CO-OPERATIVE BULK HANDLING LTD (ABN 29 256 604 947) -v- MARTINUS RAIL PTY LTD [2026] WASCA 82

[2026] WASCA 82 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CO-OPERATIVE BULK HANDLING LTD (ABN 29 256 604 947) -v- MARTINUS RAIL PTY LTD [2026] WASCA 82 CORAM : THOMSON P VAUGHAN JA ARCHER JA HEARD : 22 MAY 2026 DELIVERED : 19 JUNE 2026 FILE NO/S : CACV 77 of 2025 BETWEEN : CO-OPERATIVE BULK HANDLING LTD (ABN 29 256 604 947) Appellant AND MARTINUS RAIL PTY LTD Respondent ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : PALMER J Citation : MARTINUS RAIL PTY LTD -v- CO-OPERATIVE BULK HANDLING LTD (ABN 29 256 604 947) [2025] WASC 373 File Number : CIV 2245 of 2024 -- 1 of 21 -- [2026] WASCA 82 Page 2 Catchwords: Building and construction - Security of payment legislation - Electronic communications - Time when payment claim served Statutes - Statutory construction - Regulations referring to time when electronic communications received being 'in accordance with' s 14 of the Electronic Transactions Act 2011 (WA) - Statutory exception for agreement about time of receipt Legislation: Building and Construction Industry (Security of Payment) Act 2021 (WA), s 22, s 23, s 24, s 25, s 26, s 27 Building and Construction Industry (Security of Payment) Regulations 2022 (WA), reg 23 Electronic Transactions Act 2011 (WA), s 14 Result: Appeal dismissed Category: A Representation: Counsel: Appellant : Jeffery Gleeson KC & A L Mason Respondent : S Robertson SC & D Pratt Solicitors: Appellant : Corrs Chambers Westgarth Respondent : Jackson McDonald Case(s) referred to in decision(s): Conservation Council of WA Inc v Dawson [2019] WASCA 102; (2019) 240 LGERA 387 -- 2 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 3 JUDGMENT OF THE COURT: 1 The Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOP Act) creates a statutory regime designed to facilitate cash flow for a building contractor. The legislation provides for a contractor to give a payment claim to its principal for a progress payment due under a construction contract. The principal has the opportunity to dispute a payment claim within 15 business days after a payment claim is made, by giving the contractor a payment schedule indicating the amount of payment (if any) which the principal proposes to make. If the principal does not dispute a payment claim within 15 business days after a payment claim is made, the principal becomes liable to pay the whole of the claimed amount on the due date for the progress payment. 2 The question in this case concerns when a payment claim for over $22 million was given, and hence when did the period of 15 business days after this date expire? The primary judge found that the period of 15 business days had expired prior to the principal serving its payment schedule. Consequently, the principal was liable to the contractor for a debt of over $22 million. The principal has appealed. Facts1 3 The principal is the appellant (CBH), and the contractor is the respondent (Martinus). The construction contract (Contract) concerned construction of a rail siding and infrastructure at Broomehill, Western Australia. The parties entered the Contract on 2 February 2023. It was a construction contract for the purposes of the SOP Act. The contract price for works under the Contract (as varied) was $36,731,884.54 (as at 18 July 2023). 4 On 22 August 2024, CBH directed Martinus to omit all works under the Contract that were otherwise required to achieve practical completion, which had not been completed as at the end of 31 August 2024. 5 On Saturday 31 August 2024, at around 4.35 pm, an employee of Martinus sent an email to CBH's representative attaching a payment claim for $22,646,617.21 (ex GST). This was opened and read on 1 The facts set out here are based upon the Statement of Agreed Facts (GAB 106 - 108), unless otherwise indicated. -- 3 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 4 Monday 2 September 2024, at around 6.42 am, by CBH's representative. 6 The substance of the email sent at around 4.35 pm on 31 August 2024 simply stated that:2 Attached is the progress claim and the backup folder. … This is a payment claim made under the Building and Construction Industry (Security of Payment Act) 2021 (WA). 7 The Contract contemplates making a payment claim in clause 33.3 The form of such a payment claim is set out in Schedule J.4 The sample payment claim in Schedule J commences with the statement that: 'This is a payment claim made under the Building and Construction Industry (Security of Payment) Act 2021 (WA)'.5 Consequently, the Contract expressly contemplates that a Payment Claim under the Contract may also have dual effect as a payment claim made under the SOP Act. 8 The Contract is governed by the law of Western Australia: cl 57.6 The Public and Bank Holidays Act 1972 (WA) operates to make the anniversary of the birthday of the reigning sovereign (as gazetted) a public holiday in Western Australia.7 Monday 23 September 2024 was gazetted as a public holiday in Western Australia as the Celebration Day for the Anniversary of the Birthday of the Reigning Sovereign in 2024.8 9 On Tuesday 24 September 2024, at about 4:31 pm, representatives of CBH sent an email to Martinus attaching a payment schedule in relation to the payment claim which had been made. The payment schedule certified the amount of $5,425,550.66 (ex GST) as owing by Martinus to CBH9 (ie CBH rejected Martinus' payment claim in full and contended instead that Martinus was liable to make payment to CBH). 