Applicant/Appellant v Respondent

The plaintiff appeared in person (via audio-visual link)

1 This case arose from subletting arrangements in a share house. What are the standing requirements for an application to the Victorian Civil and Administrative Tribunal (VCAT) for variation of a head residential rental agreement and a sub-residential rental agreement based on an interim personal safety intervention order applying between residents at the rented premises?

2 This was an application for an extension of time in which to apply for leave to appeal, an application for leave to appeal, and an appeal, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

3 As is clear from the appellant's notice of appeal dated 16 September 2023 and filed on 4 October 2023, the order the subject of the applications and appeal was an order on 24 August 2023 in VCAT case R2023/25011, striking out part of the appellant's application relating to s 91V of the Residential Tenancies Act 1997 (RTA), and 'for this particular part only'. The question of law identified in the notice of appeal was in two parts and was as follows:

1. For an application under s 91V of the RTA, does the perpetrator of that violence have to be another renter named in the rental agreement? Answer: No.
2. Can a sub-renter be considered as to be an occupant to the existing residential rental agreement and be eligible to make an application under s 91V? Answer: Yes.

4 The factual background relevant to the resolution of this two-part question of law can be stated briefly.[1]

5 On 3 July 2023, Mr Myers entered into a residential rental agreement in standard form with the defendant, Mr Satheeskumar, in relation to 4 Zena Place, Berwick, Victoria. Mr Satheeskumar was not the owner. Mr Myers sought assurances from Mr Satheeskumar, and was told, that the owners of the property consented to Mr Satheeskumar sub-leasing part of the property to Mr Myers. There was evidence before me, and I accept, that the owners of the property, through their real estate agents Babet Brothers, consented in writing to the sub-lease to Mr Myers.

6 Sections 81 and 91R of the RTA make it clear that the RTA contemplates such arrangements. Section 81 imposes a requirement that a renter must not sub-let the whole or part of the rented premises without the written consent of the residential rental provider. Section 91R(1) refers to a lessee who sub-lets part of a property to another person as a 'head renter'. It also refers to a person who is granted a sub-lease by a head renter, describing a sub-lease in those circumstances as another 'residential rental agreement', and more particularly as a 'sub-residential rental agreement'. Section 91R(1) provides:

(1) A person becomes the renter of the residential rental provider in respect of rented premises if -

(a) the person is in possession of the premises under a residential rental agreement (a sub-residential rental agreement) granted to that person by a person who is a renter of the premises under another residential rental agreement (the head residential rental agreement) granted to the person who is the head renter by the residential rental provider; and

(b) the head residential rental agreement terminates or is terminated; and

(c) the sub-residential rental agreement does not terminate or is not terminated in accordance with this Act.

7 On or about 1 August 2023, Mr Myers completed a VCAT form titled as an 'application by a person experiencing personal or family violence - residential tenancies' and on 3 August 2023 submitted that form to VCAT (VCAT application). The VCAT application identifies Mr Satheeskumar as the 'rental provider (landlord)'. It also refers to the real estate agents for the property, Babet Brothers, and gives their details. Mr Myers did not know the identity of the ultimate owners of the property, and to this day does not have their full details.

8 At the end of the VCAT application there was supplementary text responding to question 23 in the application form: 'What was the most recent incident of family violence? What happened? Has there been a history of family violence?'. That attachment stated an argument that, 'for the purposes of the Family Violence Protection Act, the respondent is considered a family member in accordance with s8(3)(b + f + g)'. The VCAT application form had a question for personal violence: '24. Do you have a personal safety intervention order?'. This question was answered 'no', which was correct at the time the VCAT application was lodged.

9 At the time Mr Myers made the VCAT application, there was no personal safety intervention order in effect as between him and Mr Satheeskumar. However, as Mr Myers stated in his affidavit in this proceeding, on 10 August 2023, on his application the Magistrates' Court made an interim personal safety intervention order against Mr Satheeskumar naming Mr Myers as a protected person.

10 Subsequently, on 24 August 2023, the Magistrates' Court also purportedly made two interim personal safety intervention orders against Mr Myers, one of which named Mr Satheeskumar as a protected person, and the other naming another resident at 4 Zena Place, Thuyaparan Gopalarathinab. Mr Myers challenges the validity of those orders in a separate proceeding in this Court, Myers v Satheeskumar , Gopalarathinab and Dandenong Magistrates' Court S ECI 2023 04659 (the related Supreme Court proceeding), which is part heard, and in which judgment should be delivered in the near future.

