Bedwell v Wantirna Park Estate Pty Ltd (Residential Tenancies) [2018] VCAT 34 (12 January 2018)

1. The site tenant's submission is that the first notice was not given to the tenant by delivering it personally to him as the site tenant. Rather, the notice to vacate was delivered personally to a letter box and therefore the giving of the first notice does not comply with the requirements of section 506(3)(a).
2. Section 506(3) is a mandatory provision and sets out the ways that a notice to vacate must be given. The requirements in paragraph (3) differ from other types of notices dealt with in section 506(1) that may be 'served or given' under the Act.
3. The reason for this difference is the importance of a notice to vacate - and the need for certainty that the notice has been given or received. The following remarks by Member Thomas in Smith v Christodoulou [2015] VCAT 807 were cited by the site tenant in support of this.

1. Two other decisions of the Tribunal which considered the requirement of 506(3)(a) were provided in support of the site tenant's argument. The first authority is the decision of Senior Member Warren (then Member) in Choi v Gardner [2017] VCAT 492. In that matter the notice was placed under the door of the room in the rooming house occupied by the resident Mr Gardner. Senior Member Warren stated (his emphasis) that -

1. In Ellerton Lodge Pty Ltd v Cannard [2006] VCAT 1425, Member Kefford found that the act of placing a notice to vacate in a letter box of a caravan park resident was not personal service under the Act. She wrote -

1. The owner's submission is that section 506(3)(a) requires the notice to be served by 'personal service' which does not mean that the notice must be handed personally to the site tenant. 'Personal service' means and includes any method whereby the notice actually comes to the attention of the site tenant. The owner contends that service was effected when the notice to vacate came to the attention of the site tenant. This occurred when the site tenant retrieved the notice from his letter box. This is the effect of the 'effective informal service rule'.
2. In support of the proposition that the notice was given to the site tenant by operation of the effective informal service rule , the owner referred firstly to the comments of Young J in Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542. The paragraphs quoted are -

1. The owner claims that this position has been considered good law over the centuries, and was cited in Hope v Hope [1854] EngR 468; (1854) 43 ER 534 at 539-540_, R v Heron;Ex parte Mulder_ (1884) 10 VLR 314 at 351 and Pino v Prosser [1967] VicRp 107; [1967] VR 835 at 838.
2. In Pino a writ was required to be personally served. It was left with the defendant's wife. Evidence was given and accepted that the writ was given to the defendant on the same day. Mc Inerny, J said at page 839 -

1. Additional authorities in support of this interpretation produced for my consideration are, in particular Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd & Ors [2010] VSC199 and Woodgate v Garrard Pty Ltd [2010] NSWSC 508.
2. These are significant decisions however none consider the application of the rule to a provision equivalent in word or tone to section 506(3). Consideration in each case was of was of service provisions which were facultative and not mandatory.

1. The decision of the Tribunal in Dimov v Cagorski [2017] VCAT 1055 was submitted by the applicant as relevant authority. In that decisions Member Nash considered whether consent could be inferred from the conduct of the tenant. Her decision relied on a notice to vacate which was sent to the tenant's lawyer, and not the tenant. It is suggested by the site tenant that Member Nash interpreted the ETA as requiring the recipient of the information to be given by electronic means to consent to the actual information being given by that means.[12] Member Nash found that if there is no consent from the tenant, either express or implied, then the service is ineffective.[13]
2. Consequently the site tenant submits that to be effective service the site tenant requires the owner to show that the tenant consented to receiving documents by electronic communication and also to receiving that particular type of communication by electronic transmission.
3. The site tenant provided the owner with an email address around August 2016, but there is no evidence to support a finding that he gave consent to his email address being used for formal communications under the Act.
4. The document on which he provided his email address indicates that the contact details were being requested because the site owners were updating their records. The document sets out that an email address is mandatory and is required to be provided.
5. When the form was provided to the tenant, it was not reasonable to contemplate that a notice to vacate could be given by electronic means, as the provisions of the Act that allow the option for electronic service did not commence until 30 September 2016.
6. There is no conduct from which it can be inferred that the site tenant consented to receiving the notice by email because -

(1996) 41 NSWLR 542