2 GAB 522. 3 GAB 163 - 165. 4 See the definition of 'Payment Claim' in clause 1.1 of the Contract (GAB 121). 5 GAB 242. 6 GAB 180. 7 Public and Bank Holidays Act 1972 (WA) s 5, sch 2. 8 Queen's Birthday Holiday 2024 and 2025 Proclamation 2022 (Western Australia, Government Gazette, No 69, 20 May 2022, 3009). 9 GAB 536. -- 4 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 5 10 Notwithstanding this, on Wednesday 25 September 2024, Martinus gave CBH a tax invoice for the whole of the payment claim, ie for $22,646,617.21 (ex GST).10 Calculation of time 11 The time period of 15 business days after Saturday 31 August 2024 commenced on Monday, 2 September 2024 and ended on Friday, 20 September 2024. If this is the correct calculation of the time period of 15 business days after the payment claim was made, the payment schedule given by CBH to Martinus on Tuesday 24 September 2024 was outside the relevant period. 12 On the other hand, if the payment claim sent on Saturday 31 August 2024 is to be regarded as only having been received by CBH on Monday 2 September 2024, the time period of 15 business days after that date began on Tuesday 3 September 2024 and ended on Tuesday 24 September 2024 (taking into account that Monday 23 September 2024 was a public holiday). If this is the correct calculation of the time period of 15 business days after the payment claim was made, the payment schedule given by CBH to Martinus was inside the relevant period. Relevant provisions of Contract regarding time 13 As explained, a 'Payment Claim' is made under cl 33 of the Contract, but may also be regarded by the Contract as effective for the purposes of the SOP Act. 14 A 'Payment Claim' under cl 33 of the Contract is a 'Claim' as defined in cl 1.1 of the Contract. That definition relevantly provides as follows:11 Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise. 15 This definition would also extend a 'Claim' to cover a 'Payment Claim' also made under the SOP Act, as it applies to claims 'at law, in equity, under statute or otherwise'. 10 GAB 630 - 632. 11 GAB 116. -- 5 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 6 16 Given that a 'Payment Claim' under cl 33 is within the contractual definition of 'Claim', it is also evidently within the definition of 'Notice':12 Notice includes any notice, Tax Invoice, consent, determination, decision, acknowledgement, notification, rejection, Approval, authorisation, Claim, proposal or any other communication made or issued pursuant to a provision of this Contract. (emphasis added) 17 As a 'Notice' also covers a 'Claim', and as a 'Claim' would cover a payment claim under the SOP Act, there is an argument that a 'payment claim' for the purposes of the SOP Act is also a 'Notice'. The alternative view is that the last words of the definition of 'Notice' ('made or issued pursuant to a provision of this Contract') qualify all previous words, rather than just 'any other communication'. 18 Clause 47 of the Contract addresses the process of giving a 'Notice' under the Contract. Clause 47.2 states:13 A Notice given to a Party in accordance with clause 47 is treated as having been duly given and received: … (c) if transmitted electronically, 1 hour after the sender sent the Notice by email, unless the sender knows or ought reasonably to suspect that the email was not delivered to the addressee's domain. 19 However, this provision is qualified by the operation of cl 47.4, which is in the following terms:14 Despite anything else in this clause 47, if communications are received or taken to be received under clause 47.2 after 5.00 pm on a Business Day or on a non-Business Day, they are taken to be received at 9.00am on the next Business Day. 20 The term 'Business Day' is defined in cl 1.1 as follows:15 Business Day means any day other than a Saturday, Sunday or public holiday at the place where the Site is located. 21 The effect of these provisions of the Contract is that the Payment Claim sent by Martinus to CBH on Saturday 31 August 2024 was taken 12 GAB 120. 13 GAB 175. 14 GAB 175. 15 GAB 115. -- 6 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 7 to have been received at 9.00 am on Monday 2 September 2024, at least for the purposes of the Contract but arguably also for the purposes of the SOP Act. Relevant statutory provisions regarding time 22 Section 22 of the SOP Act provides: (1) A person who is or claims to be entitled to a progress payment may give a claim for the progress payment (a payment claim) to the person who, under the relevant construction contract, is or may be liable to make the progress payment. (2) A payment claim is made for the purposes of this Act when the claim is given under subsection (1). 