Bowman v Durham Holdings Pty Ltd
131 CLR 82 ALR 193
(Decision by: Barwick CJ)
Between: Bowman
And: Durham Holdings Pty Ltd
Judges:
Barwick CJMenzies J
Stephen J
Subject References:
CONTRACT
Option
Extension
Statute of Frauds
Part performance
Notice of exercise of option
Judgment date: 26 November 1973
Sydney
Decision by:
Barwick CJ
I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Stephen. I agree with him that the respondent was entitled to the benefit of cl. 19(a) of the deed dated 11th September 1969 between the parties to the appeal, in that the notice of the exercise of the option was sent by it in a prepaid envelope addressed in conformity with the subclause and that that envelope was deemed to have been delivered on the morning of Saturday, 11th March, that being the time it would be delivered in the ordinary course of post. I agree that, upon its true construction, the deed did not require the respondent to pay the sum calculated in accordance with cl. 6 of the deed at the time of the exercise by the respondent of the option. I agree with my brother Stephen's reasons for so concluding.
Lastly, I agree that the option was on foot at the time the respondent exercised it. Whilst I am not convinced that the ideas expressed in Gilbert J. McCaul (Aust.) Pty Ltd v Pitt Club Ltd [F1] and the decisions and writings to which reference is made in the reasons for judgment in that case are applicable to the situation which existed at the time the option under the deed fell for its second extension and that, in consequence, it could not be held that the appellant had waived strict compliance with the giving of the notice for which the deed called, I am content to agree with the reasons for which my brother Stephen reaches the conclusion that in any case the option was on foot at the time of its exercise by the respondent. Consequently, I do not need to express a final view as to whether the expression "within two weeks etc." in cl. 2 of the deed requires a notice to be given during the period of two weeks or whether the expression means before the commencement of the period of two weeks.
I agree that the appeal should be dismissed.