1. This case involves the validity of a notice to vacate served by Natasha Dimov (the Landlord) on Suzana Cagorski (the Tenant).
2. In May 2015, the Tenant entered into a tenancy agreement with the Landlord with respect to premises located in Werribee (the Tenancy Agreement).
3. The Landlord manages the premises herself.
4. In January 2017 the Tenant engaged Western Community Legal Centre (WestJustice) to act on her behalf in relation to a notice to vacate given to her by the landlord. At the hearing of that matter on 25 January 2017, the Landlord appeared on her own behalf and a solicitor from WestJustice appeared on behalf of the Tenant. At the conclusion of this hearing, during discussions about the tenancy and the Premises, the Landlord and the solicitor from WestJustice exchanged email addresses.
5. Subsequent to this hearing, WestJustice sent an email to the Landlord serving a Notice to Repair on behalf of the Tenant.
6. Subsequent to this correspondence, the Landlord engaged solicitors to act on her behalf.
7. On 3 March 2017, the solicitors for the Landlord sent a notice to vacate to the Tenant in reliance on section 246 of the Residential Tenancies Act 1997 (Vic) (the Act) (NTV) on the grounds that the Tenant's rent was more than 14 days in arrears. The NTV specified a termination date of 20 March 2017, being the date by which the Tenant must vacate the premises. The NTV was sent by registered post on 3 March 2017 and by email from the solicitors for the Landlord to WestJustice. The email was sent at 10.53pm on 3 March 2017.
8. I heard this matter on 17 May 2017. After hearing arguments from each party's legal representatives, I directed that written submissions be filed with respect to each party's position regarding whether the NTV had been validly served. On 31 May 2017, the Tribunal reserved its decision.
9. The Tenant says she did not receive the NTV sent by registered post.
10. For determination by the Tribunal is whether the NTV served by registered post was a valid notice to vacate and whether the NTV sent to WestJustice by email was a valid notice to vacate under the Act.

1. The NTV was sent by registered post on Friday 3 March 2017. It gave a termination date of 20 March 2017.
2. Section 246 of the Residential Tenancies Act 1997 (Vic) (the RTA) requires that a notice to vacate given under this section must specify a termination date not less than 14 days after the date on which the notice is given.
3. Unless proven otherwise, service is deemed to occur at the time when the notice to vacate would be delivered in the ordinary course of the post,[1] which according to the Australia Post website is two business days.[2] The Australia Post website also informs the public that for standard registered post within metropolitan Melbourne, the standard delivery time is three business days.[3]
4. Therefore, in this case, the NTV sent by registered post is deemed to have been served on 8 March 2017.
5. When considering the time requirements in section 246 of the RTA, regard is to be had to section 44 of the Interpretation of Legislation Act 1984 (Vic) which provides (insofar as it is relevant):

(1) Where in an Act or subordinate instrument a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period.

(2) Where in an Act or subordinate instrument a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period.

(3) Where the time limited by an Act or subordinate instrument for the doing of any act or thing expires or falls on a day that is a holiday, the time so limited shall extend to, and the Act or thing may be done on, the day next following that is not a holiday.

