Canadian Solar Construction Pty Ltd v Re Oakey Pty Ltd [2023] QSC 288

SUPREME COURT OF QUEENSLAND CITATION: Canadian Solar Construction Pty Ltd v Re Oakey Pty Ltd [2023] QSC 288 PARTIES: CANADIAN SOLAR CONSTRUCTION (AUSTRALIA) PTY LTD (ACN 620 225 630) (plaintiff) v RE OAKEY PTY LTD (ACN 160 581 626) (defendant) FILE NO: 1159/23 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme DELIVERED ON: 15 December 2023 DELIVERED AT: Brisbane HEARING DATE: 29 & 30 November 2023 JUDGE: Freeburn J ORDERS: 1. Pursuant to section 78(2)(a) of the Building Industry Fairness (Security of Payment) Act 2017, the defendant pay to the plaintiff the sum of $4,030,714.74 (excluding GST); 2. The defendant pay to the plaintiff interest on that sum of $4,030,714.74 calculated pursuant to section 67P of the Queensland Building and Construction Commission Act 1991 (Qld); 3. I will hear the parties on costs. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where a representative of the contractor plaintiff emailed a payment claim to the defendant’s representative and various other executives – where the email to the defendant’s representative bounced back – whether the payment claim was given to the defendant – whether if the payment claim was given, if it was responded to in time – whether the plaintiff is estopped from claiming that the payment claim was validly given – whether the failure to respond to the bounce back was misleading or deceptive and unconscionable -- 1 of 22 -- 2 Acts Interpretation Act 1954 s 39 Building Industry Fairness (Security of Payment) Act 2017 ss 72, 75, 77, 102, 103 Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd (2021) 9 QR 220 Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 Conyeyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30 Equinox Construction Pty Ltd v Henning [2021] QSC 223 Falgat Constructions Pty Ltd v Equity Australia Corporation Ltd [2006] NSWCA 259 Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141 Pacciocco v ANZ (2015) 236 FCR 199 QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095 The Trust Company (Australia) Ltd atf the WH Buranda Trust v Icon Co (Qld) Pty Ltd [2019] QSC 87. COUNSEL: M Steele KC and BA Reading (plaintiff) AC Stumer KC and AP McKinnon (defendant) SOLICITORS: Norton Rose Fulbright (plaintiff) Thomson Geer (defendant) REASONS [1] A bounce back email is a message from an email service provider, stating that the email did not reach the intended recipient. The issues in this case centre around an email attaching a $4 million payment claim that did not reach its target and resulted in a bounce back email. [2] Earlier this year, on 26 June 2023, Mr Joseph Rutledge, a representative of the contractor, Canadian Solar, for the Oakey 2 Solar Farm project, sent an email to Mr Stanley Wang, the Principal’s Representative (i.e. Oakey’s representative). The email was copied to various other executives who were representatives of the Project Manager, Foresight Group Australia Pty Ltd. The contract provides that the Project Manager is the agent of the Principal, Oakey. [3] Mr Rutledge’s email attached Payment Claim 64 which sought $4,030,714 from the Principal, Oakey, pursuant to s 75 of the Building Industry Fairness (Security of Payment) Act 2017 (the BIF Act). The email bounced and, although he did not notice it, Mr Rutledge received a bounce back email. -- 2 of 22 -- 3 [4] Of course, Mr Wang did not realise that he had not received the email enclosing PC64. None of the other executives who were copied in on the email appear to have raised the email and PC64 with Mr Wang. According to Canadian Solar, the result was that Oakey did not respond to PC64 by giving a payment schedule within the required time. That failure to respond meant that Oakey became liable to pay the $4 million to Canadian Solar.1 [5] Five issues are raised: (a) Was PC64 ‘given’ to Oakey? (b) Did Oakey respond to PC64 within time? (c) Is Canadian Solar estopped from asserting that PC64 was validly given? (d) Was Canadian Solar’s conduct, and in particular the failure to respond to the bounce back, misleading or deceptive? (e) Was Canadian Solar’s conduct unconscionable? Issue 1: Was PC64 ‘given’ to Oakey? [6] The 26 June 2023 email from Mr Rutledge enclosing PC64 was forwarded to six people: (a) Stanley Wang – Mr Wang is a director of Oakey, but also an employee of Foresight, the Project Manager; (b) Mark Griffith – Dr Griffith was and is the Project Manager’s Representative pursuant to the contract. Dr Griffith is employed by Aurecon. Aurecon is the manager of the project; (c) Tully Robertson – Mr Robertson was employed as a Senior Manager of the Project Manager; (d) Arash Zafari – Mr Zafari was an employee of the Project Manager; (e) Mitchell Hardwick – Mr Hardwick is an engineer and an employee of Aurecon; and (f) Charlotte Thorpe – Ms Thorpe is also an engineer and employee of Aurecon. [7] The 26 June email was addressed to Mr Wang. It was copied to the other recipients. There is no dispute that all five of the copied recipients (listed at paragraphs (b) to (f) above) received the email and PC64. The first of the recipients, Mr Wang, did not receive the email. That is because it went to his “EU” email address ([email protected]) rather than his “AU” email address ([email protected]). At the relevant time, Mr Wang’s EU email address was not operational and could not receive any emails sent to it.2 [8] It is important to note that Oakey was a special purpose vehicle, in that it was a company set up expressly for the purpose of this project. It had no employees or staff of its own. Thus, Oakey operated through the efforts of Foresight, the Project 1 See s 77 of the Building Industry Fairness (Security of Payment) Act 2017. 2 This aspect is the subject of some expert evidence: see the first affidavit of Mr Rodney McKemmish. -- 3 of 22 -- 4 Manager and Aurecon, the manager of the project. The contract expressly provided that the Project Manager, Foresight, was Oakey’s agent for all of its functions under the contract.3 [9] Section 75(1) of the BIF Act requires the claimant to “give” a payment claim to the person who, under the relevant construction contract, is or may be liable to make the payment. Of course, under this contract the person liable to make the payment was Oakey. And so Canadian Solar was required to give the payment claim to Oakey.4 [10] The mode of the giving of the notice is prescribed by s 102(1) of the BIF Act: A notice or other document that, under this chapter, is authorised or required to be given to a person may be given to the person in the way, if any, provided under the relevant construction contract. [11] That provision, enabling the use of the contractual method for service, is explicitly stated to be in addition to, and to not limit or exclude, s 39 of the Acts Interpretation Act 1954, or the provisions of any other law about the giving of notices. [12] Section 39 of the Acts Interpretation Act 1954 enables corporations to be served by leaving it at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal of the body corporate. Again, that provision explicitly facilitates that the modes of service specified. It does not limit the mode of service or affect the mode of service prescribed by the contract. [13] Oakey argues that here the contract prescribes the mode of service and that the mode of service is essential in that no other mode of service will do. The argument centres on clause 5 of the contract. The starting point is clause 5.1: 5.1 Mode of Service (a) Any document or notice to be given or served under or arising out of a provision of the Contract must be in English and delivered: (i) in the manner expressly provided for in the relevant clause; or (ii) where no such specific manner is required, then by hand, prepaid post, or, except where the notice is being given under the SOP Act, electronic mail, to the relevant address stated in Annexure A or last notified in writing to the party giving the notice; and (iii) if required pursuant to clause 6.1, via the EDMS.5 [14] Oakey submits that, on its proper interpretation, the contract provides that payment claims were required to be served: (a) pursuant to clause 5.1(a)(i), read with clauses 5.3 and 5.4, to the address indicated in item 21 of Annexure A to the contract, or such other address as Oakey may notify to Canadian Solar in writing (the primary argument); or 3 Clause 26.1(b) of the contract. 