Tyrrell & Anor v Jesbro Enterprise Pty Ltd  QSC 55
When a lessee is in breach or has vacated the premises, there is usually pressure to send out a Notice to Remedy Breach in haste. However, simple WP or formatting errors can produce severe consequences, as the Supreme Court recently confirmed.
The landlord applied for a declaration that the lease between the parties was validly terminated on 13 February 2017 and for consequential orders. Following argument, counsel for the landlord properly brought to Justice McMeekin’s attention that the Notice served on the respondent failed to contain the “Note” which appears in the approved form, which is as follows:
“[NOTE: The lessor will be entitled to re enter or forfeit the lease in the event of the lessee failing to comply with this notice within a reasonable time – see s 124 of Property Law Act 1974]”
As His Honour pointed out (at ), it has long been accepted that a failure to include the note was fatal to the validity of a notice given under s 124 Property Law Act 1974 (PLA). However, the applicants argued that despite their non-compliance, their Notice remains valid as it contains the essential information conveyed by the note. They contend that substantial compliance was sufficient, particularly given there had been a change to the Acts Interpretation Act 1954 allowing such compliance under s 48A.
In considering this, McMeekin J immediately disregarded (at ) the covering letter, as it is not possible for it to remedy a defective notice.
His Honour then provided (at -) the four relevant differences between the information in the Notice and the approved form of the Note, which meant the Notice could not be saved:
- The relevant information was not contained in a note at the foot. This means the advantage of that position to highlight the information was lost.
- There is a substantial difference between the approved form’s statement that the “lessor will be entitled to re enter or forfeit the lease” and the applicant’s notice that “you may be liable to forfeiture and termination of the lease.”
- The Notice fails to inform the recipient that it is a failure to comply with the notice “within a reasonable time” that is the significant point.
- The Notice does not draw the recipient’s attention to s 124 of the PLA as the approved form requires – it simply references the section at the head of the Notice. This suggests that the Notice is given under the section referred to, and not that the recipient is to look to the section for their obligations, as can be inferred from the approved form’s approach.
This provides a useful reminder for ensuring that a s 124 Notice strictly and substantially complies with the approved form provided by the legislation.
It also confirms why a Notice to Remedy Breach should be drafted and checked by a competent lawyer and not in a rush.
Finally, this case highlights the huge ethical decisions that sometimes Counsel and solicitors may face. Justice McMeekin commended the solicitors and counsel for bringing the deficiency in the Notice to the Courts attention remarking “I appreciate of course that it was not in their clients’ interests that they do so. But their ethics gave them no choice.”
To read the full judgement, follow this link – http://archive.sclqld.org.au/qjudgment/2017/QSC17-055.pdf
Legislation and catchwords
- Termination of lease
- Notice to remedy breach
- Substantial compliance
- Strict compliance
- Approved form
- s 124 of the Property Law Act 1974 (Qld)
- s 48A of the Acts Interpretation Act 1954 (Qld)