The representative of the tenant Luke Winning has requested written reasons for the decision which will be provided to the parties.

1. These reasons are provided at the request of Mr Nicholas Anderson, Legal Aid and representative of the tenant Luke Winning (Tenant 1).

1. The order and oral reasons were provided at the hearing.

• The landlord and the tenants are parties to a residential tenancy agreement.

• The landlord served a notice to vacate under section 246(1) of the Residential Tenancies Act 1997 (the Act) citing that at the time the notice was sent the tenant was more than 14 days in arrears.

• The date the notice to vacate was sent was 5 May 2016.

• The termination date on the notice to vacate is 26 May 2016.

• The Notice was generated using the VCAT online system which allocates a termination date.

1. The issues for the Tribunal to decide in this case were:

• Firstly, whether the landlord had allowed sufficient time between posting (sending) the notice to vacate and the termination date on that notice, and

• Secondly, whether the tenants were 14 days in arrears of rent at the time the notice to vacate was given.

Issue 1 - Did the landlord allow sufficient time between the date on which the notice to vacate was sent and the termination date on that notice

1. The representative of tenant 1, Mr Anderson, challenged the notice to vacate on the grounds that the landlord had allowed insufficient time between the posting of the notice and the termination date on the notice.

1. Mr Anderson contended that an additional day would be required for the notice to vacate to comply with the provisions of the Act and the Interpretation of Legislation Act 1984.

1. The Act allows a landlord to serve a notice to vacate on a tenant who is not less than 14 days in arrears. Section 246(2) of the Act provides -

"(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given."

1. A notice to vacate under the Act must be given in the manner prescribed by section 506(3) which includes

"(b) by sending the notice by registered post addressed to the tenant,..."

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. A landlord may apply to the Tribunal for a possession order for the rented premises if the landlord has given the tenant a notice to vacate. (section 322 of the Act).

1. 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 (section 322 of the Act).

1. The Interpretation of Legislation Act 1984 provides in section 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 determining when a document may be deemed to have been given the Tribunal refers 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 state is four days. The day of sending the item is not included in these days.

1. The notice to vacate is invalid if it fails to provide 14 days notice to vacate from the day after the day on which it is given (not sent).

1. The minimum number of days recommended on the VCAT website to be allowed for notices to vacate sent by registered post to be delivered if sent on a Thursday is 22.

1. This 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 14 clear days notice and the termination date of the notice.

1. In this matter the notice to vacate was sent on 5 May 2016 - a Thursday.

1. Applying the requirements of the Act and the Interpretation of Legislation Act 1984 to this notice -

Day 5-7 +3 3 further business days for delivery and notice to be given (9-11 May 2016)

Day 8-21 +14 14 clear days notice to vacate (2-25 May inclusive)

Day 22 +1 the earliest termination date (26 May 2016).

1. The earliest termination date for the notice to vacate sent on 5 May 2016 is 26 May 2016.

1. The termination date on this notice to vacate is 26 May 2016.

1. The respondent did not give any evidence to rebut the presumption that the article was given at any time other than that on which it was deemed to be given.

1. The Tribunal finds that the notice to vacate is not invalid for the reason given by Mr Anderson - that it provided insufficient time from the date the notice was sent to the termination date on the notice.

Issue two - Was the tenant at least 14 days in arrears of rent when the notice to vacate was given?

1. The rental payable under the tenancy agreement was disputed by the tenant.

1. The landlord proceeded on the basis of an amendment to the written tenancy agreement varying the rent from $1,120.00 to $1,214.00 per calendar month. This amendment has however not been acknowledged by all parties.

1. The bond is described as being $1,214.00, but to be paid by two contributions by the tenants each of $560.00. This is a further inconsistency in the document.

1. The rent has been paid in differing amounts which can be taken to support both amounts on the tenancy agreement, but neither conclusively.

1. Given the inconsistencies in the written tenancy agreement and the Tribunal found that the original amount of the rental of $1,120.00 per calendar month should be applied.

(1) A landlord may give a tenant a notice to vacate rented premises if the tenant owes at least 14 days rent to the landlord."

1. On the basis that rent payable was $1,120.00 per calendar month, the rent payable to the date of the notice to vacate was $3,792.65.

1. The tenants owed $258.26 at the date of the notice. Fourteen days rent owing amounts to $558.77. The tenants were paid to an effective date of 27 April 2016. The Tribunal therefore found that the tenants did not owe at least 14 days rent to the landlord on the date the notice to vacate was given.

1. The landlord has failed to satisfy the Tribunal of the grounds stated in the notice to vacate and the application was dismissed.