Van Stappen v Mackenzie

Gilbert v Healey Investment Pty Ltd [1975] 1 NSWLR 650 Treloar Nominees Pty Limited v Buttrey (1977) 1 BPR 9672LBC Information Services Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Bond v Hongkong Bank of Australia Ltd (1991) 25 NSWLR 286 Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 CASES CITED : Austin Rover Group Ltd v Crouch Butler Savage Associates [1986] 1 WLR 1102; 3 All ER 50 Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262 Croker v Ewen [2000] NSWCA 186 Quitstar v Cooline [2002] NSWSC 402; (2002) 168 FLR 213 Macrae v St Margaret's Hospital [1999] NSWCA 381; (1999) 19 NSWCCR 1 Dorsatville Pty Limited v Loumbos Pty Limited (1990) NSW ConvR 55-526 National Westminster Bank Ltd v Betchworth Investments Ltd [1975] 1 EGLR 57; 234 E.G. 43

TEXTS CITED : Peter Butt, The Standard Contract for Sale of Land in New South Wales, 2nd ed (1998) Macquarie Dictionary, Rev 3rd ed (2001) Macquarie

A Van Stappen Pty Ltd PARTIES : v N S Mackenzie Pty Ltd & 1 Or

COUNSEL : Plaintiff: L Goodchild Defendant: I M Khan

SOLICITORS : Plaintiff: Douglas Eaton, Solicitor Defendant: Hartcher Reid Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3267/07 A Van Stappen Pty Ltd v N S Mackenzie Pty Ltd & 1 Or JUDGMENT 1 HIS HONOUR: The plaintiff was the vendor under a contract dated 1 April 2005 for the sale of land at Pacific Highway, Wyong to the defendants. The contract was for the sale of a lot in an unregistered plan of subdivision. The contract provided that if the plan was not registered within 18 months after the contract date, the purchaser could rescind. The plan was not registered within 18 months. It was registered on 23 October 2006. 2 The defendants claim to have rescinded the contract by notice to the plaintiff's solicitor, sent by facsimile and by post, on 19 October 2006 to the facsimile number and postal address of the plaintiff's solicitor shown on the contract. The defendants claim the return of the deposit. The plaintiff seeks an order for specific performance. 3 The plaintiff says:

(a) that the time for registration of the plan was extended to 31 December 2006;

(b) alternatively, that the defendants are estopped from denying that the time was so extended; and

(c) in any event, notice of rescission was not served until 25 October 2006 which was too late because the plan had by then been registered. 4 The issue concerning service of the notice of rescission arises because in February 2006 the plaintiff's solicitor moved his office from the address shown on the contract and changed his fax number. The notice of rescission was not sent to his new office or new fax number prior to registration of the plan. 5 The principal issue in the proceedings is the validity of the service, or attempted service, of the notice of rescission on 19 October 2006. 6 The first two issues can be dealt with shortly. The plaintiff's solicitor, Mr Douglas Eaton, deposed that on 11 April 2006, he sent a letter by facsimile to Mr Bill Reid of Hartcher Reid, solicitor for the defendants, which advised that the subdivision was due to be completed in July. The letter went on to say that: " I am instructed that your client has agreed to extend the time under the contract for registration of the plan of subdivision until 31st December 2006. Please confirm your client's consent to this extension. "

