SHADDICK v DUNSFORD INVESTMENTS PTY LTD [1993] NSWCA 246

SHADDICK v DUNSFORD INVESTMENTS PTY LTD [1993] NSWCA 246

Service of the notice to complete was governed by the contract's deeming provision for service by document exchange (DX), which established that the notice was deemed received on the second business day after lodgment, regardless of the actual date of delivery. As the period given by the notice was only 13 days by the deemed date, not the contractually required 14 days, the vendors' notice was deficient and the purported termination by the vendors was not valid. The Court was not entitled to infer earlier service than the contract deemed, particularly for the first time on appeal.

Parties
Appellant/vendor: Shaddick; Respondent/purchaser: Dunsford Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
20 May 1993
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Vendor and Purchaser, Sale of Land, Notice to Complete, Service of Notice, Deeming Provisions
Property Law Contract Law Vendor and Purchaser Sale of Land Notice to Complete Service of Notice Deeming Provisions

Case Brief

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Parties

Shaddick

Appellant/vendor

Dunsford Investments Pty Ltd

Respondent/purchaser

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether service of notice to complete via DX was valid under the contract's deeming provision
  2. 2 Whether the vendors allowed sufficient time for notice of termination
  3. 3 Whether the contract was validly terminated by the vendors

Ratio Decidendi

Service of the notice to complete was governed by the contract's deeming provision for service by document exchange (DX), which established that the notice was deemed received on the second business day after lodgment, regardless of the actual date of delivery. As the period given by the notice was only 13 days by the deemed date, not the contractually required 14 days, the vendors' notice was deficient and the purported termination by the vendors was not valid. The Court was not entitled to infer earlier service than the contract deemed, particularly for the first time on appeal.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed.
  • Appellant to pay the respondent's costs.