11 It is understandable that in completing the VCAT application Mr Myers only identified Mr Satheeskumar as the 'rental provider (landlord)', and did not refer to the ultimate owners, given that the application form provided by VCAT describes that person as follows:

9 Details of the rental provider/s (landlord/s) (as applicable):

The rental provider (landlord) is the person or organisation who you have a rental agreement with. To find the name of the rental provider, check your rental agreement or speak to your real estate agent. If you do not know their name, enter 'the Rental Provider (Landlord)'.

12 For reasons I will discuss shortly, with reference to the proper construction and interpretation of s 91V of the RTA, in certain circumstances, this description may not be sufficient. It may be necessary, where sub-residential rental agreements granted by head renters are involved, for it to be made clear that the ultimate owner(s)/landlord(s) should be included in applications to VCAT arising out of alleged violence between residents.

91V Application for termination or new residential rental agreement because of family violence or personal violence

(1) A person specified in subsection (2) may apply to the Tribunal for -

(a) an order terminating the existing residential rental agreement; or

(b) an order -

(i) terminating the existing residential rental agreement; and

(ii) requiring the residential rental provider of the premises to enter a residential rental agreement with the person and other persons (if any) specified in the application.

(2) For the purposes of subsection (1), the following persons are specified -

(a) a party to the existing residential rental agreement -

(i) who has been or is being subjected to family violence by another party to the existing residential rental agreement; or

(ii) who is a protected person under a personal safety intervention order made against another party to the existing residential rental agreement;

(b) a person -

(i) who is residing in the rented premises as the person's principal place of residence; and

(ii) who is not a party to the existing residential rental agreement; and

(iii) who -

(A) has been or is being subjected to family violence by a party to the existing residential rental agreement; or

(B) is a protected person under a personal safety intervention order made against a party to the existing residential rental agreement.

...

(6) For the purposes of a proceeding for an order under subsection (1), each of the following persons is a party to the proceeding -

(a) the applicant or the person on whose behalf the application is made;

(b) the residential rental provider;

(c) any other party to the existing residential rental agreement;

(d) any other person specified in the application.

(7) The Tribunal must hear an application under subsection (1) -

(a) within 3 business days of the application being made; or

(b) if the application cannot be heard within the period referred to in paragraph (a), no later than the next available sitting day of the Tribunal after the end of that 3 business day period.

(1) On an application under section 91V(1)(a), if satisfied as to the matters set out in subsection (1B), the Tribunal may make an order terminating the existing residential rental agreement.

(1A) On an application under section 91V(1)(b), if satisfied as to the matters set out in subsection (2), the Tribunal may make an order -

(a) terminating the existing residential rental agreement; and

(b) requiring the residential rental provider to enter into a new residential rental agreement with the person and other persons (if any) referred to in the application.

(1B) For the purposes of subsection (1), the matters are -

(a) the specified person or that person's dependent children would be likely to suffer severe hardship if the residential rental agreement were not terminated; and

(b) the hardship suffered by the specified persons would be greater than any hardship the residential rental provider would suffer if the order were made; and

...

(d) it is reasonable to do so given the interests of any other renters (other than any excluded renter) under the existing residential rental agreement and, in particular, whether the other renters support the specified person's application.

15 Section 91W(2) includes a number of additional matters that would fall for factual evaluation for the purposes of s 91W(1A), such as 'the hardship suffered by the specified person would be greater than any hardship the residential rental provider would suffer if the order were made'.

16 Another matter falling for evaluation under both sub-ss (1B) and (2) of s 91W are the effects of any personal safety intervention orders. In addition, sub-s (3) requires VCAT to take into account matters in relation to personal violence that include whether a personal safety intervention order has been made by or in respect of the specified person.

17 On 24 August 2023, an acting Senior Member of VCAT made an order in the proceeding commenced by Mr Myers using the VCAT application. The terms of the order were as follows:[2]

From the details provided in the application, the applicant has no standing to make the application under section 91V of the Residential Tenancies Act 1997.

An applicant under section 91V must be a victim of family or personal violence and the perpetrator of that violence has to be another renter named on the rental agreement.

