Obtaining consent for fax and email communications

A facsimile transmission or e-mail is an “Electronic Communication” as defined in the Electronic Transactions (Queensland) Act 2001 (“ETA”). This Act states that any electronic form of “giving information” under a state law, will only be deemed to be valid if:

• the person to whom the information is required to be given consents; or
• at the time the information is given, it was reasonable to expect that it would be readily accessible to the recipient and usable by them.

To what sort of communication does the ETA apply in general conveyancing transactions?

The exchange of pre-contractual correspondence is generally not the sort of communication to which the ETA applies.
Because the presentation of contract documents to a buyer by e-mail or fax is regulated by the PAMDA (a state law), the ETA applies and the parties must have agreed to communicate via electronic means. The consent should specify whether the agreement is in relation to faxes, e-mails or (preferably) both.

The best course is to include in an opening fax or e-mail a statement “Please confirm you and your client agrees to communication between us and to receive contract documents under PAMDA by fax to this fax number (or email to this e-mail address).”

Apart from complying with the PAMDA specified methods of contract presentation, some other communications between buyer and seller and between an agent and either of them might from time to time also come under the provision of the Act.

Note that the current editions of the REIQ conditions of residential sales specify in clause 10.4 that notices given under the contract may be given to the fax number of a party or their solicitor. The conditions make no reference to e-mail addresses. And agents should not regard this clause as of itself is a sufficient consent by a buyer to receive contract documents by fax for PAMDA purposes.

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