Applicant v Applicant

1 Since 26 June 2020, Lena Anderson, the applicant, has occupied a residential property at 26 Benson Street, Benalla owned by David Sharpe, the respondent. Fixed term rental agreements have expired and Ms Anderson is on a holdover tenancy. She has remained in possession but has not paid rent for the last fifteen or so months.[1] Ms Anderson contends that Mr Sharpe has failed properly to maintain the property and failed to comply with his obligation to provide her quiet enjoyment of the property, and that she has suffered loss as a result of this and other actions taken by him or his estate agent. She is seeking compensation from him in a proceeding at the Victorian Civil and Administrative Tribunal ('the Tribunal'). She has also commenced proceedings in the Federal Circuit and Family Court of Australia against Mr Sharpe's real estate agents for compensation. She maintains that she is entitled not to pay rent for so long as Mr Sharpe is in breach of his obligations or until such time as her claims for compensation are determined that, she says, are likely to exceed in amount of any rent owed. She accepts that the unpaid rent now totals approximately $19,000 - $20,000.

2 On 19 April 2024, the Tribunal, constituted by Deputy President Warren, ordered Ms Anderson to vacate the premises by 19 April 2024 and to pay rent owed of $20,907.40. That order was based on a notice to vacate given by Mr Sharpe on the grounds that Ms Anderson was behind in her rental payments. On 26 April 2024, the Tribunal, constituted by Senior Member Campana, ordered Ms Anderson to vacate the premises by 3 May 2024. That order was based on a notice to vacate given on the grounds that Mr Sharpe wanted his daughter to move into the premises.

3 Ms Anderson is seeking leave to appeal against the Tribunal's orders made on 19 April 2024 and 26 April 2024 in proceedings S ECI 2024 01930 and S ECI 2024 02012 respectively. On 3 May 2024, a Judicial Registrar of this Court stayed the Tribunal's orders made on both 19 April 2024 and 26 April 2024 until 24 May 2024, and listed both applications for leave to appeal for hearing on 23 May 2024. As is commonly the case, the applications for leave to appeal, and the appeal itself if leave be granted, were heard together.

4 The brief summary in para 1 above does not do justice to the prolonged nature of the dispute between the two parties. Mr Sharpe's notice to vacate based on the non-payment of rent, in respect of which he obtained the possession order on 19 April 2024, was the third notice to vacate he had served. Mr Sharpe's notice to vacate on the grounds that he wished his daughter to move into the premises was the fourth notice to vacate he had served.[2] Ms Anderson has maintained and continues to maintain that Mr Sharpe is not to be believed and that, in reality, he is seeking to have her vacate the premises in retaliation for her insisting that he comply with his legal obligations. Mr Sharpe denies any wrongdoing, says that Ms Anderson has frustrated genuine attempts by him to effect repairs to the property, has no proper reason for not paying rent, and has no proper reason for resisting his attempts to regain possession of his property. Each blames the other for the predicaments that they are in.

5 In her notices of appeal, Ms Anderson expressed the questions of law as follows:[3]

Question of law 1) Is VCAT's decision fair and reasonable when the findings are not supported, or a directly contradicted, by the evidence presented to the hearing?

Question of law 2) Do the orders meet the reasonable and proportionate test prescribed by s330 and s330A of the RTA?

Question of law 3) Did VCAT exercise its powers in accordance with its obligations under the VCAT Act - specifically s97, s98, and s102 - in its conduct of the proceedings and making of the orders?

Question of law 4) Did VCAT meet its obligations, and consider the rights of the appellant, under the Charter of Human Rights and Responsibilities Act 2006 - specifically s8, s13, s15, s18, s20, s24 - in its conduct of the proceeding and making of the orders?

6 Ms Anderson contends, among other things, that the Tribunal:

(a) erred by failing to conclude that she was not obliged to pay rent in circumstances where the premises had not been adequately maintained or repaired, she was not given quiet enjoyment of the property, and she had an unresolved claim for compensation;

(b) wrongly refused to ensure that her compensation claim was determined at the same time that Mr Sharpe's applications for orders for possession orders were heard; and otherwise

(c) drew the wrong conclusions from the material and submissions that were before it.

