In a recent Supreme Court decision, it was held that a notice of
breach of covenant served on a tenant was invalid because it was
signed by the landlord's lawyer rather than the landlord
The facts of Enviro Remote Sensing Australia Pty Limited v
Bankstown Airport Limited1 involved the landlord
serving on the tenant a notice of breach of covenant, said to be
under section 129 of the Conveyancing Act 1919, alleging breach of
a clause in the lease in failing to complete works in a workmanlike
manner, and requiring the breach to be remedied.
The notice served on the tenant stated that the landlord would
be entitled to re-enter and forfeit the lease in the event that the
tenant failed to comply with the notice within a reasonable
The landlord subsequently re-entered and terminated the lease
after it deemed that the tenant had not complied with the section
The tenant argued that the termination was without grounds and
wrongful, constituting a repudiation of the lease and that the
tenant accepted the repudiation and considered the lease at an
While there were a number of claims made by the tenant, the one
we consider here is the claim that the section 129 notice was
defective on the basis that it was not properly signed.
The notices provision within the lease provided that a
"notice in connection with the lease could be given by the
Tenant (if an individual), the Corporation (if an individual) or an
authorised officer of the relevant party".
The solicitor who signed the section 129 notice was not an
authorised officer and it was not suggested that the solicitor was
appointed by the landlord to act as an authorised officer for the
purposes of the lease.
The Court noted that the ordinary authority of a solicitor would
not extend to signing a notice on behalf of a landlord client nor
would that solicitor, without other authorisation, be the agent of
the client for that purpose (the landlord was not mentioned by name
in the notice and the landlord's solicitor did not claim to
sign as agent of the landlord).
Further, no argument was raised in respect of any ostensible
authority. That is, that the landlord had held out its solicitors
as its agent to the tenant.
It was therefore concluded on technical grounds that the section
129 notice was not a valid notice.
This meant that the landlord's re-entry for the tenant's
failure to comply with the section 129 notice constituted a
repudiation of the lease by the landlord.
The lesson here for landlords and in-house counsel is to ensure
that any notice (particularly a notice of breach under section 129
of the Conveyancing Act 1919) is signed and served
strictly in accordance with the notices' provision contained in
the lease and any statutory requirements.
1  NSW SC 1001 (25 September 2008)
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