In this day and age when everything is done instantly at the press of a button, you would think that communicating a notice under an agreement by email would be fairly easy. But unfortunately it’s not quite that simple.
If an agreement expressly allows the communication of notices by email, it will usually state when notice is deemed to be received, and it is normally said to be the time that the email is sent. This works for the sender, who knows exactly when the email was sent, but it could potentially be unfair to the recipient if there’s a delay, or the email goes to their junk mail.
To avoid this sort of situation, it would be wise to send with the email a request for a delivery and/or read receipt, so that the sender has a record of delivery and the recipient is required to confirm with the sender that the notice has been read.
There’s also some legislation in this area, the Electronic Transactions Act 1999 (Cth), which unhelpfully provides that unless the parties have agreed otherwise:
- if the email address is set out in the contract, the time of receipt is when the email enters the recipient’s mail server or
- if not set out, the time of receipt is when it comes to the attention of the recipient.
But the problem is that in both circumstances the sender does not know when or if that’s happened.
In a case beforethe Supreme Court, it was found that a notice communicated by email is received once it is capable of being retrieved by the recipient, which meant that it wasn’t even necessary for the email to be opened or read. In this case, the email was caught by the recipient’s spam filter, so the recipient did not become aware of the notice in time.
There are no clear answers to when a contract should deem that an email notice has been received. But we would suggest that the communication of notices by email be made clear and fair. Or in some circumstances it might even be better to expressly exclude email as a form of contractual communication and use more traditional means of communicating contractual notices.
 Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor  NSWSC 1123
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