23 This provision contemplates that a payment claim is given to the person who, 'under the relevant construction contract', is or may be liable to make the progress payment. That identifies to whom the payment claim must be given, but the claim is still statutory and stands outside the contractual regime. That is evident from s 17 of the SOP Act, particularly s 17(4). The entitlement to receive a progress payment arises under s 17(1), and is 'a separate and additional entitlement to any entitlement to payment under a construction contract': s 17(4). 24 The effect of s 22(2) is a semantic one. It effectively equates the time when a claim is 'made' with when the claim is 'given'. It does not define when a claim is to be regarded as 'made' or 'given', beyond what may be implied from the ordinary English meaning of these words. 25 Section 25(1) of the SOP Act makes plain that, absent some earlier time being provided for by the construction contract, a principal has 15 business days to respond to a payment claim once it has been 'made', but also does not define when such a claim is 'made': The respondent may respond to a payment claim by giving a schedule (a payment schedule) to the claimant before the earlier of the following - (a) the time required by the construction contract; (b) 15 business days after the payment claim is made. 26 Section 113 of the SOP Act is concerned with service of documents. Section 113(1) makes clear that the meaning of 'give' includes serve, send or otherwise provide. However, there is a distinction within s 113 between the manner of giving (or serving) a -- 7 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 8 document, and the time when the document is regarded as given (or served). 27 Section 113(2) and s 113(3) are concerned with the manner of serving documents: (2) Any document that by or under this Act is authorised or required to be given by a party to a construction contract to another party to the contract in relation to matters arising under the contract - (a) must be given in the manner (if any) provided in the contract if it is reasonably practicable to do so; or (b) in any other case - must be given in a manner provided by subsection (3). (3) Any document that by or under this Act is authorised or required to be given to a person may, subject to subsection (2), be given to the person - (a) by delivering the document to the person personally; or (b) by leaving the document for the person at the person's ordinary place of business; or (c) by sending the document by post to the person's ordinary place of business; or (d) by email to an email address specified by the person for giving documents of that kind to the person; or (e) by any other method (including the use of an electronic database, document system or any other means by which a document can be accessed electronically) authorised by the regulations for giving documents of that kind to the person. 28 By contrast, s 113(4) is concerned with the timing of service of documents: (4) The regulations may make provision for or in relation to the time at which a document that is given in a particular manner is taken to have been given. 29 Notably, this provision does not prescribe a particular time or point when a document is taken to have been given or served. Rather, it leaves this for prescription by regulations. -- 8 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 9 30 The relevant regulation is reg 23 of the Building and Construction Industry (Security of Payment) Regulations 2022 (WA) (SOP Regulations). Regulation 23 materially provides: The time when a document that is authorised or required by or under the Act to be given to a person is taken to have been given is as follows - … (d) in the case of a document sent to a person by email or any other form of electronic communication - when the electronic communication is taken to be received by the person in accordance with the Electronic Transactions Act 2011 section 14[.] 31 Once again, this regulation does not prescribe any particular time or point when a document is taken to have been given or served. Instead, it refers to when the communication is taken to have been received 'in accordance with' s 14 of the Electronic Transactions Act 2011 (WA). As will be seen, this gives rise to a question about what it means for a communication to have been received 'in accordance with' s 14. 32 Section 14(1) of the Electronic Transactions Act states as follows: (1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication - (a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both - (i) the electronic communication has become capable of being retrieved by the addressee at that address; and (ii) the addressee has become aware that the electronic communication has been sent to that address. -- 9 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 10 The competing positions 33 CBH's position may be summarised in the following stages. 