//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] TASMC 4
defendant. The application was dismissed.
The owner put a Notice to Vacate in the tenant's letter box, but the tenant said she never received it. The magistrate accepted both witnesses' evidence. In the court's view, the tenancy legislation made receipt of a complete notice at the relevant time important, so the owner could not rely on the general service provision to treat a notice known not to have reached the tenant as served. The owner also had not proved that the copy placed in the letter box stated the required service date. The application was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,221 words · generated 02/10/2026
In Jackson v Gearman [2009] TASMC 4, Magistrate S F Mollard considered whether a Notice to Vacate had been served on a residential tenant. The dispute was before the Magistrates Court of Tasmania (Civil Division) on an owner's application for delivery of vacant possession. The central issue was service, as the magistrate stated at the outset: “The issue in this case is about service of the Notice to Vacate” ([1]).
3 cited instruments linked from this judgment.
The Residential Tenancy Act 1997 (Tas) required a Notice to Vacate to state six items: the date of service, the tenant's name, the owner's name, the premises, details of the reason for the notice, and the date it takes effect ([2]). The magistrate highlighted the service date and the information about the reason and effective date. Those details mattered, the reasons explained, because they helped a tenant know how much to pay and when payment was due, referring to s 43(2) ([3]).
The owner, Ms Jackson, put a copy of the notice in the premises' letter box at 5.15 pm on 18 June 2009. She had not attempted to hand it to Ms Gearman, but the notice said it had been served personally. The magistrate understood “served personally” to mean that the document is given to the person, or similarly ([5]–[6]).
Ms Gearman said she had not received the notice. She said she and her son had checked the letter box at about 3.30 pm, that no one else emptied it, and that the box sometimes came open, allowing contents to fall out or blow away ([7]). The magistrate said, “I believe the evidence given by both witnesses” ([8]). The finding therefore accepted both that Ms Jackson put the notice in the letter box and that Ms Gearman did not receive it.
There was a second evidentiary problem. The court had no copy of the document actually placed in the box. The copy attached to the application showed a typed date and time of service, but the court considered that this information might have been added later. It concluded that the applicant had not proved whether the delivered copy contained all information required by s 44(1)(a), and said that this defect alone would invalidate the notice ([9]–[10]).
The court nevertheless addressed the service issue because it had been the focus of the hearing. It concluded that the notice had never been served and dismissed the application ([11], [28]).
The Residential Tenancy Act did not specify a method for serving Notices to Vacate. The magistrate also considered that the Magistrates Court (Civil Division) Rules did not assist: when the notice was served, no application or court proceedings had yet begun ([11]).
Ms Jackson relied on s 29AB of the Acts Interpretation Act 1931 (Tas). For a natural person, that provision allowed a notice to be given personally, left at certain last-known addresses, or sent by post to such an address. Subsection (2)(a) preserved the operation of any other law that authorised or required a different method ([12], [20]). The court recognised that putting the document in the letter box corresponded to the “leaving it at” option in s 29AB(1)(a)(ii) ([12]).
The difficulty was that the tenant had not received the notice. The court considered the nature of a Notice to Vacate and the practical importance of its information. A notice could affect the tenancy and the tenant's ability to understand payment obligations and timing. The magistrate was concerned that tenants might be away for days or weeks and return after proceedings had begun or progressed, potentially affecting their ability to use rights referred to in s 43(2) ([14]).
The court also examined s 30 of the Acts Interpretation Act, which concerned service by post. It provided that posting a properly addressed and prepaid document would be deemed effective at the time it would ordinarily be delivered, “unless the contrary is proved” ([20]). The magistrate noted that these words appeared in s 30, but that s 30 applied to postal service. Leaving a document at an address and sending it by post were distinct options under s 29AB, even though they appeared in the same subsection ([21]). The court did not extend the postal deeming provision to the letter-box method.
The magistrate's conclusion rested on the contrary-intention analysis. The court considered that the requirements of the Residential Tenancy Act showed that actual receipt was particularly important: the notice had to include specified information, and it needed to reach the tenant on or about its issue date ([24]). It therefore held that, where the owner knew at the hearing the tenant had not actually been served, s 29AB could not be used to have the court treat the notice as served ([26]).