7 Mr Sharpe contended that the Tribunal was correct to conclude that rent remained payable, was entitled to hear his applications for possession before it heard Ms Anderson's applications for compensation, and that the conclusions that the Tribunal drew (as well as being correct) were conclusions of fact, or drawn from findings of fact, and could not be the subject of appeals, such as these, that are limited to appeal on questions of law.[4]

8 I will first consider the statutory framework, then set out the findings of fact that were made by the two Tribunal members, and then consider whether the Tribunal members erred in law.

9 Mr Sharpe's ability to regain possession of the property from Ms Anderson is governed by pt 7 of the Residential Tenancies Act 1997. In that Act, a landlord is referred to as a 'residential rental provider' and a tenant is referred to as a 'renter'. A residential rental provider may apply to the Tribunal for a possession order if the residential rental provider has given the renter a notice to vacate.[5] The Tribunal must make a possession order if the Tribunal is satisfied that, relevantly, the residential rental provider was entitled to give a notice to vacate, and, in the terms of s 330(1) of the Residential Tenancies Act 1997:

(f) that in the particular circumstances of the particular application, it is reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order -

(i) the residential rental provider ...;

(ii) the renter ...;

10 Section 330A of the Residential Tenancies Act 1997 relevantly provides that:

For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the following -

(a) the nature, frequency and duration of the conduct of the renter ... which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement...;

(c) whether the breach was caused by the conduct of any person other than the renter...;

(e) whether the breach has been remedied as far as is practicable;

(f) whether the renter...has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement...;

(g) the effect of the conduct of the renter...on others as a renter...;

(h) whether any other order or course of action is reasonably available instead of making a possession order;

(i) as the case requires, the behaviour of the residential rental provider...;

(j) any other matter the Tribunal considers relevant.

11 Subdivision 5 of div 9 of pt 2 of the Residential Tenancies Act 1997 sets out circumstances in which a residential rental provider may give a renter notice to vacate rented premises. Section 91ZM, which is in sub-div 5 of div 9 of pt 2, sets out various procedures in the event that a notice to vacate is given for unpaid rent. It requires, if the notice to vacate is given 'on the first, second, third or fourth occasion of non-payment of rent', as is the case here, the Tribunal to make an assessment under s 331 of the Residential Tenancies Act 1997 before it makes a possession order.[6] Section 331 of the Residential Tenancies Act 1997 then relevantly provides that:

1. Order to be dismissed or adjourned in certain circumstances

(1) ... the Tribunal may dismiss or adjourn an application for possession order if -

(a) the application is supported with -

(i) in the case of rented premises, a notice to vacate given under section 91ZM; or

(b) the Tribunal considers the satisfactory arrangements have been or can be made to avoid financial loss to the residential rental provider...

12 Section 91ZZA, also in sub-div 5, deals with notices to vacate so that a family member may move in. It provides that:

91ZZA Premises to be occupied by residential rental provider or provider's family

(1) A residential rental provider may give a renter a notice to vacate rented premises if the premises are immediately after the termination date to be occupied -

(b) in the case of a residential rental provider who is an individual -

(ii) by the residential rental provider's partner, child, parent or partner's parent;

13 Section 486A of the Residential Tenancies Act 1997 empowers the Director[7] to 'approve documentary evidence which supports the reason for giving a notice to vacate', and requires the Director to publish the approval of documentary evidence in the Government Gazette and on the internet. Section 91ZZO provides that a notice to vacate given under sections including s 91ZZA is not valid unless it is in the prescribed form, is addressed to the renter, is signed by the person giving the notice or by that person's agent, specifies the reason or reasons for giving the notice, is accompanied by documentary evidence as approved by the Director from time to time which supports the reason for giving the notice, and specifies the termination date which is the date by which compliance is required. The Director has in this case approved documentary evidence for the notice to vacate issued under s 91ZZA. It was accepted below that the documentary evidence so approved, and thus required, consists of a witnessed statutory declaration signed by the rental provider stating either that they intend to reside in the rented premises or the name of the person who will occupy the rented premises, their relationship to the rental provider, and declaring whether the person is a dependent and that the rental provider understands that they must not relet the premises to any person (other than the person named to be moving into the rented premises in the statutory declaration) for use primarily as a residence before the end of six months after the date on which notice was given, unless approved by the Tribunal.[8]

