Whether you're the building owner, the builder, or the subcontractor, it is likely that the construction contract you signed will require you to give a written notice in certain circumstances.

If you are required by the contract to give a notice, and you don't give one (or you give one, but its invalid) you could well find yourself in breach of contract.

When the time comes to give a contractual notice, drafting and properly serving a compliant notice to the other party isn't as straight forward as one might think. Whilst the individual steps to creating a valid notice aren't difficult – remembering and managing them all in a pressure cooker environment isn't a skill that most people are born with.

Given an opening, the lawyer for the other side is liable to argue that your notice is deficient, invalid, or worse – evidences something entirely unhelpful to your position.

Here are 10 key steps to remember when preparing and giving a notice under a contract.

1. Address the notice to the correct person(s)

Pay particular attention to whom the clause in the contract is asking you to notify. Is it the other party, or is it a superintendent? Be sure to address the notice to all those required to be notified. Further, address the notice to the exact entity stated in the contract. We recommend the use of Australian Business Number (ABN) and/or Australian Company Number (ACN) to avoid any ambiguity.

2. Be sure to say who the notice is from

Don't rely on your email signature to communicate to the recipient who the notice is intended to be from. Be sure to write your name, your full company/business name and your ABN and/or ACN for good measure.

3. Identify the Contract

If the contract has a reference number or another unique identifier, state it clearly on the notice. We also recommend that you state the name of the project and the project address on the notice, to avoid any ambiguities.

Caution is needed if you are engaged under a Period Subcontract or a Standing Offer Agreement. In those circumstances, there is an over-arching agreement that stipulates the agreement between the parties, and additionally, a Work Order or Purchase Order is given for each job or consignment. If you are working under a Period Subcontract or a Standing Offer Agreement, we recommend that you identify both the over-arching agreement and the Work Order or Purchase Order.

4. Refer to the correct clause under the contract

This step is one where a drafter is more likely to come unstuck. It is important to understand which clause is applicable to your notice. To ascertain this, identify the clause that obliges you to give the notice in the first place.

Likewise, if you are asserting an entitlement to something pursuant to the contract, state which clause gives you the entitlement to what you are asking for, and say why and how the circumstances at hand have triggered your entitlement pursuant to that clause.

5. State what the relevant clause obliges you to say in your notice

The clause in the contract that obliges you to "notify in writing" or "give written notice" is likely to specify what that notice must say. The trick here is to use plain language and not to over contemplate the answer. Use sub-headings that are titled with the elements that you need to address in your notice.

6. Don't forget to ask for what you want

Aside from complying with your contractual obligations to notify, the giving of a notice is the perfect opportunity for you to ask for what you want. Consider, what are you trying to achieve by giving the notice? Ask the recipient to answer your question or deliver on your request.

7. Check the method of service prescribed by the contract (how to serve)

It is likely that the contract will have a clause (or a series of clauses) which specify the acceptable method(s) of giving and receiving notices under the contract. If your contract does, be sure to adhere to the method(s) prescribed by the contract.

In this regard, if an acceptable method of service is by email, we recommend that you attach a copy of the notice to the email itself. In other words, don't include a link to the notice accessed via a cloud storage location (like Dropbox). Lastly, avoid sending native or writeable files – PDF format is preferrable.

8. Send the notice before it you are time barred from doing so

Many notice provisions include time bars or deadlines for you to give the relevant notice. If the time for giving the notice has passed, your right to utilise the process prescribed by the clause has probably expired. It follows that, it is critical that you identify any relevant deadlines to give the notice, and factor in any transit time for the notice to arrive.

9. Keep a copy of the notice for your records

Proof of how and when you sent the notice, or how and when the recipient received the notice, may be evidence that you need to rely upon in the future. If you hand deliver the notice, take a second copy with you, and have the recipient sign on delivery. If the recipient refuses, take a photo of yourself at the delivery location with the notice. Where possible, use time and date stamp application to evidence time and day of service.

10. Know what happens next

Once you give your notice, it is very likely that a sequence of further correspondence will be given or required to be given under the contract. Take a moment at this point to ascertain what those next steps will entail. Set calendar reminders to mark the deadlines while the information is fresh in your mind.

This article is intended to build contractual awareness and assist our construction clients with best practice contract management practices. However, the above ten steps are not an exhaustive list of issues and depending on your contract, additional or different considerations may apply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.