4 However, Oakey was a special purpose vehicle. It had no staff of its own. And so the contract had provisions, which I will come to, pursuant to which it acted through agents. 5 EDMS means the electronic management system described in item 6 of Annexure A to the contract. -- 4 of 22 -- 5 (b) in the alternative, pursuant to clause 5.1 (a)(ii)-(iii), by hand or pre-paid post and, if required pursuant to clause 6.1, via the EDMS (the alternative argument). The Primary Argument [15] For clause 5.1(a)(i) to be engaged, the mode of delivery must be expressly provided for in “the relevant clause” of the contract. The relevant clause must be the clause that provides for the giving of or the service of the document or notice. Here that is clause 39.2 which provides that the contractor may deliver a payment claim at certain specified times, and that the payment claim must include certain specified information, and that the payment claim may be invalidated by the failure to include the specified information, or by giving the payment claim too early. Clause 39.2 does not expressly provide for a mode of delivery. [16] That is the first problem with Oakey’s primary argument. Clause 5.1(a)(i) is not engaged at all because the relevant clause of the contract, clause 39.2, does not expressly provide for a mode of service for payment claims. [17] Oakey argues that the manner of service, or as Oakey expresses it, the “mechanics for delivery of a payment claim”, are specified in clause 5.3. That clause provides that: 5.3 SOP Act Claims The parties agree that, in the case of the Principal, the ordinary place of business for the purposes of the SOP Act is the office of the Principal at the address indicated in Item 21 of Annexure A, or such other address as the Principal may notify to the Contractor in writing for the purposes of this clause. [18] The reference to SOP Act is a reference to the predecessor to the BIF Act, the Building and Construction Industry Payments Act 2004.6 Of course, that is a mistake in clause 5.3. The parties must have intended that the references to the SOP Act include payment claims made under the successor Act, the BIF Act which came into force five days after the execution of this contract.7 [19] However, the first difficulty with clause 5.3 is that it does not qualify as, to use the language of clause 5.1(a)(i), expressly providing for the giving or service of payment claims. The only work performed by clause 5.3 is to record the parties’ agreement that, for the purposes of the SOP Act, Oakey’s “ordinary place of business” is that specified in item 21 of Annexure A (the email address: [email protected]). In other words, the point of clause 5.3 is to specify an equivalence between Oakey’s ordinary place of business and the specified email 6 Definitions, clause 1.1 of the contract. The SOP Act was replaced by the BIF Act at about the time the contract was executed. The SOP Act was replaced by the BIF Act on 17 December 2017. The contract was executed on 22 December 2017. 7 See Lewison & Hughes, The Interpretation of Contracts in Australia, 2012; see also Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 where the court corrected a reference in a lease to the rent fixed by an arbitrator nominated in accordance with the provisions of clause 3.04(b). That clause dealing with the appointment of arbitrators was clause 3.05(b). The reference was corrected. -- 5 of 22 -- 6 address. But clause 5.3 does not go on to expressly provide for the giving of or the service of payment claims, or indeed any claims, notices or documents. [20] Of course, a possibility is that the person who drafted the contract intended that the equivalence in clause 5.3 would be one step in the process of specifying a mode for the giving or service of payment claims. That theory would have legs if the SOP Act, or its successor, the BIF Act, made use of the concept “ordinary place of business” as a basis for the giving or serving of payment claims. But neither Act utilises that concept or even a similar concept, let alone as a platform for giving or serving payment claims. [21] The SOP Act merely provides that a notice or other document that is authorised or required to be served on a person may be served on the person in the way, if any, provided under the contract.8 The BIF Act deals with service in the same way. Thus, neither Act provides that the giving or service of payment claims, or any other documents, may be effected by service at a party’s ordinary place of business. [22] Both the SOP Act and the BIF Act explicitly say that their provisions adopting the contractual method for giving or service of notices or other documents are in addition to and do not limit or exclude s 39 of the Acts Interpretation Act 1954. As explained above, s 39 of the Acts Interpretation Act 1954 enables corporations to be served by leaving the notice or document at, or sending it by post, telex, facsimile or similar facility to, the head office, a registered office or a principal office of the body corporate. The concepts of ‘head office’, ‘registered office’ or ‘principal office’ are different concepts to a party’s ‘ordinary place of business’. There may be real differences between a business’ ordinary place of business and its head office or registered office. [23] Consequently, the parties’ agreement that, for the purposes of the SOP Act, Oakey’s ordinary place of business is the item 21 email address does not go anywhere. [24] Incidentally, the Victorian Building and Construction Industry Security of Payment Act 2002 (Vic) (known as the SOP Act) is an Act that does make use of the concept of a person’s ‘ordinary place of business’ as a means of effecting service.9 [25] The court is bound to interpret the contract so as to give effect to all parts of the contract.10 An application of that principle may mean that clause 5.3 should be read as permitting notices or other documents to be served on Oakey at its ordinary place of business as defined in item 21 (Mr Lord’s email address).11 Such an approach would: (a) give effect to clause 5.3 which would otherwise fail as merely specifying an ordinary place of business for no purpose; (b) mean that Oakey could be given or served documents at its head office, registered office or principal office (Acts Interpretation Act 1954, s 39) or at 8 See s 103 of the Building and Construction Industry Payments Act 2004. 9 See s 50 of that Act. A possibility is that the contract comprises a Victorian draft which has been altered on the assumption that the Queensland SOP Act is similar to its Victorian counterpart. 10 Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 at 411. 