1. The landlord is entitled to a possession order.
2. The tenant must vacate the rented premises by 10 December 2016.
3. The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made on or after 10 December 2016 and before 10 May 2017).

Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

1. The landlord, Hassanali Investments Pty Ltd, and the tenants, Kelly Buckley and Warren Kendall, are parties to a residential tenancy agreement. 2. The landlord served a notice to vacate under section 263 of the Residential Tenancies Act 1997 (the Act) stating that the landlord was giving the tenants at least 120 days' notice to vacate without specifying a reason.

1. The notice to vacate was sent by registered post on 3 June 2016.

1. The notice to vacate required the tenants to vacate on 8 October 2016. 2. The notice to vacate was generated using the VCAT online system which allocates a termination date.

1. At the hearing, the tenants' advocate indicated that the sole issue to be determined was whether the landlord had allowed sufficient time between posting the notice to vacate and the termination date on that notice. The parties otherwise agreed that if the notice to vacate was found to be valid the possession order should allow the tenants the maximum time possible under the relevant legislation to relocate.

1. The representative of the tenants, Ms Currie, challenged the notice to vacate on the ground that the landlord had allowed insufficient time between the posting of the notice and the termination date on the notice. Ms Currie stated that VCAT's website required 128 days' notice to be given, and she submitted this 128 day period should not include the date the notice was sent.
2. Ms Currie contended that an additional day would be required for the particular notice to vacate in the present matter to comply with the provisions of the Act, as the 128 day period from the date the notice was sent to the termination date on the notice included the day the notice was sent.

1. According to subsection 322(2) of the Act, a landlord may apply to the Tribunal for a possession order in relation to rented premises if the landlord has given the tenant a notice to vacate under section 263 and the tenant has not delivered up vacant possession.
2. Section 330 of the Act states that the Tribunal must make a possession order requiring the tenant to vacate the rented premises if the Tribunal is satisfied, in the case where a notice has been given, that the landlord was entitled to give the notice and the tenant is still in possession of the rented premises.
3. The Act allows a landlord to give a notice to vacate to a tenant without specifying a reason. Subsection 263(2) of the Act provides that the notice must specify a termination date that is not less than 120 days after the date on which the notice is given.
4. A notice to vacate under the Act must be given in the manner prescribed by subsection 506(3) which includes sending the notice by registered post addressed to the tenant.
5. The Interpretation of Legislation Act 1984 provides at subsection 49(2):

49(2) Where an Act or subordinate instrument authorizes or requires a document to be served by registered post or by certified mail (whether the expression "serve" or the expression "give", "send" or "deliver" or any other expression is used), the service shall -

(a) unless the contrary intention appears, be deemed to be effected by properly addressing, preparing and posting the document as a letter either by the registered post or through the certified mail service to the person on whom it is to be served; and

(b) unless the contrary is proved, be deemed to have been effected at the time at which the letter would ordinarily be delivered by registered post or through the certified mail service, as the case requires.

1. For the purposes of calculating time, section 44 of the Interpretation of Legislation Act 1984 provides:

(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. For the purposes of determining when a document may be deemed to have been given, the Tribunal referred to the Australia Post website for standard delivery times. The longest time for a regular letter or registered post letter to be delivered from two points within the same state is four business days. The day of sending the item is not included in these days.
2. The minimum number of days recommended on the VCAT website to be allowed for 120 day notices to vacate sent by registered post to be delivered if sent on a Friday is 128. This period allows for the day that the notice is sent, the maximum number of business days during which the notice would ordinarily be delivered by Australia Post within the state (4), the 120 clear days' notice and the termination date of the notice.
3. In this matter the notice to vacate was sent on 3 June 2016 - a Friday.
4. Applying the requirements of the Act, the Interpretation of Legislation Act 1984 and the information on the VCAT website to this notice results in the following -

1. Day 1 1 day is allowed for the sending of the notice (Friday 3 June 2016)
2. Days 2-3 + 2 days are allowed for the weekend which is not counted for the purposes of the post (Saturday and Sunday 4-5 June 2016)

1. Days 4-7 + 4 business days allowed for post - the tenant is deemed to have received the notice on the fourth business day in accordance with section 49 of the Interpretation of Legislation Act 1984 (Monday to Thursday 6-9 June 2016)

1. Days 8-127 + 120 clear days' notice to vacate (Friday 10 June to 7 October 2016 inclusive)
2. Day 128 is the earliest termination date (8 October 2016).

1. The earliest termination date for a 120 day notice to vacate sent on 3 June 2016 was 8 October 2016. The termination date on the notice to vacate in these proceedings was 8 October 2016.
2. The tenants did not give any evidence to rebut the presumption that the notice was given at any time other than that on which it was deemed to be given.
3. The Tribunal finds that the notice to vacate is not invalid for the reason proposed by Ms Currie, namely that it provided insufficient time from the date the notice was given to the termination date on the notice.
4. As the notice to vacate in this matter was valid the Tribunal must make a possession order requiring the tenants to vacate the rented premises in accordance with section 330 of the Act.
5. Section 333 of the Act prescribes the content of a possession order and includes a requirement that the possession order must include the day by which the tenant is required to vacate the rented premises. This date cannot be more than 30 days after the day on which the possession order is made. Further, section 352 of the Act provides that the Tribunal may provide in a possession order that the issue of a warrant of possession be postponed for a period specified in the order, of not more than 30 days. Such an order can be made if the Tribunal is satisfied that the tenant would suffer hardship unless the issue of the warrant were postponed and the hardship of the tenant would be greater than any hardship the landlord may suffer as a result of the postponement.
6. The parties agreed that in this case the tenants would suffer hardship unless the termination date was extended to the maximum time frame allowable and the issue of the warrant was similarly postponed for the maximum period. There was no evidence of any hardship on the part of the landlord.
7. Accordingly, the Tribunal decided to make the order set out at the commencement of this document.