The decision does not say that personal service is mandatory in every case. The magistrate expressly cautioned against reading it that way. The reasons said s 29AB remained available as a facilitative provision, while recognising that an owner who used it accepted a risk if the document was not actually received ([25]–[27]). The application failed on the facts found, and the court also identified the independent problem that the required service-date information had not been proved.
The judgment describes the statutory position before its interpretation. The Residential Tenancy Act specified what a Notice to Vacate had to say but did not prescribe how the notice was to be served ([2], [11]). The general provision in s 29AB supplied possible service methods where an Act authorised, required or permitted service without directing a particular method. Its subsection (2)(a) preserved any other law that provided for a different method ([20]).
The judgment's contribution was to apply that framework to this specific setting: a Notice to Vacate left in a letter box, where evidence accepted by the court established that the tenant had not received it. The court treated the requirements and purpose of the tenancy notice as showing a contrary intention to deeming that notice served in those circumstances ([24], [26]). It also distinguished the statutory postal presumption in s 30 from leaving a document at an address ([21]).
The judgment should not be read more broadly than its stated reasoning. It did not rule out all service under s 29AB, and it did not hold that every Notice to Vacate required personal service. It expressly left open the use of s 29AB as a facilitative provision, subject to the risk that non-receipt could mean the owner had to serve a new notice ([25], [27]).
Nor does the decision establish from the supplied text a general rule for every document or every statutory service scheme. Its reasoning is directed to the requirements of the Residential Tenancy Act and the known non-receipt of this notice. The result also rested on a separate evidentiary deficiency: the applicant could not establish the contents of the copy placed in the letter box ([9]–[10]).
At [3], the magistrate said the information in the notice was vital because it enabled a tenant to know “how much they have to pay, and when they have to pay by.” In plain English, the required details were not treated as formalities without practical purpose. The court connected them to a tenant's ability to understand what was being required and by when.
At [9], the court noted there was no copy of the copy placed in the letter box. The document attached to the application had a typed service date and time, but the magistrate suspected those details had been added later. In plain English, a copy showing the required information at the hearing did not prove that the version delivered to the tenant contained it.
At [10], the magistrate said the evidentiary defect “would alone invalidate the Notice”. This was a considered view about the missing proof of a required element. The court then addressed service separately, rather than resting the decision only on the missing copy ([11]).
At [24], the court identified three features supporting its conclusion: what the notice had to contain, the importance of receipt, and the importance of receipt on or about the date of issue. In plain English, the court read the general service provision alongside the specific function and timing of a Notice to Vacate.
At [25], the court warned that it was not concluding that notices must always be personally served. This qualification is important. The decision concerned a notice known not to have reached the tenant, not a universal prohibition on other statutory service methods.
At [26], the court stated its operative conclusion: where the tenant had not been actually served and that was known at the hearing, the owner could not rely on s 29AB to have the notice treated as served when it was not. In plain English, the general statutory method did not cure proven non-receipt in this case.
At [28], the court concluded that the notice “was never served” and dismissed the application. That is the formal outcome, following both the service analysis and the evidentiary concern about the content of the copy.
The facts most closely matching the judgment are a residential tenancy dispute involving a Notice to Vacate; no specific service method prescribed by the tenancy legislation; an owner relying on a general statutory power to leave a notice at a last-known address; and evidence accepted by the court that the tenant did not actually receive the notice. Those were the circumstances in which the magistrate declined to treat the notice as served under s 29AB ([11]–[12], [24], [26]).
The case also highlights the importance of proving what was actually served. Here, the applicant could not produce the copy placed in the letter box, and the copy on the application had a typed date and time that might have been inserted later ([9]). The court considered the absent proof of the required service-date information sufficient, by itself, to invalidate the notice ([10]).
The reasons distinguish this scenario from a case where the tenant actually receives the notice or where service is by post. The judgment discusses s 30's presumption for post but does not apply it to the letter-box method ([20]–[21]). It also says that personal service is not required in every case ([25]). The decision therefore does not resolve all possible service disputes, including circumstances with different evidence of receipt, different notice contents, or another statutory service provision.
The supplied judgment does not identify any later court decision applying, distinguishing, affirming, reversing or otherwise treating Jackson v Gearman. Its stated last-updated date is 27 November 2012, but the text provides no subsequent case history. A reliable account of later treatment cannot be drawn from this judgment alone.
