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"Address for Service" S(2) Interpretation

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  • #31
    Proof - poof!

    One element I see as missing in this discussion is the
    reason for AfS: viz. proof of delivery to the recipient.

    Although the TT is a kangaroo court, there is a general
    principle in 'process' that the person being 'accused' has
    been informed that they are so accused and that there is
    proof (of delivery of the accusative documents) so that the
    court concerned can be fairly satisfied that the
    person knows they are so accused, is aware of the fixture
    details (where & when) at which the matter will be considered
    and just what they're being asked to defend.

    There are oddball aspects to this proof of service axiom.
    E.g. a trespass notice is deemed to have been served if it is
    dropped at the feet of the person named in the notice.

    The RTA equivalent (?) is putting it in a letterbox. For ships,
    it used to be sufficient for the notice to be affixed to the mast!

    My guess is that any reflection on address for service would
    turn about whether or not the delivery mechanism used
    could be reasonably deemed to have effected notice to
    the person accused, so that said person can be fairly
    adjudged <whatever> in absentia, if they don't appear.
    Want a great looking concrete swimming pool in Hawke's Bay? Designer Pools will do the job for you!

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    • #32
      Originally posted by Perry View Post
      One element I see as missing in this discussion is the
      reason for AfS: viz. proof of delivery to the recipient.

      Proof of service by fax is provided for with the writing of S136 ( 8 )
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      • #33
        I would tend to agree with keys, that if a fax number can be an afs (still not sure though), then perry's comment does not apply here. this is because the recipient has volunteered that he is willing to accept service at his given fax number (s.136), and so if it is received or not is at his own risk.

        xris

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        • #34
          Clarification

          I expressed that poorly, it seems.

          I was not disputing a fax number potentially being an
          acceptable AfS.

          I wonder how the Electronic Transactions Act interfaces, here?

          What I was seeking to convey is that the principle behind
          the rule is that a person is made aware that a process is
          going to occur in which they, as an 'interested party' are
          implicated and therefore should attend.

          And, any Court of competence would need to be satisfied
          that 'the accussed' was made aware of the hearing process,
          irrespective of how is was achieved and the dead letter of
          the law.

          So a fax transmission journal print-out showing the details
          may satisfy that principle, depending on the adjudicator.
          Want a great looking concrete swimming pool in Hawke's Bay? Designer Pools will do the job for you!

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          • #35
            Originally posted by Perry View Post
            So a fax transmission journal print-out showing the details
            may satisfy that principle, depending on the adjudicator.
            The adjudicator will have no choice. Providing the documant was properly transmitted then that is sufficient proof. The adjudicator does not have any discretion on this matter. It's very clear in the Act.
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            • #36
              Originally posted by xris View Post
              Are there?

              Your background might be of some interest here blamblam. Choose to elaborate?

              xris
              ummm sure....I am an architect and legal executive - have specialised in property and have been a landlord since I was 22 (now 43).

              I own around a dozen properties and 'manage about another dozen' for family and friends on a barter basis.

              I am an Aries, like walks on the beach and candlelit dinners....not sure what else you want to know?

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              • #37
                Update

                Just received a reply to my Official Information Act request.

                Originally posted by Department of Building and Housing

                Dear John,

                Thank you for your letter dated 16 March 2007 whether a facsimile number is sufficient as an address for service.

                Section 13A (1) of the Residential Tenancies Act 1986 requires both landlords and tenants to provide an 'address for service' in the tenancy agreement. Our view (my emphasis) is that a facsimile number would not be sufficient as an address for service for the purposes of section 13A (1), because an address for service must be a physical address.

                This is not explicitly stated in the defination of 'address for service' in section 2 but is supported by the fact that:
                • section 13A (2) states that 'A Post Office box number or other similar postal address shall not be a sufficient address for the purposes of subsection (1) of this section', so a post only address definately cannot be an address for service
                • the defination of a 'contact address' in section 2 expressly includes telephone numbers but the defination of 'address for service' does not, which implies that a telephone number cannot be an address for service.
                I believe that the insertion of a facismilie number for document serving was done as an ammendment.

                Originally posted by Department of Building and Housing
                Furthermore, section 136 (1)(b) and (c) of the Act provide that notices may be posted to an address for service, or served to the premises to which that address for service relates by attaching the notice to the door or by placing the notice in the mailbox. The term 'address for service' is clearly used here to refer to a physical address.

                In contrast, section 136(1)(d) does not mention the term 'address for service' at all, instead providing for service to 'a facsimile number specified on the tenancy agreement ... as a facsimile number by which the landlord or tenant will accept service of documents relating to the tenancy'. If section 136(1)(d) was intended to allow facsimile numbers to be provided as an address for service, actually stating that would have been clearer and more concise. Instead, section 136(1)(d) rather carefully avoids the term 'address for service' and simply provides a supplementary option for the service of documents.
                Possibly that 136(1)(d) is an ammendment and the words 'address for service' were not included as an oversight?

                Anyway, that's the reply. "Our view" is simply that. It needs to be challenged.
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                • #38
                  The RTA is based on an Australian model, and the Aussie version/s have been updated more recently than ours. I think it is therefore only reasonable to assume that we should look to Oz for guidance on what our RTA means, the way it will be interpreted, and the way it will develop in the future.

                  Here is something recent that I found. Apologies for the sloppy editing.


                  http://www.tenantsact.org.au/


                  http://www.tenantsact.org.au/Advice/Residential%20Tenancy%20Agree%202.pdf



                  The address for service of documents
                  Address for service
                  Notices or any other documents may be delivered in person, by post, by registered courier or by fax to the Lessor at:
                  - the address of the Lessor's agent above; or
                  - the following email address: _____________________________;or
                  - __________________________________________________ ____
                  Notices or any other documents may be delivered in person, by post, by registered courier or by fax to the Tenant at:
                  - the premises to be let under this agreement; or
                  - the following email address: ______________________________;or
                  - __________________________________________________ _____
                  It is noted that service of a termination notice must be served upon the tenant/s personally or by leaving it at or by sending it by pre paid post to the residence or place of business of the tenant/s (or the head office, registered office or principle office of a body corporate) or at the address for service detailed above (see Regulation 5 of the Residential Tenancies Regulations).
                  The lessor and the tenant acknowledge that notices forwarded by the methods identified above shall be effective unless another reasonable method for the service of documents has been communicated in writing to the other party.
                  .................................................. .

                  98. (1) At the commencement of the tenancy, the lessor and the tenant shall each give an
                  address for service of notices.
                  (2) If the address changes during the tenancy, the lessor or tenant must advise the other party of the new address for service within 2 weeks of the change.




                  Residential Tenancy Agreement – Correct as at 1/3/06 Page 11 of 12
                  Date of the Agreement
                  Lessor’s Signature
                  Witness (to lessor’s signature)
                  Tenant’s Signature/s
                  Witness (to Tenants signature



                  99. On vacating the premises, the tenant must advise the lessor of a forwarding address.

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