Personal Service Requires Actual Delivery To The Individual

Under a share purchase agreement, the limit for bringing claims alleging breach of warranty was 2 April 2010. Where notice of a claim had been given, the claim was deemed to have been withdrawn unless proceedings were issued and served on the vendor no later than 12 months after date of the notice of the claim. The notices clause was in fairly standard form:

"any such notice may be served by delivering it personally or by sending it by prepaid recorded delivery post to each party... at or to the address referred to in the agreement..." "any notice delivered personally shall be deemed to be received when delivered....., any notice sent by prepaid recorded delivery shall be deemed to be received two Business Days after posting."

A process server delivered notice of warranty claim to the vendor's home address as set out in the agreement and left it in the front porch on 30 March 2010. It was found and opened by the vendor on the same day. A notice was also sent by recorded delivery to the vendor's home, which was deemed received on 1 April 2010 by virtue of the notices clause.

Moving forward a year, on 29 March 2011, a process server posted a notice of proceedings through the letterbox of the house. The vendor was away and did not receive the documents until 2 April 2011. The issue arose as to whether the proceedings were time barred. The vendor argued that a notice of warranty claim was served on 30 March 2010 – although it was not good service under the agreement, the methods in the agreement were non-exclusive and the notice was actually received. That meant that any notice of claim had to be served by 30 March 2011. This did not happen because the notice left at his house was not "personal service" as the claim form was not delivered to him personally. Therefore, under the deeming provisions under the CPR, it was only deemed served two days later, i.e. on 31 March which was too late. The purchaser argued that if posting notice of a claim through the letterbox in 2011 was not good service, then neither was leaving the letter in the porch in 2010. That being the case, the notice of warranty claim was only received two deemed days later, i.e. 1 April 2010, in which case the deemed service of notice of proceedings was served in time.

The High Court, Burton J, held that the proceedings were served out of time, so the claims had lapsed. He found as follows:

The Judge agreed that the...