7 There was no reply to this letter. This was because Mr Reid did not receive it. Mr Eaton did not follow up the letter because, as he said, the subdivision "speeded up" and it "looked as if the registration would be effected in time". 8 No evidence was given for the plaintiff of any communication between the parties by which the asserted agreement for extension of time was reached. There is no evidence of that agreement other than the bare assertion in the letter dated 10 April 2006. There is no implied admission of the fact asserted in that letter by the defendants' failure to rebut the assertion. That is because the defendants' solicitor did not receive the letter at any relevant time. Accordingly, I reject the claim that there was an agreement to vary the contract to extend the time for registration of the plan. It is unnecessary to consider whether or not, if such an agreement were made, to be enforceable it would need to be in writing signed by or on behalf of the defendants. 9 The contention that the defendants are estopped from denying that the time for registration of the plan was so extended was not developed. It was said that the estoppel arose from the defendant's failure to respond to the letter of 10 April 2006. There is no evidence that any person on behalf of the plaintiff adopted an assumption that the defendants had agreed to extend the time for the registration of the plan. There is no evidence that the plaintiff altered its position to its detriment on the basis of any such assumption. In any event, it could not be unconscionable for the plaintiff to deny any such assumption when the defendants' solicitor did not receive the letter making the assertion. Accordingly, I reject the contention that the defendants are estopped from denying the time was so extended. It follows that on 1 October 2006, the defendants became entitled to rescind the contract by reason of the plan not having been registered by that time. 10 It was common ground that, by virtue of cl 28.6 of the contract, the right to rescind continued only until the plan was registered (compare Gilbert v Healey Investment Pty Ltd [1975] 1 NSWLR 650; Treloar Nominees Pty Limited v Buttrey (1977) 1 BPR 9672; Peter Butt, The Standard Contract for Sale of Land in New South Wales, 2nd ed (1998) LBC Information Services, at [28.18]). 11 The contract contains the following relevant provisions which affect the question as to the validity of service of the notice of rescission. On the first page of the contract provision is made for inserting the name, address, DX, phone, and fax number of the vendor's and purchasers' solicitors. The contract states that the first page is part of the contract. Clause 28.3 relevantly provides that if the plan is not registered within time, the purchaser can rescind. Clause 19.1 provides that if the contract expressly gives a party a right to rescind, the party can exercise the right only by serving a notice before completion (of course that is modified by cl 28.6). Clause 20.6 provides: " 20.6 A document under or relating to this contract is - 20.6.1 signed by a party if it is signed by the party or the party's solicitor (apart from a direction under clause 4.3); 20.6.2 served if it is served by the party or the party's solicitor ; 20.6.3 served if it is served on the party's solicitor , even if the party has died or any of them has died; 20.6.4 served if it is served in any manner provided in s170 of the Conveyancing Act 1919; 20.6.5 served if it is sent by fax to the party's solicitor , unless it is not received; 20.6.6 served on a person if it (or a copy of it) comes into the possession of the person; and 20.6.7 served at the earliest time it is served , if it is served more than once. " 12 The word "solicitor" is defined as follows: " Solicitor in relation to a party [means] the party's solicitor ... named in this contract or in a notice served by the party. "

13 In the case of the vendor, the solicitor was named as "Douglas Eaton, solicitor and conveyancer". Against the line "Address and DX" there was inserted "494 Pacific Highway, Wyong, 2259". Mr Eaton's phone and fax numbers were stated. The fax number as stated on the contract was 4353 2658. 14 On 19 October 2006, the defendants' solicitor, Mr Reid, sent by facsimile to the number 4353 2658 a letter addressed to Mr Eaton enclosing a notice of rescission and requesting repayment of the deposit. There is no dispute that if the notice of rescission was served on that day, or on any day before 23 October 2006, it was effective to rescind the contract. On the same day, that is 19 October 2006, the letter and accompanying notice of rescission were placed in an envelope on which postage was duly paid, addressed to Mr Eaton at 494 Pacific Highway, Wyong and posted. 15 The envelope and its enclosure were returned to Mr Reid's office through Australia Post on 7 November 2006. The letter had been opened and resealed with a piece of sticky tape. The envelope bears a stamp showing its receipt on 20 October 2006. There is placed on it a sticker bearing the date 31 October saying "Return to sender" and there is handwriting on the envelope saying, "Please return to Sender. Not at this address." 16 It is clear that the letter addressed to Mr Eaton was delivered to the address at 494 Pacific Highway on 20 October 2006. However, by that time, Mr Eaton had moved his office. Up to about early February 2006, Mr Eaton occupied an office at 494 Pacific Highway, Wyong which he shared with a business known as Eaton's Mitre 10 Hardware. That is a business owned by a company, the shares in which are held, at least for the most part, by members of the Eaton family. In early February 2006, he moved to offices in Rutleys Road, Mannering Park. On vacating the Pacific Highway office, the facsimile machine which was in it and which had the number 4353 2658 was left behind. It was moved to the hardware shop. Accordingly, I conclude that the notice of rescission sent by fax was received by an employee of Eaton's Mitre 10 Hardware on or about 19 October 2006 and the letter was received and opened by an employee of Eaton's Mitre 10 Hardware on or about 20 October 2006 and later returned. 17 Given the previous connection between Mr Eaton and Eaton's Mitre 10 Hardware, in that they had previously shared offices, and given the family connection, it is surprising that no-one from Eaton's Mitre 10 Hardware telephoned Mr Eaton to tell him of the letter's receipt. However, Mr Eaton gave evidence that he was not informed that such a letter had been received and I accept that evidence. 18 Counsel for the defendants submitted that, on its proper construction, the contract provided for service on the vendor's solicitor at the address or fax number specified in the contract so that, without more, the notice of rescission was validly served. Counsel submitted that service at the address or fax number specified in the contract would be good unless there had been a consensual variation to the contract to change those details. At least, and as a fallback position, counsel submitted that such service would be good unless advice had been given that the address for service of notices under the contract had been changed. 19 In Butt, The Standard Contract for Sale of Land in New South Wales, the learned author says (at 815 [20.23]) that: " Clause 20.6.3 allows service to be effected on a party by service on that party's solicitor ... Service on the solicitor will normally be at the solicitor's address shown on the front page of the contract. However, the clause does not specifically require service at that address, so that service on the solicitor at any other address of the solicitor will suffice. "