1. As the date the NTV was deemed given by registered post was 8 March 2017, the first day of the 14 day notice period under the NTV to be counted is 9 March 2017. The Act requires that the termination date be not less than 14 days after the notice is given.
2. The Landlord in her submissions referred to the decision of Associate Justice Derham in Rowson v McClure [2013] VSC 140, and in particular his Honour's obiter statement at [21] "Indeed, s 246 quite plainly allows a notice to specify a period of 14 days as the termination date". The Landlord asserts that this statement means that the notice to vacate can state a termination date which is "only" 14 days from the termination date rather than 14 "clear" days and that this proposition should be followed by the Tribunal.
3. His Honour's statement is made as obiter dicta in this decision. His Honour was asked to consider whether a notice to vacate complied with section 319 of the Act and section 53 of the Interpretation of Legislation Act 1984 (Vic). The meaning of "not less than" in section 246 was not considered by his Honour in this matter nor was the manner of calculating the notice period for the termination date under section 246. Further, his Honour was not referred to section 44 of the Interpretation of Legislation Act 1984 (Vic) nor did his Honour consider the impact of this section on the notice requirements in section 246.
4. In this context, I am not bound by his Honour's statement and it is of no assistance when considered in the context of the issues before the Tribunal in this proceeding.
5. The Landlord also referred to the case of Djime v Le [2016] VSC 48 at paragraph 33. This case does not consider the meaning of "not less than 14 days". This paragraph simply states the facts that the summons the subject of the proceeding had been served on 23 October 2015 for a hearing listed for 5 November 2015. This was not an issue considered by the Court of Appeal in this case on appeal.
6. Further, the Landlord also referred to the decisions in Konidaris v Ford (Residential Tenancies) [2016] VCAT 1179 and Hassanali Investments v Buckley [2016] VCAT 1909 and submitted that these decisions were wrong in so far as they discuss the calculation of time under the RTA. For the reasons set out herein, I disagree.
7. In the context of the RTA, the use of the term "not less than" means that the notice must give "more than", therefore the termination date specified in the notice to vacate must be more than 14 days after the date on which the notice to vacate is given. This has often been described as "14 clear days".
8. Accordingly, the NTV was deemed given on 8 March 2017 so that 9 March 2017 is therefore day 1 of the 14 day period. The 14 day period ended on 22 March 2017. As s 246 says the tenant must be given not less than 14 days notice, the earliest termination date would therefore be 23 March 2017. As the NTV specified 20 March as the termination date it did not give the tenant not less than 14 days notice and is therefore invalid.

1. Also on 3 March 2017, the solicitors for the Landlord purported to give a notice to vacate under the RTA by sending a copy of the NTV by email to the solicitor at WestJustice. This email was sent at 10.53pm. The Landlord relies, in the alternative, upon this email as valid service of the NTV on 3 March 2017.

1. The Tenant submits that as she did not consent to receiving service of a notice to vacate by electronic means, the NTV sent by email by the landlord to the solicitor at WestJustice was not "given" to her in accordance with the RTA and is therefore invalid.
2. Further the Tenant submits that while she had instructed WestJustice to act on her behalf in relation to repair issues at the Premises, she had not instructed WestJustice to receive service of a notice to vacate under the RTA on her behalf.
3. Finally, the Tenant submits that even if there is inferred consent to receive the NTV by email sent to WestJustice, the email was sent at 10.53pm on a Friday evening, which is outside of normal business hours and therefore in reliance on section 141 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) it is deemed to have been given on the next business day, being Monday 6 March 2017.

1. The Landlord submits that the Tenant did consent to the receipt of the NTV by email by her conduct. The Landlord says that the consent of the Tenant can be inferred from the conduct of the Tenant and the conduct of her solicitor at WestJustice.
2. WestJustice is a community legal centre based in the Western suburbs of Melbourne. It provides free legal advice to residents of the western suburbs who require legal assistance.
3. The Tenant sought legal assistance from WestJustice with respect to issues which had arisen regarding her tenancy of the Premises. On about 13 January 2017, the Tenant signed an Authority to Act directed to WestJustice which was entitled "Authority to Act and Obtain Information". This document states that the Tenant "authorises the Western Community Legal Centre to act on [her] behalf" and "to request and receive personal information and documentation in relation to me" (Authority to Act).
4. A copy of the Authority to Act was given to the Landlord on 25 January 2017 and at this time, the Landlord and the solicitor from WestJustice exchanged email addresses.
5. In early February 2017, WestJustice on behalf of the Tenant sent to the Landlord a Notice for Repairs. This notice was sent by email by WestJustice to the email address the Landlord had provided to WestJustice.
6. The Landlord says the engagement of a solicitor, the Authority to Act and the correspondence by email between WestJustice and the Landlord was sufficient conduct from which it was reasonable for the Landlord to infer that the Tenant had given consent to receive service of a notice to vacate by email sent to WestJustice on her behalf.
7. The Landlord also relies on the provisions of the Electronic Transactions (Victoria) Act 2000 (Vic) (the ETA) in relation to when an email is deemed to have been delivered. The Landlord submits that pursuant to the terms of section 13A of the ETA the "email is deemed to have been received immediately it was sent. The tenant was therefore, electronically served on 3 March 2017."
8. The Landlord's submissions assert that electronic service occurred on 3 March 2017. This submission, while not directly addressing the issue, appears to assert that service is that business day irrespective of the time the electronic transmission is sent.
9. Alternatively, the Landlord says that on 6 March 2017 when the solicitor from WestJustice spoke to the Tenant about the email received enclosing a copy of the NTV, that discussion was sufficient to constitute "personal service" on the Tenant as the NTV, its existence and substance, was then brought to her attention. Accordingly, the Landlord says the NTV was given to the Tenant by personal service on 6 March 2017.

