You can now serve notices (i.e. Payment Claims, Payment Schedules, Statutory Notices, Adjudication Applications etc) by way of email and the ability to serve any such notices by facsimile has been removed except where your contract provides for service by facsimile.

 

These changes were brought about by the Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW) (Amending Act) came into effect on 27 June 2017 and amended a number of other Acts, inclusive of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payments Legislation).

 

The Amending Act has amended Section 31 of the Act, which now reads as follows:

 

31 Service of Notices

 

(1) Any notice that by or under this Act is authorised or required to be served on a person may be served on the person:

 

      (a) by delivering it to the person personally, or
      (b) by lodging it during normal office hours at the person’s ordinary place of business, or
      (c) by sending it by post addressed to the person’s ordinary place of business, or
      (d) by email to an email address specified by the person for the service of notices of that kind, or
      (d1) by any other method authorised by the regulations for the service of notices of that kind, or
      (e) in such other manner as may be provided under the construction contract concerned.

 

(2) Service of a notice that is sent to a person’s ordinary place of business, as referred to in subsection (1) (c), is taken to have been effected when the notice is received at that place.

 

(3) The provisions of this section are in addition to, and do not limit or exclude, the provisions of any other law with respect to the service of notices.

 

Service by email

 

When serving any notices pursuant to the Security of Payments Legislation by way of email, the relevant email address may be any email address notified by the Respondent to the Claimant as being an address for service of such notices. This email address may be incorporated into your contract, however this may not always be the case and accordingly, you should ensure that you know the correct email address in which such notices should be issued.

 

Additionally if you intend to serve notices pursuant to the Security of Payments Legislation by way of email, we always recommend that you ensure that you turn on your delivery receipts. This may assist you in being able to prove that service of the notice was in fact completed and that the notice was delivered.

 

Recommendations

 

CTI Lawyers recommends that all businesses review their contracts that are currently on foot and check what email addresses are provided for in the contract. Additionally, you should check what methods of service are stipulated in the contract.

 

If there is no such email address in the contract, it may be beneficial to provide an email address for service of these notices. By having selected email address(es) in which you specify service of notices is allowed, you may be in a better position to manage claims pursuant to the Security of Payments Legislation.

 

You should also provide a relevant email address even where you do not have a contract in place. This may help in narrowing down the avenues in which notices may be served on you.

 

Our solicitors at CTI Lawyers will be able to assist you should you have any questions regarding this article. You can contact CTI Lawyers on (02) 9021 9699 or email your enquiry to law.clerk@neca.asn.au