11 Clause 5.3 provides that documents or notices may be given or served at Oakey’s ordinary place of business for the purposes of the SOP Act, namely Mr Lord’s email address, or such other address as Oakey may notify to Canadian Solar in writing for the purposes of clause 5.3. -- 6 of 22 -- 7 its ordinary place of business, that is the Mr Lord’s email address (clause 5.3). [26] However, Oakey does not argue for that solution to the problem.12 Oakey’s argument goes further. And its argument illustrates the challenges in trying to repair clause 5.3, or at least in trying to give it some effect. Oakey contends, not just that payment claims could be served at Oakey’s ordinary place of business, that is, Mr Lord’s email address (or any substitute address13), but that service must be effected at that address and can only be properly served at that address. In other words, Oakey argues that, properly interpreted, clause 5.3 required that service be effected by serving the payment claim at Mr Lord’s email address, or a substitute, and that no other mode of service would be effective. [27] I am unable to discern such an intention in the ordinary and literal words of clause 5.3, or in the context of clause 5.3, or even in the process of trying to make sense of or give effect to clause 5.3. Nothing in the words of clause 5.3 are capable of being construed as an attempt by the draftsperson to ensure that Oakey is only served with payment claims at Mr Lord’s email address. The words of the heading, ‘SOP Act Claims’,14 are consistent with Canadian Solar having the capacity to give or serve those claims by means of Mr Lord’s email address but do not impart the requirement that SOP Act claims can only be served or given via Mr Lord’s email address. [28] It is no small thing for a court, in the absence of any clear words, to imply that a particular mode of giving of payment claims was agreed by the parties to be the exclusive mode of giving payment claims and that any other method, even if effective in bringing the payment claim to the notice of Oakey, is to be disregarded.15 No words can be found in clause 5.3, or in its context, suggesting such an intention. [29] There is another problem. Oakey placed a great deal of emphasis on the references in clause 5.3 to “SOP Act claims”. The argument was that expression must refer to, and can only refer to, payment claims. But both the SOP Act and its successor, the BIF Act, include other claims that may qualify as ‘SOP Act claims’. In the BIF Act, for example, there are notices of claims for a subcontractors’ charge (s 62). In the SOP Act there are references to subcontractors’ charges under separate legislation (s 4). That complexity makes it difficult to satisfy the threshold requirement in clause 5.1(a)(i) that there is an express provision for the giving or service of payment claims. [30] Consequently, clause 5.1(a)(i) does not apply because clause 5.3 does not expressly specify the manner of giving or service of payment claims, and because on a proper interpretation of clause 5.3, its modest aim is to equate Oakey’s ordinary place of business with the specified email address. And, in any event, nothing in the words of clause 5.3, or in its context, requires that payment claims must be served on the item 21 address and that no other address for service will do. 12 The problem is that clause 5.3 is ineffectual. 13 That is, as clause 5.3 specifies, any address that Oakey may notify to Canadian Solar in writing for the purposes of clause 5.3. 14 There are similar words in item 21 of Annexure A: “Address for SOP Act claims”. 15 See the later discussion of this topic. -- 7 of 22 -- 8 [31] There is one further problem with Oakey’s primary argument. Oakey makes this submission: The language in Item 21 of Annexure A, coupled with the heading used in clause 5.3 (viz. “SOP Act Claims”) requires that payment claims issued under the Act, such as PC64, must be provided to the address provided in that item, “or such other address as the principal may notify to the Contractor in writing for the purposes of this clause”.16 [32] Oakey argues that on 18 November 2018 Oakey gave the requisite notice for the purposes of clause 5.3 providing a new address – Mr Wang’s AU email address and that thereafter Mr Wang’s AU email address became the exclusive address for the giving of payment claims. [33] What happened was that on 18 November 2018 Canadian Solar wrote to Mr Michael Brass, who was Oakey’s Project Manager’s Representative. The letter was copied to Mr Wang who was described as ‘RE Oakey Project Manager’. Canadian Solar advised that, “in addition to the Contractor's Representative identified in item 21 of Annexure A, being Joris Eerkens, the following person can now also exercise the functions of the Contractor's Representative.” The letter then set out Mr Ruttledge’s name, email address and mobile phone number. [34] Clause 27 of the contract provides that Canadian Solar was obliged to appoint a Contractor’s Representative who had the authority to represent Canadian Solar. The knowledge of the Contractor’s Representative was taken to be the knowledge of Canadian Solar. Oakey could make reasonable objections to the appointment of the Contractor’s Representative. [35] On the same day, 18 November 2018, Mr Peter Lord replied on behalf of Oakey. Mr Lord was a representative of Foresight. In the letter he described himself as the ‘Principal’s Representative’. The contract does not mention such a position, although the contract does refer to the ‘Project Manager’s Representative’.17 [36] In his letter Mr Lord acknowledged the change to the Contractor’s Representative and notified Canadian Solar of “a change to the Principal's Representative and contact details for notices.” The new representative was stated to be Mr Stanley Wang. Mr Wang’s AU email address was specified, as was a Barangaroo Avenue, Sydney, mailing address. Mr Lord concluded by saying: “Please ensure communications under the Contract are directed to our new representative using the contact details above.” [37] In my view Mr Lord’s letter of 18 November 2018 does not comprise a notification of Mr Wang’s AU email address as the required address for the purposes of clause 5.3. Firstly, the letter does not say that it is a notice for the purposes of clause 5.3. Second, the letter does not even mention payment claims or SOP Act claims. Third, the letter is plainly a broad notice that applied to “notices” and “communications under the Contract” and “contact details”. Clause 5.3 requires a specific written notice for the purposes of clause 5.3. This notice is far more general than that. Fourth, perhaps illustrating the generality of the notice, Mr Lord’s letter notifies of 16 Defendant’s submissions at [34]. 