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From 27 June 2017 the service of notices (including payment claims, payment schedules and adjudication applications) under the Building & Construction Industry Security of Payments Act NSW (SOPA) can be served by “email to the email address specified by the person for the service of notices of that kind” [SOPA s.31(1)(d)]. This will have serious consequences for payers and payees in building and construction contracts, as well as parties to contracts who send or receive other forms of notices under the contract. Service by fax is no longer valid unless this mode of service is allowed in the contract. The amendments apply to all building contracts, regardless of when they were entered into.
It is important to note that the party wishing to accept service by email MUST specify in writing to the other party (or parties) to a contract the email address for the service of notices under the Building & Construction Industry Security of Payments Act NSW 1999 to enable the application of this new provision.
In our practice at Forum we review many building contracts where the owner or head contractor insists on the service of all notices (including payment claims) in person or by post which substantially prejudices a busy contractor or sub-contractor who may not be conveniently located near the office of the owner or head contractor. This affects the ability of a contractor to be lodge their claim within time and therefore payment is unnecessarily delayed. Now that notices are able to be served by email, payments can be streamlined and paid more expediently. As a payer it is critical that office and accounts personnel are aware that emailed notices have been requested and specified and are attended to promptly in accordance with the SOPA.