Impact of Australia Post s changes to the delivery of letters on the service of notices under commercial leases Background In January 2016, Australia Post implemented a number of changes to the delivery of letters sent within Australia. There is now a choice of three delivery speeds when sending a letter within Australia: (1) Express Post next business day guaranteed; (2) Priority 1-4 business days, depending on destination; and (3) Regular up to 2 business days longer than Priority. 1 These changes may impact on the notice requirements prescribed in a commercial lease. Whether there is any such impact on a commercial lease will always depend on the terms of the particular commercial lease which must be looked at on a case-by-case basis. This article will consider firstly the changes made to the delivery times of letters introduced by Australia Post (including with reference to the introduction of Priority labels) and the reasons behind that change. This Article will then turn to and consider the general notice requirements in a commercial lease. This Article will finally consider the impact of Australia's posts changes to delivery times on the requirements for notices delivered by post in a commercial lease (including with reference to notices to remedy default pursuant to section 10 of the Landlord and Tenant Act 1936), and then make recommendations to practitioners in the legal and conveyancing industry on the best practice to deal with these changes. Changes to delivery times introduced by Australia Post 1 Australia Post, "Changes to your letters service" <http://auspost.com.au/changes-to-your-letters-service.html>. 1
In January 2016, Australia Post implemented a number of changes to the delivery of letters sent within Australia. There is now a choice of three delivery speeds when sending a letter within Australia. These changes are set out in the table below: 2 Express Post Priority Regular Delivery time Next business day guaranteed 3 1-4 business days 4, depending on destination Up to 2 business days 5 longer than Priority What you need Express Post prepaid envelope Envelope, postage stamp and Priority label Envelope and postage stamp Where you post it Yellow street posting box or Post Office Red street posting box or Post Office Red street posting box or Post Office Prices from $5.75 $1.50 (Concession: $1.10) $1.00 (Concession: $0.60) Introduction of Priority labels The introduction of Priority labels means that the letter will arrive within Australia within 1-4 business days. The delivery time for Priority letters varies depending on the origin and destination. The following table below sets out the delivery timetable for Priority letters: 2 Ibid. 3 According to Australia Post: The next business day delivery is only available within the Express Post network. The national next business day delivery network covers approximately 80% of Australian addresses and operates between all capital cities (except Darwin and in Perth CBD only) and some major centres. Express eparcel is included in the Express Post guarantee. (Ibid). 4 According to Australia Post, Delivery times apply from the day after posting and vary depending on origin and destination : Ibid. 5 Ibid. 2
Delivery within the same state 6 Post for delivery Within metropolitan areas of capital cities, or within the same city or town or an adjacent city or town in the same state Between metropolitan areas of capital cities and country locations Between country locations Estimated delivery time (business days) 1 day 2 days 2 days Delivery between states 7 Post for delivery Between metropolitan areas of capital cities Between metropolitan areas of capital cities and country locations Between country locations Estimated delivery time (business days) 2 days 3 days 4 days Registered Post letters may be sent either by Regular mail or Priority mail. A Registered Post letter sent via Priority means that the letter will be delivered within 1-4 business days, depending on the origin and destination. Increase in delivery time for Regular mail 6 Australia Post, "Priority letters" <http://auspost.com.au/parcels-mail/priority-letters.html>. 7 Ibid. 3
Letters sent via Regular mail will take up to 2 business days longer than the estimated time and delivery for Priority labels. 8 This is a change to the delivery time for Regular mail, taking longer than it previously did (an extra 1-2 business days in general). The delivery time for Regular mail depends destination. The following table below sets out the delivery timetable for Regular letters: Delivery within the same state 9 Posted for delivery Within metropolitan areas of capital cities, or within the same city or town or an adjacent city or town in the same state Between metropolitan areas of capital cities and country locations Between country locations Estimated delivery time (business days) 2-3 days 3-4 days 3-4 days Delivery between states 10 Post for delivery Between metropolitan areas of capital cities Between metropolitan areas of capital cities and country locations Estimated delivery time (business days) 3-4 days 4-5 days 8 Australia Post, above n 1. 9 Australia Post, "Regular letters & cards" <http://auspost.com.au/parcels-mail/regular-letters.html> 10 Ibid. 4
