Key Takeaways

This case demonstrates that email chain evidence should be included in witness statements where possible and that a cautious OC may prefer to send a copy of the fee notice to a postal address (if there is one) prior to commencing a proceeding if a response has not been received to an email.

Service of the Fee Notices

The applicant owners corporation (OC) issued a fee recovery proceeding against the lot owner company (SRC) for outstanding levies. SRC defended the matter on 2 main grounds: that the fee notices had not been validly served and that the amounts were not due and payable.

In finding that service by email was valid, the Tribunal considered the following issues:

• The Tribunal found that ss31 and 32 of the OC Act, which use the term ‘give notice’ of the fees and charges payable, do not prescribe how fee notices can be served, and that service by email is valid provided the lot owner has consented to receiving the notices via the email address that had been used.
• The OC Act makes reference to the Electronic Transactions (Victoria) Act 2000 and permits notices to be given electronically, provided there is consent by the recipient.

Was Consent Given by SRC?

Whilst there was no evidence of express consent in this matter, the Tribunal accepted the conduct of the parties gave rise to a reasonable inference that SRC gave implied consent to use the email address as:

• The OC register included the email address as the last nominated address for SRC. Notably, there was no physical address as the lot was in disrepair and unoccupied.
• It was irrelevant that the email address was a personal address owned by the brother of the director of SRC.
• There was evidence the email address had been used previously by SRC to send and receive correspondence, including in previous VCAT fee recovery proceedings by the same OC. Further, the most recent correspondence from the email address to the OC manager had been sent by SRC after receipt of some of the fee notices the subject of this proceeding had been issued.

The Tribunal did not accept SRC’s contention the email address had been hacked and was no longer in use. In addition to not leading evidence on this point, there was no evidence that SRC had notified the OC of a different method of service or alternative email address, or that the email address was no longer in use or had been closed.

The Tribunal ordered SRC to pay the outstanding fees, interest and the application fee. The parties are to provide submissions on costs, which have not been decided as at the date of this case note.

Conclusion

Although ultimately successful, the OC led evidence of a conversation between the OC manager and SRC to the effect that SRC had advised the manager by phone after service of the second final fee notice to continue sending correspondence to the email address. This email chain had been redacted and ultimately the Tribunal gave it no weight.

Notably, SRC invited the Tribunal to draw a distinction between the OC’s service of the VCAT application by post and the service of the fee notices by email only. The Tribunal commented that ‘the failure to give the notices by additional methods to sending them by email may have lacked prudence, but it was neither disingenuous nor have the consequence of invaliding service by email.’

Further information / assistance regarding the issues raised in this article is available from the authors, Fabienne Loncar, Partner and Jennifer Dizon, Associate or your usual contact at Moray & Agnew.