17 This is in clause 26.2 of the contract. -- 8 of 22 -- 9 both an email and a street address as the contact details. That does not sit neatly with Oakey’s contention that Mr Wang’s AU email address was the required and only email address for service. [38] Oakey also relies on an updated communications matrix said to have been agreed by the parties and circulated on 6 December 2018. The communications matrices had no contractual status. They were frequently changed. The most recent version was shown to be out of date. Based on the evidence, the communications matrices were really designed to document who needed to receive what communications, but sometimes they were inaccurate or out-of-date. Even Mr Wang did not attribute much weight to the communications matrices.18 They are an unsafe foundation for a finding that the parties were bound to communicate notices in accordance with the communications matrices. [39] It follows that the court does not accept Oakey’s primary argument. The Alternative Argument [40] Oakey’s alternative argument is that, on its proper interpretation, the contract provides that a payment claim was required to be served, pursuant to clause 5.1 (a)(ii)-(iii), by hand or pre-paid post and, if required pursuant to clause 6.1, via the EDMS. [41] Clause 5.1(a)(ii) provides that, where no specific manner of service is expressly provided for, any document or notice19 may be given or served “by hand, prepaid post, or, except where the notice is being given under the SOP Act, electronic mail, to the relevant address stated in Annexure A or last notified in writing to the party giving the notice”. [42] The provision facilitates service. It provides that, in the absence of a specific mode of service, service may be effected by hand, or by prepaid post, or by electronic mail. SOP Act notices may not be given by electronic mail. However, the parties are also free to deliver to the relevant address shown in Annexure A, or to an address last notified in writing. [43] Several addresses are shown in Annexure A: (a) The address for the Project Manager (Foresight) at Barangaroo Avenue; (b) The address for the Contractor’s Representative (Mr Eerkens) in Cremorne in Sydney – but, as noted above this address was added to with Mr Ruttledge via his email address also being a Contractor’s Representative; (c) The address for clause 5.3 for SOP Act claims – Mr Lord’s Foresight email address – but that was changed to Mr Wang’s Foresight email address or to the Barangaroo Avenue street address. [44] All of that facilitates the giving or service of notices or documents. But, again, it does not prescribe that the giving or service of notices or documents must be 18 Transcript T1-64 line 16. 19 Canadian Solar sought to make a distinction between documents and notices, but I am unable to see any particular intention to distinguish. The use of the words “Any document or notice” merely reflects an intention to cast the net broadly. -- 9 of 22 -- 10 effected in the method described and that any other method of giving or service will ineffective – even if it comes to the notice of the person being served. As was explained by Vickery J in Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd,20 the provisions relating to service of payment claims do not operate in a commercial vacuum. Absent some clear words, the parties to a construction contract can hardly be taken to have intended that a payment claim that is, for example, handed to all the relevant senior personnel at a meeting, or personally handed to the Principal’s authorised representatives, was not properly served. [45] On this point, counsel for Canadian Solar relied on three cases. In the first case, Falgat Constructions Pty Ltd v Equity Australia Corporation Ltd,21 Hodgson JA said: In the first place, in my opinion it is clear that if a document has actually been received and come to the attention of a person to be served or provided with the document, or of a person with authority to deal with such a document on behalf of a person or corporation to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with: see Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; Mohamed v Farah [2004] NSWSC 482 at [42]–[44]. In such a case, there has been service, provision and receipt. [46] In the second case, QC Communications NSW Pty Ltd v CivComm Pty Ltd,22 Ball J relied on the first case in concluding: A document will be served in accordance with the requirements of the SOP Act if it actually comes to the attention of the person to be served. It is not necessary that it be served in accordance with s 31 (of the NSW equivalent of the SOP Act). [47] In the third case, The Trust Company (Australia) Ltd atf the WH Buranda Trust v Icon Co (Qld) Pty Ltd, Applegarth J said: In many contexts, a document is regarded as having been “served” when it is brought to the notice of the person required to be served. The means by which the person obtains the document are usually immaterial…23 [48] Those cases support the view expressed above that the objective of regimes like those in clause 5.1 is to facilitate service, and not to restrict the means by which service might be effected. [49] Oakey argued that there was some significance to the use of the word “and” at the end of sub-paragraph 5.1(a)(ii), as compared with the word “or” at the end of sub- paragraph 5.1(a)(i). The theory is that sub-paragraphs 5.1(a)(ii) and (iii) must be read together. However, a fair reading of clause 5.1(a) makes clear that the parties could effect service via the electronic document management system (EDMS) if there was a requirement that notices were to be given via the EDMS. 20 (2010) 30 VR 141 at [141]-[142]. 21 [2006] NSWCA 259 at [58] 22 [2016] NSWSC 1095 at [27]. 23 [2019] QSC 87 at [57]. -- 10 of 22 -- 11 [50] As it happens, the parties used a EDMS called ‘Box’ and then another EDMS called ‘Sharepoint’. However, there is no evidence that Oakey directed in writing that either EDMS be used. Such a direction is required by clause 6.1 of the contract. [51] And so, I accept that Oakey did not issue a written direction that the EDMS was to be utilised. However, for the reasons explained, I reject Oakey’s alternative argument that, on its proper interpretation, the contract provides that a payment claim was required to be served, pursuant to clause 5.1 (a)(ii)-(iii), by hand or pre- paid post. Was PC64 given to Oakey? [52] As explained above, Oakey is a special purpose vehicle which had no staff of its own. That was no doubt why the clause 26.1 of the contract provided as follows: (a) The Principal shall appoint a project manager (the Project Manager) who shall: (i) administer the Contract; and (ii) exercise some or all of the functions of the Principal under the Contract. (b) The Project Manager shall act as the agent of the Principal in the exercise of all of its functions under this Contract. (c) The Project Manager as at the Commencement Date is the person named as such in item 1 of Annexure A. (d) The Principal may revoke the appointment of the Project Manager and appoint a substitute person as the Project Manager. The appointment of the Project Manager will not prevent the Principal from taking a step as contemplated by clause 26.1(e). (e) Where the Contract permits or requires the Project Manager to take a step then the Principal may take that step in place of the Project Manager. (f) The Contractor acknowledges that the Project Manager may be an employee of the Principal or may have a general commercial relationship with the Principal beyond the performance of the role of Project Manager under this Contract. The Contractor shall not bring any claim against the Principal by reason of the relationship between the Principal and the Project Manager. (g) In the exercise of its functions under clauses 37.424 and 3925 of the Contract, the Project Manager may have regard to, but must not rely on, any view expressed or assessment by any Independent Certifier. [53] Item 1 of Annexure A identifies the Project Manager as Foresight. [54] Clause 26.1 is a strong provision. Clause 26.1(b), in particular, appoints Foresight as Oakey’s agent in the exercise of all of its, that is the Principal’s, functions under the contract. Oakey argued that Foresight’s authority was limited because clause 26.1(a)(ii) uses the language of “project manager…who shall…exercise some or all 24 Clause 37.4 deals with the valuation of variations. 