Brannigan v Smith

The matter before the court was a dispute between Brannigan and Smith regarding the date of exchange of counterparts of an option to purchase land and the validity of service of notices under the Conveyancing Act 1919 (NSW). Smith claimed that the exchange of counterparts occurred via email, while Brannigan argued that the exchange occurred at a later time using the original counterparts. Additionally, Brannigan contended that the service of notices on Smith's agent was invalid, and that service by facsimile was not effective. The court was required to determine the date of exchange of the option to purchase and whether the service of notices was valid.

The court held that the date of exchange of the option to purchase was the date when the original counterparts were exchanged, not the date when the email copy of the execution page was sent. The court found that there was no agreement between the parties that the exchange would occur using an email copy of the signature page. The court also held that service of notices on an agent is valid, and that service by facsimile is effective under section 170 of the Conveyancing Act 1919 (NSW), which is not mandatory but facultative.

As a result, the court found in favour of Brannigan on the issue of the date of exchange of the option to purchase. The court also found that the service of notices on Smith's agent was valid and that service by facsimile was effective. The court made orders accordingly, and Smith was ordered to pay Brannigan's costs of the proceeding.