Can You Give Notice Under a Contract Via Email? How are the Courts Changing to Accept the Growing Influence of Technology?
Recently a New South Wales Supreme Court considered whether valid notice was given under a contract by email. This will likely become a contentious area in contract law in the digital era.
The case of Kegran Pty Ltd v Warrik Pty Ltd  NSWSC 1357 focussed on the renewal of a commercial lease. The lease allowed the tenant to renew the contract so long as the tenant advised the landlord no less than 6 months before the original lease was set to expire. The contract specified this notice must be addressed to the landlord and either served personally, sent to the landlord’s fax number or via pre-paid post.
Approximately 7 months before the end of the contract, the tenant attempted to renew the lease via email to the sole director of the landlord. The landlord disputed this was not valid under the contract as it had been completed via email and was not held for in the contract.
The tenant subsequently commenced proceedings in the Supreme Court seeking her right to renew the lease.
The court found the wording of the contract did not provide an exhaustive list of options when providing notice. It interpreted the means of communication as mere suggestions as opposed to mandatory requirements. It was for this reason, the email was considered a valid method of service in the circumstances, with the court finding the tenant had correctly exercised their right to renew the contract.
In coming to their decision, the court also took into consideration the tenant had performed other aspects required to fulfil the renewal (such as addressing her request to the sole director of the landlord and submitting her request within the prescribed 6-month timeframe.)
What does this tell us about the future of contract law?
This case shows us the court will take into consideration all and any unique facts of a case and not just the provisions for notice in a contract. Due to the tenant’s ability to satisfy all other requirements of the contract renewal as well as the unique wording of the contract clause, it was decided that the notice was validly email provided by email.
This case is a further example of how the law is adapting to take into consideration the increasing preference of technology for everyday communication. It’s important that notice provisions are appropriately drafted by an experienced lawyer, so that costly disputes can be avoided.