20 Clause 20.6 does not expressly provide that service is sufficiently given if effected at the address or to the fax number of the solicitor as stated on the first page of the contract. Although that first page forms part of the contract, there is no clause providing for service at the addresses there stated. Counsel for the defendants referred to the definition of "solicitor" and submitted that that definition incorporated the address and fax number of the solicitor. I do not agree. I do not consider that the address, phone or fax number of the solicitor is part of the solicitor's name. It is the party's solicitor "named" in the contract which is picked up by the definition of "solicitor". 21 The meaning of the phrase "unless it is not received" in clause 20.6.5 is ambiguous. It might mean that a document under, or relating to, the contract is served if it is sent by fax to the party's solicitor unless it is not received by the solicitor, or it might mean that it is taken to be so served unless it is not received at the solicitor's fax machine. 22 In my view, the former is the preferable construction. The cases on service by post draw a distinction between the non-delivery of documents to a place and their non-receipt by the addressee (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87). In this context, the ordinary meaning of "receipt" is the act of receiving a thing which is taken into the hand or possession of a person (Macquarie Dictionary, Rev 3rd ed (2001) Macquarie). 23 Accordingly, in my view, it would not be consistent with the ordinary meaning of cl 20.6.5 to say that on the proper construction of the contract service of a notice by fax to a fax number specified on the first page of the contract is good even if the fax is not received by the solicitor. 24 The construction for which the defendants contend may also be inconsistent with cl 20.6.4 if it is known that the address specified on the first page of the contract is no longer the address of the party or his solicitor and therefore is not that person's last known residential or business address within the meaning of s 170 of the Conveyancing Act 1919 (NSW). 25 If the address specified on the first page is not the last known residential or business address of the person to be served, then cl 20.6 does not authorise service of a notice by post to the address specified on the first page. The construction contended for by the defendant could work substantial unfairness. For example, it would be unfair if a notice to complete were sufficiently served by being delivered to the address specified on the first page of the contract, even though the party serving the notice knew that the solicitor for the opposite party would not receive the notice because he or she had moved offices. It would be an unbusinesslike construction of the contract. 26 I accept that in the passage quoted from Butt, The Standard Contract for Sale of Land in New South Wales at [20.23], the implication is that service at the solicitor's address shown on the front page of the contract will be sufficient, although service at other addresses may also suffice. However, and with great respect, I am not satisfied that that is so unless it be the case that service at the address shown on the front page of the contract would also be service in a manner provided for in cl 20.6. 27 Counsel for the defendants referred to Bond v Hongkong Bank of Australia Ltd (1991) 25 NSWLR 286 in support of his submission that service at the address specified in the contract was good unless there had been notification of a change of address for service. For the reasons I have given, I do not accept that the address specified on the first page of the contract should be characterised as an address for service. The present case is quite different from Bond v Hongkong Bank of Australia Ltd. There the contract required service at an address specified in the contract, or at another address if the contracting party notified such other address. The contract specified an address for service, and therefore it was held that for there to be sufficient notification of an alternative address it was not sufficient for correspondence to pass between the parties in which that other address appeared: there had to be sufficient notification that the other address was another address for service. 28 I do not accept that the same principle applies in the present case. That is not to say that the address shown on the contract has no relevance. It will, as in this case, inform the opposite party of the address of the solicitor. Thus it will be the solicitor's known address. Whether it is the solicitor's last known residential or business address within the meaning of s 170(1)(b) of the Conveyancing Act, and hence an address at which service can be effected pursuant to cl 20.6.4, is a different question to which I will come in due course. 29 I have said that the facsimile sent on 19 October 2006 was not received by Mr Eaton. For the reasons I have given, I consider that it follows that service by fax was not good service on him pursuant to cl 20.6.5. 30 Counsel for the defendants submitted that, nonetheless, the sending of the documents by fax was effective service on the plaintiff itself. The plaintiff is a company, at least many of whose shareholders (and the principal shareholders) are members of the Eaton family, or a company whose shares are held by members of the Eaton family. The defendants produced a letter signed by Mr Anthony Eaton (Mr Douglas Eaton's father) on the letterhead of the plaintiff dated 10 November 2006 which described the address at 494 Pacific Highway, Wyong as the company's "Wyong office" and gave the fax number for the "Wyong office" as 4353 2658. 31 Thus it was submitted that the notice of rescission addressed to Mr Douglas Eaton was received by the plaintiff at its own fax. This submission assumes that cl 20.6 is facultative and not prescriptive and that service on a party is good service. I will assume that to be so. Nonetheless, the defendants must show that the plaintiff, through its officers, received the faxed notice for such service to be good. The evidence of both the Messrs Eatons was that the address at 494 Pacific Highway, Wyong, as at October 2006, was only the address of the Eaton's Mitre 10 Hardware business. Mr Anthony Eaton said that the letterhead in question was an old, superseded letterhead. He said that although the plaintiff owned the land, it did not have a place of business there. I accept that evidence. In any event, there was no evidence of actual receipt of the notice by any officer of the plaintiff. Mr Anthony Eaton specifically denied that the notice of rescission had been received by the plaintiff. Accordingly, I conclude that the notice of rescission was not validly served by facsimile transmission. 32 The question then is whether there was effective service by post pursuant to s 170 of the Conveyancing Act. That section relevantly provides: " 170 Regulations respecting notices