25 Clause 39 deals with payments to the contractor. -- 11 of 22 -- 12 of the functions of the Principal”. However, clause 26.1(b) is broad in its scope. The sub-clause empowers Foresight to exercise some or all of the functions of the Principal. But that empowerment is rather subsumed by clause 26.1(b) which prescribes that the Project Manager “shall act as the agent of the Principal in the exercise of all of its functions under this Contract”. In any event, there is significant reach to clause 26.1(a)(i), which empowers Foresight to “administer the Contract”. A right to administer the contract is, in my opinion, broad enough to encompass the receipt of and responses to payment claims. In fact, in his evidence, Dr Griffith agreed that the administration of the contract includes the receipt and assessment of payment claims.26 [55] PC64 was emailed to six recipients: Mr Wang, Dr Griffith, Mr Robertson, Mr Zafari, Mr Hardwick and Ms Thorpe. Mr Wang, Mr Robertson and Mr Zafari all had Foresight email addresses. Dr Griffith, Mr Hardwick and Ms Thorpe all had Aurecon email addresses. Mr Wang [56] Mr Wang had a dual role. He was both a director of Oakey and an employee of Foresight. He appears to have held the position of ‘Project Manager’ although that title seemed to have frequent use on this project. [57] Mr Wang gave evidence that he had two functioning email addresses up to 1 June 2023 – his EU and his AU email addresses.27 Up to June 2023 Mr Wang used both emails frequently and interchangeably.28 The emails are so interchangeable that when Mr Wang reproduced emails for the purposes of his first affidavit he assumed, quite reasonably, his email to Mr Ruttledge valuing PC56 was sent by him from his AU email address. That is what his email system shows. But the very same email, when received by Mr Ruttledge, displays Mr Wang’s EU email address. The same applies to the valuing of PC57 and PC60.29 [58] The point is that, until 1 June 2023 Mr Wang did not particularly distinguish between emails to and from his EU email address and those to and from his AU email address. Mr Wang’s inbox would show that they were sent to him but not which email address the email had been sent to. At least until 1 June 2023, Mr Wang was not concerned about which of his two email addresses Canadian Solar used. [59] In fact, the email address used by Mr Ruttledge to send payment claims was Mr Wang’s EU address. And, when responding to payment claims with valuation certificates, Mr Wang mostly used, or at least was seen by Mr Ruttledge to use Mr Wang’s EU email address. The details of the email addresses used by Mr Ruttledge to send the payment claims and the email addresses used by Mr Wang to respond with the valuation certificates can be summarised by the following table: 26 Transcript T2-5 line 12. 27 Transcript T1-68 lines 1 to 13. 28 Transcript T1-69 line 5. 29 Transcript T1-68 to 71. -- 12 of 22 -- 13 Date Payment Claim PC sent to this email address VC sent from which email address 11/01/2019 11 AU AU 25/01/2019 12 AU AU 25/02/2019 13 AU EU 25/03/2019 14 EU EU 27/05/2019 15 EU EU 25/06/2019 16 EU EU 25/07/2019 17 EU EU 26/07/2019 18 EU EU 25/09/2019 19 EU EU 25/10/2019 20 EU EU 25/11/2019 21 EU EU 13/01/2020 22 EU “Stanley Wang”30 28/01/2020 23 EU “Stanley Wang”31 25/02/2020 24 EU EU 25/03/2020 25 EU EU 27/04/2020 26 EU EU 25/05/2020 27 EU EU 25/06/2020 28 EU EU 27/07/2020 29 EU EU 25/08/2020 30 EU EU 25/09/2020 31 EU EU 26/10/2020 32 EU EU 25/11/2020 33 EU “Stanley Wang”32 11/01/2021 34 EU EU 25/01/2021 35 EU EU 25/02/2021 36 EU EU 25/03/2021 37 EU EU 27/04/2021 38 EU EU 25/05/2021 39 EU EU 25/06/2021 40 EU EU 26/07/2021 41 EU EU 25/08/2021 42 EU EU 27/09/2021 43 EU EU 25/10/2021 44 EU EU 25/11/2021 45 EU EU 11/01/2022 46 EU EU 25/01/2022 47 EU EU 25/02/2022 48 EU EU 25/03/2022 49 EU EU 26/04/2022 50 EU EU 25/05/2022 51 EU EU 27/06/2022 52 EU EU 25/07/2022 53 EU EU 25/08/2022 54 EU EU 26/09/2022 55 EU EU 25/10/2022 56 EU EU33 30 The email address does not appear. 31 As per previous footnote. 32 As per previous footnotes. 33 As explained above, this email shows on Mr Wang’s system as having been sent from the AU email address, but for Mr Ruttledge of Canadian Solar the email shows as having been sent from the EU -- 13 of 22 -- 14 25/11/2022 57 EU EU34 11/01/2023 58 EU EU 25/01/2023 59 EU EU 27/02/2023 60 EU EU35 27/03/2023 61 EU EU 27/04/2023 62 EU EU 25/05/2023 63 EU AU [60] As can be seen from that table, the vast majority of payment claims that involved Mr Wang were sent to Mr Wang’s EU email address. The only exceptions are the first three (PC11, PC12 & PC13).36 Predominantly, Mr Wang’s responses have been originated from Mr Wang’s EU email address.37 Consequently, in cross- examination, Mr Wang agreed that for four years every email about payment claims was sent to Mr Wang’s EU email address.38 [61] That leads to the events of 1 June 2023 – after PC63 but before PC64. [62] Mr Ruttledge experienced some bounce back emails. It is safe to assume that the bounce back emails were received from Mr Wang’s EU email address because that was the email address for Mr Wang that Mr Ruttledge was using. However, because Mr Wang was using both email addresses interchangeably, it is likely that Mr Wang did not distinguish as to which email address was producing the bounce back emails for Mr Ruttledge. [63] At 8.12am on 1 June 2023 Mr Ruttledge texted Mr Wang saying: “Morning Stan, is your Foresight email working okay? We had some emails bounce back.” Mr Wang says he then spoke with Foresight’s information technology team. Mr Wang says that they told him that his EU email address had been cancelled. That should have alerted Mr Wang to a problem. He had been using and had been receiving emails to two interchangeable email addresses and now he was informed by Foresight’s IT department that one of those email addresses was cancelled. [64] Mr Wang may not have appreciated the problem because he responded to the text by saying: “I think its working now. Lol I think it was UK hinting for me to resign.” Mr Ruttledge responded: [smile emoji] very subtle from UK. Thanks. We provided PAT data yesterday and this morning so hoping this leads to SC.39 [65] At 12.46pm on the same day Mr Wang sent an email to Mr Ruttledge saying: “Apologies for missing the old40 email, this email works fine now. Always good when IT changes email addresses without telling everyone…”. email address. For present purposes it can be assumed that Canadian Solar, if they had looked, would have assumed that the email originated from Mr Wang’s EU email address. 34 As per previous footnote. 35 As per previous footnotes. 36 Of the 53 payment claims, all but the first three were sent to Mr Wang’s EU email address. 37 Of the 53 payment claims, all but six originated from the EU email address. Three originated from the AU email address and three are of unknown origin. 38 Transcript T1-72 line 45. 39 SC stands for Substantial Completion. 