Johnathan is a lawyer with a unique background focused on building and infrastructure projects. He provides succinct and targeted advice, and his commercial background enables him to understand the priorities of his clients.
For two years, Johnathan was an in-house corporate lawyer for a tier 1 international infrastructure contractor with a major presence in the Australian road and rail sectors. During this time, Johnathan provided support to delivery teams as a project lawyer in the construction of two major landmark Sydney Metro rail projects.
In that role Johnathan provided support and education on head contract and subcontract administration, negotiated subcontract terms with preferred tenderers, updated subcontract terms to reflect legislative developments, responded to subcontractor delay and variation claims, audited commercial management’s compliance with head contract requirements, drafted upstream extension of time and variation claims and provided strategic advice on interface and environmental risks.
Further, Johnathan has experience in government procurement, having assisted bid teams with the preparation of tender submissions for major infrastructure projects, drafting and implementation of probity plans and the management of subcontractor compliance.
Johnathan also has a strong background in construction disputes, having been involved in litigation in the NSW Supreme Court and Civil and Administrative Tribunal (NCAT), as well as adjudication proceedings commenced in NSW under the Security of Payment Act with values in dispute ranging from $350,000 to $50 million.
Johnathan’s depth of experience and understanding of the commercial issues faced by market participants make him a trusted strategic advisor in the construction sector.
Prior to his admission as a lawyer, Johnathan was a paralegal in a construction and engineering law firm for five years. Johnathan holds a Bachelor of Laws and a Bachelor of Business majoring in Finance (with distinction) from the University of Technology Sydney.
Johnathan has experience in government procurement, having assisted bid teams with the preparation of tender submissions for major infrastructure projects, drafting and implementation of probity plans and the management of subcontractor compliance.
Johnathan also has a strong background in construction disputes, having been involved in litigation in the NSW Supreme Court and Civil and Administrative Tribunal (NCAT), as well as adjudication proceedings commenced in NSW under the Security of Payment Act with values in dispute ranging from $350,000 to $50 million.
The recent case of Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd [2024] NSWSC 1244 provides some guidance for construction companies in relation to the valid service of payment claims for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“SOP Act”) on non-designated representatives.
Justice Stevenson’s finding in the matter also acts as a stark warning that the timeframe for serving payment schedules under the SOP Act is short, and failure to comply can result in a respondent being liable to pay the full amount claimed in a payment claim, which can lead to a judgment debt without a claimant needing to obtain an adjudication certificate.
Fredon Infrastructure Pty Ltd (“Fredon”) and Hitachi Rail GTS Australia Pty Ltd (“Hitachi”) were parties to two construction contracts for work in respect of the Victoria Cross and Crows Nest Metro Stations, dated 4 May 2022 and 2 September 2022 respectively (together, “the Contracts”). The Contracts were in the same terms.
Importantly, the Contracts nominated Mr Euan Noble as the “Thales Representative”.
Originally, the Contracts were between Fredon and Thales Australia Ltd (“Thales”) but they were novated to Hitachi shortly after they were executed. The effect of the novation was to substitute references to “Thales” in the Contracts to “Hitachi”.
On 6 May 2022 there was a “kick-off” meeting in respect of the Victoria Cross Contract. Evidence produced in the proceedings informed the Court that, during the meeting, a Mr Indrarathna said to Fredon that all notices and claims should be sent to him, being the “Subcontracts Manager”.
On 23 September 2022, there was a separate “kick-off” meeting in respect of the Crows Nest Contract. The evidence produced informed the Court that, during the meeting, Mr Indrarathna said to Fredon that all notices and claims should be sent to him and Ms Shende, being the “Contracts Administrator”.
From the dates of the kick-off meetings to February 2024, Fredon sent Hitachi 12 payment claims under the Victoria Cross Contract and 14 payment claims under the Crows Nest Contract. All but three of those payment claims in respect of the Victoria Cross Contract were addressed to Mr Euan Noble, Mr Indrarathna, Ms Green (Mr Indrarathna’s successor), and on a number of occasions Ms Shende. The three payment claims in respect of the Victoria Cross Contract were addressed to Ms Green.
