LPLC
lplccolumn@liv.asn.au
POst it NOt
Good office procedures can help you avoid some
costly mistakes this festive season.
D
elays in sending letters by post are
common during the festive season.
You can find details of delays to the
delivery of post on the Australia Post website
(www.auspost.com.au).
Sometimes delays are due to specific events
such as a contractor truck accident. Other
delays are due to inclement weather and sheer
volume of mail.
Practitioners need to take into account possible delays in the delivery of the post and be
mindful of the prospect of an item going missing in the post.
Knowing about these delays can help you
avoid missing deadlines.
Service by post
There are many reasons a letter or document
is sent by post. This method of service may
be prescribed.
Numerous statutes deal with service by
post including:
• Corporations Act 2001 (Cth), s109X;
• Interpretation of Legislation Act 1984 (Vic),
s49; and
• Criminal Procedure Act 2009 (Vic), s17.
A contract may specify service by post and
the date by which a notice must be received
by the recipient and/or specify when a notice
sent by post is deemed to be received, usually between one and two business days after
posting.
General condition 17.1 of the Contract
of Sale of Real Estate, as prescribed by the
Estate Agents (Contracts) Regulations 2008
(Vic), provides that a document sent by post
is deemed to be served the next day after posting unless proved otherwise.
By comparison, the LIV Lease of Real
Estate (copyright form November 2012 revision) specifies in clause 14.2 that: “Posted
notices will be taken to have been received 72
hours after posting unless proved otherwise”.
The postal rule and
acceptance of an offer
Sometimes a contract is silent as to the method
of service when communicating acceptance
of an offer. In such circumstances, the postal
rule, as set down in the case of Henthorn v
Fraser 1892 2 Ch. 27 may apply. To quote Lord
Herschell in Henthorn’s case:
“Where the circumstances are such that
it must have been within the contemplation
of the parties that, according to ordinary
usage of mankind, the post must be used
as a means of communicating the acceptance
of an offer, the acceptance is complete as soon
as it is posted”.
This rule was considered more recently in
the case of Ronay Investments Pty Ltd v Pinnacle
VRB Ltd (2000) 35 ACSR 247. In this case,
acceptance of an issue of shares had to be
received by 5pm, 6 December 1999. Ronay
posted its acceptance by express post on 3
December. Ronay successfully argued that it
was entitled to the shares based on the postal
rule even though Pinnacle did not receive the
notice of acceptance until 7 December.
Lessons
One lesson for practitioners is to choose
the appropriate method of service given the
time available.
Where a contract specifies the method of
service and this method cannot be complied
with, the practitioner should seek consent to
serve by other means. In some situations it
may be necessary to seek an order of the court
allowing service by another means.
It also pays to check the relevant court
rules about service and the time fixed for service. For example, the Supreme Court Rules
provide that in calculating the time fixed by
the Rules, the period from 24 December to
9 January shall be excluded. See Rule 3.04.
In some instances it may be appropriate for
practitioners to place the letter in the envelope and personally post it or place it in the
DX where an affidavit of service is required.
This festive season keep in mind that there
may be delays in delivery of the post. Making
sure a deadline is met may mean sending a
document by courier rather than by post. l
This column is provided by the legal PraCtitiONers’
liability COmmittee. For further information ph 9672
3800 or visit www.lplc.com.au.
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