(1) Any notice required or authorised by this Act to be served shall be in writing, and shall be sufficiently served: (a) if delivered personally, (b) if left at or sent by post to the last known residential or business address in or out of New South Wales of the person to be served, (b1) in the case of a mortgagor in possession or a lessee, if left at or sent by post to any occupied house or building comprised in the mortgage or lease, (b2) in the case of a mining lease, if left at or sent by post to the office of the mine, (c) if delivered to the facilities of a document exchange of which the person on whom it is to be served is a member, or (d) in such manner as the Court may direct. ... (4) This section applies only if and so far as a contrary intention is not expressed in any instrument, and shall have effect subject to the provisions of such instrument. " 33 Service on Mr Eaton would be effective if the address at 494 Pacific Highway, Wyong was his last known business address. Service may be effective under the section if made to the last known address of the addressee, even if, unknown to the sender, the address is not the addressee's current address. Service would also be effective if the document were delivered to the last known business address of Mr Eaton, even though it was not received by him (Fancourt v Mercantile Credits Ltd at 97; Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 at 116 [25]). 34 Mr Reid had learned from the contract by at least April 2005 that 494 Pacific Highway, Wyong was a business address of Mr Eaton. There is no reason Mr Reid would not have wished Mr Eaton to receive the notice of rescission. I infer that, as at 19 and 20 October 2006, Mr Reid did not know that the address at 494 Pacific Highway, Wyong was no longer a business address of Mr Eaton. Mr Reid was not cross-examined. It was not put to him that he knew that the address at 494 Pacific Highway had ceased to be Mr Eaton's business address. 35 The plaintiff relied upon a letter dated 28 September 2006 from Mr Eaton to Mr Reid. Mr Reid did not deny receipt of the letter. In the letter Mr Eaton advised that the subdivision had been approved and gave details of the lot and deposited plan number. The letterhead specified post office boxes in Mannering Park and Cardiff for Mr Eaton's Central Coast and Newcastle offices respectively. The letter made no statement that Mr Eaton had moved from his Pacific Highway address. Nor did the letter contain any street address for the Central Coast or Newcastle offices. I would not conclude that Mr Reid should have inferred that Mr Eaton no longer had an office at 494 Pacific Highway from the fact that the letterhead specifies a post office box at Mannering Park for Mr Eaton's Central Coast office. Nor, as I have said, do I infer that Mr Reid did draw any such conclusion. 36 Counsel for the plaintiff submitted that in s 170, the phrase "last known" did not mean "last known" to the sender of the notice, Mr Reid, but "last known" generally. In other words, counsel submitted that a person's last known address is that which is known to the world as that person's address. Even if this submission were correct, I would not conclude that by October 2006 Mr Eaton had published to the world information that his address was no longer 494 Pacific Highway, Wyong. He said that he advised the Law Society of his change of address, but did not say when he did that. There was no evidence that any notice of his change of address had been given more widely by, for example, a change of address notified in a telephone directory. 37 In any event, even if there were the factual foundation for the submission, I would not accept it as a proper construction of s 170. The same submission was advanced but rejected by the Court of Appeal in England in Austin Rover Group Ltd v Crouch Butler Savage Associates [1986] 1 WLR 1102 at 1109-1111; 3 All ER 50 at 55 and 56. "Last known" means last known to the person sending the notice (Butt, The Standard Contract for Sale of Land in New South Wales at [20.28] footnote 63 and cases there cited). 38 Counsel for the plaintiff submitted that nonetheless the post office boxes shown on the letter of 28 September 2006 were business addresses of Mr Eaton and that they were the last of such addresses which became known to Mr Reid. Hence, it was submitted that the last known business address of Mr Eaton known to Mr Reid was the post office box. 39 I put aside the question of whether notice of such addresses, if business addresses they were, would be sufficient to amount to knowledge. 40 The first question is whether a post office box could be a residential or business address within the meaning of s 170. A post office box is not an address at which Mr Eaton could reside, nor is it an address at which he carries on business. 41 The cases show that a post office box cannot be an address for service where the rules require an address of a place at which documents can be left (Sarikaya v Victorian Workcover Authority (1997) 80 FCR 262; Croker v Ewen [2000] NSWCA 186). Section 170(1)(b) talks of addresses at which documents can either be left or to which they can be posted. A post office box is not "an address" of a creditor for service of copies of any application and affidavit to set aside a statutory demand (Quitstar v Cooline [2002] NSWSC 402; (2002) 168 FLR 213). In Macrae v St Margaret's Hospital [1999] NSWCA 381; (1999) 19 NSWCCR 1, Meagher JA considered that a post office box could be either part of a company's place of business or a means of access to that part (at 3 [7]). However Davies AJA, with whom Priestley JA agreed, said (at 8 [19]) that he was prepared to accept that a post office box is not a place of business. 42 In Dorsatville Pty Limited v Loumbos Pty Limited (1990) NSW ConvR 55-526, Bryson J (as his Honour then was) said of the then version of s 170 that (at 58917): " It simply contains no reference to delivery to a post box in a post office, which could not be said to be the place of abode or place of business of anybody, except perhaps of the post office itself. The defendant has the ordinary control that the lessee of a post office box has, but that does not make the box or the post office the lessee's place of abode or business. "

