Security of Payment - Service of Documents

Because of the importance of this area in Security of Payment matters, we have published a separate paper dealing with it.

Service Generally
How do you effect service under the NSW Act?

Section 31 provides:

31 Service of notices
  1. Any notice that by or under this Act is authorised or required to be served on a person may be served on the person:
    1. by delivering it to the person personally, or
    2. by lodging it during normal office hours at the person’s ordinary place of business, or
    3. by sending it by post or facsimile addressed to the person’s ordinary place of business, or
    4. in such other manner as may be prescribed by the regulations for the purposes of this section, or
    5. in such other manner as may be provided under the construction contract concerned.
  2. Service of a notice that is sent to a person’s ordinary place of business, as referred to in subsection (1) (c), is taken to have been effected when the notice is received at that place.
  3. The provisions of this section are in addition to, and do not limit or exclude, the provisions of any other law with respect to the service of notices.

Note that under section 31 (3) you are able to serve a payment claim at the registered office of a company in accordance with the Corporations Act. Per Giles AJ in Downer EDI Works Pty Ltd v Parsons Brinckerhoff Australia Pty Ltd [2011] NSWCA 78 at paragraph 29:

29Further again, the saving in s 31(3) permits service by leaving at or posting to a company's registered office: Corporations Act 2001 (C'th), s 109X(1)(a). A registered office is often an address maintained for the purpose, not at the company's place of business. The legislature has seen as acceptable service by leaving a notice at or posting it to a registered office where no one may have knowledge of the relevant works, and which may be at a remote location. It is difficult, then, to see necessity to read down s 31(1)(c) in order to avoid that possible situation.

What happens when there are multiple places of business?

Per Hodgson AJ in Downer EDI Works Pty Ltd v Parsons Brinckerhoff Australia Pty Ltd [2011] NSWCA 78 at paragraph 39:

39On that approach, "the person's ordinary place of business" in s 31(1)(c) would include a head office in which business is ordinarily carried on in relation to the whole of the person's business, as well as a branch office in which business is carried on in relation to the particular construction contract. Thus in this case, service by facsimile to the appellant's head office was sufficient.

What happens when you serve multiple copies of a document?

This frequently occurs when, for abundant caution, and to ensure service occurs on time, a party may serve a full set of documents in more than one way, such as both by facsimile and by delivery. With service of any notices under the NSW Act, what must be kept in mind is the critical importance of recording when the document is served. In the case of a payment claim, from the time it is served, the respondent’s ten days to provide a payment schedule begins to run. You must be able to prove not only that a document was first effectively served, but the date, and indeed sometimes even the actual time, of service.

If you serve multiple copies of a document then the first valid service, either in accordance with section 31 of the NSW Act or in accordance with the Corporations Act 2001, is taken as the service of the document and time beings to run from that service. Rein J in JAR Developments Pty Ltd v Castleplex Pty Ltd [2007] NSWSC 737 said:

25 The question then is whether the decision in Falgat means that service on 8 December started a fresh period of 10 days. If the words "has been served with" is substituted for "receives" in s 17(3)(c) so that it reads:

"in the case of an application under subs (1)(a)(i) – must be made within 10 business days after the claimant [has been served with] the payment schedule"

the answer to the question when does time start to run, is "from when the claimant was served with the payment schedule". Castleplex was served with the payment schedule on 7 December and again I do not think that service of another copy on 8 December (accepting that it was service) means that time starts running again.

26 In a sense, the rights of the claimant to an adjudication have commenced to run once the other party to the building contract has provided its response by means of the payment schedule. In the absence of an argument based on estoppel arising out of some confusing conduct on the part of the builder, I do not think that the process initiated by the service of the payment schedule on 7 December has come to an end because a second copy was served the following day. If it is said that service of the same payment schedule on the second occasion commenced its own chain, then there were two sets of process deriving from the one payment claim – a most unsatisfactory state of affairs in respect of a statutory regime designed "to provide a speedy and effective means of ensuring that progress payments are made during the course of administration a construction contract without undue formality or resort to the law": see Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd (2005) 21 BCL 364; [2005] NSWCA 229 at [49] per Basten JA. I do not think the Act could have intended that second valid service of documents within time would activate a second regime for payment.