The authorities discussed in the reasons are not later treatment of Jackson. They were materials considered by Magistrate Mollard in reaching the 2009 decision. These include Fancourt v Mercantile Credits Ltd [1983] HCA 25, A/S Catherineholm v Norequipment Trading Ltd [1972] 2 QB 314, Battiste v Mulvaney (unreported), and R v Resource Planning and Development Commission [2000] TASSC 11 ([16]–[18], [23], [27]).
The judgment also refers to South Australian Magistrates Court rules and commentary, including a rule allowing certain forms of service and a restriction on relying on apparently ineffective service ([15]). These materials informed the magistrate's discussion, but the decision does not state that those South Australian rules governed the Tasmanian application.
Accordingly, the source supports describing the reasoning and disposition of this Magistrates Court decision, but not making a claim about its later judicial reception or present status as precedent.
The judgment leaves several matters unresolved on its own terms. First, it does not define the full circumstances in which s 29AB may validly be used for a Notice to Vacate. It says the provision remains available, but does not set out a complete test for when service by leaving a notice at an address will be effective if the tenant later receives it ([25]).
Second, the decision does not determine how the same reasoning would apply where the evidence of receipt is disputed, where the document is sent by post, or where a different method of service is expressly set out in legislation. Its discussion of s 30 is confined to postal service and the contrast with leaving a document at an address ([20]–[21]).
Third, although the court emphasised the importance of the notice reaching the tenant “on or about” its issue date, it did not specify a precise period for that timing requirement ([24]). Nor does it resolve how a court should treat a notice that arrives late but before any application is heard.
Finally, the independent issue about the contents of the notice turned on the absence of the copy placed in the letter box. The reasons do not decide what evidence would be sufficient in another case to prove that a copy served included every item required by s 44. They do, however, make clear that the missing service copy mattered here and that the court considered the resulting proof gap independently significant ([9]–[10]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
1. The issue in this case is about service of the Notice to Vacate.
2. A Notice to Vacate is a document which is required to include necessary information for a tenant to know, when an owner wishes to resume possession of tenanted premises. The required information is set out in s44 of the Residential Tenancy Act 1997. I set out the section:
(a) the date of serving the notice;
(b) the name of the tenant;
(c) the name of the owner;
(d) the residential premises to which the notice relates;
(e) details of the reason for which the notice is served;
(f) the date on which the notice takes effect."
3. The first of the required pieces information is the date of serving the Notice. This is the requirement that these reasons will tend to focus upon, but it is worth emphasising two of the others - details of the reason for which the Notice is served, and the date upon which the Notice takes effect. The reason why these pieces of information are vital, is to enable a tenant to know how much they have to pay, and when they have to pay by (see the rights created in s43(2)).
4. In a typical case, and fortunately this is the situation in the high majority of such cases, the Notice is served personally, and the server writes the date of service into the document, either at, or immediately before the moment of service. But in other cases, and the present matter is an example, service is attempted by other means. These include postal service, attaching a copy to a door or putting it under a door, or placing it in a letter box. In those cases, the server or attempting server has no idea when actual service will occur, or even, if it will occur. Therefore, unless some statutory provision aids the server to know what to insert as the date of service, that person has no idea what to insert in the document.
5. In our present case, the server was Ms Wright, the owner. She put the Notice in the letter box at the premises. She had not attempted to serve the document personally, but she asserted in the Notice that she had served it personally. I do not think that she was being dishonest or misleading about this, but rather, she appears to have thought that this meant that she had done it herself. The expression "served personally", of course, means that it is given into the person's hand, or similar.
6. I decided that there was a need for both parties to have the opportunity to have the benefit of giving sworn evidence on this issue. Ms Jackson gave evidence that at 5.15pm on 18 June 2009, she placed a copy of the Notice in the letter box at the premises. She did not attempt to serve the Notice by giving it Ms Gearman, and could not assert that Ms Gearman was not at home. She had not subsequently checked whether or not the envelope containing the Notice, had been removed from the letter box. There is no evidence about whether or not the envelope was marked with Ms Gearman's name, or with any other details.
