Perioris v Asiodu [2003] VCAT 146

(4) the issue of a warrant of possession is postponed until 16 March 2003.

In proceeding number R2002/58088 the Tribunal orders:

(1) that the landlord shall pay the tenant's costs of the hearing which had been fixed for 15 January 2003 in the sum of $75.

1. MR VASSIE: I propose to state straight away what orders I intend to make, and then I will give my reasons for them. On the landlord's application for a possession order I propose to make a possession order, but postpone the possession date to 16 March 2003. On the tenant's application for costs I propose to make an order that the landlord pay the tenant's costs of the hearing which had been fixed for 15 January 2003 in the sum of $75.

2. I have heard on 7 February 2003 and today proceeding number R2003/4674 in which the landlord, Mr Perioris, has asked the Tribunal for a possession order against the tenant, Mr Asiodu. I have also heard today an application in proceeding number R2002/58088 by the tenant, Mr Asiodu, for costs when he attended the Tribunal in that proceeding on 15 January 2003, only to find that it had been withdrawn.

3. The landlord's application for a possession order is made under section 322 subsection (2) of the Residential Tenancies Act 1997 based upon a notice to vacate he says he has given to the tenant under section 263 of the Act which is headed "Notice to Vacate for No Specified Reason" and which reads:

Subsection (1): A Landlord may give a tenant a notice to vacate rented premises without specifying the reason for the giving of the notice. Subsection (2): The notice must specify a termination date that is not less than 90 days after the date on which the notice is given.

4. Section 506(3)(b) of the Act provides that:

A notice to vacate under Part 6 must be given (b) by sending the notice by registered post addressed to the tenant or resident at the rented premises, room or site.

5. Subsection (3) also provides that a notice to vacate must be given in two other possible alternative ways: by delivering it personally, or in the manner ordered by the Tribunal. The manner relied on in this case is by sending the notice by registered post addressed to the tenant at the rented premises. Under the Interpretation of Legislation Act section 49(2)(b), once posted by registered post a document may be deemed to have been given.

Where an Act or subordinate instrument authorises or requires a document to be served by registered post or by certified mail (whether the expression "served" 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, pre-paying 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.

7. The evidence that I have heard establishes these facts to my satisfaction.

8. On 24 October 2002 the landlord's agent posted a registered post article addressed to the tenant at the rented premises containing a notice to vacate and providing for a termination date on the notice to vacate of 27 January 2003. The notice stated that it was given for no specified reason and purported to be given under section 263. The registered post article was number RD18878955. That registered post article was not returned to the landlord's agent, and there is no reason to suppose, and the agent had had no reason to suppose, that the article had never been delivered.

9. The tenant, Mr Asiodu, has sworn and I accept that he did not receive it, and did not receive any card in his letter box or anywhere else advising that that registered post article was at the post office for collection. There is no other evidence as to what had happened to that registered post article. Although the written submission made on the tenant's behalf asserted that the tenant in fact received it, and received the notice to vacate on 22 December 2002, I think that assertion is a mistake.

10. What happened was that on 22 December 2002 the landlord's agent posted another registered post article containing an application to the Tribunal, and purporting to serve it on the tenant. That registered post article was number RD19322044. The application was invalid because it had attempted to make an application for a possession order prior to the termination date being expressed on the notice to vacate, and one can't do that. See section 326(2) of the Residential Tenancies Act.

11. Shortly after 22 December 2002 the tenant collected registered post article number RD19322044 from the post office, and he has sworn and I accept that that was the first knowledge that he had had that there was in existence a notice to vacate that required him to vacate by 27 January 2003. The invalid application had referred to that notice to vacate. So he had had much less than 90 days actual knowledge of the landlord's desire that he vacate by 27 January.

12. The Tribunal sent notices of hearing for that first invalid application. The notices of hearing gave notice of a hearing date of 15 January 2003. The application had been accepted and file number R2002/58088 had been commenced and the application was given that number.

