Capper v Thorpe (P48-1997) [1998] HCA 24 3 April 1998
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Western Australia
Representation:
R M Garratt QC with S F Popperwell for the appellant (instructed by Chalmers & Partners)
R L Le Miere QC for the respondent (instructed by Amidzic & Co)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Samuel Capper v Andrew Thorpe
Real Property - Notices - Default notice - Service by post - Contract deeming notice to be served 48 hours after posting - Whether consistent with legislative provisions as to notice.
Real Property - Notices - Default notice - Service by post - "served on the purchaser in writing" - Whether service effected upon receipt of a postal notice advising that an article awaits collection.
Real Property - Notices - Default notice - Whether receipt of a copy of notice amounts to service.
Statutes - Interpretation - Intention of the Legislature - Use of legislative debates.
GAUDRON, McHUGH, KIRBY, HAYNE AND CALLINAN JJ. Pursuant to the grant of special leave, Mr Samuel Capper ("the vendor") appeals against an order of the Full Court of the Supreme Court of Western Australia, the effect of which was to hold that he had not validly terminated a terms contract for the sale of land to the respondent, Mr Andrew Thorpe ("the purchaser"). The Full Court held that a notice purporting to terminate the contract for failure to pay the balance of the purchase price was of no force or effect. This was because an earlier notice requiring the purchaser to pay the balance had not been served on the purchaser in accordance with the requirements of s 6(2) of the Sale of Land Act1970 (WA) ("the Act"). That provision requires service on a date "not less than twenty-eight days" before the date on which the purchaser was required to pay the purchase price. As a result, the Full Court held that s 6(1) of the Act prevented the vendor from terminating the contract by reason of the purchaser's failure to pay the balance of the purchase price on the specified date.
Section 6 of the Act enacts:
"(1) Notwithstanding any stipulation to the contrary, a terms contract shall not be determined or rescinded on account of a breach by the purchaser of any term of the contract unless and until the vendor has served on the purchaser a notice in writing specifying the breach complained of and requiring the purchaser to remedy the breach within the time mentioned in subsection (2) of this section and the purchaser has failed to do so.
(2) The time referred to in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Capper v Thorpe [1998] HCA 24
Case
[1998] HCA 24
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from the Full Court of the Supreme Court of Western Australia regarding the proper service of a default notice under a contract for the sale of land. The vendor, Andrew Thorpe, sought to terminate the contract with the purchaser, Samuel Capper, due to a failure to settle. The dispute centred on whether the default notice had been effectively served on the purchaser in accordance with the *Sale of Land Act* (WA).
The legal issues before the High Court were whether the contractual provision deeming a notice served 48 hours after posting was consistent with the *Sale of Land Act*, and whether service was effected when the purchaser received a postal notification advising that an article awaited collection, or only upon actual receipt of the notice itself. The Court also considered whether the receipt of a copy of the notice constituted valid service.
The High Court dismissed the appeal, albeit for reasons differing from the Full Court. The Court affirmed that the object of section 6 of the *Sale of Land Act* is protective, requiring a notice in writing to be served on the purchaser to afford them time to remedy a default. While acknowledging that service by post is generally permissible and that a document can be considered served when its contents come to the notice of the recipient, the Court found that the vendor had not proven effective service. The evidence indicated that the default notice itself was never delivered to the purchaser's address, and the postal notification of collection did not equate to the notice being "served" in a manner that satisfied the legislative intent of providing the purchaser with adequate time to address the default.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
It is important in considering the issues presented by the appeal to keep in mind the objects of s 6 of the Act. Those objects appear, clearly enough, from the language of the section. Contracts of the specified kind may not be determined or rescinded unless a notice in writing has been served on the purchaser. The parties cannot, by their contract, agree to exclude the operation of this requirement. Its object is plainly to afford the recipient of the notice time within which to secure advice and to attempt to cure the default. Quite often the default will have arisen from an inability to raise funds. In that context, each day of the period of notice may be important to the purchaser in default. The provision is a protective one. It should not be construed in a way that would undermine or frustrate the achievement of the clear legislative purpose. The requirement of service of a notice on the purchaser must be understood, and the section construed, in the context of the achievement of that purpose.The factual background The vendor was the registered proprietor of property at 196 Subiaco Road, Subiaco. By a contract dated 26 April 1995, he agreed to sell the land to the purchaser for $180,000. The contract incorporated