Are you being served? Sending GTA notices

Journal, Property Management,  Journal,  Property Managers

There is now a multiplicity of methods by which communication may take place between parties.

This article will discuss the law as to delivery by post, email and personal delivery with respect to the service of notices under the Residential Tenancies and Rooming Accommodation Act 2008 (RTAA).

The article does not deal with the service of legal proceedings issued out of a Court, which is a matter governed by rules of court and is best left to one’s lawyers and their service agents.

The general tenancy agreement

The RTAA does not prescribe how the service of notices is to be effected. Rather, the RTAA, and the regulations, are predicated on the basis that the parties have agreed to the method of service of notices in the general tenancy agreement.

The general tenancy agreement published by the Residential Tenancies Authority (RTA) – the form 18a – prescribes, with respect to notices, in clause 44, that:

A notice may be given to a party to this agreement or the lessor’s agent

(a)         by giving it to the party or agent personally; or

(b)        if an address for service for the party or agent is stated in this agreement for item 1, 2 or 3 – by leaving it at the address, sending it by prepaid post as a letter to the address; or

(c)        if a facsimile number for the party or agent is stated in this agreement for item 1, 2 or 3 and item 4 indicates that a notice may be given by facsimile – by sending it by facsimile to the facsimile number in accordance with the Electronic Transactions (Queensland) Act 2001; or

(d)        if an email address for the party or agent is stated in this agreement for item 1, 2 or 3 and item 4 indicates that a notice may be given by email – by sending it electronically to the email address in accordance with the Electronic Transactions (Queensland) Act 2001.

Furthermore, clause 44(8) of the general tenancy agreement contemplates the resolution of any controversy about the delivery of notices by providing that:

Unless the contrary is proved –

(a)        a notice left at an address for service is taken to have been received by the party to whom the address relates when the notice was left at the address; and

(b)        a notice sent by post is taken to have been received by the person to whom it was addressed when it would have been delivered in the ordinary course of post; and

(c)        a notice sent by facsimile is taken to have been received at the place where the facsimile was sent when the sender’s facsimile machine produces a transmission report indicating all pages of the notice have been successfully sent; and

(d)        a notice sent by email is taken to have been received by the recipient when the email enters the recipient’s email server.”

It is important then, in completing the general tenancy agreement, that agents take particular care to ensure that the easiest, and most effective, method is prescribed as to the delivery of notices to tenants.

Delivery by post

Service of notices by post will be deemed to be delivered “in the ordinary course of post”.

That archaic term throws up the problem as to what is the “ordinary course of post”, because experience dictates that one can never anticipate when a letter will be delivered by the postal service.

Happily, the issue of “ordinary course of post” has been dealt with in statutes and by the Courts.

Section 39A of the Acts Interpretation Act 1954 (Qld) provides:

“(1)        If an Act requires or permits a document to be served by post, service:

  • may be effected by properly addressing, pre-paying and posting the document as a letter; and
  • is taken to have been effected at the time at which the letter will be delivered in the ordinary course of post, unless the contrary is proved.

(2)        If an Act requires or permits a document to be served by a particular postal method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.

(3)        Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’, ‘serve’ or another expression is used.

Whilst service by post is not directly mandated by the RTAA, it is indirectly endorsed, insofar as the RTAA contemplates the parties agreeing the method of service of notices.

The term “ordinary course of post” was considered by the Queensland Civil and Administrative Tribunal Appeal Tribunal in CK v CRD & Ors,[1] where it was held that the “ordinary course of post”, by regular post through Australia Post, is presently three to four business days.

Email

Insofar as the general tenancy agreement makes reference to the Electronic Transactions (Queensland) Act 2001, section 24 of that Act deals with the issue of time of receipt of an electronic communication and provides that:

(1)       Unless otherwise agreed between the originator and the addressee of an electronic communication—

(a)        the time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or

(b)        the time of receipt of the electronic communication at another electronic address of the addressee is the time when both—

(i)         the electronic communication has become capable of being retrieved by the addressee at that address; and

(ii)        the addressee has become aware that the electronic communication has been sent to that address.

(2)        For subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

(3)        Subsection (1) applies even though the place the information system supporting an electronic address is located may be different from the place the electronic communication is taken to have been received under section 25.

What this means is that if one dispatches an email containing a notice under the RTAA – which is an electronic communication – then that notice is deemed to have been received at the time that it is capable of being retrieved at the designated email address.

Subsection (b) is only engaged if the email address is other than the designated address.

Subject to a proven corruption in the dispatch of the email, it will be assumed that an electronic communication of a notice is capable of being received within minutes of the dispatch of the email.

If the person dispatching the email wishes to place the matter beyond doubt, one may seek a “read receipt”, but a recipient may not be diligent in hitting the “read receipt” button, in which case the sender will be left to rely upon the proof of the dispatch of the email to the designated, and correctly spelled, email address.

Personal service

The further alternative is personal service, which requires with delivery of a document into the recipient’s hands.

Handing a document to the recipient involves attendance at a physical address at a time when the recipient is present, getting the recipient to answer a knock on the door, identifying the recipient and handing the document to the recipient.

The person may deny that he or she is the designated recipient or refuse to accept the document, in which case the server will be placed in the position of having to establish that they attended at the address, the means by which they identified the recipient and the efforts they took to hand the document to the recipient and, upon the recipient refusing to take the notice, that they placed the document at the recipient’s feet.

And it will all need to be committed to an affidavit, if the matter becomes contentious.

Which, of course, is all very difficult and messy.

Conclusion

If you wish to issue notices by post, you must document the dispatch of the notice by pre-paid post to the designated postal address and maintain a record, in an outgoing postal book, of the dispatch of the notice, the date of the dispatch of the notice and the address to which it was dispatched.  In those circumstances service will be deemed to be effected after three to four business days.

If one is relying upon the service of notice by an email, then, pursuant to the Electronic Transactions (Qld) Act 2001, the email must be sent to the correctly designated and accurately spelled email address and the sender must maintain a record of the dispatch of the email and of any “read receipt” returned by the recipient.

The delivery of the email will be deemed to be effective at the time that the email became “capable of being retrieved by the addressee” which, given the instantaneous nature of electronic communication, is at about the time that the email is sent, unless a “read receipt” is issued which indicates that the document was read at a later time.

It is recommended that agents, in completing general tenancy agreements, choose the method of delivery of notices which is simplest, fastest and, most importantly, most likely to bring the notice to the recipient’s attention.  If that is by way of email, agents should ensure that the email address is correct and any changes to the recipient’s email address are monitored and recorded throughout the course of the tenancy.

Reference:

[1] [2021] QCATAT 78.

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