34 First, CBH says that the time when a payment claim is made or given is not prescribed by the SOP Act, but is left to be prescribed by the SOP Regulations. Regulation 23(d) makes plain that the time when a payment claim is made or given is, for the purposes of an electronic communication, prescribed by s 14 of the Electronic Transactions Act. 35 Secondly, if regard is had to s 14(1), it is plain that a time for receipt of an electronic communication may be agreed between the parties. If it is not, then the statutory rules about time of receipt prescribed by s 14(1)(a) or (b) apply. 36 Thirdly, CBH claims that the time for receipt of a payment claim was agreed under cl 47.4 of the Contract. 37 Consequently, CBH says that the period of 15 business days is calculated as the period after Monday 2 September 2024, ending on Tuesday 24 September 2024. 38 Martinus challenges this analysis at various points. 39 First, Martinus argues that the power to make regulations prescribing the time for receipt of an electronic communication cannot, in substance, permit the making of regulations which extend the period for providing a responsive payment schedule beyond the period of 15 business days after the time when the payment claim was capable of being retrieved and read by CBH. Martinus illustrates this by contending that it should not be permissible to make regulations which permit the parties to make an agreement that the receipt of an electronic communication would commence 100 days after it was first capable of being retrieved electronically and read by CBH. 40 In respect of this issue, senior counsel for Martinus invoked a particular consideration to support the proposition that the regulation making power should not be construed to permit what might be, in substance, an extension of the 15 business day period. This is the consideration that the SOP Act needs to be construed in a way which delivers certainty, so that there is a 'bright line' between situations where the service of a responsive payment schedule is within time or out of time. Senior counsel for Martinus pointed out that if there was an ability to provide for an agreed time of receipt of a payment claim, -- 10 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 11 this would make the question of whether there was any substantive extension of a 15 business day period a matter of 'fact and degree'. Martinus rhetorically posed a '5-day case' to ask whether that would be within or outside power. 41 Secondly, if the limit upon the power to make regulations proposed by Martinus is accepted, Martinus then argues that reg 23(d) should be construed in conformity with that limitation. On that basis, reg 23(d) would be read as only applying the statutory rules in s 14(1)(a) or (b) of the Electronic Transactions Act to the receipt of electronic communications, and would not be construed as permitting an agreed time of receipt for electronic communications. Alternatively, it would not be read as permitting an agreed time of receipt for electronic communications which extended beyond the limitation upon the power to make regulations proposed by Martinus. On this basis, cl 47.4 of the Contract could not be effective to extend the time for providing the responsive payment schedule to 24 September 2024. 42 Thirdly, Martinus says that a payment claim for the purposes of the SOP Act is entirely distinct from the contractual regime. Martinus points out that there is a separate entitlement to make a statutory payment claim, by reason of s 17 of the SOP Act. Martinus contends that cl 47.2 of the Contract was only an agreement for the purposes of making a contractual Payment Claim, and not a statutory payment claim, even if the one document might be used for the purposes of both a statutory and contractual claim. Consequently, on this view, there was no agreement for the purposes of the operation of cl 47.4 in respect of a payment claim made under the SOP Act. Clause 47.4 only concerns a Payment Claim made under the Contract. Identification of disputed issues 43 These divergent positions potentially create four issues which occupied much of the oral argument at the hearing of the appeal. 44 First, is the ordinary and natural meaning of reg 23(d) that it only applies the statutory rules contained in s 14(1)(a) and (b) (without reference to the words in the chapeau) in respect of the receipt of electronic communications? This might be described as the 'textual issue'. 45 If this textual issue is resolved by holding that the text of reg 23(d) leaves open the possibility that, as a matter of constructional choice, the operation of reg 23(d) is capable of applying an agreed rule about -- 11 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 12 receipt of email communications, by reason of the words in the chapeau of s 14(1), then it becomes necessary to address the following further matters. 46 Secondly, what is the extent of the regulation making power under s 113(4) of the SOP Act, and does it authorise the making of a regulation which allows parties to agree that an email which is received on a non-business day shall be deemed to be received at 9.00 am on the next business day? 47 Thirdly, if the answer to the second question is 'no', should reg 23(d) be construed as only applying the statutory rules contained in s 14(1)(a) and (b) (without reference to the words in the chapeau) in respect of the receipt of electronic communications, so as to construe it consistently with a limited regulation making power where there is a constructional choice? 