40 This may have been auto-corrected from ‘odd’ to ‘old’. -- 14 of 22 -- 15 [66] Neither of Mr Wang’s communications gave Mr Ruttledge notice that the EU email address had been cancelled. The closest Mr Wang comes to giving notice of a problem is his statement that: “Always good when IT changes email addresses without telling everyone…” but the “changes” are not identified and that is preceded by an assurance that “this email works fine now”. There was a controversy about what “this email” meant. Mr Wang probably meant that the AU email address worked fine but there is no reason for Mr Ruttledge to be alert to the fact that an email address he had for Mr Wang, and had been using for some four years, was now cancelled. [67] The reason for the problem appears in the cross-examination of Mr Wang by Mr Steele KC: So you were telling him that the EU email address was working?‑‑‑No. I was telling him emails were working. Well, we’ll just go back to that, then. I thought you’d agreed with me that it was EU. If you don’t, you don’t. Now, he’s asking you about this. This is four years – after four years of using the EU address exclusively to send payment claims. He sent every payment claim for more than four years to you at your EU email address. Do you agree with that?‑‑‑Yes, I do. So you must’ve understood him to be asking about your EU email address, mustn’t you?‑‑‑No, because I always maintained two working email addresses. I’m not asking about what you thought. I’m asking about what you understood Mr Ruttledge’s question was about?‑‑‑I understood Mr Ruttledge’s question to mean, “Is your email address at Foresite (sic) working?” And Mr Ruttledge knew I had two email addresses. Mr Ruttledge exclusively used the EU email address for payment claims?‑‑‑I - because I receive email addresses - because I receive emails in both my AU and my EU email, so if you sent it to EU or AU, I would receive that on my end anyway, so until these proceedings started, I did not know which email - well, I didn’t check which email Mr Ruttledge would’ve been emailing for the purposes of sending a payment claim. Okay. So when you say, “It’s working, now”, you’re talking about your general email and it’s the same to you, whether it’s AU or EU; is that right?‑‑‑Yes. Because your ‑ ‑ ‑?‑‑‑I meant email connectivity, yes. Right. Because there are - they’re the - they’re interchangeable; is that right?‑‑‑Because I had access to both, yes. … All right. So but you say your email connectivity, you say is working, so that means, in your view, both your emails are working?‑‑‑Yes. My - my - I had email connectivity again. -- 15 of 22 -- 16 Okay. Great. So that means you thought both the EU address and the AU address were working?‑‑‑At that point in time, I knew that I had email connectivity. I did not know the difference between whether it was the EU or the AU email.41 [68] Thus, despite the fact that Mr Wang was told by Foresight’s IT department that one of his email addresses has been cancelled, Mr Wang did not disclose that to Mr Ruttledge or Canadian Solar. It appears that Mr Wang saw no significance in the cancellation because he used his two email addresses without distinguishing between them. Because he continued to have connectivity, he was unconcerned. Of course, that ignores the problem that others, such as Mr Ruttledge, may continue to use the EU email address. [69] Then, on 26 June 2023, Mr Ruttledge sent PC64 to Mr Wang at his EU email address. He sent it whilst travelling and so did not notice the bounce back email. There had been some discussions between Mr Ruttledge and Mr Wang that day. Their two companies were already litigating, but they were also maintaining contact. [70] Was PC64 given to Mr Wang? In my view it was not given to Mr Wang (and I do not perceive Canadian Solar to be arguing to the contrary).42 For PC64 to be given to Mr Wang, the essential requirement is that the document come to Mr Wang’s attention.43 The email was sent to Mr Wang at the same email address as the previous 50 monthly payment claims, but the email did not come to his attention. And, in fact, Mr Ruttledge received immediate notification by a bounce back email that PC64 had not come to Mr Wang’s attention. [71] However, the correct question is whether PC64 was given to Oakey or its agent, Foresight. The email enclosing PC64 was sent to Mr Wang but also copied to Dr Griffith, Mr Robertson and Mr Zafari. They are all representatives of the Project Manager, Foresight. It was Foresight, as the Project Manager, that was obliged to assess the payment claim and to issue a valuation certificate in response to the payment claim.44 Dr Griffith [72] Dr Griffith was appointed as the Project Manager’s Representative. Clause 26.2 of the contract gives the person in that role the right to exercise some or all of the functions of the Project Manager under the contract. There is no evidence that his authority excluded payment claims. In fact, the evidence is to the contrary. [73] Dr Griffith is an experienced and senior engineer. He agreed that he had a direct interest in receiving payment claims,45 and that he had reviewed at least some of the 41 Transcript T1-73 to 75. 42 The history explained here, in relation to Mr Wang, is relevant to some of the later issues. 43 That is clear from the cases discussed above. See also the decision of McMurdo J in Conyeyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30 – discussed below. 44 See clauses 39.2 and 39.3 of the contract. See also clause 26.1 discussed above. 45 Transcript T2-7 line 1. -- 16 of 22 -- 17 previous payment claims and had provided advice on whether the payment claims should be approved or not.46 Mr Robertson [74] Mr Robertson was described as a Senior Manager of Foresight. That is the same position description as Mr Wang. He had been on the project since 2018. Although not an employee of Oakey, he represented and had authority to act for Oakey at dispute resolution meetings.47 No doubt that was because of Foresight’s role as the Project Manager. [75] One of Mr Robertson’s responsibilities was to assess whether the project had reached practical completion. That was a factor relevant on the assessment of the payment claims at about June 2023. He was one of a number of people who were involved in the assessment of payment claims.48 [76] Interestingly, when Mr Robertson was not copied in on PC47, he sent a reminder to Mr Ruttledge saying that Mr Robertson should be included to in the correspondence – presumably the payment claim correspondence. [77] Another curiosity is that on 9, 23 and 28 June 2023, or perhaps on two of those three occasions, Mr Robertson sent emails to Mr Wang at his EU email address. Those emails produced bounce back emails. Mr Robertson and Mr Wang are, of course, both representatives of Foresight, the Project Manager. And so, even internally, it was not known that Mr Wang’s EU email address had been cancelled, and that email address continued to be used. Mr Zafari [78] Mr Zafari was the person on the ground. He would advise Mr Wang on whether or not Canadian Solar had performed the work claimed in the relevant payment claim – one of the primary tasks to be performed in preparing a response to the payment claim.49 He needed to know the contents of the payment claim. He was also one of the people that considered any quality issues that may arise from a payment claim. [79] Mr Zafari was well placed to consider payment claims and to advise about them because he was on site. Mr Wang was not on site. He had taken unprompted action assessing payment claims prior to PC64. He considered technical issues arising from payment claims, including whether substantial completion had been achieved. PC64 included a claim of substantial completion. Aurecon Representatives [80] The email enclosing PC64 was also sent to two representatives of Aurecon, Mr Mitchell Hardwick and Ms Charlotte Thorpe. Both are engineers and had lesser roles or no substantive role in the assessment of payment claims. 