Electronic Communication - have you kept the appropriate records

The use of Email in particular has become a common practice for parties to a contract to communicate. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?

 In the Electronic Transactions Act (Qld) 2001 it provides that you must keep, in electronic form –

 

·         The origin of the electronic communications;

·         The destination of the electronic communication;

·         When the electronic communication was sent;

·         When the electronic communication was received.

We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.

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

·         The time of receipt of the electronic communication at another electronic address of the addressee is the time when both -

o   The electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.

For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.

A Good Conveyancer Can Save You Many Thousands of Dollars

Two recent cases which came before the Queensland Courts illustrate very well the vital importance of ensuring that the Conveyancer that you appoint to handle your property sale or purchase is an experienced and high quality practitioner. In the case of Filmana Pty Ltd & Ors –v- Tynan and Anor, at the heart of the dispute was the question of whether the contract for the sale of the property in St Lucia in Brisbane was still on foot or whether negotiations about the possibility of a Deed of Rescission and a replacement Contract, which were inconclusive, had affected the validity of the Contract. The Court found that the original Contract remained on foot, and the Sellers obtained judgement against the Buyers for 2.8 million dollars.

In another case known as Petersen & Anor –v- Corby, the Court was again asked to make decisions in relation to a Contract which has not settled. In this case the Sellers asked the Court to give summary judgment on their Application but the Court has decided not to because of the uncertainty surrounding the Contract and whether or not, and if so in what way, it had been amended or changed. The situation in this case is made more complicated because the proposed Buyers Solicitors in the conveyancing transaction were New South Wales Solicitors who appeared not to be familiar with the intricacies of Queensland Conveyancing Practice. The Sellers claim for damages for breach of Contract against the Buyer will therefore proceed to a Trial, with all of the delay and legal expense that goes with that.

These cases highlight very clearly the need to ensure that you appoint a Conveyancer who has the skills and experience to deal with your transaction, but also the time that they need to be able to devote to ensuring it is done properly.