48 Fourthly, is cl 47.4 an agreement between CBH and Martinus in respect of a payment claim under the SOP Act (as opposed to a Payment Claim under the Contract) such that an email communication received on a non-business day shall be deemed to be received at 9.00 am on the next business day? Approach of the trial judge 49 The trial judge commenced with the first critical issue. His Honour asked whether the words of reg 23(d) should be construed to incorporate an agreement about the receipt of an email communication between the parties, which would operate as an exception to the statutory rules about the time of receipt set out in s 14(1)(a) and (b). 50 In other words, the trial judge started with what we have described as the 'textual issue'. On this issue, the trial judge considered that the words of reg 23(d) were not intended to incorporate any agreed rule about the time of receipt of an electronic communication. His Honour said:16 The evident intent of the regulation is to permit the determination of when an electronic communication is taken to be received by reference to s 14. 16 Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373 (Reasons) [160] - [164]. -- 12 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 13 The words 'unless otherwise agreed' that appear in the chapeau to s 14(1) do not assist to determine when an electronic communication is taken to be received. This is because the words do not give any statutory force to an agreement and instead permit the parties to agree that s 14 does not apply. Given this, if reg 23(d) applied the words 'unless otherwise agreed' the effect of the regulation would be that where the parties have otherwise agreed, the regulation would not permit the determination of when an electronic communication is taken to be received. This would defeat the intention of the regulation and cannot have been what was intended. I consider that reg 23(d) does not apply the chapeau of s 14(1) to the Act. This is because reg 23(d) applies when an email or electronic communication is 'taken to be given' by s 14. As the chapeau of s 14(1) does not provide for when an email or electronic communication is 'taken to be given', the chapeau has no relevant application. Such a construction is consistent with the policy of the Act. 51 The trial judge then considered that this approach was consistent with the policy of the SOP Act. That was because his Honour considered that the policy evident from s 25(1), and the general object of establishing an expedited procedure for the payment of progress claims (set out in s 3(2)), was to ensure expedition by strictly limiting the time for a response to a payment claim to the time limits set out in the SOP Act. The trial judge observed that his construction of reg 23(d) and s 14 of the Electronic Transactions Act, left the time limits in s 25(1) of the SOP Act undisturbed.17 52 His Honour also said that the construction advanced by CBH had the potential to undermine the expedited procedure established by the SOP Act because 'it would permit parties to agree to defer the start of the relevant time period and thereby extend that period (potentially indefinitely)'.18 53 Consequently, the trial judge considered that reg 23(d) and s 14(1)(a) of the Electronic Transactions Act had the effect that the payment claim made by Martinus was made on Saturday 31 August 2024.19 54 The trial judge then added two more points to buttress his decision, although they were expressed briefly. 17 Reasons [168]. 18 Reasons [169]. 19 Reasons [171]. -- 13 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 14 55 The first point was that even if the parties had agreed that a different date would be effective, that agreement would not be given force by the SOP Act.20 56 The second point was that even if somehow the parties had reached a binding agreement for the purposes of the SOP Act, but they had agreed something inconsistent with the SOP Act, that agreement would be rendered void by s 111 of the SOP Act. Section 111 provides: (1) This Act has effect despite any provision in any contract, agreement or other arrangement. (2) A provision of any contract, agreement or other arrangement is void to the extent that it - (a) is inconsistent with this Act; or (b) purports to exclude, modify or restrict the operation of this Act or has the effect of excluding, modifying or restricting the operation of this Act; or (c) requires a party to a construction contract to reimburse the other party to the contract for any costs or expenses incurred in connection with the taking of action under this Act, except as authorised by this Act; or (d) may be reasonably construed as an attempt to deter a person from taking action under this Act. Appeal and Contention grounds 57 CBH has appealed on the following grounds: 1. The trial judge erred in