The renter is a sole renter under a sub-rental agreement with the head renter, who for all intents and purposes of the jurisdiction of the Tribunal is the rental provider under the rental agreement with the Applicant.

Therefore this part of the renters application is struck out as there is no standing to make any such application.

The renter has also referred in the application to the bond having not been paid to the Residential Tenancies Bond Authority by the rental provider respondent.

As such the application will be amended to be a claim for a mandatory injunction for the bond to be paid to the RTBA to secure this rental agreement for the room between the applicant and the respondent.

The principal registrar is directed to amend the application to be a claim under sections 452 and 472(1)(b) of the Residential Tenancies Act 1997 and to list the matter on notice to all parties for an hour hearing duration.

18 Mr Myers commenced this proceeding on 4 October 2023, 13 days later than the 28 day period for commencement of an appeal under s 148 of the VCAT Act. Section 148(2)(a) of the VCAT Act requires an application for leave to appeal to the Trial Division of the Court to be made within 28 days after the day of the order of VCAT, unless the Rules of the Court otherwise provide. The Rules do not make any contrary provision. However, there is a power conferred on the Court, pursuant to s 148(5) of the VCAT Act, which permits the Court to extend any time limit fixed by or under s 148.

19 Should an extension of the time prescribed by 148(2)(a) be granted under s 148(5)?

20 The first issue I should consider is, what was Mr Myers' explanation for the delay? At the hearing, Mr Myers addressed the Court on the reasons for his failure to commence the appeal until 13 days after the expiry deadline prescribed by s 148(2)(a). He satisfied me that there were valid reasons for that delay. He was faced with a number of serious legal issues; he was required by his circumstances to represent himself in relation to these issues as he could not afford or could not obtain a lawyer's services; he claims he was deprived of his liberty as a result of actions as a result of the interim personal safety intervention orders obtained against him; and during the relevant period he was occupied with various attempts to secure access to 4 Zena Place, Berwick, and his personal property at that location.

21 Secondly, is there any prejudice to Mr Satheeskumar? The delay in question is only a brief one, namely 13 days. I am satisfied that Mr Satheeskumar has had notice of this proceeding, but he has not appeared or otherwise participated in the proceeding. I therefore have no basis for knowing whether he would claim that there would be any prejudice occasioned by the grant of an extension of time to Mr Myers in which to commence the application and appeal. However, I was cognisant of the limited subject matter of the proposed appeal, namely the questions of law raised about the construction of s 91V of the RTA. It seemed to me that it would be very unlikely that a respondent would be able to raise a legitimate form of prejudice by reason of a limited extension of time granted for the consideration of legal construction points of this kind.

22 Thirdly, does it appear that the prospects of the matter are such as to justify an extension of time? As to the prospects of the appeal, were an extension to be granted, I was of the preliminary view that the prospects were reasonable. Certainly, Mr Myers' construction argument was not, by any means, hopeless.

23 For these reasons, at the hearing on 8 December 2023, I granted an extension of time pursuant to s 148(5) of the VCAT Act for Mr Myers to commence this proceeding on the date he did, 4 October 2023.

24 An extension of time in which to commence the proceeding does not in itself amount to a grant of leave to appeal to the Supreme Court, which is a requirement separately imposed in this case by s 148(1)(b) of the VCAT Act.

25 Should Mr Myers be granted leave to appeal? In considering this issue, I was conscious that the order appealed from was interlocutory and that ordinarily that would count against a grant of leave to appeal under s 148 of the VCAT Act. However, it seemed to me that this was an exceptional case where, by reason of the view taken by VCAT of Mr Myers' lack of standing to commence a proceeding under s 91V of the RTA, the order in question had had a profound impact on the future conduct of the VCAT proceeding and the substantive rights asserted by Mr Myers in that proceeding. I was also conscious, again, of the limited subject matter of the appeal, which is confined to the construction questions relating to the meaning of s 91V of the RTA I have already mentioned. The resolution of these questions is not only a necessary preliminary for the proper conduct of Mr Myers' proceeding in VCAT, but their resolution might be of more general interest.

26 For all these reasons, in the interests of justice, I considered it appropriate to grant leave to Mr Myers to bring the appeal in the form of his notice of appeal filed on 4 October 2023, limited to the subject matter specified in that document under the heading 'order subject to appeal'. At the hearing, I made a grant of leave to appeal, limited to VCAT's decision that Mr Myers had no standing under s 91V of the RTA made on 24 August 2023, and the construction questions raised in the notice of appeal.

