A Saturday email, a missed deadline and a $22.6 million bill: WA Court of Appeal confirms the SOPA clock can’t be moved by contract
A payment claim emailed at 4.35pm on a Saturday has cost a principal more than $22.6 million. In Co-Operative Bulk Handling Ltd v Martinus Rail Pty Ltd [2026] WASCA 82, the WA Court of Appeal confirmed that under the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SOPA), an emailed payment claim is made when it can be retrieved at the recipient’s nominated email address, even on a weekend. A contract clause deeming weekend notices to be received on the next business day does not change that.
The decision upholds the Supreme Court’s 2025 judgment. It is a sharp reminder that the 15 business day deadline to respond to a payment claim is strict, and that missing it can be extremely costly.
Key takeaways
The clock starts when the email arrives. An emailed payment claim is “given” under SOPA when it becomes capable of being retrieved at the recipient’s designated email address. That can be outside business hours, on a weekend or on a public holiday.
Contract notice clauses don’t change SOPA timing. A clause deeming notices received after hours or on a non-business day to be received the next business day does not delay when a SOPA payment claim is made.
Miss the deadline, pay the full claim. A principal that does not give a payment schedule in time becomes liable for the whole claimed amount. It cannot raise contractual defences or cross-claims in the recovery proceedings.
Count from the date of receipt. Principals should calculate the 15 business days from the day the claim actually lands in the inbox, not the date the contract says it was taken to be received.
Who needs to know?
Principals, head contractors and their contract administrators, and anyone whose email address is nominated to receive payment claims.
Contractors and subcontractors, who should understand when their claims are taken to be made and when a respondent’s time runs out.
Background
The project and the payment claim
Co-Operative Bulk Handling (CBH) engaged Martinus Rail (Martinus) to build a rail siding and associated infrastructure at Broomehill, WA. The contract price, as varied, was around $36.7 million.
At about 4.35pm on Saturday 31 August 2024, Martinus emailed CBH’s nominated representative a payment claim for $22,646,617.21 (ex GST). The email could be retrieved at about 4.36pm that day. CBH’s representative opened it at 6.42am on Monday 2 September.
On Tuesday 24 September 2024, CBH emailed a payment schedule. It rejected the claim in full and said Martinus owed CBH about $5.4 million.
Why the timing mattered
Under s 25(1) of SOPA, a principal must give a payment schedule within 15 business days after the payment claim is made, or earlier if the contract requires. If it doesn’t, it becomes liable for the full claimed amount (s 26). The contractor can then recover that amount as a debt in court (s 27).
The outcome turned on a few days:
If the claim was made on Saturday 31 August, the 15 business days ended on Friday 20 September, and CBH’s schedule was four days late.
If the claim was received on Monday 2 September, the period ended on Tuesday 24 September, because Monday 23 September was a public holiday. CBH’s schedule was then in time, on the last possible day.
The competing arguments
Under the SOP Regulations, a document emailed under the Act is given when it is received “in accordance with” s 14 of the Electronic Transactions Act 2011 (WA) (reg 23(d)). Section 14 provides that, “unless otherwise agreed”, an email is received when it becomes capable of being retrieved at the recipient’s designated address.
CBH argued that the parties had “otherwise agreed”. Clause 47.4 of the contract deemed communications received on a non-business day to be received at 9am the next business day. On CBH’s case, the claim was made on Monday 2 September and the schedule was in time.
Martinus argued that reg 23(d) picks up only the statutory receipt rules in s 14, not a private agreement, and that a contract cannot extend the time SOPA allows. It also argued that cl 47.4 applied only to contractual notices, not to SOPA payment claims.
The Supreme Court decision
At trial, Palmer J found for Martinus (Martinus Rail Pty Ltd v Co-Operative Bulk Handling Ltd [2025] WASC 373). His Honour held that:
“Unless otherwise agreed” doesn’t give an agreement statutory force. The words only allow the parties to agree that s 14 does not apply between them, so reg 23(d) does not pick up the parties’ agreement.
This fits SOPA’s expedited process. CBH’s construction would let parties defer the start of the response period, and so extend it, “potentially indefinitely”.
Any agreement would fail anyway. Even if the parties had agreed a different time of receipt for SOPA purposes, the Act would not give that agreement force. An inconsistent agreement would also be void under s 111, which prevents contracting out of the Act.
The claim was therefore made on Saturday 31 August, CBH’s schedule was late, and Martinus obtained judgment for the full claimed amount plus interest.
The Court of Appeal decision
CBH appealed. The Court of Appeal (Thomson P, Vaughan JA and Archer JA) unanimously dismissed the appeal, for reasons it described as largely similar to the trial judge’s.
What “in accordance with” means
The central question was what reg 23(d) means when it refers to an email being received “in accordance with” s 14.
The Court looked first at the rest of reg 23, which covers personal delivery, leaving documents at a business, post and electronic lock-boxes. Each of those rules fixes receipt at the point when the document is under the recipient’s control and the recipient should be aware of it, not when it is actually read. The statutory rules in s 14(1)(a) and (b) fit that pattern exactly. An agreed rule might not.
The Court also distinguished the statutory rules in s 14 from a private agreement contemplated by its opening words. An agreed time of receipt gets its legal effect from the contract, not from the legislation. The Court therefore held that “in accordance with” means “in accordance with the legal effect” of s 14. Regulation 23(d) applies only the statutory receipt rules, not any time of receipt the parties have agreed.
Because of that conclusion, the Court did not need to decide whether cl 47.4 applied to SOPA payment claims at all. Even if it did, it was irrelevant.
The legislature could have chosen differently
The Court noted that there would be no legal difficulty with a regulation expressly providing that an email received on a non-business day is taken to be received on the next business day. That would simply be a different legislative choice. But reg 23, as currently drafted, does not do that.
What this means in practice
For principals and head contractors
Monitor nominated inboxes every day. If your email address is nominated to receive payment claims, assume a claim can arrive at any time, including weekends and public holidays, and that time starts running immediately.
Don’t rely on contract notice clauses. Deemed-receipt clauses may still govern contractual notices, but they will not delay the start of the SOPA response period.
Diarise conservatively. Count 15 business days from the date the claim became retrievable, and aim to serve the payment schedule well before the deadline.
Get advice early. A payment schedule that properly sets out your reasons for withholding payment takes time to prepare, particularly for large or complex claims.
For contractors and subcontractors
Know when your claim is made. A claim emailed to the correct designated address is generally made when it can be retrieved there, whatever the day or time.
Keep good records. Keep evidence of when your payment claim was sent and to which address.
Act promptly if no schedule arrives in time. If the respondent misses the deadline, you may be able to recover the full claimed amount as a debt. The respondent can’t raise contractual defences or cross-claims in those proceedings.
How we can help
Lang Litigation and Construction Law advises principals, contractors and subcontractors on payment claims, payment schedules, adjudication and recovery proceedings under the Building and Construction Industry (Security of Payment) Act 2021 (WA). If you have received a payment claim, or need help preparing or enforcing one, contact us.
This article is general information only and is not legal advice. You should seek specific advice about your circumstances.