43 However, a wider interpretation of s 170 was given by the High Court in Fancourt v Mercantile Credits Ltd. The Court was there concerned with s 42 of the Hire-Purchase Act 1959 (Qld). Section 42(1)(c) relevantly provided that any notice or document required or authorised to be served on or given to an owner or hirer under the Act might be so served or given by posting it addressed to him at his last known place of abode or business. The document in question was posted to the appellants at the address "Care of post office, Sapphire, Queensland". This was the address which the appellants had given as their residential or private address. In an unanimous judgment, the High Court said (at 94) that: " The point is a narrow one. It is not whether it was established that the Post Office at Sapphire was the appellants' last known place of abode. It may be conceded that it was not. But the address which is referred to in s 42(1)(c) is clearly intended to be a postal address and the postal address of a person's abode does not necessarily coincide with the physical location of that abode. It may be that postal services do not extend to a person's actual abode. Commonly in this country in rural areas the only mode of delivery of mail is to a roadside mail box or bag which is frequently designated by a number. The property or abode to which the mail is ultimately destined may be located some distance away from the mail box and not reached by postal services otherwise than by the use of the mail box. It could hardly be said in these circumstances that mail addressed to a person at an appropriate box was not addressed to him at his abode. In other circumstances, persons who do not have this facility or do not wish to avail themselves of postal deliveries, arrange for mail to be delivered to a post office, sometimes to a specific box and sometimes not. In these instances the only means of reaching those persons at their abode by the use of postal services may be through the post office and a letter addressed to a person at the appropriate post office may be said to be addressed to him at his abode because that is his appropriate postal address in the sense that a letter so addressed may be expected to reach him at his place of abode in the ordinary course of post. A letter addressed to 'Blackacre' care of a post office or a post office box is none the less addressed to Blackacre if that is the postal address which Blackacre has, notwithstanding that the physical location of the property and of the post office are different. " (Emphasis added)

