Service by email: Building and Construction Industry Security of Payment Act 1999 NSW (SOP Act)

The Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (Act) passed into law in the last week of June 2017. It amended a number of Acts including the Strata Management Scheme Act 2015 NSW delaying the commencement of the new defects bond scheme until January 2018.

Email Allowed

Whilst it did not create much fanfare the Act also amended the SOP Act by allowing for service of notices (i.e. payment claims, payment schedules and other documents) by email. It also removed service by facsimile.

Section 31 of the SOP Act 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:


(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.

Fax Under the Contract

Facsimile can still be prescribed as a method of service under a construction contract but it is no longer a default service method under the SOP Act.

Past issues in relation to facsimile will be avoided such as in Zebicon Pty Ltd and Remo Constructions Pty Ltd [2008] NSWSC 1408 where the respondent asserted it had not received a payment claim due to a malfunction of their machine (even though the claimant received a transmission report).

Service

The Electronic Transactions Act 2000 (NSW) considers an electronic communication received when it has become capable of being retrieved by the recipient (i.e. when it reaches the recipient’s electronic address), and the recipient has become aware that it has been sent.

The Takeaway

Default Service of Notice Methods under SOP Act Section 31

Default Service of Notice Methods under SOP Act Section 31

 

  • The amended SOP Act allows service of notices by email, while facsimile is no longer a default service method.
  • The Electronic Transactions Act 2000 (NSW) considers an electronic communication received when it has become capable of being retrieved by the recipient (i.e. when it reaches the recipient’s electronic address), and the recipient has become aware that it has been sent.