Between country locations 5-6 days What has not changed? Australia Post made no changes to the service of Express Post mail. The prices for Christmas stamps (at 65 cents) and concessional stamp prices (60 cents) have also not changed. Why the change? Australia Post has acknowledged that these changes have been introduced to keep up with the digital communication age and dwindling mail service industry. It stated: "The way Australians communicate is changing. With the shift to digital communications, you're not sending as many letters as you used to. So we're changing too". 11 Australia Post's managing director Armed Fahour said the changes were absolutely necessary to allow us to remain a sustainable business and safeguard the future of post offices across the nation and jobs. 12 General notice requirements in a commercial lease The notice requirements in commercial leases will generally vary and take different forms. Parties are free to negotiate the means of giving notice and the rules for the giving of that notice under the lease. Notices may be given by means including (but not limited to): 11 Australia Post, " Express Post letters" <http://auspost.com.au/parcels-mail/express-post-letters.html 12 Herald Sun, "Australia Post seeks stamp price rises and priority letters service" <http://www.heraldsun.com.au/business/australia-post-seeks-stamp-price-rises-and-priority-lettersservice/news-story/5f37f638f7860b0717080a559592332e> 5
(1) personal delivery on the party; (2) leaving it at the party's address or registered office; (3) sent to the party's address or registered office by post; (4) sent by fax to the party's fax number; and (5) electronically mailed to the party's electronic mail address for communications. The time in which the notice is taken to be given may be prescribed by the lease. Take the following clause from a commercial lease as examples: Notice by post A notice is given if posted three business days after posting; Notice by fax A notice is given if sent by fax, when the sender's fax machine produces a report that the fax was sent in full to the addressee. Notice by email A delivery confirmation report received by the sender, which records the time that the e-mail was delivered to the addressee's current email address is prima facie evidence of its receipt by the addressee. A further example from a commercial lease is as follows: Notice by post 6
A notice by post shall be deemed to be served or given at the time when it ought to be delivered in the due course of post. Notice by facsimile transmission A facsimile is deemed served or given on production of a transmission report by the machine from which it is sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient. If a notice is given after business hours (for example, after 5.00pm in the place or receipt or on a day that is not a business day in the place of receipt), the lease may prescribe that the notice is taken to be given on the next business day. The lease may define what a "business day" is. This is no doubt relevant to determining when a notice is effectively given under the lease. For example, a business day may be defined as a day other than a Saturday, Sunday, bank or public holiday in South Australia, or in the case of a party (or parties) interstate, that state. It is sound practice to carefully review and consider the rules for the giving of notices in any particular commercial lease when determining whether and when a notice taken to be given to a party. Notice to Remedy Default (Section 10 of the Landlord and Tenant Act 1936) Section 10 of the Landlord and Tenant Act 1936 ( Landlord and Tenant Act ) provides that a landlord may not re-enter without first serving a notice specifying the breach and requiring its remedy. 7
The provisions of section 10 apply notwithstanding the provisions of a lease, including any stipulation to the contrary. 13 Section 10 of the Landlord and Tenant Act provides: 10 No re-entry till notice to tenant to remedy breach A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable by action or otherwise, unless and until (a) the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach; and (b) the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach. 14 The right of re-entry or forfeiture does not arise by virtue of the provisions of section 10 of the Landlord and Tenant Act. 15 Those rights must be provided for in the lease. 16 Section 10 only circumscribes the way in which recourse might be had to such rights. 17 A notice to remedy default pursuant to section 10 must: (1) be served by the lessor on the lessee; (2) specify the particular breach; and 13 Landlord and Tenant Act 1936 (SA) s 12(6). 14 Landlord and Tenant Act 1936 (SA) s 10. 15 Profile Events Pty Ltd v West Beach Trust [2010] SADC 52, [142]. 16 Ibid. 17 Ibid. 8
(3) if the breach is capable of remedy, require the lessee to remedy that breach and in any case, to make reasonable compensation in money to the satisfaction of the lessor for the breach, and in the event that the lessee fails within a reasonable time thereafter to remedy that breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach, the lessor may enforce a right of re-entry or forfeiture under a lease for breach of any covenant or condition. Under section 10 of the Landlord and Tenant Act it is a requirement that the lessor "serves" the notice on the lessee. The service of any such notice within the meaning of section 10 may take a different meaning to that contained in a commercial lease and in that regard, such meaning would apply as to when a notice is served, or deemed to be served, on a lessee notwithstanding any provisions relating to notice requirements in a lease. 18 The Landlord and Tenant Act does not define serves or contain any provision as to how and/or when service of any notice is effected on a party. There is also a lack of case law on when a notice is taken to be served on a party. It would seem reasonable to assume that the approach taken by the courts as to when a notice is served for the purposes of section 10 may be to refer to, and be assisted by, the requirements of notice set out in statute including in other jurisdictions. In Victoria, section 198 of the Property Law Act 1958 provides: (1) Any notice required or authorized to be served or given by this Part shall be in writing. 18 In accordance with section 12(6) of the Landlord and Tenant Act. 9