There was no dispute in relation to any of those payment claims.
At 3:37pm and 3:40pm on 21 February 2024, Fredon issued by Aconex to Ms Shende, payment claims in the amount of $816,612.71 under the Crows Nest Contract and $1,806,265.39 under the Victoria Cross Contract respectively, with copies to Ms Green. Relevantly, Mr Euan Noble was not a party to either Aconex message.
At 8:33am on 22 February 2024, Ms Green confirmed receipt of the payment claims by way of voice message sent from her mobile phone.
On 7 March 2024, Hitachi served its payment schedules in respect of the February payment claims, being 11 business days after 21 February 2024
The key issue in contention was whether the 21 February 2024 Payment Claims were effectively served on Hitachi and, if they were, whether they were served on 21 February 2024 or 22 February 2024.
If the 21 February 2024 Payment Claims were effectively served on 21 February 2024, Hitachi served its payment schedules out of time for the purposes of section 14 of the SOP Act. As such, Hitachi would be liable to pay Fredon the claimed amount.
Among other issues, the Court had to deal with two key questions.
Hitachi submitted that the notice provisions in the Contracts required Fredon to serve any payment claims on Hitachi’s nominated representative, Mr Euan Noble.
Clause 36.18(d) of the Contracts required Fredon to give any notice to Hitachi by uploading it upon the Aconex system, being the nominated Document Management System under the Contracts. This is how Fredon delivered the 21 February 2024 Payment Claims.
Clause 36.17 of the Contracts provided that all notices will be duly served if in writing and, inter alia, directed to the attention of the Contractor’s Representative or the Thales Representative (as applicable).
Clause 3.1 of Schedule 3 to the Contracts provided that the “principal place of business or such other address for service of documents pursuant to the Security of Payment Legislation” for the parties are set out in the “Details section” of the Contracts.
Stevenson J found that clause 36.17 and 3.1 of Schedule 3 were “facultative” (i.e. optional) and were not an exclusive code with respect to service for the purposes of the SOP Act, which permits service by other means. Therefore, upon consideration of the notice provisions in the Contract, Stevenson J found nothing in any of the notice provisions which had the effect of requiring Fredon to serve any payment claim on Mr Euan Noble.
Further, in light of the representations made to Fredon during the kick-off meetings, as well as the job descriptions of Ms Green and Ms Shende, Stevenson J concluded that Ms Green and Ms Shende had both “apparent” and “actual” authority to receive the 21 February 2024 Payment Claims by Aconex on behalf of Hitachi.
The question of when the 21 February 2024 Payment Claims were delivered is vital, because if they were in fact effectively served on 21 February 2024, Hitachi served its payment schedules out of time.
Stevenson J referred to section 13A(1) of the Electronic Transactions Act 2000 (NSW). Section 13A(1)(b) deals with the time of receipt in circumstances where an electronic communication is received by at an electronic address which is not the electronic address designated by the addressee.
This provision was relevant in this case because the Aconex messages containing the 21 February 2024 Payment Claims were not issued to the designed electronic address of Mr Euan Noble but were instead issued to Ms Green and Ms Shende.
Section 13A(1)(b) provides that, in such circumstances, the time of receipt is the time when both:
In consideration of whether these elements were satisfied, Stevenson J referred to the following matters:
Stevenson J found that on the afternoon of 21 February 2024, Ms Shende and Ms Green became aware of the Aconex messages containing the 21 February 2024 Payment Claims, and those Aconex messages reached the electronic addresses of Ms Shende and Ms Green. Therefore, valid service of the 21 February 2024 Payment Claims on Hitachi occurred on 21 February 2024 for purposes of section 13A of the Electronic Transactions Act (NSW) 2000.
As a result, Hitachi’s payment schedules were issued late and the court found that Hitachi was liable to Fredon for the amounts in the 21 February 2024 payment claims.
This case acts as an important reminder of the following:
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