27 I noted that the notice of appeal also sought the following:

ORDER SOUGHT:

An order made under s 91W(1A)(a) to terminate Kathusiyan's rental agreement and order under s 91W(1A)(b) that a new residential rental agreement be created in my name.

28 I did not grant an extension of time or leave to appeal in respect of this aspect of the notice of appeal. There were a number of reasons for this. Firstly, by reference to the provisions of ss 91V and 91W of the RTA extracted and referred to above, it is plain that many questions of fact requiring evaluation of evidence would arise before orders of this kind could be made. It will fall to VCAT to consider making these orders in the proceeding before it in due course. Although s 148(7) of the VCAT Act in terms provides that the Trial Division may make orders on an appeal including 'an order that the Tribunal could have made in the proceeding', this does not mean that the Court hearing an appeal under s 148 should travel outside the confines of the questions of law raised by an appeal. Those questions of law are not only the condition of the Court having jurisdiction under s 148, but are also the subject matter of an appeal under s 148.[3]

29 Further, for reasons that will be made plain below in discussing the ways in which s 91V of the RTA applies to the facts of this case, Mr Myers' intention to seek from VCAT orders under s 91W(1A)(a) and (b) terminating Mr Satheeskumar's residential rental agreement with the ultimate owners of 4 Zena Place and creating a new residential rental agreement between Mr Myers and the owners, raises a complication. In my view, if Mr Myers seeks orders relating to agreements with the owners in this manner, this necessitates the participation of the owners, or at least clear notice of what is intended being given to the real estate agents (Babet Brothers), or some other agent or representative acting on behalf of the owners, in the VCAT proceeding. They would have to be put squarely on notice that replacement of the residential rental agreement between them and Mr Satheeskumar is proposed. As far as I can see, that has not been done. As already noted, this is understandable, because the questions posed in the VCAT application form do not cater very clearly for cases of this kind. Further, the ultimate owners of 4 Zena Place and their agents may not be on notice of this proceeding in the Court.

30 For this reason, I did not consider that I could make the orders Mr Myers sought under s 91W(1A)(a) and (b), and I declined to evaluate much of the evidence adduced by Mr Myers in this case. Mr Myers wished to take me to a quantity of evidence, including 14 video files, some of which he said evidenced violence by Mr Satheeskumar against him. However, I did not regard myself as having a fact-finding role on the issues that would need to be decided in order for an order to be made terminating Mr Satheeskumar's residential rental agreement with the owners and replacing it with a new residential rental agreement between the owners and Mr Myers. That evidential material must, however, be evaluated by VCAT in a further hearing in the proceeding from which this appeal is brought, for the reasons I will now make clear.

31 The reasoning which led to VCAT concluding that Mr Myers had no standing to bring an application under s 91V of the RTA and striking out that application was legally erroneous in two ways. Each of them is a sufficient basis for the Court to set aside VCAT's order striking out Mr Myers' s 91V application.

32 The first reason relates to a requirement VCAT imposed that the 'perpetrator' of the alleged violence be a 'renter'. As extracted above, the learned acting Senior Member of VCAT stated that an applicant under s 91V of the RTA 'must, as well as being a victim of personal violence, be the victim at the hands of a perpetrator who has to be another renter named in the rental agreement'.[4]

33 However, s 91V does not require the so-called alleged 'perpetrator' to be another renter. As extracted above, s 91V(1) confers standing to make an application under that section on a person specified in sub-s (2). Subsection (2)(a) refers to 'a party' to 'the existing residential rental agreement'. There is no limitation expressed in this provision that would exclude a residential rental provider from being a 'party'. Is such a limitation to be implied? As I explain below, I do not think so. Sections 91V and 91W should be accorded a broad interpretation promoting protection of renters consistently with their text, not a narrow one. For this reason alone, VCAT's decision must be set aside.