(2) Any notice required or authorized by this Part to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn or unascertained. (3) Any notice required or authorized by this Part to be served shall be sufficiently served if it is left at the last-known place of abode or business in Victoria of the lessee, lessor, mortgagee, mortgagor or other person to be served, or, in case of a notice required or authorized to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine. (4) Any notice required or authorized by this Part to be served shall also be sufficiently served if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor or other person to be served, by name, at the aforesaid place of abode or business, office or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. In South Australia, the Law of Property Act 1936 (SA) contains similar provisions relating to notices: (1) Any notice required or authorised to be served or given by this Act shall be in writing. (2) Any notice required or authorised by this Act to be served on a mortgagor shall be sufficient, although only addressed to the mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained. (3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in South Australia of the 10
mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a mortgagor, is affixed or left for him on the land or any house or building comprised in the mortgage. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served if it is sent by post in a registered letter addressed to the mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, and if that letter is not returned through the post office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. It is therefore reasonable to assume that a notice pursuant to section 10 of the Landlord and Tenant Act would be sufficiently served on a lessee if: (1) it is left at the last-known place of abode or business in South Australia of the lessee or it is affixed or left for the lessee on the land or any house or building comprised in the lease; or (2) it is sent by post in a registered letter addressed to the lessee, by name at the aforesaid place or abode or business or office, and if that letter is not returned through the post-office undelivered; and that service will be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. Under section 10 of the Landlord and Tenant Act, the lessor may enforce a right of re-entry or forfeiture under a lease for breach of any covenant or condition in the event that the lessee fails within a reasonable time after service of such notice in accordance with section 10(a). The Landlord and Tenant Act does not define what is a reasonable time for a lessee to remedy a breach for the purposes of section 10. 11
In Victoria, section 146(1) of the Property Law Act 1958 (which is the Victorian equivalent of section 10 of the Landlord and Tenant Act) provides a lessee with no less than 14 days to remedy a breach. At common law, 14 days notice has been held to be sufficient. 19 The following clause is an example of a clause in a standard-form commercial lease in South Australia stipulating 14 days notice which must be given to a lessee for the purposes of section 10 of the Landlord and Tenant Act: "in the case of a breach or default of any term of this Lease where notice to the Lessee is required to be given pursuant to Section 10 of the Landlord and Tenant Act 1936 such notice shall provide that fourteen (14) days is the period within which the Lessee is to remedy any such breach or default if it is capable of remedy or to make reasonable compensation in money to the satisfaction of the Lessor and no period of notice shall be required in respect of non payment of rent" Impact of Australia Post s changes to delivery times on the general requirements for notices by post under a commercial lease This part of the article deals with the impact of Australia Post s changes to the delivery time on the general requirements for notices sent by post under a commercial lease. Notices captured by the general requirements may include, for example, notices to terminate and reentry, notices of demand, and notices requiring vacant possession. It does not deal with notices to remedy defaults served pursuant to section 10 of the Landlord and Tenant Act (which is dealt with separately further below). Generally speaking a commercial lease will prescribe that a notice may be given to a party if it is forwarded to a party's last known place of business or residence or registered office or such other nominated address by: 19 Civil Service Cooperative Society v McGrigor s Trustee [1923] 2 Ch 347; [1934] All ER Rep 595. 12
