Landlords take "note" - Form 7 compliance tested
Recently, the validity of a Form 7 Notice to Remedy Breach of Covenant issued pursuant to Section 124 of the Property Law Act 1974 (Qld) was tested in the Queensland Supreme Court decision of Tyrell & Anor v Jescro Enterprise Pty Ltd  QSC 55. The decision brought to light the need to take care in the preparation of a Form 7 to ensure that the approved form is strictly complied with in order for the Notice to be valid and effective.
In that case, the Applicants (landlord) sought a declaration to confirm that their Lease with the Respondent (tenant) had been validly terminated following the tenant’s non-compliance with a Form 7 Notice to Remedy Breach that had been issued to the tenant.
After the case had been argued, the landlord’s barrister brought to the Court’s attention that the Notice in question did not include the “Note” which appears in the approved version of the form. In this regard, the approved Form 7 contains the following as part of the form:
The reasons for Judgment do not reveal whether the “Additional Note” appeared in the Notice or not.
Despite the absence of the “Note” in the Notice, the landlord argued that the Notice was still valid.
Initially, the Court noted that “it has long been accepted that a failure to include the note was fatal to the validity of a notice given under s 124 …”
The landlord argued that the covering letter that served the Notice included the essential information conveyed by the “Note.” However, the Court rejected that argument, stating that it is not possible to rectify a defective notice by such means, because “it is the Notice which must be in strict or substantial compliance with the approved form.”
The landlord also made the same argument about the terms of the Notice itself, and that the “Note” would not have added anything to what was actually included in the Notice. The Court, however, rejected this argument as well and gave four reasons for this as follows:
Accordingly, the Notice was found to be invalid and the landlord’s proceeding was dismissed.
Landlords must therefore take care in the preparation of a Form 7 Notice to Remedy Breach of Covenant, and ensure that the approved form is strictly complied with in order for the Notice to be valid and effective. Landlords should have such notices prepared and served by experienced lawyers to avoid these types of problems arising.
For more information or discussion, please contact HopgoodGanim’s Commercial Property Team.