27 The need for certainty of timing seems to me to be best accommodated by taking the first date of valid service of a payment schedule as the date from which time commences to run.

What happens if you try to effect service on a solicitor?

Service on a solicitor is not an accepted method of service under the NSW Act so service only occurs when the respondent actually receives the document. See Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 903 at para 55. Also see Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259 at para 58.

With service of any notices under the NSW Act, what must be kept in mind is the critical importance of recording when the document is served. In the case of a payment claim, from the time it is served, the respondent’s ten days to provide a payment schedule begins to run. You must be able to prove not only that a document was served, but the date of service. Some of the above methods of service do not allow you to do that with any certainty. For example, under section 31 (2), service of a payment claim by post to the respondent’s ordinary place of business is only effected when the notice is received. The sender of the notice will therefore be unaware of the date of service and the date on which the respondent’s ten days to provide a payment schedule begins to run and, if the respondent does not provide a payment schedule, the claimant will be unaware of the final date for serving a notice under section 17 (2).

This illustrates that, for the comfort of knowing what the critical dates are, the ideal method of service is by facsimile, or, if the respondent does not have a facsimile, by personal service, ideally by a commercial agent who can fill out an affidavit of service. The advantages of service by facsimile are that it is quick, easily provable both as to service and the date of service and cheap.

Is it good service at a registered office if you do not place document wholly within the recipient's office?

It is not. Someone could steal it. In Sand Excavation Pty Ltd v Nahas Constructions Pty Ltd [2011] NSWSC 184 Associate Justice Macready said

48. It seems clear on the evidence that, because of its size, the payment schedule was not able to fit entirely under the door of the plaintiff's office. Ms Orlievsky says that when she collected the package it was stuck under the door and the door had to be opened to force the package out. The defendant's witnesses accepted that the payment schedule could not (and did not) go all the way inside the plaintiff's office.

49. The defendant referred to a number of cases, most of which referred to the situation that applies when a document is served at a letterbox.

50. In Career Trading Online Pty Ltd v BES Trading Solutions Pty Ltd; Buckland [2010] NSWSC 460, the court had to deal with a statutory demand which had been served by sliding the demand wholly under a glass door of a closed accountancy practice on Christmas Eve. At [27] Barrett J said:

"It follows that the action of Ms Buckland is depositing the envelope containing the two statutory demands under the glass doors at the street frontage so as to be wholly within the premises behind those doors constituted "leaving" each such document "at" the registered office of the plaintiff. Each statutory demand was therefore served on the plaintiff on 23 December 2009."

51. In the instant case, the demand was not wholly within the office and a passing stranger could have taken it from the outside of the office. Therefore, as it was not within the control and possession of the occupants of the office, I would have thought that it was not left at the registered office.

Is it good service at a registered office if you leave the document in a letterbox outside the registered office?

No. In a case involving service of a statutory demand, placing it after hours in the outside letterbox of the recipient’s registered office was held not to constitute good service : James v Ash Electrical Services Pty Ltd [2008] NSWSC 1112

What does “normal office hours mean?

Section 31 of the Act provides that a notice may be served “in normal office hours”. That expression is undefined but in Sand Excavation Pty Ltd v Nahas Constructions Pty Ltd [2011] NSWSC 184 Associate Justice Macready said:

The evidence suggests that Mr Hiatt was at the plaintiff's office from 7am on 13 May 2010 and that Ms Orlievsky usually arrived at about 10am. On the basis that the payment schedule had been served at 8.15am, this would seem to be within normal office hours on 13 May 2010. However, normal office hours is an expression which refers to the general operation of an office. In this case there is not sufficient evidence to determine this point.

If a document has been delivered but not actually come to the attention of the intended recipient, is that good service?