13. The landlord withdrew the application before the hearing. It is not clear to me exactly how that happened, but it is not disputed that the landlord, or the landlord's agent, did not advise the tenant of the withdrawal, so the tenant came to the Tribunal on 15 January at half past 9, the time fixed for hearing, and found that the case was not listed for hearing. He complains that he therefore lost money, being his wages for that day.

14. On 29 January 2003 the landlord's agent made a fresh application for a possession order, valid this time because it was made after the termination date on the notice to vacate, and sent that application by registered post to the tenant, and that application has been given the number R2003/4674. That is the application I am hearing today.

15. Section 49(2)(b) of the Interpretation of Legislation Act 1984, which I have already read results in two things. First of all, the notice to vacate posted on 24 October 2002 is deemed to have been given at the time at which it would ordinarily be delivered by registered post. The second thing is that the tenant, or the person to whom the document is addressed, has the opportunity to prove to the contrary, and if the contrary is proved, it is not deemed to have been given at that time.

16. The Tribunal takes the time at which a notice to vacate would ordinarily be delivered by registered post to be two business days. The first day for the leaving of the card, advising the addressee that something is available for collection, and the second day for the addressee to collect the registered post article from the post office. That period of two days is allowed, not just as a matter of common sense, which is part of it, part of the reason, but also by analogy to section 141 of the Victorian Civil and Administrative Tribunal Act 1998 which provides that for the purposes of that Act a notice or document must be taken to have been served on, or given to a person, in the case of posting, two business days after the day on which the document was posted. That doesn't apply to notices to vacate because they are not served for the purposes of that Act. They are served for the purposes of the Residential Tenancies Act.

17. But the analogy nevertheless applies, and in many cases in this Tribunal, where a landlord makes an application for a possession order based on non-payment of rent, the application and the notice to vacate are put in the same envelope and sent in the same registered post article. So it makes sense to have the relevant deemed period to be two business days for both documents; and the addressee is able to disprove service if the contrary is proved. The deeming doesn't occur if the contrary is proved.

18. The tenant in this case submits that the contrary is proved, and is proved by evidence that the tenant never received the registered post article containing the notice to vacate at all.

19. For the following reasons I don't accept that submission.

20. The cases interpreting statutory provisions similar to section 49 of the Interpretation of Legislation Act, and for the most part they are English cases, establish that one has to distinguish between three different states of affairs.

21. The first state of affairs is the case where delivery is proved to have occurred at a different time, a later time, from what would have been deemed under the section. That is, proof of non-delivery in time. In that state of affairs there is proof to the contrary for the purposes of the section.

22. The second state of affairs is where there is proof of total non-delivery. Proof that the article has never been delivered at all to anybody, anywhere. That is also proof to the contrary for the purposes of the section.

23. The third state of affairs is proof of non-receipt by the person to whom the document was addressed. That of itself is not proof to the contrary. It is not proof of non-delivery. It is not proof of non-delivery in time. It is not proof to the contrary that shuts out the operation of the deeming provision. The law on the subject was re-stated in a way that binds me by the High Court of Australia in Fancourt v Mercantile Credits Limited, [1983] HCA 25; 1983 154 CLR 87.

24. MR HORN: Sorry, sir. Can you say that again, please?

MR VASSIE: Yes. Fancourt, F-a-n-c-o-u-r-t v Mercantile Credits Limited, [1983] HCA 25; 1983 154 CLR 87. That was a case that dealt with the posting of a notice under the Hire Purchase Act in Queensland, which provided that the notice could be given by ordinary post, addressed to the last known place of abode or business, and there was a deeming provision in the Acts Interpretation Act in Queensland that was similar to section 49 of the Interpretation of Legislation Act here. The hirer in that case had given evidence that he did not receive the notice.

25. There were two hirers evidently. They both swore they did not receive the notices addressed to them. The High Court referred to a line of English cases dealing with the effect of proof of non-delivery where service by post is permitted and used, and said on page 96:

The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post, and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted, and the requirements of the Interpretation Act are observed.

26. The High Court went on to say, on page 97, that all the cases that they listed, the effect of which they had just set out, were cases in which delivery was disproved, and they went on to say, on page 97:

Despite remarks in the judgments about non-receipt it was non-delivery which was significant, because the second limb of section 26 of the Interpretation Act refers to proof of the contrary of delivery. As the present case shows, delivery may be different from receipt by the intended recipient, and provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery.