law in finding that, properly construed, reg 23(d) of the Building and Construction Industry (Security of Payment) Regulations 2022 (WA) (SOPR), s 113(4) of the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOPA), and s 14(1) of the Electronic Transactions Act 2011 (WA) (ETA) … : (a) had the effect that the 15-business-day period for the purposes of s 25(1) of the SOPA commenced on the date the August Payment Claim Email and attachment (as defined in J [12]) was capable of being retrieved (Saturday 31 August 2024); and 20 Reasons [171]. -- 14 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 15 (b) the SOPA does not permit parties to a contract to agree on when a payment claim is given or taken to be given under the SOPA. 2. The trial judge ought instead to have held that, properly construed, reg 23(d) of the SOPR, s 113(4) of the SOPA and s 14 of the ETA, read together with the parties' Contract, had the effect that the August Payment Claim Email was received at 9.00am on Monday 2 September 2024. 58 These grounds raise the issue of the proper construction of s 113(4) of the SOP Act, reg 23(d) of the SOP Regulations and s 14(1) of the Electronic Transactions Act, considered together. This depends upon the outcome of the first, second and third issues which we have identified. However, the grounds of appeal are not expressed by reference to the substance of these issues, as it is only error in the final construction which needs to be demonstrated. 59 Martinus has filed a notice of contention. The ground of contention is: If the primary court's decision is not to be upheld on the grounds relied upon by the primary judge (or upon one or more of those grounds), it should nevertheless be upheld on the ground that it has not been established by the Appellant that the parties relevantly reached any agreement as to the time at which a payment claim for the purposes of the SOP Act will be taken to have been received. 60 The contention ground corresponds to the fourth issue which we have identified above. The textual issue 61 As we have explained, the critical issue of construction reduces to the meaning of 'in accordance with' in reg 23(d) of the SOP Regulations. Where there is an agreement about the time when a payment claim should be regarded as having been received, does giving effect to this agreement mean that the agreed time of receipt is 'in accordance with' s 14(1) of the Electronic Transactions Act for the purposes of reg 23(d)? 62 Before turning to the text of reg 23(d), it is helpful to refer to the context provided by the other provisions in reg 23. Regulations 23(a), 23(b), 23(c) and 23(e) all prescribe the time of receipt of a document as the point when a document has been placed into the control of a recipient, and the recipient should be aware that the document is -- 15 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 16 capable of being accessed. This is not necessarily at the point when the document is actually accessed by a recipient. 63 Regulation 23(a) prescribes that a document which is personally delivered is received: (a) at the time when it is accepted by a person; or (b) if the person refuses to accept the document, when the document is put down in the person's presence and the person is informed of the nature of the document. 64 The second limb of this regulation makes plain that once the document is within the control of a person to whom it is delivered, and that person knows of the document, it is taken to have been received by the person, whether or not the person physically accepts the document. 65 Regulation 23(b) applies where a document is left for a recipient at the person's ordinary place of business. The time when it is received is when the document is left at the premises concerned with a person who appears to work there. The significance of leaving it with a person who apparently works at the premises is that this person will be regarded as the agent of the recipient, with a duty to inform the recipient about the document. In other words, the recipient should become informed of the document which has been left at the premises. 66 Regulation 23(c) applies to documents which are physically posted to a person's ordinary place of business. The time of receipt is either when: (a) the letter has presumptively been delivered in the ordinary course of post to that ordinary place of business; or (b) a different time of actual delivery is established. 67 In both cases, the time of receipt is when the letter is received, or can be presumed to have been received, at a recipient's ordinary place of business, and therefore the recipient should have become aware of the letter. 68 Regulation 23(e) operates where a document is uploaded to an electronic lock-box. The document is received by a recipient able to download it from the lock-box at the time when the document is uploaded, not at the time when it is actually downloaded. (It should be appreciated that this form of service is, by reg 22(2), only applicable -- 16 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 17 where a document is authorised or required to be given to an 'authorised nominating authority'. The limited application of this form of service does not impact on the point that we derive from the context provided by reg 23(e).) 