Yes. In Kittu Randhawa -v- Monica Benavides Serrato [2009] NSWSC 170 a respondent claimed that an adjudicator’s determination was invalid because receipt of notice of adjudicator’s acceptance had been alleged not to have been received by the respondent. It was established that the notice was posted and accepted that the notice did not come to the attention of the respondent. Hammerschlag J made a distinction between non-delivery and not coming to the attention of the recipient. Under section 31(2) of the NSW Act and section 160 of the Evidence Act 1995 (NSW) the sender of a postal article has the benefit of a presumption of delivery which the respondent cannot rebut by showing non-receipt by recipient, as opposed to non-delivery and so the adjudication was valid.

If an obviously incomplete payment claim is served followed by a complete one, is the first service effective to start time running?

No. Service occurs when the complete one is served. In Chase Oyster Bar v Hamo Industries [2010] NSWSC 332 McDougall J said:

13 For reasons that are not entirely clear, Hamo delivered the payment claim (or part of it) by facsimile transmission on 22 December 2009, and the whole of it, by post, sent on 23 December 2009.

14 In form, the payment claim comprised a one-page tax invoice, number 71, which bore the notation that it was made under the provisions of the Act. The document that was sent by facsimile transmission comprised that one page only and did not include copies of the invoices and time sheets that were said in the text of the document to form part of it. The document that was sent by post the following day included not only the first page (the actual tax invoice) but also the supporting documents.

15 There was no evidence of the date of actual receipt of the document that was posted. There was however confirmation of correct transmission of the page that had been sent by facsimile transmission on 22 December 2009. It was common ground that this document was sent and received that day.

37 I think the better view is that it was the posting of the letter rather than the sending of the facsimile transmission that constituted service. That is because the document that was sent by facsimile transmission was on its face incomplete. It is at least arguable that, without the supporting documentation, it would not have been possible for Chase to understand how it was that the value of the work to date was calculated. That is a matter of particular significance when, at least on the face of the payment claim, the work was charged for on a "cost plus" basis.

Can a solicitor serve a payment claim?

Yes. In Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd & Anor [2005] NSWSC 1129 Brereton J at para 23 described a suggestion that a solicitor could not serve a payment claim on his client’s behalf as “nonsense”.

What is a claimant or respondent’s “ordinary place of business”?

Hammerschlag J said in Parsons Brinckerhoff Australia Pty Ltd v Downer EDI Works Pty Ltd [2010] NSWSC 1295:

16 To my mind the word “ordinary” in the phrase “ordinary place of business” connotes“usual”; see Jones (as Trustee of the property of Heather MacNeil-Brown, A Bankrupt) v Southall & Bourke Pty Ltd [2004] FCA 539 at [42]. I think that the ordinary place of a person’s business includes any place at or from which the person usually engages in activities which form a not insignificant part of the person’s business.

Can you serve a document at a registered business office after normal office hours?

Yes, but the service takes effect the next business day.

Section 31 (1) (b) provides that a document may be served : (b) by lodging it during normal office hours at the person’s ordinary place of business,

If service is effected after normal office hours is service effected at the next recommencement of normal office hours? In Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited [2006] NSWCA 259 Hodgson J. A. said:

“62 There remains the question of whether the time at which service or provision has taken effect is also the time at which a document is received, for the purposes of s.17(3)(b) (and see also s.17(2)(b) and s.21). I note that the word “receive” is also used in s.31(2), but used in the context of “received at that place”. In my opinion, mail delivered to a registered office or place of business is received at that place when it is put into the mail box of that registered office or place of business, without the necessity of anyone actually seeing it.

63 In my opinion, the word “receive” in s.17(3)(c) does not necessarily require that the document come to the notice of a person authorised to deal with the document on behalf of the claimant. In general, in my opinion, it would be satisfied once the document has arrived at the claimant’s registered office or place of business and is there during normal office hours. There may be circumstances in which service or provision has been effected within s.109X of the Corporations Act or s.31 of the Act, but the document has not been received, but I find it difficult to identify any such circumstances.”

