In Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30, the Court considered whether providing a link via a program utilising the ‘Cloud’, such as Dropbox, constituted effective service of adjudication documents.
Basetec Services Pty Ltd (“Basetec”) served part of an adjudication application by an email attaching another email including links to Dropbox documents which Conveyor & General Engineering Pty Ltd’s solicitor (“CGE”) did not open until after the deadline for responding to the adjudication application, more than a week after the email had been received.
The Adjudicator made a decision in Basetec’s favour and CGE challenged the decision in the Supreme Court, arguing the email was not effective service of the documents and therefore the Adjudicator’s decision should be set aside.
The Court held that if by the efforts of one party, the other becomes directly aware of the contents of the document, service is effected. However, the Court held due to the fact CGE was required to visit the Dropbox website via the link provided and download the documents in order to be aware of its contents, the email did not make it aware of the contents of the documents. The Court stated:
“None of the data, text or images within the documents in the Dropbox was itself electronically communicated, or in other words communicated ‘by guided or unguided electromagnetic energy’ [as prescribed in the Electronic Transactions (Queensland) Act 2001]”
On this basis, the Court determined the Adjudicator’s decision void.
While electronic service of documents may be convenient and efficient, parties should be cautious about the use of electronic facilities, including email. During Basetec the Court confirmed serving documents by email is not a valid method of service unless it is agreed to in advance, for example, by a provision in the contract.
To avoid the service of documents by electronic means, particularly by email, being found to be void, parties should take steps to ensure service will be effected. These may include:
- agreeing with the other party/parties to electronic service of documents prior to serving any document in this format (preferably by a express clause in the contract);
- obtaining confirmation that the documents have been received using either a read receipt, a return email or by phone call to the other party; and
- following up by sending a second copy of the documents by fax or post to a registered address for service.
It is important to maintain accurate records of these steps being taken.
Should you have any further queries about service of Payment Claims, Payment Schedules or adjudication documents please contact our office on (08) 8110 8000