(1) "post"; (2) "pre-paid post"; or (3) "registered post". The exact requirements will always depend on the wording used in the commercial lease. It is uncommon for these terms post, pre-paid post or registered post to be defined in a commercial lease. Despite this there is a presumption at law that where the words of a contract are free from ambiguity, the courts will adopt the plain, natural or common sense meaning of the words used. 20 Pre-paid post In the case of a pre-paid post, these refer to postage by means of a pre-paid satchel or preprepaid envelope. 21 A pre-paid satchel may be delivered to a party in two ways in Australia: (1) by Express Post, in which case the envelope will be delivered on the next business day; 22 (2) by Parcel Post, in which case the envelope will be delivered in 2 or more business days. 23 20 See, eg, Shore v Wilson (1842) 9 Cl & Fin 355; North Eastern Railway Co v Lord Hastings [1900] AC 260; [1900-3]; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 347; First Sport Ltd v Barclays Bank Plc [1993] 3 All ER 789. 21 Australia Post, "Prepaid satchels & envelopes" < http://auspost.com.au/parcels-mail/prepaid-satchelsenvelopes.html>. 22 According to Australia Post: "Next business day delivery is only available within the Express Post next business day delivery network, when lodged over the counter at a Post Office, or in a yellow street posting box." (Ibid). 13
A pre-paid envelope may be delivered in three ways in Australia: (1) by Express Post, in which case the envelope will be delivered on the next business day. 24 (2) by Regular mail, in which case the envelope will be delivered in 2-6 business days; 25 (3) by Registered Post, in which case the envelope will be delivered in 2-6 business days, however if a Priority label is to the envelope the envelope will be delivered in 1-4 Business Days. 26 It can be seen from this that the changes made by Australia Post has had the following impact on the delivery speeds of notices sent in the case of a pre-paid post : (1) Where a pre-paid envelope by Regular mail is used, the envelope will be delivered in 2-6 business days. This delivery time is longer than previous delivery time (an extra 1-2 business days in general). (2) Where a pre-paid envelope by Registered Post with a Priority label is used, the envelope will be delivered within 1-4 business days, depending on the origin and destination. This option for delivery by Priority was previously not available. There has been no impact on the delivery of notices by way of an Express Post. Registered post In the case of a registered post, these provide secure delivery including proof of receipt, with a signature on delivery. 27 23 Ibid. 24 Australia Post, above n 11. 25 Australia Post, above n 9. 26 Australia Post, above n 14; Australia Post, Registered Post letters <http://auspost.com.au/parcelsmail/registered-post.html>. 27 Australia Post, Registered Post letters <http://auspost.com.au/parcels-mail/registered-post.html>. 14
A letter by Registered Post may be delivered: (1) in 2-6 business days; or (2) if a Priority label is used, in 1-4 business days depending on the origin and destination. 28 Again, the option to use a Priority label has increased the delivery time for a notice sent by Registered post and was previously not available. Post This may refer to the delivery of any letters domestically or within Australia by means of Australia Post s delivery services, including by courier post, parcel post, pre-paid post and registered post. These letters may be delivered by the following ways (without limitation): (1) by Regular post, in which case it will take 2-6 business days depending on destination; (2) by Priority, in which case it will take 1-4 business days depending on destination; (3) by Registered Post, in which case it will take 2-6 business days depending on the destination; and (4) by Express Post, in which case it will be delivered on the next business day. 29 It can be seen from this that the changes made by Australia Post has had the following impact on the delivery speeds of notices sent in the case of a post : (1) In the case of delivery by Regular post, the post will be delivered in 2-6 business days. This delivery time is longer than previous delivery time (an extra 1-2 business days in general). 28 Ibid. 29 Australia Post, "Domestic letters" <http://auspost.com.au/parcels-mail/domestic-letters.html>. 15
(2) In the case of delivery with a Priority label used, the post will be delivered within 1-4 business days, depending on the origin and destination. This option for delivery via Priority was previously not available. (3) In the case of Registered Post, the post will take it will take 2-6 business days depending on the destination. However, where a Priority label is used, the post will be delivered within 1-4 business days, depending on the origin and destination. This option for delivery via Priority was previously not available. There has been no impact on the delivery of notices by way of an Express Post. Prescribed requirements for the giving of notices Notwithstanding these changes in the delivery times (including the longer delivery time in the case of delivery by Regular post, and the increased delivery time where a notice is sent by Priority post), the wording of the commercial lease (and in particular the prescribed requirements therein for the giving of notices) will determine for the purposes of that lease when a notice is taken to be given to a party. This will be illustrated by two examples. Example 1 Notice is deemed given at the time when it ought to be delivered in the due course of the post This is a common clause in the rules for the giving of notices. The changes to the delivery speeds may have an impact on when a notice by post is "deemed given at the time when it ought to be delivered in the due course of post" as follows: (1) In the case of delivery by Regular post, the notice may be deemed given to a party anywhere from in 2-6 business days depending on the destination. The specific day or time in which the notice ought to be delivered in the due course of the post might be taken to be the relevant estimated delivery time as per the delivery timetable above for Regular letters. 30 30 Refer to the delivery timetable for Regular letters above. 16