Also see Macready AJ in Diddy Boy v Design [2009] NSWSC 14 para 26.

26 Thus the adjudication application was served within the time limit and on 21 December 2008 given the time of service of 7:50 p.m. on 20 December 2008.

What if the recipient of the documents has requested that documents be served in a certain way?

(e) in such other manner as may be provided under the construction contract concerned.

In Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162 Austin J said

15 The circumstances surrounding the making of the subcontract are in dispute. It appears that the plaintiff's project manager, Ray Ward, invited the first defendant to tender for the works in about January 2006, and subsequently the first defendant submitted a tender to Mr Ward at Conjola. Ruairi O'Connor, the sole director and major shareholder of the first defendant, attended a meeting on 10 July 2006 with Frank O'Connell, a director of the plaintiff, to discuss the tender. His evidence, which I accept on this point, was that Mr O'Connell told him the plaintiff wanted the first defendant to start the job straight away.

16 Mr O’Connor attended the plaintiff's site office on 11 July and Mr Ward told him to submit all correspondence and invoices to the site office, and provided him with a facsimile number, 4456 1433. I accept Mr O'Connor's evidence on these matters because it is confirmed by evidence of transmission of progress claims to that facsimile number and their subsequent payment.

36 The plaintiff's address is in Newington in suburban Sydney and has never been at Conjola. Nevertheless, the invoice was received at the project site office and transmitted from the project site to Mr O'Connell, and he received it about 2 days later, according to his evidence. If (contrary to my finding) there had been a formal subcontract as claimed by Mr O'Connell, the contract would have required transmission of documents to the plaintiff at its address in Newington or at a post office box address in Silverwater, or to another facsimile number or another e-mail address. But the evidence establishes that even if the formal subcontract had been in place, its provisions concerning service of documents on the plaintiff would have been overridden by Mr Ward's specific instruction to Mr O'Connor, with which Mr O'Connor subsequently complied by transmitting documents to the fax number supplied by Mr Ward to which the plaintiff subsequently responded. That constituted service of the payment claim authorised by s 31(1)(e), because Mr Ward's instruction formed part of the contract between the parties. My conclusion, therefore, is that, whether or not the formal subcontract was in place, the final progress claim for $243,975 was validly made on the plaintiff on 19 June 2007.

When does service by facsimile take effect?

Taylor Projects Group Pty Limited v Brick Dept Pty Limited & Ors [2005] NSWSC 452 Service of a notice by facsimile takes effect the moment the faxed document appears in the recipient’s facsimile machine. It does not have to be sent in business hours.

So long as the fax is received into the memory of the recipients facsimile machine it has been served. It does not need to have been printed out.

Zebicon Pty Ltd v Remo Constructions Pty Ltd [2008] NSWSC 1408

23 I find that payment claim 11 was sent "by facsimile" to Remo's ordinary place of business on 19 July 2008. That is an available - indeed, I think, the only rational - inference from Mr Zerilli's evidence and the transmission report. As I have said, it is fortified by the absence of any other suggested candidate for the role of the six page document shown to have been sent on that day.

24 Was it received? It is not necessary that the document should have come to the attention of anyone at Remo's ordinary place of business. See Hodgson JA in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 at [62], [63]. Although what his Honour there said was obiter, it commanded the support of Handley JA and Hunt AJA. I do not regard myself as at liberty to take a different view. (On this, see Austin J in Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162 at [65].) Nor do I see it as a relevant point of distinction that Hodgson JA was talking of receipt in the context of s 17(3)(c) of the Act, rather than that of s 31(1)(c).

25 Thus, I conclude, for the purposes of s 31(1)(c) of the Act, Remo would have received payment claim 11 on 19 July 2008 if that document had been received into the memory of Remo's fax machine on that date. I do not think that it is necessary, in terms of receipt, for the document to have been printed out. If it were, a respondent could avoid facsimile service of a document by keeping its fax machine perpetually empty of paper.