34 Further and in any event, it would also suffice if the person in question were to be a renter under another existing residential rental agreement over the same rented premises. Section 37(c) of the Interpretation of Legislation 1984 provides that, unless the contrary intention appears, in an Act words in the singular include the plural. In my view, this is a significant consideration affecting the proper interpretation of ss 91V and 91W of the RTA in a case where a head residential rental agreement and a sub-residential rental agreement co-exist over the same property (in whole or in part). In such a case, there will be two existing residential rental agreements. This is consistent with s 91R(1) of the RTA, extracted earlier in these reasons. In a case where there are multiple existing residential agreements at the same time in respect of the same property or parts of the same property, ss 91V and s 91W of the RTA should, in my view, be read as including any and all such agreements.

35 Here, it is to be inferred that there is an existing residential rental agreement, in the nature of a head residential agreement, between Mr Satheeskumar as head renter and the ultimate owners and landlords of the property. In addition, there is of course the existing residential rental agreement, which is in evidence, between Mr Myers and Mr Satheeskumar. Mr Satheeskumar has the legal status of a renter (namely a head renter) under the first of these agreements, and the status of a residential rental provider under the second of these agreements.

36 The purpose evident behind s 91V(2)(a) is that parties to residential rental agreements within the meaning of the RTA should as far as possible be protected from violence by other parties while being able to retain their rights to accommodation under those agreements. In light of that purpose, there is every reason to read s 91V(2) as accommodating arrangements under head and sub-residential rental agreements and not to read it narrowly. It would not promote that purpose, and would also be inconsistent with the text, to read s 91V(2)(a) as only applying if there is violence as between two people who each have the status of renters under the same residential rental agreement. I respectfully conclude that VCAT erred by adopting a narrow interpretation to this effect.

37 Taking the broader and more purposive approach to the construction of s 91V(2)(a) and related provisions of s 91V and 91W that I prefer, 'the existing residential rental agreement' should be read as 'the existing residential rental agreement, or agreements, as applicable' and:

(a) Mr Myers was 'a party to the existing residential rental agreement' in the sense that he was a renter under the sub-residential rental agreement;

(b) Mr Satheeskumar was another 'party to the existing residential rental agreement' in two ways: he was the residential rental provider under the sub-residential rental agreement with Mr Myers, and he was also the renter under the residential rental agreement which I infer to have existed between him and the owners.

38 Before moving to the next element in VCAT's reasoning, I should say that, in referring to Mr Satheeskumar as the 'perpetrator' of alleged violence, I am making no finding that any violence occurred, or (if it did) that Mr Satheeskumar committed it. I also note that VCAT used the word 'perpetrator' as a convenient short-hand expression, but in fact that word does not appear in s 91V(2). Under s 91V(2)(a)(ii), an applicant for orders under s 91V(1) will have standing provided that they are a protected person under a personal safety intervention order, without VCAT having to make a finding that violence has been committed.

39 In the alternative to relying on s 91V(2)(a), Mr Myers advanced an argument that s 91V(2)(b) of the RTA would be met. That is because, if Mr Myers were not to be regarded as 'a party to the existing residential rental agreement' within the meaning of s 91V(2), nevertheless, he would be 'residing in the rented premises' as his 'principal place of residence', thereby meeting the criteria in s 91V(2)(b).

40 For the purposes of determining this appeal, I need only accept Mr Myers' argument relying on s 91V(2)(a). I am of the view that VCAT erred in law in its narrow interpretation of that provision, and that suffices to allow the appeal to set aside VCAT's order.

41 VCAT's order on 24 August 2023 went on to state that '[t]he renter is a sole renter under a sub-rental agreement with the head renter, who for all intents and purposes of the jurisdiction of the Tribunal is the rental provider under the rental agreement with the applicant'. I respectfully agree with this as characterisation of the legal relationship between Mr Myers and Mr Satheeskumar under the sub-residential rental agreement. However, this only serves to underline the point that both Mr Myers and Mr Satheeskumar are parties to the existing sub-residential rental agreement, which is what is required for Mr Myers to have standing. As I have already explained, there is no express limitation in s 91V(2)(a) to 'renters', and for the reasons I have given, none should be implied.

42 Next, VCAT stated that 'therefore, this part of the renter's application is struck out as there is no standing to make any such application'. This conclusion is clearly based on VCAT's earlier assertion that the 'perpetrator' of alleged violence has to be another renter named in the rental agreement, whereas in my view it is sufficient for the alleged perpetrator merely to be a party to that agreement. Mr Satheeskumar meets that requirement. And as already mentioned, if I were to be wrong about that, and if s 91V(2)(a) requires that the alleged 'perpetrator' be another renter, then in any event that requirement was met here. Mr Satheeskumar has the status of a renter under another existing residential rental agreement. As I have already explained, the references to 'the existing residential rental agreement' in s 91V should be read as including the plural. No contrary intention appears, so the presumption to this effect in s 37(c) of the Interpretation of Legislation Act 1984 applies here.

