Service of Notices by Registered Post

Where service of a notice is authorised or required by post, unless the contrary intention appears, service will be deemed to be effected at the time when the notice would be delivered in the ordinary course of post: see the various Acts Interpretation acts of the States and Commonwealth.

The question is what is “delivery in the ordinary course of post” when sending by registered post?

There is a 2011 decision of a Master of the Supreme Court of South Australia (CBA v Selby-Fullgrave; First Mortgage Company Home Loans Pty Ltd v Perre [2011] SASC 48) which finds that registered post is “delivered” when collected.

In making this finding the Master refers, by analogy, to cases dealing with service by post on corporations pursuant to section 109(X) of the Corporations Act 2001 (Cth).

The case of CBA v Selby-Fullgrave has not been cited, followed or approved by any subsequent case.

In fact in a later 2011 case out of the Supreme Court of Western Australia (CBA v Shaddick [2011] WASC 205), the Court held that there is a clear distinction between service pursuant to section 106(2) of the Transfer of Land Act 1983 (WA) and the provisions relating to service by post on a corporation in the Corporations Act. Such that the interpretation of the provisions in the Corporations Act could not assist the interpretation of the provisions relating to service by post in the Transfer of Lands Act.

In CBA v Shaddick the Court held that a default notice served by registered post in circumstances where the default notice was returned unopened as the mortgagor did not receive it was still effectively served.

VCAT

Service by registered post (if not personally served) is a requirement in matters in the Residential Tenancies List of VCAT. VCAT deems a letter sent by registered post within the metropolitan area to be delivered (in the ordinary course of post) within 2 business days after the day on which it was posted.

VCAT notes that the Australia Post delivery timetable allows 1 business day for delivery “of the card notifying the addressee that an item of registered mail awaits collections” and a second business day is allowed for collection.

Summary

In summary, the weight of authority (in fact all of it but for the single decision of the Master in South Australia) is that where serving a natural person by registered post:

  1. Service will be deemed to be effective at the time when notice would be delivered in the ordinary course of post.
  2. The presumption in 1 above is rebuttable by contrary evidence.
  3. Collection or actual receipt is not necessary.

If serving a corporation be aware that the Courts have held that delivery by registered post of a letter/notice addressed to the registered office of corporation will not be deemed service on the registered office. Sending by ordinary post will be.

Post by Tatyana Virgara and Rod Cameron

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