Security of Payment: Amendments to service of notice provisions

Commercial Directions

Following the introduction of the Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW), important changes have been made to the service of notices provisions in the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act).

These changes are:

  • A notice required to be served on a person may now be served ‘by email to an email address specified by the person for the service of notices of that kind’ (see section 31(1)(d)), and
  • A notice may no longer be served by facsimile unless the construction contract in question provides for service in this manner.

This means that notices such as payment claims and payment schedules may now be validly served by email, even though the construction contract does not specifically provide for this. To be validly served however, the notice must have been sent to an email address which has been specifically nominated to receive notices under the Act.

The take-home messages in relation to service of notices under the Act are that:

  • Service of notices by email will be valid so long as the recipient email address has been nominated to receive notices of that kind, and
  • Service of notices by facsimile will no longer be valid unless the particular construction contract provides otherwise.

What next?

Moray & Agnew’s Construction & Infrastructure team can assist your business with all areas of Security of Payment. We also regularly deliver training programs tailored for individual businesses and teams.

Authored by Sean O’Sullivan, Managing Partner Newcastle and Isabella Rebellato, Lawyer.


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