Vikram Misra, Barrister at Clarence Chambers continues his series into caveats as he discusses how service of notices, such as lapsing notices, can be effected on caveators under the Real Property Act 1900 (NSW). To hear more from Vikram, follow his series here.
Section 74N of the Real Property Act 1900 (NSW) (“the Act”) prescribes the methods in which service of notices, such as lapsing notices, can be effected on caveators. One method is by sending the notice by registered post to the address required to be included in the caveat, pursuant to s 74F(5)(b)(viii) of the Act.
Where the notice is sent by registered post to the caveator, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that service is effected at that address on the seventh working day after having been posted: s 76 of the Interpretation Act 1987 (NSW)[1] and also s 160 of the Evidence Act 1995 (NSW). Note that these sections previously stipulated a shorter period of four days after postage.
Caveators should be aware of their obligation to keep their address for the purposes of service of notices updated at all times, as compliance with s 74N does not require showing that the intended recipient of the notice actually received it. In Makucha v Nothintoohard Pty Ltd [2004] NSWSC 1038, Young CJ in Eq held:
[7] In Re Ex parte Little (1958) 58 SR (NSW) 173 Hardie J, when dealing with the predecessor of the present section, s 72(3) of the then Real Property Act, held that it was sufficient that the notice to the caveator be addressed in that way, and it was not necessary to show that the recipient actually received it. The responsibility of ensuring receipt of any such notice rested on the caveator. That case was followed in Victoria in National Australia Bank v Dyer (1996) V Conv R 54 -553 by Batt J.
[9] The applicability of those sections has never been put in question, at least until today, and fall in with the general view that has been taken of caveats as long ago as in Re Drinkwater (1929) 46 WN (NSW) 202, that a caveator is responsible for giving a proper address to the Registrar General where notices can be served on him and if there is some falling down in the process, then the caveator is the person who suffers rather than the registered proprietor.
[10] This view was assumed by the legislature when it added s 74N(3) allowing the caveator to change his address to be notified by notice to the Registrar General because without that the mere fact that a former solicitor or accountant was sent a registered letter would have been sufficient.
[1] Note that section 77 of the Interpretation Act 1987 (NSW) does not apply to s 74N: see s 74(N)(4) of the Act.
Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to taxation law, property law, construction law and equity. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. Vikram is also a contributing author to the Security of Payment (NSW) section of the looseleaf Commercial Arbitration Law & Practice Service for Thomson Reuters. You may connect with Vikram via email counsel@vikrammisra.com or LinkedIn
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