(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. "