The Electronic Transactions Act 2002 (“ETA”) provides that certain statutory notices (among other documents) can be served by email. Section 11 prescribes default rules for when the communication is taken to be received:
An electronic communication is taken to be received, -
- In the case of an addressee who has designated an information system for the purpose of receiving electronic communications, at the time that electronic communication enters that information system; or
- In any other case at the time the electronic communication comes to the attention of the addressee.
This provision was examined in the context of service of a notice under section 37 of the Receiverships Act on receivers. In this case, the receivers did not receive an email attaching the statutory notice: it was detained by the receivers’ external email provider.
In order to determine whether the proceedings were properly constituted, the Court had to determine if the receivers had “designated an information system” or not. If the receivers had designated an information system, the time of delivery would be at the time the email entered the receivers’ information system (even if provided externally). If the receivers had not designated an information system, the time of delivery would be when they actually received the notice.
It was accepted by the Court that the receivers had not expressly designated an information system for the purpose of receiving statutory notices (or other documents). Such a designation might have occurred by express statement on a communication or letterhead that notices can be served at a particular address. Heath J considered that whether an information system has been designed is a question of fact to be determined on the basis of available evidence, and designation should be able to be inferred from conduct. On the facts of the case, Heath J was satisfied that as there had been email correspondence between the parties, there was sufficient evidence to infer a “designation” that the Receivers’ email address could be used for statutory notices.
It therefore appears that entering into email correspondence may be sufficient to designation emails from that address as an acceptable system for receiving notices. When corresponding by email parties should be clear about whether or not they wish to accept notices by email. Failure to exclude email will mean that notices (even on unrelated issues) can be served by that means. Issues therefore can arise where message filtering systems do not deliver emails to the intended recipients. This is a timely reminder to check email filters regularly.
Petterson v Gothard [2012] NZHC 666
