Calculating Time: Distinguishing Between "At Least X Days Before" and "X Days Before" An Event

This blog was originally published in 2020 by Professor Sharon Christensen, Queensland University of Technology, and has been updated in the Australian Property Law Bulletin in 2026 to reflect current case law and drafting considerations.

Clauses imposing time limits on the performance of contractual obligations are fertile ground for disputes, and non-compliance is often raised by parties seeking to terminate contracts.

Common phrases such as “at least x days after” or “x days before” are used to describe time periods. Often, the differences in meaning are subtle and depend in each case on a construction of the whole of the contract terms in the context of “rules of thumb” that have been applied over time.

The decision in Latimore Pty Ltd v Lloyd provides a useful context in which to explore some of these rules.

Latimore Pty Ltd v Lloyd

In this case, the parties entered into a contract on 22 February 2020 following the sale of a residential property in Minyama by auction. Settlement was due on 22 April 2020.

The contract was on the terms of the REIQ House and Land Contract (16th edition) but contained a special condition:

Notwithstanding anything else in this contract, the Seller agrees to provide a Pool Safety Certificate to the Buyer 7 days prior to Settlement. The parties agree that this is an essential term of the contract.

The parties agreed and proceeded on the basis that the day “7 days prior to settlement” was 15 April 2020.

At 5:03pm on 15 April 2020, the buyer terminated the contract because the pool safety certificate had not been provided. The seller provided the pool safety certificate at 6:31pm on 15 April.

The seller brought a claim for specific performance, which depended upon a construction of special condition 3.

The central issue was whether the seller had complied with the contract by providing the certificate on 15 April 2020 at 6.31pm. This depended primarily upon whether the reference to a “day” in special condition 3 was limited by standard clause 10.4(5) of the contract to a time between 9am and 5pm.

Clause 10.4(5) of the REIQ Houses and Land Contract then provided that a “notice” given by email after 5pm on a Business Day will be treated as given or delivered at 9am on the next Business Day.

Justice Bowskill held that a pool safety certificate was not a notice as referred to in cl 10.4(5). As a consequence, the reference to a day in special condition 3 was not limited by the restriction in cl 10.4 and the general principle applied.

Where a term of a contract specifies a date by which something is to occur, satisfaction of the obligation can occur at any time on that day, effectively up until midnight. The contract had therefore not been validly terminated, and an order for specific performance was made.

In the course of the judgment, Justice Bowskill queried whether the parties had correctly calculated the date for compliance with special condition 3. Her Honour observed that the parties had obviously included the settlement date and could have easily interpreted the contract as requiring exclusion of the settlement date in the calculation.

The logical consequence of this view is that the last date for providing the certificate would have been 14 April 2020, and the seller would have been required to give the certificate 7 clear days prior to settlement.

This raises an important point for parties when calculating time periods where a notice, certificate, or other action is required a certain number of days “prior to” or before an event. A variety of phrases may be used to describe this period, all of which may result in different calculations of time.

“x days before”

The phrase “x days before” 1 June or “before” 1 June will usually mean that the event has to occur on 1 June and if a number of days needs to be calculated, the last day, 1 June, is excluded.

Description of a time period as being “before” a date usually reinforces that the day of the event should be excluded.

For example, a contract requires a buyer to “give a notice to the seller 10 days before the Settlement Date”. The Settlement Date is 30 April. How do you count the 10 days? Generally, the counting of days will exclude the settlement date but include the day on which the notice is to be given. On this basis, the notice may be given up to and including 20 April.

This is consistent with the approach to counting of days for phrases such as “x days after” a date or event. In that case, the day of the event is excluded, and the final day is included in the calculation.

There may, however, be circumstances in which a consideration of the whole of the contract results in a conclusion that clear days are required by the phrase.

The concept of clear days was discussed in Mordechai v Minister for Immigration and Citizenship. This may depend in each case on the other terms of the contract.

