SMITH V. CORRY.

Marlborough Express, Volume XLIII, Issue 145, 17 June 1909, Page 6

SMITH V. CORRY.

His Honor Mr Justice Cooper delivered judgment in the'case of Walter Smith (appellant) against J. J. Corry and Co. (respondent) yesterday morning. The following is the judgment:— The only question for determination by the Court on this appeal is whether proof that a notice in writing of the assignment of a chose in action was enclosed in an envelope bearing the proper amount of postage addressed "Mr W. Smith, Blenheim," and posted at the Blenheim Post Office, but not registered, is sufficient evidence that an express ?notice in writing of the assignment has been given to the debtor under Section 46 of "The Property Law Act, 1908." By agreement between the parties the magistrate entered a formal judgment for the respondents, the assignees, and gave leave to appeal upon this point. Proof that an express notice in writing has been given to the debtor is a necessary element in establishing the right of the assignee of a debt to recover from the debtor. The terms of Section 46 clearly show this, and Read v. Brown, 22, Q.B.D. 128, is authority for the proposition that it is by virtue of an assignment duly made under this section (which is a transcript of Section 75, Sub-section IC, of "The Judicature Act, 1873.") that the right of an assignee "of a chose in action to sue the debtor with-. out joining the assignee arises. Every fact necessary to establish an operative assignment must be proved, and the assignment does not operate as a complete assignment, under the statute, of a chose in action until express notice in writing has been given to the debtor. Section 75, Sub-section 6, of "The

Judicature Act" was first adoptel in New Zealand in "The Law Amendment Act, 1882," (Section 7. That section was repealed by "The Property Law Consolidation Act, 1883," but was re-enacted in Section 39 of that Act. Neither the Act of 1882 oy the Act of 1883 contained any provision for the service of notices required to be given under the provisions of those Acts; and I think it is clear that up to the time of the passing of "The Property Law Act, 1905," proof of the posting of a properly addressed notice would have been prima facie evidence of the service of the notice. Papillon v. Brunton, 29 L.J., Ex. 265. But Section 114 of the Act of 1905 contained express provisions_ regulating the manner in which notices were to be served; and this section is repeated in Section 116 of "The Consolidated Act, 1908." It is enacted by this section that any notice required or authorised by the Act to be served shall be silfficiently served if sent by post in a registered letter addressed to the person to be served, by name, at his place of abode or business, if that letter is not in due course returned through the post office undelivered. Mr Rogers has contended that a "notice required to be served" means something different from a notice "required to be given," but I am unable to see any substantial difference -between the two terms, and if I limit the provisions of Section 116 to notices which the Act says are to be "served"- and exclude those which the Act says are to be given, there is nothing left for the operation of the section. "Notices to be served" in any proceedings under the Act in the Supreme Court are taken out of the section by sub-sec-tion 3. The ordinary rules of the Supreme Court regulating the service of documents apply to such notices. Notices under the Act are " required to be served" in the follow.l g instances:—Section 85 (par. a) where a lessor desires to . enter and view a demised property, but a specific mode of service of such a notice is prescribed in paragraph (a), Section 94, where a notice of forfeiture is authorised. Here, also, a specific method of service is prescribed in the same section; Sections 105 and 111, where notices are required to be "served," but these notices are taken out of Section 116 by sub-section 3. Section 115, notice to purchasers, is limited to constructive notices and has no It does not direct any notice to be given or served. But there are three sections in the Act in which notices are directed to be "given," and there is nothing for Section 116 to operate on unless it applies to notices under these sections. Section 46 requires "express notice in writing to be givei." Section 68 requires a mortgagee, under certain circumstances, to "give" tlit mortgagor three clear months' notice of his intention to call in the mortgage ; and Section 70, sub-section '<i, requires under certain circumstances, a mortgagor to give three months' notice to the mortgagee of bis intention to pay off a mortgage. In !>.e covenants, conditions ,and powers implied in the mortgages under Section 64 of the Act, and contained in the fourth schedule of the Act, a notice of the mortgagee's intention to exercise the power of sale has also to be "given."

In construing a statute the presumption is that every provision is intended to have some effect, and the rule is to adopt that construct] »a which will give some effect to the words rather than that which will give none, for a statute is never supposed, to use words without meaning: Ditcher v. Denison, 11. Moore's P.O. 1325, p. 337; Auchterarder v. Lord ! KinnoiU, 6 Gl & F. 646, p. 686; Caiv;o ex Argus. L.R. 5, P.C. 134, p. 153. Such a sense is to he given to the whole statute as that no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be mac'.o useful and pertinent. (Sir B. ShoTor in Rex y. Berchet, I. Show, 108, and which dictum is stated by the Court of Queen's Bench in Reg. v.. Bishop of Oxford to have a settled canon of construction). In my opinion, there being nothing for Section 116 to operate upon except the notices required to be given under Sections 46 64, 68 and 70, its provisions apply tv notices to be given under those sections. Where a notice in writing is precribed by statute to be given to a particular person, and tho statute authorises the service of such a notice by means of a posted letter, but requires the letter to be registered, this course must, in my opinion, be adoj '.- ed, if the party giving the notice desires to rely on the posting of the lebter as presumptive evidence of service. The Legislature must be held j to have excluded the presumption that a letter not registered is delivered in the ordinary course of post. Expressio unins est exclnsio alter ins. There are many statutes in which this method of service is permitted, and I

notice that Order 67 made under ''The Judicature Act, 1873," permits the service by post of notices required to be in writing where personal service is not expressly required, but provides, as does Section 116 of "The Property Law Consolidation Act, 1908," that such letters shall be registered. In my opinion, the posting the letter in the present case was not, in view of the provisions of Section 116, presumptive evidence of service, and the appeal must be allowed. As the respondent desires an opportunity to prove that the appellant actually received the letter, I set aside the judgment for the plaintiff and remit the action to the magistrate with liberty |to the respondent to adduce further evidence. • I think it right to state that. the course taken by the magistrate xv.xs at the suggestion of the parties, as both parties desired to have the question at issue authoritatively settled . The parties have made their own arrangements as to costs.