ING Real Estate Joondalup BV v Sondavid Pty Ltd
[2006] QDC 105
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- Unreported Judgment
- ING Real Estate Joondalup BV v Sondavid Pty Ltd[2006] QDC 105
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ING Real Estate Joondalup BV v Sondavid Pty Ltd[2006] QDC 105
ING Real Estate Joondalup BV v Sondavid Pty Ltd[2006] QDC 105
District Court of Queensland |
Registry: Brisbane
Number: BD 4364 of 2005
ING Real Estate Joondalup BV ARBN 088 455 010 and Lewiac Pty Ltd ACN 008 524 801 | Appellants: |
and
Sondavid Pty Ltd ACN 080 246 680 | Respondents: |
Reasons for judgment
Delivered the twenty-fourth day of April, 2006
- [1]This appeal was heard before me this morning.
- [2]Resolution of the appeal depends upon whether or not the learned magistrate was correct in his construction of a particular provision in a lease.
- [3]The respondents were lessees of certain land from the appellants. The lease was for a two year term. There was provision in the lease for the term to be extended upon the lessee's giving notice.
- [4]Within the time stipulated in the lease the lessee decided to exercise its option to extend the term of the lease. It caused a notice of its intention to be sent to the landlord by way of facsimile transmission. The learned magistrate accepted that such a notice had been sent.
- [5]The landlord denied receiving the notice. It served notices to quit, and the proceeding below was an application by the landlord for recovery of possession. The application was successfully resisted on the basis that the lessee was entitled to remain in possession of the land, as it had given notice of its intention to extend the term.
- [6]The learned magistrate did not make a finding as to whether the facsimile transmission had been in fact received by the landlord. He held that it was sufficient simply for the lessee to prove (as he held it had) that the facsimile transmission had been sent.
- [7]The relevant parts of the lease would seem to be:
2. Interpretation
2.14 Whenever a Party is required pursuant to this Lease to deliver a notice then such notice shall be in writing.
56 Serving Notices
56.2 The Lessee may serve a notice on the Lessor by leaving it at, or posting it to, or faxing it to:
- (a)the Lessor's registered office; or
- (b)any other address that the Lessor nominates.
56.4 A notice is taken as given:
- (a)if delivered, on delivery;
- (b)if posted, 3 Business Days after posting; and
- (c)if faxed, on completion of transmission,
but if delivery or receipt is on a day which is not a Business Day or is after 5.00 pm at the place of delivery or receipt, it is taken as given at 9.00am on the next Business Day.
62 Option of renewal
62.1 If ... the Lessee:
- (a)wishes to lease the Premises for the further term;
- (b)gives notice to that effect to the Lessor ...;
the Lessor will grant a lease of the Premises ... to the Lessee ....
- [8]As I have mentioned, the lessee in this case chose to exercise its option by faxing a notice to the landlord. His Honour accepted evidence to the effect that the lessee's agent had done all that was necessary to send a facsimile of the notice to the landlord. He did not make a finding as to whether such notice was “received” by the landlord's fax machine. There was evidence lead before him by the landlord to suggest that it had not.
- [9]His honour was able to proceed on this basis because he took the view that “transmission,” as used in clause 56.4 of the lease, connotes a sending of the fax; and that it was irrelevant whether or not the document was received. It is that view which is challenged in this appeal.
- [10]Counsel for the appellant has referred me to a number of cases in which the word “transmit” or one of its derivatives has been commented upon. Those cases, I think without exception, all involved matters in which the court was concerned with issues involving service of originating process, or inquiry as to whether or not a contract had been formed. He also referred me to the Electronic Transactions (Queensland) Act 2001.
- [11]Those cases, while interesting, do not, I think, assist in what is the real issue in this case, viz., what, looked at objectively, did the parties agree to so far as the giving of notice is concerned.
- [12]Both counsel referred to the recent Court of Appeal decision in Décor Blinds Gold Coast Pty Ltd v. Décor Blinds Australia Pty Ltd.[1] That case provides, as counsel for the appellant submitted, a “helpful summary of the construction of words in contracts.” I must be guided by the principles set out in that case.
- [13]The first thing that strikes me as I read the relevant provisions of this contract is the provision in clause 56.2 that the notice may be given by leaving it at, posting it to, or faxing it to the landlord.
- [14]In my view, in ordinary parlance, the requirement that a document be “faxed” to someone requires that the sender do all that is necessary by him to send the document. It does not require proof of receipt.
- [15]As I discussed with counsel during the course of their submissions, if I ask my associate to fax a document to someone for me, I expect that she will take it to the secretaries office, confirm that the fax machine appears to be working, place the documents in the machine, press the necessary buttons, dial the requisite number, and pause long enough to establish that the sending of the document appears to have been successfully completed.
- [16]1Such an understanding is, I think, consistent with the dictionary definitions in the Oxford English Dictionary.[2] The definition is:
Hence as v. trans., to transmit (a document, etc.) in facsimile by scanning it and transmitting the resulting signal by wire or radio for use in reproducing the document at the receiving end.
- [17]The four quotations given in the dictionary[3] to my mind also confirm that the concept is one of sending material - which has the potential of being received and then “processed” and then printed - rather than the whole process of sending and receipt.
- [18]His honour did not focus, in his ruling, so much on the word “faxing” but on the word “transmission.” This was because of the provision in the lease that notice shall be taken as given, in the case of a notice that is faxed, “on completion of transmission.”
- [19]It seems to me that “transmit” and its derivatives can sometimes be used in a sense which connotes a sending and receipt of something, and sometimes connotes no more than the mere sending of a thing.
- [20]A good example of the former is the use in the Criminal Code of the expression “transmit a serious disease to any person.”[4]
- [21]An example of the other usage would be reference to a ham radio operator who transmits signals. In ordinary parlance, he would be taken as transmitting signals, even if no one had a radio received tuned in to receive them.
- [22]
a. The action of transmitting or fact of being transmitted; conveyance from one person or place to another; transference.
b. Conveyance or passage through a medium, as of light, heat, sound, etc.; spec. in Radio and Television..., also, a series of electric signals or electromagnetic waves transmitted, a broadcast.
- [23]I have also had reference to the same dictionary's definition of “transmit.” Again some of the definitions are consistent with the construction for which the appellant contends, other for that preferred by his honour.[6]
- [24]Those definitions which refer to radio or other electronic transmissions seem to me to favour a usage which focuses on the sending - or the broadcasting - of the message, rather than the sending and receipt.
- [25]That seems to me to be the way in which the parties intended the word to be understood in this contract.
- [26]The only thing which has caused me concern in coming to such a conclusion is the language of the final paragraph of clause 56.4, in which there is reference to “delivery or receipt.” It seems to me, however, that the parties intended that to be no more than a qualification to the deeming provision set out in the main part of the clause, and not something that changes the meaning to be ascribed to the word “transmission.”
- [27]Had the parties intended that the notice should be taken as given only after proof of actual receipt by the landlord they could easily have said so. They clearly did not do so in respect of notices posted, and in my view did not do so in respect of notices sent by facsimile machine.
- [28]In my view it has not been shown that the learned magistrate erred in his ruling.
- [29]I dismiss the appeal.
H.W.H. Botting, D.C.J.