Delivery of a USB: not valid service under NSW SOPA legislation
April 6, 2017
In the recent decision of Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/as Total Concept Group  NSWSC 194, the New South Wales Supreme Court considered when documents contained on a USB are deemed to be served under the Building and Construction Industry Security of Payment Act 1999 (NSW), and in doing so highlighted the risks of improper service.
On 9 November 2016, Total Concept Group delivered to Parkview Constructions Pty Ltd (Parkview) a covering letter stating that an adjudication application had been submitted to the dispute resolution service, and that a copy of the application was contained in full on the enclosed USB drive. Parkview did not access the contents contained on the USB device until the 10th of November. The delay between delivery and access proved critical, as service of the adjudication response by Parkview was deemed a day late by the Adjudicator if the 9 November date was used as the date on which the adjudication application was served, and was consequently disregarded.
The Supreme Court was asked to consider whether the adjudicator was correct in disregarding Parkview’s adjudication response.In quashing the adjudicator’s determination, the Court held that:
- the delivery of a USB does not amount to the valid service of the information stored on it;
- the delivery of a USB will not constitute effective service until its contents have been physically accessed; and
- as a result, service of the adjudication application was effected on 10 November 2016 when the contents had been accessed.