C.1 The order to vacate based on non-payment of rent

14 The findings of fact made by Deputy President Warren and expressed in written reasons published on 23 April 2024 included the following:

(a) A notice of proposed rent increase (from $330 to $350 per week) was sent by Mr Sharpe to Ms Anderson on 8 July 2022. It was in accordance with the statutory requirements and valid and was not challenged by Ms Anderson in the way provided for by the Residential Tenancies Act 1997. Accordingly, the rent payable by Ms Anderson to Mr Sharpe from 14 September 2022 increased from $330 to $350 per week;

(b) Ms Anderson was not entitled to refuse to pay rent on the basis of her allegations that the premises were not up to 'minimum rental standards';[9]

(c) A 25 January 2023 notice to vacate met the statutory requirements and Mr Sharpe was entitled to serve it when he did. It overstated the unpaid rent by $10, but this overstatement was not significant and did not invalidate the notice to vacate;

(d) Ms Anderson did not pay the amount of unpaid rent referred to in the notice to vacate;

(e) The notice to vacate was not 'retaliatory', that is, served as retaliation for Ms Anderson's seeking repairs and compensation (even if that were relevant in the case of a notice to vacate for unpaid rent); and, importantly,

(f) It was 'reasonable and proportionate' to make a possession order. In that context:

(i) The 'rent arrears arose solely because of Ms Anderson's unilateral decision to stop paying her rent'[10] and the non-payment of rent was not trivial.[11] Mr Sharpe has now not received any rent for in excess of 12 months. Ms Anderson has continued not to pay rent, including rent ordered to be paid by the Court, and intends to continue not to pay rent until the resolution of claims for compensation made by her and until what are described by her as 'urgent repairs' are made.[12] Her conduct in refusing to pay the correct rent, or any rent at all, or to comply with orders that she pay rent, 'can only be viewed as egregious and wilful'.[13]

(ii) No person other than Ms Anderson was responsible for her failure to pay the rent.[14]

(iii) Ms Anderson had made no attempt to remedy the breach, being the non-payment of rent.[15]

(iv) Ms Anderson contended that she did not have the money to pay rent because, once the notice to vacate was given to her, she had insufficient security in her residential arrangements to commence a business in the disability sector that she had planned to commence and to run from home. But Ms Anderson did not explain why the business could not have commenced irrespective of the notice to vacate or why the work could not have been undertaken from an alternative location if need be, and that all 'at all times Ms Anderson had the ability to remove any insecurity she felt her tenancy was subjected to because of' the notice to vacate.[16] Her evidence was 'unclear, and at times appeared contradictory in relation to her work and source of income'.[17] The Deputy President was not satisfied that Ms Anderson had, or would soon have, the capacity to remedy the breach.

(v) Mr Sharpe was starting to feel financial stress.[18] In circumstances where Ms Anderson simply refused to pay rent, there was no evidence provided by Ms Anderson that would enable a finding that satisfactory other arrangements could be made to avoid financial loss to Mr Sharpe.[19]

(vi) Having requested Mr Sharpe to undertake repairs, Ms Anderson then placed obstacles in the path of his ability to conduct such repairs.[20] The conditions of entry to the premises sought to be imposed by Ms Anderson, including that she would film and record all movements of tradespeople from the time they arrived at the premises until they left, were unreasonable.[21]

(vii) Ms Anderson did have a valid complaint that, for a period of time when she benefited from a rent reduction associated with the COVID pandemic, the rent ledger maintained by Mr Sharpe's agents recorded the reduced payments as part payments only.[22]