26 In my view, it can be inferred from the "OK" result indicated by Zebicon's transmission report that communication was established between Zebicon's fax machine and Remo's fax machine on 19 July 2008 and that the message - the data into which Zebicon's machine had transformed payment claim 11 - was delivered to Remo's machine. If communication had not been established, or the message had not been delivered, the result would not have been "OK".

Should you serve documents with other documents?

It is not a good idea to serve a payment claim under a covering letter dealing with other issues or in a format or circumstances under which it might be viewed as anything other than a payment claim. See Leighton Contractors Pty Ltd v Campbelltown Catholic Club Pty Ltd [2003] NSWSC 1103 paras 59 to 65 in which a claimant only very narrowly escaped coming to grief for this reason.

If you serve both by facsimile and by hard copy when does service take effect?

In JAR Developments Pty Ltd v Castleplex Pty Ltd [2007] NSWSC 737 paras 25 to 27 Rein J ruled that where the same document was served twice, time begins to run from the date and time of the first effective service.

When documents are served by email, when does service take effect?

The Electronic Transactions Act 2000 provides that the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee

Section 13A of the Electronic Transactions Act 2000 is in the following terms:

Time of receipt

  1. For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication:
    1. the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee, or
    2. the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
      1. the electronic communication has become capable of being retrieved by the addressee at that address, and
      2. the addressee has become aware that the electronic communication has been sent to that address.
  2. For the purposes of 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 where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 13B.

In Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 Sackar J said:

Bauen says this Act applies and I should find that the words "becomes capable of being retrieved by the addressee at an electronic address..." aptly describes the position here. Clearly the email was received, albeit it was caught by the spam filter. The words "capable of being retrieved" are ample in their reach. They certainly do not require an email to be opened, let alone read. Again the Oxford dictionary defines "retrieve" in its primary sense as "to get or bring back from somewhere". In its secondary sense it is said to mean "to find or extract (information stored in a computer)". According to the evidence when an email is caught by the Adjudicate Today spam filter, it is nonetheless archived and accessible by Adjudicate Today via its external IT consultant.

In my opinion this Act enables Bauen to contend that if an email is sent, but not opened or read, but it is capable of being retrieved, it has been received by Adjudicate Today. Once received in my view it has been "lodged" on any view of that word.

It is accepted the response although "lodged" in time was not considered by Adjudicate Today and it follows that Bauen has been denied natural justice, the adjudication having proceeded in the absence of Bauen being heard. For this reason alone both adjudications should be set aside.

Can the parties agree to suspend the time limits imposed by the NSW Act?

Not quite, but in Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC 716 at paras 16 to 22, it was alleged by one of the parties that there had been an agreement between the parties that they would take no further step in response to the claim pending attempts to resolve the dispute. This was held to give rise to a viable argument that there was a right to an estoppel such as to prevent summary judgment being ordered. Be careful what is said in negotiations.

Can a payment claim be served during the course of litigation?

Yes. Where a claimant has commenced court proceedings in respect of a progress claim it is not precluded from serving a payment claim in respect of the same progress claim and seeking adjudication. Both sets of proceedings can proceed concurrently. There is no express provision in the NSW Act that requires statutory proceedings to be completed before court proceedings are commenced, and the general provisions of the NSW Act do not have this effect. (See the decision of the Court of Appeal in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49.)

Further where the contractor has appealed a declaration that the adjudication determination is void, the contractor may also serve another payment claim including the same work and commence another adjudication. Halkat Electrical Contractors Pty. Ltd. v. Holmwood Holdings Pty. Ltd. [2006] NSWCA 125.

Is strict compliance with the rules as to service necessary?

No. In Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259 delivering the judgement of the Court of Appeal, Hodgson AJ said:

56 For those reasons, in my opinion, irrespective of fine questions of construction arising under the Act itself, the payment schedule was provided to Falgat at 4.22pm on 22 October 2004 when it was placed under the door at Falgat’s registered office, this being during normal office hours. It also would have been provided no later than 27 October 2005 if the copy posted to Falgat was placed in Falgat’s box at Kellyville post office on that day; and Falgat did not discharge its onus of proving it was not placed in the box on that day.

