Tenancy Termination Trap

An application for the termination of a residential tenancy has failed because – even though the Notice to Leave was properly given and gave more time than was required for the tenant to leave – QCAT found that the last day to leave (stated in the Notice to fall on a Saturday) was extended until the following Monday.

In the decision of Adjudicator Alan Walsh in Coastlink Property Services Pty Ltd v Chapman & Anor [2023] QCAT 452, Adjudicator Walsh considered the timing issues associated with the giving of notices to leave.  The effect of his decision (which follows previous QCAT authority) is that:

  1. If the last day for compliance with a Notice to Leave falls on a weekend or other Excluded Day (such as a public holiday), then;
  1. Section 38 of the Acts Interpretation Act has the effect that the final date is extended to the next day which is not an Excluded Day (ie the next day that is not a weekend day or a public holiday, in most cases);
  1. This applies whether or not the notice has given the minimum period or well in excess of the minimum period – ie if the minimum period for the notice is 7 days, but the well intentioned landlord has given 14, then if the 14th day falls on an Excluded Day, the date will be extended regardless;
  1. The effect was that the landlord had no right to file an application for termination based on non compliance with the Notice to Leave, meaning that (notwithstanding that several weeks had since passed with the tenant remaining in possession), the application failed and the landlord has to start a fresh application.

Adjudicator Walsh pointed out that there was no warning about this in the forms. 

The lesson to be learned from this matter is that – with Notices to Leave and notices generally – one must be very careful of the ramifications if the time for compliance falls on a weekend, public holiday, or other Excluded Day.

For advice in relation to property and commercial matters, contact our property lawyers, Peter Muller at peterm@qbmlaw.com.au Jessica Murray at jessicam@qbmlaw.com.au or Megan Sarroff at Megans@qbmlaw.com.au