Initiating Adjudication: Back to Basics
Part Two: Service of the Notice of Adjudication
You have your Notice of Adjudication prepared, but what steps do you need to take to serve it? This note sets out in brief the requirements for service under the Construction Contracts Act 2002 (the Act) and the Construction Contracts Regulations 2003 (the Regulations).
The Act (s80) provides that any notice - including the Notice of Adjudication - may be served by:
- delivering the notice in person to the respondent and/or owner;
- leaving the notice at the respondent and/or owner’s usual or last known place of residence or business in New Zealand; or
- posting the notice in a letter addressed to the respondent and/or owner at that person’s place of residence or business in New Zealand.
Additionally, the Regulations (regs 9 and 10) permit a notice to be served by fax or email (or other means of electronic communication) so long as:
- the notice is readily accessible; and
- the person on whom the notice is required to be served consents to information being given in the form of electronic communication proposed by the claimant.
Consent may be explicit where, for instance, the relevant construction contract expressly provides for notices to be served by email to a specified address.
Equally, unless the contract provides otherwise, consent may be inferred from a person’s conduct. For instance, where parties have routinely used email to communicate during the course of the contract, it will be inferred that those parties have consented to accept service by email.
It is important that you keep a record of how, when, and on whom service of the notice was effected. This may be as simple as retaining a copy of the email. Where service is effected by post or in person, a claimant ought to obtain some form of contemporaneous evidence as to service, for instance, courier tracking records or an affidavit of service. This will avoid any unnecessary argument as to whether service was in fact effected.
Part Three of our series on Initiating Adjudication will set out how and when to apply for the appointment of an adjudicator.