A business lawyer has warned against the assumption that an email is an admissible form of serving notice under a contract, stating that the rules are varied and open to interpretation.
Jeff Song, a solicitor with Sydney law firm Townsends Business & Corporate Lawyers, said that the same rules for serving a formal letter do not necessarily translate across to email.
“In some jurisdictions (Commonwealth, NSW and Victoria), electronic communication (i.e. an email) is presumed to have been received by the person to whom it was sent unless there is sufficient evidence to raise doubt about the presumption,” said Mr Song.
“In other jurisdictions, such as Queensland, the laws of evidence vary and the above presumption may not apply.”
But it is not just whether an email is deemed to have been received that is open to debate.
“Whether it is a valid exercise of notice depends on interpretation of the terms of the [contract or agreement],” he said.
According to Mr Song, this was tested in the NSW Supreme Court earlier this year during a case between two companies.
In that instance, he said the judge found that “when notice by an email is not expressly included in the lease as a method of exercising the option, it may still be valid if the listed methods are not ‘mandatory’ and ‘exclusively available methods of service’”.
“Determining whether an email can be a valid method under a particular contract requires careful review of the terms of the contract,” said Mr Song.
“An email may be fast and simple now, but if its validity is challenged by the other party, time and resources required to resolve the dispute will certainly outweigh the benefits of an email over an old-fashioned letter served in accordance with the terms of the contract.”
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.
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