(2) In the case of delivery by Priority label, the notice may be deemed given to a party anywhere from 1-4 business days, depending on the origin and destination. The specific day or time in which the notice ought to be delivered in the due course of the post might be taken to be the relevant estimated delivery time as per the delivery timetable above for Priority letters. 31 (3) In the case of delivery by Registered Post, the notice may be deemed given to a party anywhere from 2-6 business days depending on the destination. Where a Priority label is used, however, the notice may be deemed given within 1-4 business days depending on the origin and destination. The specific day or time in which the notice ought to be delivered in the due course of the post might be taken to be the relevant estimated delivery time as per the delivery timetable above for Priority letters. 32 Example 2 Notice is given if posted three business days after posting This is also a common clause in the rules for the giving of notices within Australia. The actual business days in these clauses typically vary anywhere from one business day up to four business days. In the case of posting to or from Australia, it might be up to 10 business days. The changes to the delivery speeds may not, it would seem, have any impact where the lease prescribes that notice is given to, or taken to be received by, a party after a nominated amount of business days (for example, three business days) after the posting. Although delivery may vary (whether it is delivery by Regular post, Priority label or Registered Post), the time in which the notice is taken to given to, or receipt by, a party will be determined under these clauses by the amount of nominated business days, for example three business days, after the posting. Impact of Australia Post s changes to delivery times on the service of notices pursuant to section 10 of the Landlord and Tenant Act 31 Refer to the delivery timetable for Priority letters above. 32 Refer to the delivery timetable for Priority letters above. 17
It has been discussed that it is reasonable to assume that a notice pursuant to section 10 of the Landlord and Tenant Act is sufficiently served on a lessee if (inter alia) it is sent by post in a registered letter addressed to the lessee, by name at the aforesaid place or abode or business or office, and if that letter is not returned through the post-office undelivered; and that service is be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. According to that assumption, service by registered post addressed to the lessee and that letter is not returned, would be taken to be sufficient for the purposes of section 10; and that service would be deemed to be made at the time at which the letter in the registered post would in the ordinary course be delivered. In terms of the impact of Australia Post s changes, where a Priority label is used for a letter sent by registered post the letter may be delivered in 1-4 business days depending on the origin and destination. 33 The option to use a Priority label has increased the delivery time for a notice sent by registered post. Where a Priority label is used for a notice sent by registered post, it is reasonable to assume that service of such notice pursuant to section 10 of the Landlord and Tenant Act would be deemed to be made at the time at which the notice in that registered post in the ordinary course is delivered (i.e. 1-4 business days depending on the origin and destination). In the event that a lessee then fails within a reasonable time after service of such notice, the lessor may enforce a right of re-entry or forfeiture under a lease for breach of any covenant or condition in accordance with section 10 of the Landlord and Tenant Act. For example, if a lessor sends a Notice to Remedy Default to a lessee, at its registered office, by registered post where a Priority label is on 1 July 2016, and the time at which the Notice to Remedy Default would in the ordinary course be delivered to the lessee is 3 July 2016, service of that Notice would be deemed to be made on 3 July 2016. In that scenario, if 14 33 Ibid. 18
days is fixed for the time in which the lessee must remedy the breach complained of, the 14 day period would commence on 3 July 2016 and expire on or about 17 July 2016. If the lessee failed to remedy that breach within those 14 days, the lessor would be entitled to enforce its right of re-entry pursuant to section 10 of the Landlord and Tenant Act. An issue arises where a lessor fixes a specific date in the Notice to Remedy Default within which the lessee must remedy the breach complained of. For example, using the above scenario again, where the lease fixes 14 days as the time in which the lessee must remedy the breach complained of after service of a Notice to Remedy Default, and the Notice to Remedy Default sent to the lessee on 1 July 2016 fixes the date 14 July 2016 as the date in which the lessor requires the lessee to remedy the breach complained of, this would not comply with section 10 of the Landlord and Tenant Act and any enforcement of a right of re-entry would be potentially liable to be voided and/or unenforceable by a court of competent jurisdiction. In that scenario, the 14 day period (as required under the lease) would commence on 3 July 2016 (being the date at which the Notice to Remedy Default would in the ordinary course be delivered to the lessee) and thus expire on or about 17 July 2016. Risks associated with improper delivery of notices Whatever the means of postal delivery (whether it is a lease, contract, deed or otherwise), practitioners in the legal and conveyancing industry need to take into account the following to ensure the proper delivery of notices to a party: (1) the delivery speeds, including the potential for delays, having regard to the mode of delivery used (whether it is by Regular Post, Priority, Express Post or otherwise); and (2) the prescribed requirements in the document governing when a notice is taken to be given to a party. In the event that proper notice is not given to a party, the party sending the notice faces the risk of court intervention such as an order voiding the notice or requiring fresh notice to be given to the other party. 19