7. Ms Gearman gave evidence that she had not ever received the Notice. She gave detailed evidence that on that evening she was at home. She, with her son's help, had collected the mail from the letter box, or at least checked the letter box for mail, at about 3.30pm that day. She said that no one else ever emptied the letter box, but that it sometimes comes open and its contents have been know to fall out, and even to blow away.
8. I believe the evidence given by both witnesses.
9. There is, of course, no copy of the copy which was placed in the box. As a result, there is no evidence about whether all the required s44(1)(a) information was on the Notice. It is to be noted that the copy in evidence, which is the copy attached to the Application, has the date and time of service typed in. One suspects that this information was added later, as it is very highly unlikely that Ms Jackson had a typewriter, or printer and PC with her at the time, and if she had inserted this information in advance, she would not be likely to have known what time the event would occur.
10. This defect in the evidence, and it is for Ms Jackson to prove, would alone invalidate the Notice, in my opinion.
11. However the hearing focussed on whether the mode of service was sufficient, and I will therefore address this issue. There is no provision in the Residential Tenancy Act dealing with how Notices to Vacate may be served. Although the Act provides that the court to which an owner may apply for an order for delivery of vacant possession is a court exercising its civil jurisdiction pursuant to the Magistrates Court (Civil Division) Act 1992 (see ss3 and 45 of the Act), at the stage where a Notice is served, there is no such application and no such proceedings. The Magistrates Court (Civil Division) Rules therefore have no application to assist in the determination of the issue before the court.
12. Ms Jackson referred me to s29AB of the Acts Interpretation Act 1931, which I will set out a little later in these reasons. She submitted, correctly in my view, that she had used the method referred to as the first option in subsection (1)(a)(ii). For convenience, I refer now to subsection (2)(a) which provides, inter alia, that subsection (1) does not affect any other law which requires service by some other method (my paraphrasing).
13. There are well-known problems with service by post, for instance, that articles of mail are often not delivered when one might expect, and less often, articles are not delivered at all. Placing an item in a letter box is, no doubt, more reliable, but it is a method considerably less reliable than personal service, or even than service by affixing the article to a door or putting it beneath a door.
14. Absent any authority on the subject, in my opinion there are good reasons to conclude that personal, or at least actual service is required in this situation. A Notice to Vacate is a document which concludes tenancy agreements. It is required to contain, as I have observed already, vital information. Tenants may leave the premises for days or weeks, only to return to find that proceedings have commenced, or even concluded in their absence, or that proceedings have gone too far for them to avail themselves of rights like those contained in s43(2).
15. In the course of my research, I examined the situation in South Australia. The Magistrates Court (Civil Rules) 1992 (SA) rule 47 provides for various service methods including the method used by Ms Jackson. In addition, it provides that a person must not rely upon apparently ineffective service.
16. There is valuable commentary to be found about this in Cannon & Kleinig, Magistrates Court Practice, South Australia, at paragraph 3.2755. I refer to paragraph 3.2770. It appears that His Honour Doyle CJ, found that the summary judgment was not irregular because service appeared to have been in order when the judgment was granted. I set out what His Honour is reported to have said in Battiste v Mulvaney (unreported)
"I begin by making the point that Rules of Court usually provide that certain types of application may be served by post. There are reasons of efficiency and convenience for so providing. There is an obvious risk that in some cases documents will not be received by the intended recipient. The justification for the acceptance of that risk is the obvious convenience of service by post, and the fact that in most cases the document will reach the intended recipient: see Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 96. There is nothing unusual in this respect about the Magistrates Court (Civil) Rules, and nothing unusual about the fact that when service is effected by sending a document by pre-paid post, there is a risk the document will not be received by the intended recipient."
17. The learned authors refer in the same paragraph to Doyle CJ's reference to the case of A/S Catherineholm v Norequipment Trading Ltd [1972] 2 QB 314. In that case, Lord Denning said at page 322:
"... when the plaintiff sends a copy of the writ by prepaid post to the registered office of the company, and it is not returned - and he has no intimation that it has not been delivered - it is deemed to have been served on the company - and to have been served on the day on which it would ordinarily be delivered."
18. The decisions mentioned are decisions based on legislation or rules which appear to be the equivalent of s30 Acts Interpretation Act (Tas).
19. The question before me concerns s29AB. This section has no provision for the situation in the present case; that there is proof to the contrary, proof that the Notice was not served.