46 Transcript T2-7 line 30. Dr Griffith also dealt with insurance which was one of the aspects of the payment claims. 47 One of the disputes involved a claim by Oakey against Canadian Solar for $23.4m: Transcript T1-88 at line 25. 48 Transcript T1-93 line 18. 49 Transcript T1-97 line 1. -- 17 of 22 -- 18 The Foresight Recipients [81] It is true that the email attaching PC64 was sent to Mr Wang and copied to the other recipients. But there is no evidence that the process of copying the other Foresight recipients into the communication was a mere formality or that they were copied in on the communication merely for their information. Each of the Foresight representatives had an active role in the review and/or assessment of the payment claim. That is particularly true of Dr Griffith who was the Project Manager’s Representative. [82] In Conyeyor & General Engineering Pty Ltd v Basetec Services Pty Ltd50 McMurdo J had to consider whether service could be effected by referring the recipient to a dropbox: Actual service does not require the recipient to read the document. But it does require something in the nature of a receipt of the document. A document can be served in this sense although it is in electronic form. But it was insufficient for the document and its whereabouts to be identified absent something in the nature of its receipt. The purported service by the use of the Dropbox facility may have been a practical and convenient way for CGE to be directed to and to use the documents. But at least until 2 September 2013 (when Mr How became aware of the contents of the Dropboxes), it did not result ‘in the person being served becoming aware of the contents of the document’. [83] His Honour’s emphasis on ‘something in the nature of receipt’ is important. If a document has actually been received and come to the attention of the person to be served with it, then there is actual service, provision and receipt.51 Here, the parties had a practice of ensuring the payment claim was emailed to six separate recipients. Four were representatives of the Project Manager who were able to exercise all of the functions of the Principal. One was the designated Project Manager’s Representative. The fact that the email to one of the six recipients bounced does not detract from the reality that there was, to use the words of McMurdo J, something in the nature of receipt of the documents by, at the least, the other three representatives of the Project Manager. [84] There is another consideration – the scheme of the Act. In BCFK Holdings Pty Ltd v Rork Projects Pty Ltd52 Stevenson J explained the legislative background in relation to the NSW equivalent of the BIF Act: As numerous authorities in this Court have made clear, the Act is intended to provide a speedy way to resolve, on an interim basis, disputes concerning construction contracts. The Act is also clearly intended to operate in a realistic fashion and, so far as possible, despite the plethora of cases that have arisen under the Act, in a manner that avoids arid technical disputes. 50 [2014] QSC 30 at [37]. 51 See Ryan J in Equinox Construction Pty Ltd v Henning [2021] QSC 223 at [74]. 52 [2022] NSWSC 1706 at [25]-[28]. -- 18 of 22 -- 19 As I said in Piety Constructions,53 a recipient of a document required to be served under the Act who actually opens and peruses a copy provided electronically ought not be encouraged to contend, as the Principal initially did here, that although it was factually provided, it was not legally provided. A party that actually receives a payment claim should not be entitled to assert that service did not ever happen because of a shortcoming, perhaps technical, in the manner in which the claimant purported to effect service. [85] Viewed in that light, the court ought to accept that a payment claim that is actually received by five of the six intended recipients has been given in accordance with the Act. [86] In the circumstances, I find that PC64 was given to Oakey via its Project Manager. Issue 2: Did Oakey respond to PC64 within time? [87] Clause 39.3(a) of the contract required that the Project Manager, within 10 business days, assess a payment claim given to it pursuant to clause 39.2, and issue (in response) a ‘valuation certificate’. [88] Although the labelling is different, the valuation certificate is, in substance, a payment schedule within the meaning of s 69 of the BIF Act. A payment schedule is defined by the BIF Act as a written document that identifies the payment claim to which it responds, states the amount of the payment, if any, that the respondent proposes to make, and, if the amount proposed to be paid is less than the amount stated in the payment claim, why the amount proposed to be paid is less, including the respondent’s reasons for withholding any payment.54 [89] Clause 39.3 of the contract provides for valuation certificates. Under that clause, the Project Manager must assess the payment claim, issue to the Contractor a valuation certificate identifying the payment claim to which it relates and stating the amounts determined as owing as required by clause 39.3(a)(ii) and, having regard to those amounts, the amount of the payment which, in the opinion of the Project Manager, is to be made by the Principal to the Contractor or by the Contractor to the Principal.55 The Project Manager must set out, in any valuation certificate, the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the contractor, the reasons for the difference.56 [90] Whilst the requirements of a valuation certificate under clause 39.3 are more detailed than the fairly undemanding requirements of s 69, a valuation certificate is, in substance, a payment schedule. A valuation certificate issued under clause 39.3 of the contract will necessarily meet the three requirements of s 69. It will identify the payment claim to which it relates, it will state the amount proposed to be paid and it will state the reasons for any shortfall. 53 Piety Constructions Pty Ltd v Hville FCP Pty Ltd [2022] NSWSC 1318 at [35]. 54 Morrison JA (with whom Fraser JA and North J agreed) summarised the requirements of s 69 in a similar way in Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd (2021) 9 QR 220 at [97]. 55 See clause 39.3(a)(iii) of the contract. 56 See clause 39.3(b) of the contract. -- 19 of 22 -- 20 [91] Clause 39.3 requires that the valuation certificate be given within 10 business days. That means that under s 76(1) of the BIF Act, the payment schedule (or, as it is labelled in the contract, the valuation certificate) must be given within that period. No payment schedule was given within that period and so the consequence was that the amount of the payment claim became payable.57 [92] Oakey argues that the concept of a valuation certificate under the contract is different from the definition of a payment schedule in s 69 of the BIF Act. Firstly, it is said that the valuation certificate is prepared by the Project Manager – who is not necessarily the respondent to the payment claim. However, as discussed above, under this contract the Project Manager acts as Oakey’s agent in the exercise of all of its functions under the contract.58 Of course, there is a practical problem with Oakey’s submission. If it was not the Project Manager who was to give the valuation certificate, then who would? As explained, Oakey was a special purpose vehicle with no staff of its own. [93] Secondly, Oakey argues that the Project Manager is required to assess