(viii) The actions taken by Ms Anderson in simply ceasing to pay any rent were 'totally unreasonable'.[23] Her relationship with the estate agent was 'possibly the worst' he had seen.[24]

(ix) 'As a result of the statement by Ms Anderson that she will not pay any rent until all her repairs and legal proceedings been addressed, the impact of not making a possession order will have severe financial repercussions for Mr Sharpe'.[25]

(x) While the making of an order for possession would cause Ms Anderson hardship and that there was a real prospect this would render her homeless, Ms Anderson was primarily responsible for any poor renter profile she may have in the town in which the premises are located.[26]

[210] Having considered the various criteria set out in section 330A, the various authorities to which Ms Anderson has referred me, and having taken into account the hardship that may befall Ms Anderson if a possession order is made, together with the impact on Mr Sharpe if a possession order is not made, I am satisfied that it is reasonable and proportionate in all of the circumstances of this particular application to make a possession order. The ongoing non-payment of rent by Ms Anderson cannot be allowed to continue.

C.2 The order to vacate based on Mr Sharpe's wish to have his daughter move into the premises

16 As noted above, a notice to vacate may also be served if the residential rental provider wishes to have an immediate family member move in.

17 Mr Sharpe's statutory declaration served with the notice to vacate dated 3 March 2023 asserted that:

I will be placing my daughter ... who has an intellectual disability and is dependent on me into my property ... on a permanent basis. I understand that I must not relet the premises to anyone other than [my daughter] for use primarily as a residence before the end of six months after the date on which the notice was given, unless approved by VCAT.

18 The following findings of fact were made by Senior Member Campana and expressed in written reasons published on 26 April 2024:

(a) In early June 2021, Mr Sharpe had been diagnosed with cancer and a decision was made for his disabled daughter to move into private accommodation in Benalla with the assistance of NDIS funding. Mr Sharpe's wife signed a rental agreement on her daughter's behalf for a fixed term period from 8 June 2021 to 7 June 2022.[27]

(b) In October and November 2021, a dispute developed between Mr Sharpe's agent and Ms Anderson in relation to the treatment of an agreed rent reduction in the context of the COVID pandemic and how that was recorded in the rent ledger. Ms Anderson accused the landlord of 'unlawful harassment' and 'unprofessional conduct' and 'pointless bullying'.[28]

(c) On 15 November 2021, Mr Sharpe served a notice to vacate for his daughter to move in from 22 January 2022. This was accompanied by a statutory declaration.[29] Ms Anderson contended that the notice to vacate was invalid because of a defect in the statutory declaration. Ms Anderson also informed Mr Sharpe that he would be 'fortunate' if you did not 'end up with serious fines and a compensation claim against' him should he 'allow [his] rental agents to continue along this path for legal intimidation, threats, bullying and harassment'.[30]

(d) On 21 January 2022, Mr Sharpe withdrew this notice to vacate.[31]

(e) On 8 July 2022, Mr Sharpe sent Ms Anderson a notice of proposed rent increase of $20, meaning that rent was increased to $350 per week. Ms Anderson's indicated she would be challenging this increase. On 31 August 2022, Ms Anderson disputed the basis for the rent increase and asked for repairs to be performed, but stated that Mr Sharpe could not personally attend to carry out the repairs as he 'has shown himself to be willing to lie under oath (and use his disabled daughter in his lie) so was dishonest and untrustworthy.' Some attempts were made to engage tradespeople to perform some repair work.[32]

(f) On 26 October 2022, Mr Sharpe issued a second notice to vacate on that grounds that his daughter would move into the premises. The termination date was 3 January 2023. It was, again, accompanied by a statutory declaration. Ms Anderson asserted that Mr Sharpe was (illegally) asking her to leave in order to avoid having to carry out repairs as part of a 'diabolical scheme'. She advised Mr Sharpe's agents that she would be seeking compensation from them in the Magistrates' Court of Victoria and, that she would subpoena Mr Sharpe's daughter to attend the hearing to prove that the notices to vacate were 'false and perjurious', after which 'a criminal complaint will be lodged with Victoria Police' and with the 'Director of Consumer Affairs'.[33]

