, if a party does not give a payment schedule in response to a statutory payment claim in time, then the amount claimed is payable in full. The party owed payment can seek judgment pursuant to s27(3) of SOPA.

Although parties have attempted to obtain judgment under s27(3) using the summary judgment process (for example LHRE Group Ltd v Complete Hire & Sales Pty Ltd [2024] WDC 61 and OSB Group Pty Ltd v Complete Hire Sales Pty Ltd [2024] WASC 310) we have yet to see a decision where the claimant has elected to proceed to final hearing of their s27(3) entitlements.

The Supreme Court of Western Australia has recently handed down its decision in Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373 (Martinus v CBH).

In the Martinus v CBH dispute:

• Martinus had emailed its statutory payment claim for $22,646,617.21(ex gst) to CBH on Saturday 31 August 2024 – but CBH only opened it on the Monday;
• CBH responded with their payment schedule by email on 24 September 2024. 

Whether CBH’s payment schedule was within time was dependent upon whether the 15 business days for issuing its payment schedule ran from the Saturday, or the Monday. 

Martinus said that by reg 23(d) of the Building and Construction Industry (Security of Payment) Regulations 2022 (WA) (SOPA Regs) and section 14 of the Electronic Transactions Act 2011 (WA)  (ETA), time ran from the Saturday because the email was capable of being retrieved on that date, and so was taken to have been given on that day.

CBH said that section 14 of the ETA contained a carve out where “parties had otherwise agreed” arrangements for when something was taken to have been given, and by clause 47.4 of the contract, the parties had agreed that any statutory payment claim sent on a Saturday was only taken to be given on the next business day. 

Contractual deeming provisions for giving of notices in the context of security of payment legislation were considered in the recent NSW decision of Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 (Sharvain). 

The NSW Court of Appeal (upholding the first instance decision) held that the deeming clause did not operate to change the time of service of a payment claim to the following business day for the purposes of calculating time under the Building and Construction Industry Security of Payment Act 1999 (NSW) .

The NSW approach has now been considered and broadly adopted by the Supreme Court of Western Australia in Martinus v CBH notwithstanding the minor differences in the legislation (and the presence of reg 23(d) (SOPA regs).  

The Court confirmed that:

• SOPA payment claims can be given on a weekend;
• When sent by email a SOPA payment claim is deemed received when capable of being retrieved;
• Any provision in a construction contract that purports to extend the statutory timeframes under SOPA (WA), or has that effect, is of no effect. Even if the parties expressly agreed to such a clause, it would be void and unenforceable by reason of section 111 of SOPA.

The Court highlighted the importance of the statutory time restrictions under SOPA. The Court stated that they acknowledge that legislation will rarely pursue a single objective at all costs and that it was evident from sections 25(1) and 3(2) of SOPA  that there was a deliberate legislative choice to impose strict and certain time limits on the making and responding to payment claims.[1] These provisions are designed to ensure prompt cash flow in the construction industry, which is the central purpose of security of payment legislation across Australia.

The practical lessons for parties involved in making or receiving SOPA payment claims are critical:

1. SOPA payment claims can be given by email, at the weekend;
2. The time for receipt of SOPA Payment Claims can be deemed to have occurred before the email is actually opened and read;
3. the time for a response cannot be delayed by common contractual provisions relating to when notices are taken to be received – even if the contractual provision expressly refer to SOPA; and
4. Don’t leave it to the last minute!

Jackson McDonald's Construction & Infrastructure Team led by Tom Jacobs | Partner, Belinda Wong | Partner and Michael Stulic | Associate acted for Martinus. This is a decisive outcome for statutory payment rights and a strong result for our client.

 For specific legal advice please contact a member of the team.

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[1] Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373, [168].