the payment claim and make a series of determinations under clause 39.3(a)(ii). Those assessments and determinations, it is argued, takes the valuation certificate beyond the requirements of s 69 of the BIF Act. The determinations to be made under clause 39.3(a)(ii) are of the contractual milestones achieved by the contractor, the value for the milestone to the date of the claim, the amounts due from the contractor to the principal, any amounts for which the principal is entitled to liquidated damages under clause 35, the amounts previously paid under the contract, the amounts previously deducted for retention monies, and the retention monies to be deducted for the payment claim. None of that alters the character of the response to the payment claim. The detail required by clause 39.3(a)(ii), such as the milestones achieved, the amounts due, and the amounts already paid are appropriate and relevant detail that are likely to be supplied in any event in any large construction project. [94] Nothing in the BIF Act, or in the objectives of the Act, requires that the payment schedule comprise only the bare bones specified in s 69, namely the payment claim, the amount to be paid, and the reasons for any shortfall. The payment claim regime in the BIF Act does not operate in a commercial vacuum.59 The parties are entitled to put flesh on the bones of s 69 and to specify what each expects from the other in their payment claims and payment schedules. Doing so does not alter the character of the payment schedule. [95] Indeed, if the court were confine payment schedules to only the three elements of s 69 it would severely limit the utility of the regime because the parties are likely to require detailed information, for example, on even basic information such as what has already been paid under the contract and what contractual milestones have or have not been achieved. 57 Section 77(2) of the BIF Act. 58 Clause 26.1(b) of the contract. 59 To use the language of Vickery J in Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141 – discussed above. -- 20 of 22 -- 21 Issue 3: Is Canadian Solar estopped from asserting that PC64 was validly given? [96] Oakey argues that on and from 11 January 2019 Oakey and Canadian Solar adopted an assumption that a payment claim could not be given to Oakey by email under the contract, or pursuant to s 75 of the BIF Act, unless it was delivered by email to Mr Wang. On the basis of that common assumption, Canadian Solar is estopped from asserting that PC64 was validly given to Oakey. [97] There is a problem with the alleged mutual assumption. Canadian Solar did send PC64 by email to all six recipients. In the case of the email enclosing PC64, the ‘To’ field was populated by Mr Wang’s EU email address. The ‘cc’ field was populated by the other five recipients. That was perfectly consistent with the previous payment claims. If there was any assumption, it was that the parties would communicate as they had in the past. [98] However, the assumption contended for by Oakey is not just that the parties would adopt their consistent practice, but that the parties assumed that the payment claim had to be emailed to Mr Wang and that it must reach Mr Wang in order to be effective. [99] In my view, the weight of the evidence does not support that the parties held such an assumption. Not one of the 63 previous payment claims was sent only by email to Mr Wang. Not all the payment claims were sent to Mr Wang. Over the lengthy period of the construction, the recipients of payment claims varied. Mr Zafari, for example, received about 15 of the payment claims prior to PC64. And, in January 2022 – at the time of payment claim 47 - Mr Ruttledge was reminded by Mr Robertson that he was to be included in all correspondence – presumably he meant payment claim correspondence. The list of recipients varied from time to time as staffing changed on the project. However, the list was sent to six recipients for a reason. The recipients were those on the project who, at the relevant time, had an interest in receiving the payment claims.60 As explained above, the ‘cc’ field was not a mere formality. [100] Mr Ruttledge did not labour under the assumption. He assumed that all the recipients would consider the payment claim or at least discuss it.61 [101] The communication matrices are an unsafe foundation for the assumption. They are not shown to be accurate or up-to-date and seem to have petered out over the course of the project.62 And, as explained, even Mr Wang did not attribute much weight to the communications matrices.63 [102] Thus, I am unable to infer from the evidence that the parties adopted the common assumption that payment claims could only properly be given by being delivered by email to Mr Wang. 60 See the discussion above. 61 Third affidavit of Mr Ruttledge at [23]. 62 Transcript T2-8 line 23. 63 Transcript T1-64 line 16. -- 21 of 22 -- 22 Issue 4: Was Canadian Solar’s conduct, and in particular the failure to respond to the bounce back, misleading or deceptive? [103] Oakey contends that by Canadian Solar’s conduct in enclosing PC64 with the email of 26 June 2023 addressed to Mr Wang at his EU email address, and in not following up or checking for a bounce back email, Canadian Solar represented to each of the other recipients that the 26 June email had been delivered by email to Mr Stanley Wang.64 That representation is said to misleading or deceptive under s 18 of the Australian Consumer Law. [104] On this point, I accept Canadian Solar’s submission that the mere appearance of names within the ‘To’ and ‘cc’ fields of an email does not represent that the email has in fact been delivered to the names listed; it merely represents that the sender has attempted to send the email to the persons listed.65 [105] It follows that Oakey has failed to make out the representation alleged. Issue 5: Was Canadian Solar’s conduct unconscionable? [106] I have already set out, in some detail, the circumstances in which Mr Ruttledge came to send the 26 June email to Mr Wang and to the other five recipients. None of that conduct makes it appropriate for the court to, adopting the words of Gageler J in ACCC v Kobelt,66 denounce Mr Ruttledge’s conduct as offensive to a conscience informed by a sense of what is right and proper according to the values of contemporary Australian society. [107] Nothing in the circumstances of this case establishes dishonesty in behaviour, or trickery or sharp practice67 or any other basis for unconscionability under s 21 of the ACL. [108] At the heart of this dispute are two mistakes. One of Mr Wang’s two email addresses was cancelled. He erred in failing to tell the other contracting party, or at least to make clear to the other contracting party, that one of the two email addresses he had been using interchangeably had been cancelled. Possibly he also failed to tell those within his own organisation. And Mr Ruttledge sent the 26 June email without noticing the bounce back email. Those two mistakes, and the circumstances that surround them, are not a proper basis for relief under s 21 of the ACL. Conclusion [109] For those reasons, Canadian Solar’s application should be allowed, and the counterclaims based on s 18 and s 21 of the ACL should be dismissed. I will hear the parties on costs. 64 Amended defence at [59]. 65 Plaintiff’s submissions at [61]. 66 (2019) 267 CLR 1 at [93]. 67 These are the expressions used by Allsop CJ in Pacciocco v ANZ (2015) 236 FCR 199 at [296] – a case quoted by the defendant. -- 22 of 22 --