Capper v Thorpe

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.