Tweet this – emails and electronic messaging can be effective service

There are some easy ways to serve a company under the Corporations Act 2001*,  but those methods sometimes fail for a variety of reasons.   Maybe the principal place of business or registered office of the company is no longer occupied, but ASIC has not been advised of the change of address.  The person serving the document might not leave it at the old address since there is no-one there to take it**.

In some cases it is not possible to serve the document again.  It might be too late to do so.  Alternatively, some subsequent step, like terminating a contract, might already have occurred.

However, if the documents were also emailed, it is possible in the right circumstances to rely on that fact to prove effective service.

In the case of a liquidator or administrator, if there is evidence that the liquidator or administrator received the email attaching the document and read it, that will be effective service on the company.  The reason for this is not that there is a provision in the legislation allowing service by email.  Rather, it is a consequence of the fact that the liquidator or administrator is the guiding mind of the company and once they know of the document, so does the company:  the ordinary meaning of service is that the document comes to the attention of the intended person.   The company has therefore been actually served and there is no need to rely on any deemed service provisions:  see for example Austar Finance Group Pty Ltd v Campbell (2007) 25 ACLC 1834, [2007] NSWSC 1493  per Austin J at 1841 (paras [48] to [60]).

What sort of evidence is required?  According to Austin J, there must be evidence that the document came to the notice of the person to be served, and that the document was in readable form.  For an email, that means that the email message was downloaded from the intended recipient’s server so that it could be read and actually came to the recipient’s attention.  So the evidence could be as simple as an emailed response acknowledging receipt.  Or that a printed copy of the email and attachment appears in the recipient’s file.  Or it might be that a subsequent email was sent or other action taken, not in direct response, but which makes clear that the first email and document was read.

The principal has wider application than insolvency – it applies to any situation where the intended recipient (company or not) can be shown to have received and read the email.  It also conceivably applies to any other forms of electronic messaging like Tweets or facebook messaging, given Austin J’s decision followed earlier cases dealing with faxes.

I note that for the purposes of personal service, Austin J was of the opinion that there had to be evidence the documents were printed, so that a hard copy was received.

Regards

Mark

*See for example s109X of the Corporations Act 2001 (Cth) and s28A of the Acts Interpretation Act 2001 (Cth).  For a thorough survey of the law on serving a company, I highly recommend chapter 3 of Farid Assaf’s excellent book, Statutory Demands: Law and Practice, 1st ed, Lexis Nexis 2008.  Usually a contract will also include deemed service provisions, or notice clauses, of similar effect.

**Of course if the person serving the document just left it anyway that would still be good service under s109X(1).  This post is based on a real case where the document was brought back and not left at the registered office.

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