69 This context in the other sub-paragraphs of reg 23 strongly suggests that the aim or object of reg 23 is to prescribe a time of receipt for a document as the point when the document was under the control of the recipient, and the recipient should have been aware of this. 70 Regulation 23(d) prescribes the time of receipt by a person of an email or other electronic communication as the point 'when the electronic communication is taken to be received by the person in accordance with the Electronic Transactions Act 2011 section 14'. 71 The Electronic Transactions Act is not limited in its sphere of operation to cases concerned with the operation of the SOP Act or the SOP Regulations. Consequently, it cannot be said that there is anything in s 14 of the Electronic Transactions Act which has the aim or object of reg 23 just identified. However, the statutory rules (in s 14(1)(a) and s 14(1)(b)) which prescribe a time of receipt for an electronic communication are consistent with providing that such a communication is taken to be received when the communication is under the control of the recipient and the recipient should have been aware of this. 72 The statutory rule in s 14(1)(a) applies when the electronic communication becomes capable of being retrieved by an addressee at a designated electronic address. The designation of an electronic address for the purposes of receiving communications means that an addressee has a responsibility for monitoring the electronic address, and should be aware when a communication is received at that address. 73 The statutory rule in s 14(1)(b) applies when the electronic communication is received at another (non-designated) electronic address. In that case, the time of receipt is when the electronic communication is both capable of being received and the addressee has become aware that the electronic communication has been sent to that address. That is, receipt occurs once the addressee can retrieve the communication and knows that the communication has been received. 74 It follows that, if the operation of reg 23(d) is to apply the statutory rules contained in s 14(1)(a) and s 14(1)(b) to prescribing the time of receipt of an electronic communication, this would be precisely -- 17 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 18 consistent with the object of the remainder of the provisions in reg 23. On the other hand, if reg 23(d) allows an agreement between the originator and addressee of an electronic communication to have effect as defining the time for receipt of an electronic communication, this agreement would not necessarily conform to the objects of reg 23. Further, there is nothing in reg 23(d) which purports to limit the application of s 14 of the Electronic Transactions Act only to agreements which are consistent with the aim of reg 23. 75 This context strongly suggests that reg 23(d) was only intended to apply the statutory rules about the time of receipt in s 14(1)(a) and 14(1)(b), but was not intended to permit the operation of an agreement about the time of receipt. 76 Turning then to the text of reg 23(d), the critical phrase which applies the rules in s 14 of the Electronic Transactions Act is that the time of receipt for an electronic communication is taken to be 'in accordance with' s 14 of the Electronic Transactions Act. 77 The meaning of the phrase 'in accordance with' is protean. It may vary according to context. In Conservation Council of WA Inc v Dawson, Pritchard JA said:21 The phrase 'in accordance with' has a range of meanings. The verb 'accord' means to be in harmony, or in correspondence, or to be consistent with another thing. Consequently, the phrase 'in accordance with' can mean 'in agreement with', 'in harmony with', 'consistently with' or 'in conformity to'. In this sense, use of the phrase 'in accordance with' will convey a requirement, to a greater or lesser extent, that one thing be consistent with, or compatible with, another thing. At one end of this spectrum of meaning, where the phrase 'in accordance with' means 'in harmony with,' or 'consistently with', use of the phrase may convey a requirement for broad compatibility. At the other end of this spectrum of meaning, use of the phrase may connote a requirement for complete identity between one thing and another. The phrase 'in accordance with', especially when used in legislative provisions concerned with the exercise of authority or power, may also be used synonymously with 'under', 'by', 'pursuant to' or 'by virtue of'. Use in the latter sense not only identifies the source of the authority or power but necessarily imports a requirement that the power be exercised consistently or compatibly with any limits on the exercise of the power which may be contained in the grant of power itself. (footnotes omitted) 21 Conservation Council of WA Inc v Dawson [2019] WASCA 102; (2019) 240 LGERA 387 [154]. -- 18 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 19 78 In the present case, there is a particular nuance about the way in which the phrase may operate. The chapeau of s 14(1) obviously contemplates that there may be an agreement about the time of receipt of an electronic communication reached between the originator and addressee of the communication. However, s 14(1) treats this as an exception to the operation of the statutory rules prescribed in s 14(1)(a) and s 14(1)(b). In these circumstances, there is a distinction between the legislative treatment of a consensual agreement and a prescriptive statutory rule. While the operation of a consensual agreement may be contemplated by the chapeau of s 14, it is the statutory rules which are legally effective by reason of s 14. 