The Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW) (Amending Act) received royal assent on 27 June 2017. The Amending Act is still subject to publishing in the gazette (that is, it is not yet in force). The Amending Act amends a number of other Acts, including the Building and Construction Industry (Security of Payment) Act 1999 (NSW) (SOP Act).

Relevantly, pursuant to the Amending Act, any notices (including payment claims, payment schedules and adjudication applications) required to be served in accordance with the SOP Act can now also be served via email (with the relevant email address being any email address notified by the recipient to the sender as being an address for service of such notices).

The Amending Act also removes the ability of notices required to be served in accordance with the SOP Act to be served via facsimile.

Importantly, where your on foot contract expressly permits service via facsimile, service via this method will still be valid for the purposes of the SOP Act as section 31(e) of the SOP Act (which provides that the parties can agree to methods of service of notices under the SOP Act) remains in force.

We recommend that industry participants immediately:

  1. review their on foot contracts and confirm that any email address included in the contract is still valid and/or that the recipient is still employed by the organisation;
  2. notify counterparties of a general email address for service of notices under the SOP Act; and
  3. update their precedents accordingly.