the Western Australian Law Society and Western Australian Real Estate Institute "General Conditions". The parties agreed that settlement would take place no later than 5 September 1995. The contract stated that the purchaser's address was "16 Beagle Street, Mosman Park". Settlement did not take place on the agreed date. On 6 September 1995, the vendor prepared a Default Notice in accordance with cl 16 of the contract requiring the purchaser to remedy, within 28 days after service of the notice, his failure to settle. The notice was sent by certified mail on 6 September 1995 to the purchaser at 16 Beagle Street. Between April and September 1995, however, the purchaser had moved to a new address in Subiaco. The trial judge found that the purchaser had not notified the vendor of the change of address prior to correspondence dated 19 September 1995, which specifically addressed the matter. In mid-September 1995, the purchaser received a note from the Mosman Park South Post Office stating that it had an article for him that was awaiting collection. The purchaser did not collect the posted Default Notice until 3 October 1995 although he received a copy of it sometime between 15 and 19 September 1995. On 9 October 1995, the vendor served on the purchaser a notice terminating the contract. Termination was based on the purchaser's failure to remedy the specified default. The vendor retained the deposit money. On 10 October 1995, the purchaser lodged a caveat against the title to the land. The caveat claimed an interest in the land as purchaser of the fee simple. On 10 November 1995, the vendor issued a summons for the removal of the caveat. The present appeal relates to that summons[2].[2]In November 1995, the purchaser commenced proceedings seeking specific performance of the contract. However, pending resolution of the summons to remove the caveat, no further action has been taken on the writ for specific performance.The relevant contractual clauses
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, KIRBY, HAYNE AND CALLINAN JJ
The purchaser appealed to the Full Court of the Supreme Court of Western Australia.The decision of the Full Court The Full Court of the Supreme Court of Western Australia allowed the purchaser's appeal. The leading judgment was given by Kennedy J, with whose reasons Pidgeon and Templeman JJ agreed. Kennedy J held that it "would be contrary to the evident purpose of the Sale of Land Act, and it would appear to be inconsistent with the opening words of s 6 of the Act" if cl 21 of the contract applied to "a notice of breach of a term of the contract which is required to be served on the defaulting party by s 6". His Honour held that the word "served" in s 6 of the Act brought into play ss 75 and 76 of the 1984 Act. He said that the ultimate question in the case was whether service of the notice was, in accordance with ss 76(b) and 75(1), deemed to have been effected when the letter would have been delivered in the ordinary course of post or whether, in accordance with s 75(1), "the contrary is proved". However, the evidence showed that the Default Notice itself, as opposed to the note from the Post Office stating that an article awaited collection, was never delivered to 16 Beagle Street, Mosman Park. The vendor therefore could not rely on the deeming provision in s 75(1). Because there was no other evidence as to service which allowed sufficient time in accordance with the Act, his Honour held that the appeal should be allowed.The appeal should be dismissed In our opinion, the Full Court was correct in allowing the appeal. It follows that this appeal must be dismissed. However, we would dismiss it for reasons different from those relied on by the Full Court. Under s 6 of the Act, a terms contract cannot be determined or rescinded on account of breach by the purchaser unless "the vendor has served on the purchaser" the requisite notice in writing. The notice must give 28 days to remedy the breach where the breach consists of a failure to pay money, or give a reasonable time to remedy the breach where it does not involve the payment of money. Where a statutory provision, such as s 6, requires a document to be "served", the statutory command is ordinarily perceived as requiring the contents of the document to be delivered to the person to be served[3]. However, unless the statute says so, a document may be "served" although it is not personally served[4]. Thus, it may be served by posting it to the person required to be served[5]. In many statutory contexts, a document may also be "served" when it is brought to the notice of the person who has to be served[6]. At all events, it will be "served" in such contexts if the efforts of the person who is required to serve the document have resulted in the person to be served becoming aware of the contents of the document. Thus, in Ex parte Portingell, the English Court of Appeal held that a notice of objection had been "served on" the applicant for renewal of a licence when it was handed to a boy of 14 on the licensed premises and the magistrates inferred that "the notice had in fact come to the hands of the applicant"[7].[3]Ex parte Portingell [1892] 1 QB 15 at 17.[4]In re McGrath; Ex parte The Official Receiver (1890) 24 QBD 466 at 467.[5]In re McGrath; Ex parte The Official Receiver (1890) 24 QBD 466 at 467; cf In re 88 Berkeley Road, NW 9 [1971] 1 Ch 648.[6]Holloway v Coster [1897] 1 QB 346; In re Harris [1931] 1 Ch 138; In re A Debtor [1939] 1 Ch 251.[7]Ex parte Portingell [1892] 1 QB 15 at 16.
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, KIRBY, HAYNE AND CALLINAN JJ