27. To illustrate what I consider to be the difference between non-delivery and non-receipt I give some examples. The first example is this. Suppose the evidence in a case establishes that the registered post article, once left at the post office, never left the post office but fell down behind a desk and nobody noticed it for a long time afterwards. That, in my view, would be proof of total non-delivery and the addressee would have proved the contrary under section 49 of the Interpretation of Legislation Act. If the article contained a notice to vacate that would be a hard result on the landlord, but it would be a risk that the landlord takes in pursuing the registered post service option rather than some other method of service.

28. A second example. Suppose that the registered post article falls down behind the desk at the post office, but is retrieved, is found and retrieved and an attempt is made to deliver it seven days letter. A card was left at the letter box of the addressee. That, in my view, would be proof of non-delivery within the deemed time. In other words, although there had been delivery, it was too late. So again, the contrary would have been proved for the purposes of the Interpretation of Legislation Act.

29. The third example I give is a case where the card is delivered on the first business day after the registered post article is left. The card is delivered to the addressee's letter box, but a friend, visiting the addressee - let us call him "the tenant" in this case - a friend visiting the tenant removes the card, intending to give it to the tenant, but forgets to do it, so that the tenant never gets it and doesn't know that there is a registered post article waiting for delivery.

30. Now there may be room for argument about this, but my view of the matter, on the authorities as I understand them, is that there would be no proof of non-delivery. The delivery of the card is the first step in the process of delivery, the regular process of delivery, and that although non-receipt had been proved, non-delivery had not been. That would be a hard result on the tenant, but it is a consequence of the law allowing the registered post method of service, and having the deeming provision contained in the Interpretation of Legislation Act.

31. The fourth example I would give is the case where the card is delivered to the letter box on the first business day. The tenant gets it, but deliberately refrains from going to collect it at the post office, so that he never receives the registered post article. Again, in my view, there would be no proof of non-delivery in that case. That would not be hard on the tenant at all, because he was, by his own action, attempting to thwart the method of service that the legislature allows. I stress of course that none of the examples I have given is anything like this case. But it follows from what I have said that it is my view that in this case there has been no proof of non-delivery. There has been proof of non-receipt only, and that is not enough.

32. The notice to vacate is deemed to have been delivered by 29 October 2002, the second business day after the posting, and it was effective to give 90 days notice. The termination date was in fact 91 days after that date.

33. The tenant in his written submission has relied upon a sentence in a judgment of Smith J of the Supreme Court of Victoria on 15 October 2002 in a case of Director of Housing v Pavletic, P-a-v-l-e-t-i-c, 2002 VST 438. The sentence is found in paragraph 28. I will read it now, although I will come back to it. The sentence is this:

If however one considers the evidence uncontested that the notice to vacate has never been received, it was not given, and accordingly the application to VCAT was made before any notice to vacate was given.

The important words for the purpose of the tenant's submission are:

If one considers the evidence uncontested that the notice to vacate has never been received, it was not given...

34. The case in question, Director of House v Pavletic, was a case in which the landlord had posted together a notice to vacate and an application to the Tribunal. The notice to vacate alleged that the tenant was endangering the safety of neighbours. Under the Residential Tenancies Act a landlord may give an immediate notice to vacate on that ground. The notice to vacate and application were posted together by registered post on 11 January 2002. The notice to vacate required the tenant to vacate by 15 January 2002. The tenant's evidence in the case was that a card had been left at the premises, but it was not left by the postal authorities until either 16 or 17 January 2002. She went on to give evidence that she never collected the article at all. The Tribunal found however that the notice to vacate was deemed to have been given on 15 January 2002, and that the application was received by the Tribunal on the same day.

35. Now, I go back to the sentence, the relevant parts of which were:

If once considers the evidence uncontested that the notice to vacate has never been received, it was not given...

There are two things I would say about it. The first is that the sentence is not essential to the Judge's decision in the case, and the second thing is that it is puzzling.