43 The first sentence of VCAT's order states that '[f]rom the details provided in the application, the applicant has no standing to make the application under section 91V of the Residential Tenancies Act 1997'. VCAT's analysis of those details was legally erroneous for the reasons I have explained. However, if VCAT had been confined to the information in the VCAT application form, it is possible that it could have reached the same conclusion in a legal correct manner. In this respect, it is necessary return to the point that, at the time Mr Myer's completed his VCAT application form, there was no interim personal safety intervention order yet in force between him and Mr Satheeskumar. What, if anything, is the significance of this?

44 As extracted above, s 91V(2)(a) of the RTA has two limbs. It may be satisfied where the applicant in VCAT is (i) a person 'who has been or is being subjected to family violence by another party to the existing residential rental agreement', or where the applicant is (ii) a person 'who is a protected person under a personal safety intervention order made against another party to the existing residential rental agreement'.

45 In his VCAT application form, Mr Myers argued that he was subjected to 'family violence'. I do not accept that he has demonstrated this, but do not make any findings in this regard. Mr Myers relied on the Family Violence Protection Act 2008 s 8(3)(b), (f) and (g). Mr Myers was clearly correct in referring to that Act in order to define what is meant in the RTA by 'family violence'. Section 3(1) of the RTA provides that, in the RTA, 'family violence' has the same meaning as in the Family Violence Protection Act 2008. In that Act, 'family violence' is defined in s 5. It is defined there in a way that requires behaviour by a person against a 'family member'. That term is defined in s 8 of that Act. The elements of s 8(3) relied upon by Mr Myers were as follows:

(3) For the purposes of this Act, a family member of a person (the relevant person) also includes any other person whom the relevant person regards or regarded as being like a family member if it is or was reasonable to regard the other person as being like a family member having regard to the circumstances of the relationship, including the following -

...

(b) whether the relevant person and the other person live together or relate together in a home environment;

...

(f) any financial dependence or interdependence between the relevant person or other person;

(g) any other form of dependence or interdependence between the relevant person and the other person;

...

46 Mr Myers' argument that a relationship of 'family member' and 'relevant person' existed between him and Mr Satheeskumar seems very weak. Factual evaluations of various other factors enumerated in s 8(3) of the Family Violence Protection Act 2008 would be required. At the end of this process, it seems most unlikely that it would be reasonable to regard Mr Myers as 'being like a family member' of Mr Satheeskumar, even though they lived in the same share house for a time.

47 I am therefore not satisfied that Mr Myers had standing on 3 July 2023 under s 91V(2)(a)(i) of the RTA, or that he had acquired standing under that provision at the time of VCAT's order on 24 August 2023 striking out his s 91V application.

48 Mr Myers did, however, have standing under s 91V(2)(a)(ii) at the time of the VCAT order. Although there was no interim personal safety intervention order in existence at the time Mr Myers first completed his VCAT application form, by the time VCAT made its order on 24 August 2023, he had acquired standing. That is because, on 10 August 2023, he became a protected person under a personal safety intervention order against another party to the existing residential rental agreements, for the purposes of s 91V(2)(a)(ii).

49 I do not think that either the text or purpose of s 91V(2)(a)(ii) requires the imposition of a strict requirement that standing must exist at the time the VCAT application form was filled out and filed by Mr Myers. What matters is the relevant circumstances on 24 August 2023, when VCAT made its decision on standing. By that time, Mr Myers was a protected person under an interim personal safety intervention order. An interim order was sufficient to accord him standing. Section 3(1) of the RTA provides that in the RTA, 'personal safety intervention order' has the meaning given by the Personal Safety Intervention Orders Act 2010. In that Act, s 4, 'personal safety intervention order' includes an interim personal safety intervention order. For all these reasons, when VCAT made the order appealed from, Mr Myers had standing under s 91V(2)(a)(ii) of the RTA.

50 For these reasons, I am satisfied that VCAT's decision denying Mr Myers' standing to make an application under s 91V of the RTA and striking that part of his application out was affected by one or more errors of law and will be set aside.