57 Accordingly, it is not strictly necessary to express a view as to fine questions of construction under the Act. However, it is in my opinion appropriate to express views about this, because of the importance of clarity on this matter.

58 In the first place, in my opinion it is clear that if a document has actually been received and come to the attention of a person to be served or provided with the document, or of a person with authority to deal with such a document on behalf of a person or corporation to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with: see Howship Holdings Pty. Limited v. Leslie (1996) 41 NSWLR 542; Mohamed v. Farah [2004] NSWSC 482 at [42]-[44]. In such a case, there has been service, provision and receipt.

Can you serve document by email?

Yes. First because it does not really matter how the document is served, so long as it is actually served.

In Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259 delivering the judgement of the Court of Appeal, Hodgson AJ said:

56 For those reasons, in my opinion, irrespective of fine questions of construction arising under the Act itself, the payment schedule was provided to Falgat at 4.22pm on 22 October 2004 when it was placed under the door at Falgat’s registered office, this being during normal office hours. It also would have been provided no later than 27 October 2005 if the copy posted to Falgat was placed in Falgat’s box at Kellyville post office on that day; and Falgat did not discharge its onus of proving it was not placed in the box on that day.

57 Accordingly, it is not strictly necessary to express a view as to fine questions of construction under the Act. However, it is in my opinion appropriate to express views about this, because of the importance of clarity on this matter.

58 In the first place, in my opinion it is clear that if a document has actually been received and come to the attention of a person to be served or provided with the document, or of a person with authority to deal with such a document on behalf of a person or corporation to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with: see Howship Holdings Pty. Limited v. Leslie (1996) 41 NSWLR 542; Mohamed v. Farah [2004] NSWSC 482 at [42]-[44]. In such a case, there has been service, provision and receipt.

Can you serve document by email?

Yes. First because it does not really matter how the document is served, so long as it is actually served.

In Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259 delivering the judgement of the Court of Appeal, Hodgson AJ said:

56 For those reasons, in my opinion, irrespective of fine questions of construction arising under the Act itself, the payment schedule was provided to Falgat at 4.22pm on 22 October 2004 when it was placed under the door at Falgat’s registered office, this being during normal office hours. It also would have been provided no later than 27 October 2005 if the copy posted to Falgat was placed in Falgat’s box at Kellyville post office on that day; and Falgat did not discharge its onus of proving it was not placed in the box on that day.

57 Accordingly, it is not strictly necessary to express a view as to fine questions of construction under the Act. However, it is in my opinion appropriate to express views about this, because of the importance of clarity on this matter.

58 In the first place, in my opinion it is clear that if a document has actually been received and come to the attention of a person to be served or provided with the document, or of a person with authority to deal with such a document on behalf of a person or corporation to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with: see Howship Holdings Pty. Limited v. Leslie (1996) 41 NSWLR 542; Mohamed v. Farah [2004] NSWSC 482 at [42]-[44]. In such a case, there has been service, provision and receipt.

Second, because Section 13A of the Electronic Transactions Act says you can.

Section 13A provides:

Time of receipt

  1. For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication:
    1. the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee, or
    2. the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
      1. the electronic communication has become capable of being retrieved by the addressee at that address, and
      2. the addressee has become aware that the electronic communication has been sent to that address.
  2. For the purposes of 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 where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 13B.
Does an email have to be opened or read or is it enough that it has been received?

It is enough that it has been received: See para 78 of Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 per Sackar J :

78.In my opinion this Act enables Bauen to contend that if an email is sent, but not opened or read, but it is capable of being retrieved, it has been received by Adjudicate Today. Once received in my view it has been "lodged" on any view of that word.

There are problems however as to when a communication is taken to have been received. See:Reed Constructions Pty Limited v Eire Contractors Pty Limited [2009] NSWSC 678 an email is not considered received at the time it was sent, but only when it is received.