In the case of Owners Corporation Plan No. SP028789R v Shout Rock Cafes Pty Ltd [2024] VCAT 339 (OC v Shout Rock), the Victorian Civil and Administrative Tribunal (Tribunal) confirmed that serving fee notices by email fulfills an owners corporation’s (OC) obligation to ‘give notice’ of fees and charges under sections 31 and 32 of the Owners Corporations Act 2006 (Vic) (OCA).
The Tribunal’s decision clarifies the conditions under which email service is valid and what constitutes a lot owner’s consent.
Relevant Legislation
Relevant Legislation
Sections 31 and 32 of the OCA prescribe what information is required to be provided to owners when OCs issue fee notices and final fee notices.
Section 31(2) provides that fee notices must:
- state that the lot owner has an obligation to pay the fees and charges within 28 days after the date of the notice; and
- (if applicable) state that interest at the rate specified in the notice will be payable in respect of any overdue fees and charges; and
- include details of the dispute resolution process that applies under the rules in respect of disputed fees and charges.
If an owner fails to pay their fees 28 days after a fee notice has been issued, an OC may issue a final fee notice. In this final fee notice, an OC may be required to state whether it intends to take action ‘to recover the amount due if the overdue fees and charges and interest owing are not paid within 28 days after the date the final notice is given.’[1]
By issuing notices in compliance with these sections of the OCA, an OC is deemed to have ‘given notice’ of a fee and its intention to commence proceedings to recover an amount due to it in circumstances where an owner fails to pay their fees on or by their due date.
Tribunal’s Decision
Tribunal’s Decision
In his decision, Member Kim found that sections 31 and 32 of the OCA do not specify the method of service. Email is acceptable if the lot owner consents, as referenced in the Electronic Transactions (Victoria) Act 2000 (Vic).
Consent can be provided by an owner either expressly or through implied consent (i.e., based on the conduct of parties).
Examples of conduct constituting implied consent include:
- including an email address on the OC register (Nominated Email);
- using a Nominated Email for routine correspondence or correspondence with a Court or Tribunal; and
- continuing to use a Nominated Email for communications with an OC after fee notices have been issued to the same email.
Based on the facts of this case and the ongoing communication between the OC and lot owner leading up to and throughout the proceeding, Member Kim ordered the lot owner to pay the OC’s outstanding fees, interest, and application fees.
Conclusion
Conclusion
OC v Shout Rock highlights the importance of maintaining accurate records, documenting email correspondence with owners, and obtaining consent before effecting electronic service.
To avoid similar disputes, OCs should aim to sending fee notices to both Nominated Emails and postal addresses. Moreover, OCs should take note of any alternative email addresses lot owners may use to correspond with the manager. If at any stage an email is undeliverable to a Nominated Email, OCs may elect to issue fee notices to alternative email addresses, as well as postal addresses on file, to ensure service is properly effected.
[1] Section 32(2)(c) of the OCA.
This article is authored by Eve Whitmore and Justine Nguyen
