Capper v Thorpe [1998] HCA 24

Capper v Thorpe [1998] HCA 24

The vendor did not validly terminate the terms contract because s 6 of the Sale of Land Act 1970 WA required actual service of the default notice, or service falling within ss 75 and 76 of the Interpretation Act 1984 WA, and the contractual deeming provision could not shorten or replace the statutory protection. The purchaser was served for s 6 purposes only when he received a copy of the notice between 15 and 19 September 1995, and termination on or about 9 October 1995 did not allow the required 28 days.

Jurisdiction
Australia
Procedural Posture
Appeal by Special Leave Concerning Termination of a Terms Contract for Sale of Land and Removal of a Caveat / High Court Appeal From the Full Court of the Supreme Court of Western Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['terms Contract for Sale of Land' 'service of Default Notice' "termination or Rescission for Purchaser's Breach" 'caveat Removal' 'deemed Service by Post']
['property Law' 'contract Law' 'statutory Interpretation'] ['terms Contract for Sale of Land' 'service of Default Notice' "termination or Rescission for Purchaser's Breach" 'caveat Removal' 'deemed Service by Post']

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Procedural Posture

Appeal by Special Leave Concerning Termination of a Terms Contract for Sale of Land and Removal of a Caveat / High Court Appeal From the Full Court of the Supreme Court of Western Australia

Legal Issues

  1. 1 ['Whether, consistently with s 6 of the Sale of Land Act 1970 WA, parties to a terms contract for the sale of land can fix the commencement date of the statutory notice period by deeming a default notice to have been served 48 hours after posting.' 'Whether the vendor validly terminated the terms contract after giving a default notice that did not provide the purchaser with the required 28 days from service.']

Ratio Decidendi

The vendor did not validly terminate the terms contract because s 6 of the Sale of Land Act 1970 WA required actual service of the default notice, or service falling within ss 75 and 76 of the Interpretation Act 1984 WA, and the contractual deeming provision could not shorten or replace the statutory protection. The purchaser was served for s 6 purposes only when he received a copy of the notice between 15 and 19 September 1995, and termination on or about 9 October 1995 did not allow the required 28 days.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']