“at least x days before”

Does the calculation of time change when the phrase “at least” is added?

There is a long line of authority which suggests that, unless a contrary intention appears, the expression “at least x days before” or “no later than x days before” should be read as requiring a period of [x] clear days between the start date and the end date.

The basis of these decisions is the general rule that the law takes no account of fractions of a day, so a day requires a 24-hour period to elapse.

This means when counting the period of days, both the commencing date and the expiring date are excluded.

For example, if a certificate must be given “at least 5 days before settlement” and settlement is 10 June, then the last day for giving the certificate in compliance with the clause is on 4 June, before 11:59pm (unless the contract states an earlier time).

The same rule is adopted for similar phrases in statutes where the phrase “at least” a specified number of days is used.

Related: Be Prepared for Significant Changes to Queensland Property Law | Property Law Act 2023 (QLD)

“day” or “business day”

There is an important distinction between a clause referring to a day and one referring to a business day.

A day is a consecutive period of 24 hours, usually from midnight to midnight, and at common law, a Sunday, Saturday, or public holiday is a day.

If a provision is to be fulfilled by a named day, in the absence of a contrary contractual provision, it can be fulfilled at any time up to midnight on that date.

For this reason, it is common for contracts to include a contract term limiting the giving of notices or correspondence to a period of 9am to 5pm on a business day. Refer, for example, to cl 10.3 REIQ Residential Contract.

If parties want to exclude non-business days in the calculation of a time period, the phrase business days should be used in time provisions.

A definition of “business day” will be required, and in addition, a contractual provision should be made for any act or obligation falling on a non-business day to be performed on the following business day. Refer, for example, to cl 21.5 of the Standard Form of Land Sale Contract in New South Wales.

A notice must be given “before” or “by” settlement

Description of a time period as being “before” a date will usually, but not always, mean that the event has to occur before the specified date.

The meaning can be changed by the addition of “on or before” a certain date. In that case, performance of the particular obligation can occur before, but may also occur on the particular date.

A similar outcome to “on or before” can be achieved by requiring performance “by” a date. Stating that performance must occur “by” 1 June will usually be interpreted as allowing performance on or before 1 June. Therefore, a notice delivered to a tenant requiring the tenant to vacate premises “by 1 June” will be complied with if the tenant leaves at any time on 1 June at the latest.

Contracts for the sale of land commonly require something to be done “by” the happening of a significant event as opposed to by an actual date, for example “by settlement”.

Often, a “date for settlement” will be stated in the contract.

This latter date may not be the date of actual settlement. Care must be exercised in construing such a phrase in this context, as the term “by settlement” may connote a different date than the phrase “by the date of settlement”, the former expression meaning by the date of actual completion, not the date initially stated in the contract when settlement is scheduled.

“month” and corresponding date rule

When counting a calendar month, the corresponding date rule is usually applied by Australian courts.

The rule is given effect by statute in each jurisdiction in similar terms. According to the Acts Interpretation Act 1954 (Qld):

• calendar month means a period starting at the beginning of any day of 1 of the 12 named months and ending—
  1. immediately before the beginning of the corresponding day of the next named month; or
  2. if there is no such corresponding day, at the end of the next named month.

This rule applies to the counting of months in statutory provisions and contracts.

For example, if a buyer is required to notify of satisfaction of due diligence “one month prior to settlement”, which is 30 April, the time will be calculated by excluding 30 April and including the corresponding date one month earlier, which is 30 March.

If there is no corresponding date in the previous month, the period will expire on the last day of the month.

This means “one month before 31 May” will be 30 April. For further examples of application of the corresponding date rule, refer to Lioncrest Capital Holdings Pty Ltd v O’Shaughnessy (2022) 20 BPR 42,785; [2022] NSWSC 1410; BC202211826 at [32].

The full article has also been updated and re-published in the Australian Property Law Bulletin.

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