1. Section 506 of the RTA sets out the way a document or notice can be served between a landlord and tenant. Specifically, section 506(3) provides the manner in which a notice to vacate must be served. Relevantly, a notice to vacate can be given by "electronic communication" in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic) (the ETA). Section 506(3) states as follows-

(3) A notice to vacate given under Part 6 must be given -

(a) by delivering it personally to the tenant, resident or site tenant; or

(b) by sending the notice by registered post addressed to the tenant, resident or site tenant at the rented premises, room, site or Part 4A site; or

(ba) by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000; or

1. For a notice that must be in writing to be served by electronic communication under the ETA, the person who is to receive the notice must have consented to that notice being given by means of electronic communication.[4]
2. The NTV was a notice in writing, the sending of which by email complied with section 8(2)(a) of the ETA.
3. In addition, in order for a party to serve a document in accordance with the ETA, the party on whom the document is served must have consented to receiving the notice to vacate by email.
4. Consent is defined in the ETA as including:

consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with[5];

1. It is the consent of the Tenant which the Landlord must establish was either expressly given or can be reasonably inferred from the conduct of the Tenant.
2. Finally, the date of service of the NTV by email must also be considered as the email serving the NTV was sent at 10.53pm on 3 March 2017, which happened to be a Friday night.
3. In this regard, the Tenant has submitted that section 141(2) of the VCAT Act is relevant. Section 141(2) states:

If a facsimile or other electronic transmission is received after 4.00 p.m. on any day, it must be taken to have been received on the next business day.

DID THE TENANT CONSENT TO SERVICE OF THE NTV BY EMAIL?

1. In order for the Landlord to be entitled to give the NTV by email to the Tenant, the Landlord must show that the Tenant has consented to receiving that particular type of information (or notice) by electronic transmission.
2. The Tenant's consent may either be given expressly, or in the absence of express consent, there may be inferred consent from the conduct of the Tenant.
3. If there is no consent from the Tenant, inferred or express, then the NTV cannot be served electronically and such service is ineffective.
4. There is no evidence of any express consent from the Tenant. Therefore, the Landlord must rely on the conduct of the Tenant to show that it is reasonable to infer the Tenant's consent to receiving the NTV by email.
5. There are three actions of the Tenant's conduct that the Landlord submits gives rise to an inference that the Tenant consented to receive the NTV by email.
6. Firstly, that the Tenant engaged solicitors to act on her behalf with respect to the tenancy since January 2017 and that it is usual for solicitors to correspond by email.
7. Secondly, the Landlord relies on the email correspondence passing between the Landlord's solicitors and the Western Community Legal Centre, acting on behalf of the Tenant with respect to the repairs issues at the premises.
8. This correspondence between the solicitors for the Landlord and Western Community Legal Centre was with respect to repairs the Tenant said were required to be undertaken at the rented premises.
9. There is no evidence that there was any correspondence between the Landlord's solicitors and the Western Community Legal Centre regarding any arrears of rent owed by the Tenant.
10. Thirdly, the Landlord relies on the signed Authority to Act, a copy of which was provided to the Landlord by the WestJustice when contact was first made regarding the repairs issues. The Authority to Act specified that the solicitors were authorised to gather information about the Tenant. It did not state that WestJustice was authorised to act on behalf of the tenant with respect to all matters arising out of the tenancy.
11. The terms of the Authority to Act give WestJustice authority to receive personal information and documentation about the Tenant. The NTV is not information or documentation about the Tenant. It is a notice which is specifically required to be served on the Tenant.
12. More particularly, the Authority to Act does not disclose any instructions the Tenant has given to the WestJustice to accept service of any document on behalf of the Tenant. It is usual practice that a solicitor will take specific instructions from a client related to accepting service of any official document.
13. In any event, it is not usual practice for a legal practitioner to assume that a lawyer with whom they've been corresponding about one issue is necessarily instructed to act for their client in another matter, irrespective of whether it arises out of the same relationship.
14. There is no evidence that the Landlord or her solicitors ever raised the issue of service of a notice to vacate or arrears of rent with WestJustice on behalf of the Tenant. In the absence of any reference by the Landlord or her solicitors in their correspondence with WestJustice that the Tenant was in arrears of rent, it is not reasonable to assume that WestJustice was aware of the issue or that they were instructed to act on behalf of the Tenant in relation to those matters, nor is it reasonable to assume that they had instructions that they could accept service on behalf of the Tenant.
15. The ETA requires that the recipient of the information given by electronic means consent to that actual information being given by that means. It does refer to a general overarching consent as being sufficient unless agreed between the parties.[6]
16. Further, pursuant to section 13A of the ETA, the time of receipt of the electronic communication is when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. In this case, there is no electronic address designated by the addressee (the Tenant).
17. In these circumstances it is not reasonable to infer that the Tenant had consented to receipt of the NTV by email whether sent to her solicitors or to her.
18. Finally, the email providing a copy of the NTV to the Western Community Legal Centre was sent at 10.53pm on a Friday evening. As noted above, section 13A of the ETA states that the time of receipt is when the electronic communication becomes capable of being retrieved.
19. While section 141(2) of the VCAT Act provides that if an application or notice under the VCAT Act is served after 4pm it is deemed to have been served on the next business day, the NTV is not a notice under the VCAT Act; it is a notice under the RTA.
20. His Honour, Justice Vickery in Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd. & Anor [2009] VSC 156 considered what "received" meant in the context of section 13A of the ETA and the filing of an application for adjudication. His Honour stated at [126]