Matters that may impact on VCAT's further conduct of the proceeding before it

51 What will follow from my order setting aside VCAT's order striking out Mr Myers' s 91V application? The matter is still before VCAT, so no remitter order is needed. However, the proceeding in VCAT will now include the s 91V application and will be required to address a series of interrelated factual and legal issues raised by that application.

52 As will be recalled, Mr Myers seeks an order terminating Mr Satheeskumar's residential rental agreement with the owners.

53 For the reasons I explained early in these reasons, there would be difficulties in VCAT considering and determining the full scope of Mr Myers' application for termination of the head residential rental agreement between Mr Satheeskumar and the owners, and substituting for that agreement a new agreement between Mr Myers and the owners, without the application in VCAT being amended and clarified and then brought to the attention of the owners. It seems likely that Mr Myers will wish to amend and resubmit the VCAT application he initially lodged, to make it plain that the parties to the application will henceforth include the owners.

54 It may also be necessary for VCAT to consider the potential operation of s 91R of the RTA. Section 91R(1), extracted earlier in these reasons, provides that in the event the head residential rental agreement 'terminates or is terminated', a person in possession of the premises under a sub-residential rental agreement granted by the person who was a renter under the head residential rental agreement becomes 'the renter of the residential rental provider'. In other words, there is a prospect that if VCAT were to conclude, after evaluating the allegations Mr Myers makes against Mr Satheeskumar and considering the evaluative factors in s 91W, that Mr Satheeskumar's residential rental agreement with the owners is to be terminated, then s 91R might operate in Mr Myers' favour.

55 It will be recalled that, in the related Supreme Court proceeding, Mr Myers seeks an order setting aside two interim personal safety intervention orders made by the Magistrates' Court on 24 August 2023 against him, in relation to Mr Satheeskumar and another renter at 4 Zena Place. Judgment in that proceeding may be expected in the near future. The outcome of that proceeding is another matter that may have an impact on VCAT's further conduct of the proceeding before it. It is within the discretion of Mr Myers to choose the timing of his amendment of the VCAT application. He could, for example, choose to await the outcome of the related Supreme Court proceeding before amending his VCAT application.

56 Having regard to all these matters, I will order that, in the event that Mr Myers amends his application to VCAT in writing joining the owners of 4 Zena Place, lodges that amended application in VCAT and serves it on all the parties, VCAT is required to hear Mr Myers' application within four business days. This is doing no more than ensuring that the requirements of the RTA are met.

57 The remainder of VCAT's order was that the principal registrar was directed to amend the application to be a claim under ss 452 and 472(1)(b) of the RTA and to list the matter on notice to all parties for an hour hearing duration. I do not express a view as to whether the addition of claims under ss 452 and 472 of the RTA was erroneous. I am not setting aside any such addition to the proceeding. However, it would be open to VCAT, when the matter is heard further, to revisit whether the listing of the matter for only a one-hour hearing is sufficient in the circumstances.

58 Mr Myers addressed me on costs, seeking an order that Mr Satheeskumar pay Mr Myers' out-of-pocket expenses. These were only in the sum of $15. Although that is a very modest amount, Mr Myers was entitled to seek an order. In the circumstances, subject to any submissions Mr Satheeskumar might make, my preliminary view is that it is appropriate that I make this order, a costs order being an order intended to compensate a successful party for the expenses they incurred in bringing litigation. Although the figure in question is very low, Mr Myers was entitled to seek such an order and I can at present see no appropriate reason to refuse it.

59 Mr Myers also sought an order that Mr Satheeskumar should reimburse the Court for the filing fees that Mr Myers would have paid had Mr Myers not been eligible for a waiver. I will consider further whether to make any such order and will hear any submission from Mr Satheeskumar on this issue, to be filed and served in written form within seven days after the making of the substantive orders setting aside VCAT's decision and directing the urgent hearing of Mr Myers' s 91V application.

60 I will allow Mr Satheeskumar an opportunity to make submissions on costs within seven days after the making of the substantive orders.

[1] The Court received into evidence the affidavit of Mr Myers affirmed 21 September 2023 and filed 4 October 2023, together with its 117 pages of exhibits, but not the 14 video files also referred to in it.

[2] Affidavit of Myers, 21 September 2023, page 113.

[3] Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320, [21]; Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, [48].