You’ve got mail: email service and security of payment claims

Email service is now clearly allowed under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).

The NSW Government has made small but fundamental changes to the SOP Act after passing the Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW).  The new legislation amends s 31 of the SOP Act, which relates to the service.

What are the changes?

The changes to s 31 of the Act significantly impact the service of claims, schedules and adjudication document under the Act.  Section 31 of the SOP Act now states:

“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.” [Emphasis added]

So what does this mean?

The practical impact of the change is that:

  1. Emails serving documentation under the SOP Act should be taken to be properly served; and
  2. Facsimile is no longer a prescribed method of service under the SOP Act.

While the reference to fax has been removed from the Act, it does not mean fax service  still be a prescribed method of service under the Contract.

What should you do?

With email service being allowed, it is vital that all parties to a construction contract specify in the contact the email address they want documentation under the SOP Act to be served on.  This email should be active and checked daily by someone familiar with the SOP Act.

Having a generic administration or management email, or an email address that isn’t checked when someone is on leave, is simply inadequate, as there is a significant risk that a claim or adjudication application may be missed.  A failure to properly respond to a claim could result a liability to pay the full claimed amount, whether disputed or not, under s 15.

If you have any more questions or want to discuss any claims under the security of payment legislation contact Michael Morrissey.

Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.

2019-07-02T11:36:23+10:00August 14th, 2017|Security of Payment|