Although there is no direct evidence of this, from general experience I accept that shortly after each email was received by the server computer, it sent an electronic notification to a computer operated by Adjudicate Today, indicating that the emails had been received. The managing director of Adjudicate Today, Lorraine Djuricin, having access the company's email mailbox on the computer she used, was then in a position to discover the notification which had been sent by the server in each case, open the relevant email, and thereby gain access to and read what was stored in electronic form on the server, including the text of the email and any attached documents which had been sent with the email. Until at least these steps had been taken by Ms Djuricin, it could not be said that the email in each case and its attachments had been "received" at the place of business of Adjudicate Today and, in my opinion, the emailed documents in each case remained merely accessible to the intended recipient.

1. Applying this principle to the current situation, while the email sent at 10.53pm on Friday evening was accessible, it was not until the solicitor at WestJustice opened the relevant email on Monday 6 March 2017 and thereby gained access to and read what was stored in electronic form on the server that the email was received.
2. I have set out earlier in these reasons, the method for calculating time under the RTA and the legal reasons for doing so. I now apply those principles to this aspect of the Landlord's claim.
3. The NTV was given on 6 March 2017. Therefore the first day of the 14 day notice period was 7 March 2017, with 20 March 2017 being the fourteenth day. As the termination date must be at least 14 days after the date the NTV was given, such that there is fourteen full or whole days, the earliest available termination date would have been 21 March 2017. As the NTV provided for a termination date earlier than 21 March 2017, an insufficient notice period has been provided and the NTV is therefore invalid.
4. The landlord's final submission was that by sending the NTV by email to WestJustice, who then discussed the NTV with the tenant on Monday 6 March 2017, that was sufficient to constitute personal service within the terms of section 506 of the RTA as the NTV had been brought to the attention of the tenant.
5. Section 506 of the RTA is clear as to the manner in which a notice to vacate may be given to a tenant. It sets out in subsection 506(3) the ways service can be effected on a tenant. There is no provision in section 506 which allows a notice to be given to a third party to pass on to the tenant to constitute service. Service of a notice to vacate which is not in accordance with section 506, is not valid service. Accordingly this submission must fail and provision of the NTV by email to solicitors who then discussed the NTV with the tenant is not valid service of the NTV by the landlord.

1. The NTV whether given by registered post or by email is not valid as it did not specify a termination date in either case that was at least 14 days after the date the NTV was given to the Tenant.
2. As the NTV is invalid it cannot form the basis of an application for possession and as such the application must be struck out.

[1] Section 49(2)(b) of the Interpretation of Legislation Act 1984 (Vic)

[2] Gholinezhad v YWCA Housing (Residential Tenancies) [2017] VCAT 996 at [14]- [15]

[4] Section 8 of the Electronic Transactions Act (Victoria) 2000 (Vic)

[5] Section 3 of the Electronic Transactions Act (Victoria) 2000 (Vic)

[6] Section 3 of the Electronic Transactions Act (Victoria) 2000 (Vic)