The validity of a Notice to Remedy Breach of Lease

The validity of a Form 7 Notice to Remedy Breach (‘Breach Notice’) issued pursuant to the Property Law Act 1974 (Qld) (‘Act’) has been tested in the Queensland Supreme Court.

In Tyrell & Anor v Jescro Enterprise Pty Ltd [2017] QSC 55 it was determined that the Breach Notice was invalid and the Landlord’s application for a declaration that the Lease had been validly terminated was dismissed.

In this case, Tyrell (the ‘Landlord’) sought a declaration that the Lease with Jescro (the ‘Tenant’) had been validly terminated following non-compliance of a Breach Notice.

Only problem was the Breach Notice did not include the mandatory ‘Note’ which appears on the foot of the approved form.

The Court noted that “it has long been accepted that a failure to include the note was fatal to the validity…”

The Landlord argued that the Breach Notice was sufficient to achieve compliance as the covering letter served with the Breach Notice included the essential information provided for in the ‘Note’. The Court rejected any suggestion the defect could be rectified by a covering letter:  “it is not possible to remedy a defect of notice by such means.”

Following on from this case, it is paramount to take care when preparing a Breach Notice to ensure compliance with the Act and validity of the Breach Notice.  It is a reminder that Landlords should have Breach Notices prepared and served by experienced Lawyers to avoid any problems.

If you have any queries regarding Breach Notices please contact our Commercial Property or Litigation teams at your Gold Coast Lawyers, McLaughlins Lawyers.

Author: Annette Wojtyna

Director: Ian Kennedy

Date: 12/06/2017