Multiple decisions have now confirmed that, for the purposes of the security of payment legislation, if a document is issued before midnight on a given day then it is given on that day – regardless of any deeming provisions in your contract.
This has significant implications for superintendents and principals who rely on contractual ‘deeming’ provisions to extend the deadline for issuing a payment schedule in response to a statutory payment claim.
A failure to issue a payment schedule within time may give rise to a ‘statutory debt’, which the contractor may recover either in a court of competent jurisdiction or through the adjudication process.
Many contracts contain a ‘deeming’ clause. A deeming clause often provides that a ‘notice’ (a contractual communication, which often includes a payment claim) given after a certain time (usually 4pm or 5pm on a business day) will be treated as having been given on the next business day.
A deeming clause is unlikely to be effective for the purposes of the security of payment legislation, and principals and superintendents should exercise significant caution in relying on a deeming clause to extend the time for issuing a payment schedule. A prudent principal and superintendent should calculate the time frame for issuing a payment schedule from the calendar day on which the payment claim is received.
A deeming clause may be effective and relied upon for ‘other’ contractual notices unless or until it is determined that a ‘deeming’ clause is ‘void for all purposes’.[1]
In the recent New South Wales Court of Appeal decision of Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed)[2], the NSW Court of Appeal affirmed the decision of the NSW Supreme Court that:
Sharvain Facades Pty Ltd (Administrators Appointed) (Sharvain) sent a payment claim to the contractor Roberts Co (NSW) Pty Ltd (Roberts) via Payapps, an electronic messaging system, at 7.17pm on Friday 28 February 2025.
As the payment claim was given after 5pm on a business day, the ‘deeming’ clause in the contract provided that the payment claim was ‘deemed’ to be given on Monday 3 March 2025 i.e. the next business day.
Roberts – in reliance on the ‘deeming’ clause being effective – served the payment schedule on 17 March 2025, being within 10 business days of 3 March 2025 (rather than within 10 business days of 28 February 2025).
If a payment schedule under the SOP Act is not given within 10 business days of service of the payment claim, the contractor is entitled under s 15 of the SOP Act to recover the unpaid portion of the claimed amount as a debt due in a court of competent jurisdiction, or to make an adjudication application in relation to the claim.
First instance decision
In the first instance, Stevenson J determined that the ‘deeming’ clause purported to:
The appeal
On appeal, it was held that Sharvain sent the payment claim and it was capable of being retrieved by Roberts on 28 February 2025, regardless of it being sent after business hours because “fractionem diei non reipit lex, the law does not recognise fractions of a day and treats a day to be twenty-four hours”.[4]
Hammerschlag J held that the “overall effect of s 14(4) [of the SOP Act] and one consistent with the policy of the [SOP] Act of quick resolution, is that the period for providing a payment schedule can be contractually shortened, but not lengthened” (emphasis added).[5]
If the ‘deeming’ clause were effective, the time under the contract for the provision of the payment schedule commenced on 3 March 2025 and expired on 17 March 2025. Ten business days after the date of service of 28 February 2025 expired on 14 March 2025. The earlier time of 10 business days after service prevailed under s 14(4) of the SOP Act.[6]
As a result, the payment schedule provided was out of time and Sharvain was entitled to judgment.[7]
The Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) decision has significant implications for superintendents and principals who have become accustomed to relying on deeming clauses to extend the time frame within which they must respond to contractual notices.
Whilst at first instance it was held that the ‘deeming’ clause was “void for all purposes” the Court of Appeal stated that the “resolution of this question should await a case in which it needs to be answered”.[8] If a ‘deeming’ clauses are “void for all purposes”, this will require superintendents and principals to drastically change the way in which they administer contracts.
At this stage, the recent case law tells us that a ‘deeming’ clause will be void only to the extent that it seeks to modify the operation of the SOP Act.
Watch this space.
This article was written by Lauren Cook Partner and Matthew Endo Solicitor at Jackson McDonald
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[1] Rather than only void for the purposes of the security of payment legislation.
[2] [2025] NSWCA 161.
[3] Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd [2025] NSWSC 606 at [56].
[4] [4]Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 at [36], citing Prowse v McIntyre (1961) 111 CLR 264 at 270–271 (Dixon CJ), 275–276 (Taylor J), 277–281 (Windeyer J); [1961] HCA 79.
[5] Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 at [37].
[6] Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 at [38]–[40].
[7] Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 at [41].
[8] Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed) [2025] NSWCA 161 at [43].