Given the varied delivery speeds of a notice, the prescribed requirements in a lease as to service of notices by post (which may vary from lease to lease) and the risks associated with improper notice by way of postal delivery, the author s view is that the safest method for the delivery of notices (particularly those that impose time periods) is by way of hand delivery. In the case of hand delivery, most (if not all) leases, contracts, deeds and other legal agreements in the author s experience provide that a notice is taken to be delivered or served on the date of delivery. This method avoids all the risks associated with the service by way of postal delivery. Moving forward postal delivery of notices It has been seen that the changes to the delivery speeds may not necessarily have any impact on when a notice is taken to be given or received under a commercial lease. Whether there is any impact will depend on the terms of the particular commercial lease. Practitioners in the legal and conveyancing industry should be cautious not to assume that any changes in the delivery speeds by Australia Post for example, the increased delivery time where a notice is sent by Priority post will mean that the notice is taken to be given to, or received by, a party on the expected delivery time. It is the clauses setting out the requirements for notices in a commercial lease that determine when a notice may be taken to be given to, or received by, a party. It is therefore important that practitioners best deal with these changes by looking at the specific clauses in a commercial lease relating to notice provisions on a case-by-case basis and then determining when a notice would be taken to be given to, or received by, a party having regard to the changes to the delivery speeds. In the case of notices pursuant to section 10 of the Landlord and Tenant Act sent by registered post, it is assumed that the requirements for service of such notices are dealt with differently. It is assumed that where these notices are sent by registered post where a priority label is used, such notices are deemed to be made at the time at which the letter in the registered post in the ordinary course is delivered (i.e. 1-4 business days depending on the origin and destination). Conclusion 20
In January 2016, Australia Post implemented a number of changes to the delivery of letters sent within Australia: (1) In the case of delivery by Regular post, a letter will be delivered in 2-6 business days. This delivery time is longer than previous delivery time (an extra 1-2 business days in general). (2) In the case of delivery with a Priority label used, a letter will be delivered within 1-4 business days, depending on the origin and destination. This option for delivery via Priority was previously not available. (3) In the case of Registered Post, a letter will take it will take 2-6 business days depending on the destination. However, where a Priority label is used, the letter will be delivered within 1-4 business days, depending on the origin and destination. This option for delivery via Priority was previously not available. There has been no impact on the delivery of notices by way of an Express Post. The extent of the impact on the giving of notices under a commercial lease will depend on the specific wording used in a commercial lease for example, if the lease prescribes that a notice is taken to be given to, or received by, a party after a nominated amount of business days after posting, the notice will be taken to be given at that time for the purposes of the lease irrespective of when the notice was actually received after posting. It is therefore recommended that practitioners in the legal and conveyancing industry best deal with these changes by looking at the specific clauses in a commercial lease relating to notice provisions on a case-by-case basis and then determining when a notice would be taken to be given to, or received by, a party having regard: (1) to the changes to the delivery speeds; and (2) ensuring that the relevant time period (if any) as prescribed in the notice is effectively and properly given. 21
In relation to notices pursuant to section 10 of the Landlord and Tenant Act, it is assumed that where these notices are sent by registered post where a priority label is used such notices are deemed to be made at the time at which the letter in the registered post in the ordinary course is delivered (i.e. 1-4 business days depending on the origin and destination). It has been suggested that the safest method for the delivery of notices is by way of hand delivery. This method avoids all the risks associated with the service of notices by way of postal delivery. Minicozzi Lawyers Hackney South Australia DISCLAIMER: The content of this article is of general informational nature. The information contained in this article does not constitute legal advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. 22