(g) On 24 November 2022, Ms Anderson commenced a proceeding in the Tribunal in which she sought compensation of $8,436.54.[34]

(h) On 4 January 2023, Mr Sharpe commenced a proceeding in the Tribunal in which he applied for a possession order based on the 26 October 2022 notice to vacate.[35] Ms Anderson asked that her application for compensation be listed for determination with the application for a possession order. The Tribunal refused that request.[36] On 20 January 2023, Ms Anderson advised Mr Sharpe's agents that she would not pay any further rent until her application for compensation had been determined.[37] On 25 January 2023, Mr Sharpe issued a third notice to vacate, this time on the basis of unpaid rent.[38]

(i) On 3 March 2023, the Tribunal struck out Mr Sharpe's application for a possession order based on the 26 October 2022 notice to vacate as a result of a deficiency with the statutory declaration (Mr Sharpe had redacted his address). The same day, Mr Sharpe issued another notice to vacate on the same grounds that he wished for his daughter to move into the rented premises. This notice to vacate had a termination date of 10 May 2023. It was accompanied by an unredacted statutory declaration.[39]

(j) On 4 March 2023, Ms Anderson applied to the Tribunal for urgent and non-urgent repairs to be made to the premises. Mr Sharpe's agent arranged some quotes for work to be done at the premises. Mr Sharpe's agents asserted that Ms Anderson denied access to tradespeople engaged to carry out works. On 21 March 2023, Ms Anderson formally advised that she would be challenging the 3 March 2023 notice to vacate on the basis that the statutory declaration was false and that the notice to vacate was made 'in retaliation for disputing arrears and requesting repairs'.[40]

(k) The application for a possession order came before the Tribunal on 24 March 2024. Ms Anderson did not appear (because she did not consider the Tribunal to be an impartial body). A possession order was made in her absence. Ms Anderson commenced a proceeding in this Court seeking leave to appeal that decision.[41]

(l) There was then further disputation in relation to tradespeople obtaining access to the premises to effect repairs. Ms Anderson, ultimately, informed Mr Sharpe's agent that the scheduling of repairs would have to wait until after the hearing of her Supreme Court proceeding.[42]

(m) On 19 September 2023, this Court set aside the possession order and remitted the matter to be redetermined by the Tribunal.[43] Difficulties continued in relation to the repairs, with Ms Anderson insisting on a right to film anyone who attended, and Mr Sharpe professing difficulty finding tradespeople prepared to work under those conditions.[44]

(n) On 3 November 2023, Ms Anderson lodged a further application for repairs in the Tribunal. On 6 December 2023, consent orders were made in that application that set out a regime to be followed. Mr Sharpe then contended that Ms Anderson was impeding his ability to effect repairs in compliance with that regime.[45]

(o) The fourth notice to vacate dated 3 March 2023 was in the prescribed form, sufficiently stated the reasons for which the notice was expressed to be given, otherwise satisfied the statutory requirements for a valid notice to vacate, and was accompanied by a statutory declaration that met the mandatory requirements of the Director.[46]

19 The Senior Member then turned to Ms Anderson's assertion that the notice to vacate was invalid because it was served in retaliation for her conduct and that Mr Sharpe did not in truth intended for his daughter to move in. The Senior Member concluded as follows:

(a) As a matter of law, a notice to vacate given in accordance with s 91ZZA is not invalid even if, or just because, it is retaliatory. It will only be invalid if there was in fact no genuine intention to move a family member into the rented premises;[47] and

(b) As a matter of fact, Mr Sharpe gave the notice to vacate 'with a genuine intention and motivation' to have his daughter move into the premises and so the notice to vacate was valid;[48] and further

(c) In any event, she (the Senior Member) was not satisfied that the notice to vacate was 'retaliatory'.[49]