20. I will set out the relevant parts of those sections now:
"29AB Service of notices and other documents -
(1) If an Act authorises, requires or permits a notice or other document to be served on a person, whether the expression "serve", "deliver", "give" or "send" or any other expression is used, without directing it to be served in a particular manner, the notice or document may be served -
(ii) by leaving it at, or sending it by post to, the person's residential or postal address or place or address of business or employment which ever is last known to the server of the notice or other document; or
(a) affects the operation of any other law that authorises or requires the service of a notice or document otherwise than as provided by that subsection; or
(b) ... omitted"
And
"30 Effecting service by post -
Where any Act, including this Act, authorises or requires any notice or other document to be given, sent, served, or delivered by post, such giving, sending, serving, or delivery shall be deemed to be effected by properly addressing, prepaying, and posting the document as a letter, and, unless the contrary is proved, shall be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post.
When an Act authorises or requires any notice or other document to be given, sent, served, or delivered by registered post, the giving, sending, serving, or delivery thereof shall be deemed to be effected by properly addressing, prepaying, and posting the notice or document as a letter -
(a) duly registered; or
(b) unless the contrary information appears in the Act, sent by means of the certified mail service -
as provided by the postal regulations as in force for the time being, and, unless the contrary is proved, shall be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post.
21. The words "unless the contrary is proved" appear only in s30. Paradoxically, if s29AB was relied on here for postal service, ("... or sending it by post to the person's residential or postal address ..."), and there was proof the Notice was not served, these provisions of s30 would apply to protect the tenant. However s30(1) clearly applies only to postal service, even though "leaving it at, or sending it by post to", both arise under the same part of s29AB.
22. Why this should be is not explained in the Attorney General's second reading speech.
23. So, I conclude that it comes down to whether the contrary may be inferred. A similar approach may be seen in the oral decision of Evans J in R v Resource Planning and Development Commission (2000) TASSC 11:
"To prove service of a general order to show cause on the persons affected, as directed by that order, the prosecutor relies on service by mail and says that this is authorised by the Acts Interpretation Act 1931, s29AB. The orders made as to service do not specify the manner of service. The Rules of Court, pursuant to which those orders were made also do not specify the manner of effecting service. Insofar as what is required to be served is an order to show cause which, for the purposes of the persons served, is the originating document in proceedings, the result of which they will be bound by, I would have expected the means of service to be personal as is required for originating proceedings by O9, r1. Personal service is not, however, expressly required O72, r2 or r3. That being so, is service by mail sufficient? In the absence of any contrary intention in the Rules of Court, the Act, s29AB, would apply to allow service by mail. In my view a contrary intention to the application of that section is manifested by, O83, r13. Pursuant to this rule, service by mail is only allowed where a person has an address for service and the service is by certified mail. In result, service by mail is only authorised if effected by certified mail, and this form of service can not be utilised until a party has been personally served and entered an appearance or otherwise has an address for service. To me, the presence of this rule in the Rules of Court is a clear indication of an intention that s29AB has no application in relation to service pursuant to the Rules and does not authorise service by mail in the circumstances before me. The relevant documents should be personally served on the affected parties and I will so order."
24. For the reasons which will be apparent from pages 1-2 of this decision, I believe the contrary intention is clear from the provisions of the Residential Tenancy Act. This is because of:
25. However I should not be taken to be concluding that Notices to Vacate must be personally served in all cases. For one thing, experience suggests that this would often create a substantial injustice for owners, and for another, s29AB is available as a facilitative provision for Owners who wish to utilise it (and to accept the risk of doing so).
26. I am of the view that where a tenant has not been actually served, and where this is known at the hearing of the Application, the owner may not rely upon s29AB to have the court treat the Notice as if it had been served, when it was not.
27. The risk adverted to in paragraph 25 is the risk that he or she will have to re-serve a new notice, and, in effect, be required to start again. This conclusion is consistent with justice, consistent with the approach taken in Catherineholm and by Evans J in R v RPDC. It appears consistent with local and interstate authorities, and with English authorities. It is consistent with the Civil Rules in South Australia, and with justice and common sense.
28. My conclusion is that the Notice to Vacate was never served, and the Application is dismissed.
Jackson
Gearman [2009] TASMC 4
(1983) 154 CLR 87
The application was dismissed.