44 On the reasoning in Fancourt v Mercantile Credits Ltd, I consider that the post office box specified in the letter of 28 September 2006 can be treated as itself a business address, in the sense that a letter so addressed may be expected to reach Mr Eaton at his place of business. On the reasoning in Fancourt v Mercantile Credits Ltd, that is sufficient for it to qualify as a business address. That makes eminent sense. Had the notice of rescission been delivered to the post office box for Mr Eaton's Central Coast office specified in his letter of 28 September 2006, it would be surprising if the notice would not be taken to have been validly served even if it did not come to his attention. 45 The question then is whether it follows that the address at 494 Pacific Highway was no longer the last known business address of Mr Eaton, because he was aware of another address, even though the letter of 28 September 2006 did not displace Mr Reid's knowledge that the Pacific Highway address was also a business address of Mr Eaton. In other words, whilst I consider that the post office box could itself be treated as a business address, it does not mean that the Pacific Highway address was known not to be a current business address. Does it mean that the Pacific Highway address ceased to be the last known business address because another address answering the description of a business address was also notified? I think not. A person can have more than one known residential or business address. Clearly an address does not cease to be a known address merely because a person learns of another address. The fact that a person learns of another address in my view does not mean that the other address becomes the only last known address. 46 This question was considered by Cairns LJ in National Westminster Bank Ltd v Betchworth Investments Ltd [1975] 1 EGLR 57; 234 E.G. 43. In that case, a lease provided that a notice would be deemed to be sufficiently served if sent by post at the tenant's registered office or last known address in Great Britain or Ireland. The lessor had knowledge of the lessee's address as being its registered office. Subsequently, it had numerous dealings with the lessee's managing agent who operated, to the landlord's knowledge, at a different address. The tenant had in fact changed its registered office and the building in question had been demolished. 47 At first instance it was held that the address of the managing agent (in St James's Place) was an address of the tenant, and because that address came to the knowledge of the lessor a long time after the address of the previous registered office had come to its notice, it was the latter address, and that address only, which was the last known address of the tenant (National Westminster Bank Ltd v Betchworth Investments Ltd at [1975] 1 EGLR 44 at 46). 48 All of the judges of the Court of Appeal rejected the trial judge's conclusion that the address of the managing agent was the lessee's address, and concluded that service at the address last known to the lessor, namely at its earlier registered office, was good service. Cairns LJ added: " Even if it could be said that St James's Place had become an address of the defendants and to have become known to the plaintiffs as such, I do not see how it would displace 157 Victoria Street as another known address. Plainly a person or a company can have more than one last known address. I am quite unable to accept the judge's reasoning that the last address which becomes known to the landlord is the last known address. "

49 I agree with that reasoning. In my view, the phrase "last known address" means the address or the addresses of the addressee which has or have become known to the sender and which, to the sender's knowledge, remains or remain the addressee's residential or business address or addresses. The address at 494 Pacific Highway remained a known business address of Mr Eaton so far as Mr Reid is concerned. Accordingly, postage of the notice of rescission to Mr Eaton at the Pacific Highway address was, in my view, good service pursuant to s 170(1)(b) of the Conveyancing Act. As that notice was delivered to that address prior to the registration of the plan of subdivision, it follows that the contract was validly rescinded. 50 I should add that counsel for the plaintiff advanced a submission that the conduct of the purchaser was relevant to the question of the validity of the rescission. Counsel submitted that it was relevant that the contract in question had not been stamped, and submitted that it should be inferred that the defendant did not have the intention to complete the contract and was improperly taking advantage of the opportunity to rescind. It was submitted that I should infer that the defendants rescinded the contract owing to solvency difficulties. 51 None of these matters is relevant to the validity of the rescission. The purchasers were entitled to rescind the contract at any time after the period of 18 months expired prior to the plan of subdivision being registered. That is so whatever was the reason which motivated their election. 52 For these reasons, I conclude that the notice of rescission was valid. I will order that the summons be dismissed, and I will make a declaration and order in accordance with paras 1 and 2 of the cross-summons.

[Parties addressed.] 53 The solicitor for the defendants seeks interest on the deposit. The parties are not in a position to argue that question now. Accordingly, I will stand over the proceedings to 10 April 2008 at 9:30 am in order for counsel for the defendants to bring in short minutes of order in accordance with these reasons and to deal with any argument as to interest or costs. Prima facie, costs will follow the event.

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