When giving a legal notice, the wisdom of using a method by which delivery is proven (i.e. recorded or special delivery) has been reinforced by a recent decision of the High Court. In this case, a company served a counter-notice on their opponent by post.
Under the Interpretation Act 1978, postal service of a notice is deemed to be effective if the document is properly addressed, pre-paid, and posted.
If this is done, the document is considered to have been served ‘at the time at which the letter would be delivered in the ordinary course of post’.
However, there is a catch. If (using the civil or ‘balance of probabilities’ level of proof) the addressee can prove to the contrary that delivery did not occur, then the document will not be considered to be served.
The company was able to prove to the Court that the notice had been properly addressed and posted. However, the Court accepted their opponent’s evidence that it had, in fact, not been delivered in time and was not therefore properly served.
For the small additional cost and inconvenience involved, if the postal system is being used to serve a time-sensitive document, it makes sense to also use a method (such as recorded or special delivery) by which delivery can be proved to actually have taken place, not just to put one’s faith in the regular postal service.
Failure to establish proper service of documents can often be fatal to a claim. Please contact us if you would like advice about trust and estate disputes.