79 This gives some significance to the phrase 'in accordance with' in reg 23(d). The application of a prescribed statutory rule is obviously done 'in accordance with' the legislation which prescribes the rule. However, that is not at all obvious with the application of an agreed rule which is contemplated by legislation to operate as an exception to the statutory rules. The legal effect of the agreed rule derives from the agreement, not from legislation. This is notwithstanding that the legislation may create an exception which allows the agreed rule to operate. 80 Given the context of the other provisions of reg 23, and the consideration that the statutory rules prescribed by s 14(1)(a) and s 14(1)(b) are precisely consistent with the object of the other provisions of reg 23, we consider that the phrase 'in accordance with' in reg 23(d) means 'in accordance with the legal effect' of s 14. This means that reg 23(d) applies the statutory rules contained in s 14(1)(a) and s 14(1)(b) of the Electronic Transactions Act, rather than applying any agreed rule which has legal effect by reason of contract rather than s 14. Further observations 81 The conclusion which we have reached is a product of considering the text of reg 23(d) and s 14 of the Electronic Transactions Act. However, it is possible to go further. It is a conclusion which gives effect to a policy aim of the SOP Act to ensure that there is an expedited procedure for making claims for progress payments, for responding to those claims and for the adjudication of disputed claims: s 3(2)(b) of the SOP Act. It also ensures that there is certainty about the operation of the SOP Act and SOP Regulations. -- 19 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 20 82 Having acknowledged this, however, we do not think that great weight can be placed upon these generalised policy considerations for the purposes of the present case. We are not convinced that there would be any legal difficulty with a provision of the SOP Regulations which expressly provided that the electronic communication of a payment claim received on a non-business day should be taken to be received at the commencement of the next business day. That seems to us to be another legitimate legislative choice as to when a payment claim is 'made' or 'given'. It simply places a different emphasis upon when it is presumed that a payment claim will be actually opened and read. However, this is not the approach which has been adopted in reg 23. As we have indicated, the aim of reg 23 is to prescribe a time of receipt for a document as the point when the document was under the control of the recipient, and the recipient should have been aware of this. 83 Equally, we have not been persuaded by the submission advanced by CBH that the SOP Act has a number of provisions in it which demonstrate that it was intended to respect the contractual bargain made by the parties to a construction contract. Ultimately, that submission does not overcome the particular intent about when receipt of a document should be taken to have occurred, which is evident from the provisions of reg 23. 84 It is unnecessary in the circumstances to resolve questions about the extent of the regulation-making power under s 113(4), although as we have just observed in paragraph [82] above, we have some doubts about the submissions made by senior counsel for Martinus on this issue. It is also unnecessary to resolve the ground of contention that cl 47.4 only represented an agreement about the time of receipt for a contractual Payment Claim, and not for a statutory payment claim. Even if there was an agreement about the time of receipt for a statutory payment claim, this would be irrelevant for the purposes of the operation of reg 23(d), properly construed in the manner we have concluded. 85 Lastly, we have not found any particular assistance from considering the legislative regimes for security of payments from other jurisdictions. They have similar aims, but the detail of their provisions differs in material respects. -- 20 of 21 -- [2026] WASCA 82 JUDGMENT OF THE COURT Page 21 Conclusion 86 For these reasons, which are largely similar to those given by the trial judge, we would dismiss the appeal. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DC Associate to the Honourable President Thomson 19 JUNE 2026 -- 21 of 21 --