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Changes to the serving of notices under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) have been introduced by the Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW), which was assented to on 27 June 2017.

The amending act modifies s 31 of the SOP Act by removing the express entitlement to serve notices by facsimile (fax) under s 31(1)(c). It also creates a new provision for serving notices "by email to an email address specified by the person for the service of notices of that kind" in s 31(1)(d).

The impact of the changes means notices under the SOP Act can:

  • no longer be served by fax unless the construction contract expressly provides for this, in line with s 31(1)(e), and
  • be served by email to an email address that is specified by the intended recipient for the service of such notices.

If there is any uncertainty as to whether an email address has been specified for the service of notices under the SOP Act, including where the email address has not been specified in writing, the notice should be served by one of the other manners permitted by s 31(1), for example, delivering the notice personally or sending the notice by post—in addition to serving the notice by email.

Even if an email address has not been specified for the service of notices under the SOP Act, such notices can still be served by email if the construction contract expressly provides for the service of notices by email.

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