36. I say it is not essential to the Judge's decision because his Honour found that the Tribunal had correctly decided that the grounds of the notice to vacate had not been proved in the case, and dismissed the appeal for that reason. That was the basis for his decision. His Honour didn't have to decide the matters that were raised in the sentence that I have quoted.

37. I have said the sentence is puzzling, and I say that because there is a footnote to it which cites the Fancourt case, and cites the very pages from which I have read earlier. Those pages contain the passages which emphasise the distinction between non-receipt and non-delivery. I find it difficult to accept that his Honour intended to say that proof of non-receipt meant proof of non-delivery, when that is flatly contrary to the passages in the two pages of the Fancourt case to which his Honour immediately refers in a footnote.

38. The sentence has to be read in context. His Honour was dealing with the submission that the application was invalid because it had been made before the notice to vacate had been given. I repeat that as matters turned out, his Honour didn't have to decide the correctness of that submission. He decided the case, decided the appeal on another basis. It may be that what the sentence means is this: that because of the uncontradicted evidence of the tenant in that case, that the card had not been left until 16 January 2002 at the earliest, and that the registered post article had never been received earlier than that date or at all, the deeming of service to have occurred on 15 January 2002 was not open.

39. If that is what his Honour meant, the sentence is perfectly understandable and the puzzle disappears. If I am wrong in saying that is what his Honour meant, and he did indeed mean to say that proof of non-receipt meant that the notice was not given at all, then with great respect, I would have to say that the sentence appears to be contrary to the authority in the Fancourt case, and I am bound by what the High Court said in the Fancourt case.

40. All the other elements of the application for a possession order have been proved, and I will make a possession order. I say for completeness that the written submission made on behalf of the tenant raised matters that were not pursued at the hearing. They related to an earlier notice of intention to vacate given by the tenant.

41. I have the power to postpone the possession date to a day that is not more than 30 days after today. That power is found in section 333(1) of the Residential Tenancies Act. Also, I may postpone the issue of a warrant of possession to that same day, at the latest, if the tenant would suffer hardship, if the issue of a warrant was not postponed, that would be greater than the hardship the landlord caused by the postponement. Section 352(1) and (2) of the Act provide for that.

42. The tenant's evidence in this case is that he has undergone a bowel operation, and his recovery from that operation has restricted his ability to look for alternative accommodation in the short time for which he has had actual knowledge of the termination date.

43. He has given further evidence today, which I accept, that he is to undergo further surgery on 28 February which will similarly restrict his ability to look for alternative accommodation while he is recuperating. I heard no evidence of any hardship that the landlord would suffer if the possession date were to be postponed. I have borne in mind that the tenant has already had 10 days grace because I adjourned the hearing from 7 February to today. I did so because I wanted to consult the Deputy President in charge of the Residential Tenancies List about whether or not this application should be heard by a Judicial Member or a Presidential Member.

44. Despite that, in the circumstances that I have outlined, I consider that the justice of the case, based on the hardship that the tenant would suffer if I did not, justifies me in postponing the possession date until 16 March, which is the end of the weekend that is closest to 30 days from today. I will do so.

45. I have allowed the tenant to raise today in proceeding number R2002/58088, the matter of costs in that proceeding, arising out of him attending the Tribunal on 15 January 2003 because he wasn't told that the application had been withdrawn. I accept his evidence about his loss for that day, at the rate of $144 clear per day, but it seems to me that he could have, had he chosen, returned to work by about noon on that day, and I consider that the fair amount to allow him by way of costs for that day is $75.

46. In proceeding number R2003/4674 I will make this order:

(1) the Tribunal finds that the landlord gave the tenant not less than 90 days notice to vacate without specifying a reason, and the landlord was entitled to give the notice;

(2) the Tribunal orders and directs that the landlord is entitled to a possession order;

(3) the tenant must vacate the rented premises by 16 March 2003;

(4) 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 before 17 August 2003.

47. In proceeding number R2002/58088 I will make an order:

(1) that the landlord shall pay the tenant's costs of the hearing which had been fixed for 15 January 2003 in the sum of $75.