SHADDICK v DUNSFORD INVESTMENTS PTY LTD [1993] NSWCA 246

SHADDICK v DUNSFORD INVESTMENTS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and Cripps JJA 4 September 1992, 20 May 1993

[1993] NSWCA 246

VENDOR and PURCHASER — sale of land — summons for declaration of rights — vendor's claim valid service of notice to complete — whether vendors allowed sufficient time for notice of termination — whether contract validly terminated by vendors — service of notice through document exchange system (DX) — provision of rules of system — evidence as to vendors' solicitor's practice in deposit of documents — evidence as to delivery system followed by DX — provision in standard form contract for service by DX — condition provides for service to be deemed to have been received by a party and its solicitor 'on the second business day following the date on which it was first delivered to [the DX] — whether deeming provision irrebuttable — whether Court should draw inference (not decided by primary judge) that document served in fact earlier than second day and hence within time for notice and purported termination of contract

LAND — sale of — notice to complete — notice of termination of contract — service of notice by DX — deemed service on second business day following date of first delivery — whether deeming provision rebuttable on proof of actual facts — held: (by maj): It is not.

Held: (Kirby P and Cripps JA; Priestley JA dissenting):

(1) Service by DX confined the Court to the deeming provision of the contract and the Court was not entitled (particularly for the first time on appeal) to draw its own inferences as to when the notice was in fact served.

Miller v Barrellan (Holdings) Pty Ltd (1982) 2 BPR 9543 (CA) applied;

(2) Upon this basis, and having regard to the trial Judge's findings on the issues for trial tendered to him, the notice to complete was not served in good time so as to render valid the notice of termination thereafter served;