Smargiassi v Nouvelle Homes Pty Ltd

[2004] WADC 125

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SMARGIASSI & ANOR -v- NOUVELLE HOMES PTY LTD [2004] WADC 125

CORAM:   COMMISSIONER GREAVES

HEARD:   19 APRIL 2004

DELIVERED          :   16 JUNE 2004

FILE NO/S:   CIV 2613 of 2003

BETWEEN:   GEORGE SMARGIASSI

MALGORZATA SMARGIASSI
Plaintiffs

AND

NOUVELLE HOMES PTY LTD (ABN 39 009 370 889)
Defendant

Catchwords:

Appeal - Arbitration - Stay - Whether notice of dispute served before issue of writ

Legislation:

Commercial Arbitration Act

Supreme Court Act 1935

Result:

Appeal allowed
Stay granted

Representation:

Counsel:

Plaintiffs:     Mr M D Cuerden

Defendant:     Ms N M Breach

Solicitors:

Plaintiffs:     Michael Paterson & Associates

Defendant:     Phillips Fox

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES:  This is an appeal from the decision of the learned Deputy Registrar whereby he dismissed the defendant's application for a stay of these proceedings pursuant to s 53 of the Commercial Arbitration Act and s 16(1)(d)(i) of the Supreme Court Act 1935.

2. While the appeal is to be determined afresh, the only issue between the parties is whether the notice of dispute that the defendant issued on 20 November 2003 pursuant to cl 16 of the contract between the parties was effectively served on the plaintiffs.  The notice of dispute is annexure GWH3 to the affidavit of Geoffrey William Hart.  It is addressed to the plaintiffs at 23 Imandra Circle, Success WA 6164 and to the plaintiffs at Lot 48 Bartram Road, Banjup WA 6164.  The contract is annexure GWH1 to the affidavit of Mr Hart.  Clause 18 of that contract reads:

   "NOTICES

   Any notice given to any party pursuant to the terms of this Contract shall be properly given if addressed to the party and served personally upon him or forwarded to him by prepaid letter addressed to such party at his address given herein or such other address as may be notified in writing by such party to the other.  Any notice so posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post the notice would be delivered."

3. The plaintiff's address in cl 2 of the Schedule of Particulars to the contract is 23 Imandra Circle, Success WA 6164.

4. In his affidavit of 2 February 2004, Mr George Smargiassi deposes to the following facts in pars 5 to 10:

   "5.I notified the Defendant in a letter dated 2 August 2003 that I was not receiving correspondence addressed from them to my residence because it was being incorrectly addressed and in that letter I advised the Defendant of my correct address.  Annexed hereto and marked "GS‑1" is a true copy of that letter of 2 August 2003.

   6.I posted that letter to the Defendant at 37A Brandon Street, South Perth WA 6151 by ordinary prepaid post on or about 2 August 2003.  I am informed by my wife, the secondnamed Plaintiff herein, and verily believe that she posted that letter to the Defendant at 37A Brandon Street, South Perth WA 6151 by ordinary prepaid post on or about 2 August 2003.

   7.Annexed hereto and marked with the letter "GS‑2" is a subsequent letter from Wilson & Hart dated 16 September 2003 addressed to me showing my correct street address.

   8.On 25 November 2003 I received a facsimile copy from my Solicitors Michael Paterson & Associates of a Notice of Dispute dated 20 November 2003 received from the Defendant's Solicitors Phillips Fox.  Neither the secondnamed Plaintiff nor I had previously received that letter.

   9.At no time had I or my wife given instructions to our solicitors to accept service of any notices on our behalf.

   10.At no time have my wife or I received any correspondence from the Defendant or their solicitors relating to the proposed arbitration proceedings and no attempt has been made to agree the appointment of a suitable arbitrator.

5. Annexure A to this affidavit (presumably that referred to as "GS‑1") notifies the defendant that the correct address for service thereafter was to be "39 Bartram Road, Banjup WA 6164".  It is therefore obvious the notice of 20 November 2003 was not posted to the correct address.  It is equally obvious Mr Smargiassi received a faxed copy of the notice on 25 November 2003.

6. It is common cause the writ in this action was issued on 26 November 2003.  Counsel for the defendant submitted that the evidence of Mr George Smargiassi establishes the fact that at the time the writ was issued the plaintiffs knew that the defendant had issued the notice of dispute dated 20 November 2003.  Counsel for the plaintiffs submitted the method of giving notice prescribed by cl 18 of the contract is obligatory.  He submitted solicitors for the defendant acknowledged such interpretation of cl 18 by sending a copy of the notice to the plaintiffs' solicitors and the plaintiffs personally.

7. In my opinion, on its proper construction, cl 18 of the contract is not obligatory.  It clearly contemplates for instance that a letter addressed to an address set out in the contract may be shown not to have been effectively served.  What cl 18 obviously requires is that the notice of dispute be brought to the attention, in this case, of the plaintiffs.  It was brought to their attention on 25 November 2003.  Thereafter, the address to which the notice was posted was in my opinion of no consequence in fact or in law.

8. The plaintiffs issued their writ in this action after they had received a copy of the notice of dispute from their solicitors.

9. In my opinion, in these circumstances, the court should exercise its discretion and stay the proceedings.  Accordingly, the appeal will be allowed, the decision of the learned Deputy Registrar set aside and the action stayed.