The case of Brannigan v Smith [2017] NSWSC 1201 concerned an agreement to lease a one bedroom unit, with an option to purchase at the end of a set period. This dispute arose as to whether or not Brannigan validly exercised the option by giving notice. Notice was allegedly effected by a letter with enclosures sent to the duly authorised agent of the grantor. The defendant argued that the provided facsimile was insufficient to meet the requirements in s170 of the Conveyancing Act 1919 (NSW), and the notice was therefore ineffective.

Justice Darke in the Supreme Court found that the notice was duly served. First, he found that on these facts service to the duly authorised agent of the grantor was acceptable, as the address and contact details of the grantor were not known to the plaintiff. He then drew attention to the nature of s170 of the Conveyancing Act: it does not provide an exclusive code, rather, it applies alongside the general law unless the instrument otherwise specified. In this case the option agreement does not require that the notice of exercise of option be served in conformity with s170. Service on the agent by facsimile is in accordance with general law principles and is sufficient, and consequently the plaintiff had validly exercised the option.

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