Jurisdiction lost by hyperlink: Reward v Tackelly and the meaning of “give” under the Western Australia security of payment regime

The recent decision of the New South Wales Court of Appeal in Reward Interiors Pty Ltd t/as Reward Group v Tackelly No 8 Pty Ltd atf Tackelly No 8 Trust [2026] NSWCA 133 (Reward v Tackelly) highlights important jurisdictional boundaries for review adjudicators as well as the importance of strict compliance with the requirements of service in the context of the Building and Construction Industry (Security of Payment) Act 2021 (WA) (the Act).

Read the decision here

Overview

In a decision handed down on 15 July 2026, the NSW Court of Appeal unanimously held that the one-business day requirement for giving a copy of an adjudication review application to the other party under s 42(3) of the Act is a jurisdictional precondition to a review adjudicator’s power.

The majority (McHugh and Free JJA, Ward P dissenting) held that emailing a hyperlink to an online file repository (such as Mimecast) does not, in and of itself, constitute giving a copy of a review application to the other party within the meaning of s 42(3) and s 113(3) of the Act.

Key Takeaways

Review adjudicators will not have jurisdiction in respect of an adjudication review application if the party making the application has not given a copy of the application (and any accompanying documents) to the other party within one business day after the application is made in accordance with s 42(3) of the Act.

Parties involved in an adjudication under the Act should be aware that documents will not have been given for the purposes of s 113(3) of the Act by providing the other party with access to an online file repository. The recipient needs to take the further step of accessing the documents before they have been “given” within the meaning of the Act. If that further step occurs after the time limit prescribed by the Act, the documents will not have been given to the other party within the time limit.

The NSW Court of Appeal’s decision will likely have broader implications beyond adjudication review applications where the language in s 42(3) also appears in ss 30(2), 34(4) and 45(4) of the Act relating to the giving of adjudication applications, adjudication responses and adjudication review responses respectively.

Background

Tackelly No 8 Pty Ltd (the principal) entered into a contract with Reward Interiors Pty Ltd (the contractor) for design and construction works to refurbish a Perth hotel (the contract). The contractor was subsequently successful in an adjudication determination against the principal under the Act.

On 2 December 2024, the principal applied for a review of the adjudication determination and purported to give a copy of the adjudication review application to the contractor on the same day by way of email containing a link to a secure online file transfer site (Mimecast) where the adjudication review documents could be accessed and downloaded. However, the contractor did not access the filesharing link until 4 December 2024 (two business days later).

On 13 January 2025, the review adjudicator dismissed the review application for want of jurisdiction because the principal had not satisfied the jurisdictional precondition at s 42(3) of the Act requiring adjudication review applications to be given to the other party within one business day.

The principal commenced proceedings before the NSW Supreme Court (both parties being based in NSW) seeking to set aside both the adjudication determination and the adjudication review determination.

Legislative Framework under the Act

The Western Australian security of payment regime is different from comparable systems in other Australian jurisdictions because it provides for an additional layer where a senior adjudicator can review the adjudication decision. 

Section 42(3) stipulates that the claimant or respondent making the review application “must give” a copy of the application and any accompanying documents to the other party “within 1 business day” after the application is made.

Section 113 governs service of documents under the Act. Section 113(1) defines “give” as including “serve, send or otherwise provide”. In the current case, it was common ground that s 113 was enlivened when s 42(3) applied.

When s 42(3) applies and s 113 is enlivened, two possibilities arise:

1. If the contract provides an authorised or required means of giving documents under the Act, documents must be given in accordance with the contract if it is reasonably practicable to do so (s 113(2)(a)).
2. If the contract does not provide a method for giving such documents under the Act, then in accordance with s 113(2)(b) the documents must be “given” by one of the statutory methods set out in s 113(3)(a) to (e).

The NSW Court of Appeal considered whether the principal had complied with:

• section 113(3)(d), which provides that the document may be given, served or otherwise provided by email; and
• section 113(3)(e), which provides that the document may be given “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”.

The Jurisdiction Issue

The NSW Court of Appeal unanimously held that s 42(3) is a jurisdictional pre-condition and the principal’s non-compliance with s 42(3) meant the review adjudicator did not have jurisdiction in respect of the adjudication review. The Court of Appeal found that the primary judge had erred in this regard.

In arriving at its decision, the Court of Appeal considered that: 

• The text, context and purpose of the Act, including the mandatory language of s 42(3) (as distinct from the permissive language of other provisions) and its role within an intentionally “brutally fast” security of payment regime,¹ reflected a deliberate legislative intention to expedite reviews – such that any late service, however brief, precludes an adjudication review.
• The service requirement in s 42(3) is the “hinge” on which subsequent review timeframes turn, and that treating it otherwise would lead to uncertainty in the operation of other related statutory timeframes. On this basis, s 42(3) is a jurisdictional precondition rather than a procedural requirement. 

The Service Issue

On appeal, the majority (Free and McHugh JJA) agreed with the primary judge that the principal had not given the documents to the contractor within the meaning of s 42(3) and s 113.

Free and McHugh JJA concluded that:

• Emailing a link allowing the recipient to access documents stored in Mimecast does not constitute giving documents “by email” as contemplated by s 113(3)(d) as the recipient does not actually possess the documents until they access and download them from the repository (and the documents could be changed or moved before then).
• Giving a party the means to access documents is different to actually giving the documents themselves. Section 113(3)(e) only allows documents to be given via electronic databases if the regulations in force permit it, which was not the case here.
• Although it was open to the parties to agree another means of electronic service (in which case s 113(2)(a) would apply), the contract in question did not specify how documents under the Act were to be served or given to the other party. Accordingly, the review application was not given to the contractor within the one-day timeframe required by s 42(3).

Ward P (in dissent) concluded that the matter turned on the meaning of the words “otherwise provide” in the context of s 113(3)(d). While Her Honour accepted that the adjudication review application was not given or sent within the ordinary meaning of those words, Her Honour considered that the process of emailing a link by which the other party could access the documents amounted to providing those documents. On that basis, Her Honour concluded that the documents were “otherwise provide[d]” and therefore fell within the definition of “give” under s 113(1) such that the principal had complied with the requirements of s 113(3)(d) of the Act.

¹  As recognised in Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373).