20 The Senior Member then considered whether it was 'reasonable and proportionate' to make a possession order. She concluded that it was. In reaching this conclusion, the Senior Member accepted that various delays Ms Anderson had experienced with her claims had impacted her mental and physical health and placed her under stress.[50] The Senior Member also accepted that 'it is highly probable that [Ms Anderson] will find it almost impossible to find private rental accommodation in the current rental market, where demand outweighs supply'.[51] However, the Senior Member also expressed the following conclusions:

(a) Ms Anderson's conduct has had 'a significant flow on impact' on Mr Sharpe;[52]

(b) Mr Sharpe's daughter is currently in private accommodation. He and his wife are under financial pressure due to the cost of rentals in the private market and the limited funds received under the disability pension and NDIS. Ms Anderson's non-payment of rent has impacted their ability to contribute to their daughter's rent. The fixed term period for his daughter's current rental agreement expires within a month, and the owner of those premises will allow her to vacate without ramifications;[53]

(c) The material and evidence did not establish that Mr Sharpe or his agent's actions were 'in any way reprehensible or such as to persuade me that a possession order should not be made';[54]

(d) The notice to vacate was not given either in retaliation for Ms Anderson asking for repairs or changes to the rent ledger or because Ms Anderson purported to exercise her rights, as she saw them, under the Residential Tenancies Act 1997;[55]

(e) If there is any part of the rent ledger that impacts on Ms Anderson's ability to rent other property, 'then it can only be the fact that [Ms Anderson] is close to 18 months behind in the payment of rent and is withholding rent due to other disputes related to the rental agreement';[56]

(f) The evidence does not support Ms Anderson's claims that Mr Sharpe and his agent are trying to avoid their obligation to carry out repairs at the rented premises;[57]

(g) The technical errors with the previous notices to vacate were simple errors and not made with any 'malice' behind them;[58]

(h) Mr Sharpe and his wife are suffering from 'clear exhaustion' and are 'broken by years of constant threats and demands by' Ms Anderson. The history of this matter shows that Ms Anderson 'could be regarded as obstructionist, rude, unreasonable in her demands and litigious':[59]

The conduct of [Ms Anderson] in the way she has gone about seeking to enforce their rights under the [Residential Tenancies] Act, the impact this is having on [Mr Sharpe] and the time it is taking up for the agents, along with no expectation that the hostility between the parties will soon resolve, are matters that I consider support a finding that it is reasonable and proportionate to make a possession order.[60]

(i) Ms Anderson has to take 'some responsibility, if not the lion's share, for her inability to find alternative housing in the Benalla housing market'. Ms Anderson's 'refusal to pay the rent and her aggressive and demanding nature when seeking repairs, would not make her an attractive candidate to a future residential rental provider.'[61]

D. Was Ms Anderson entitled to cease paying rent?

21 Ms Anderson ceased paying rent in January 2023 and justified doing so on the grounds that Mr Sharpe was in breach of the contractual terms of the lease by failing properly to maintain the property or to ensure that it met 'minimum standards' and, by the way he engaged with her, was not providing her with quiet enjoyment of the property, and because the Tribunal was not prepared to hear her application for compensation with Mr Sharpe's applications. Deputy President Warren rejected her argument that she was able to cease paying rent on that basis and Ms Anderson contends that he erred in doing so. Ms Anderson admitted, candidly and to her credit, that she has not found any decisions that supported her argument, and said that this was a 'precedent case'.

22 I do not consider that the Tribunal erred by concluding that Ms Anderson was obliged to pay rent notwithstanding that she contended that Mr Sharpe was in breach of his obligations and she had an unresolved application for damages. The rights of the parties to a residential lease are closely regulated by the Residential Tenancies Act 1997. That Act sets out processes that may be followed by a renter if the renter contends that the premises require maintenance or do not meet minimal standards. It does not permit a renter to stay in possession but not to pay rent. Section 91B of Residential Tenancies Act 1997 provides that a residential rental agreement does not terminate and 'must not be terminated' other than in accordance with the relevant provisions of that Act. This, presumably, ousts the common law principles of recission for breach of contract. But in any event, even if common law contractual principles unaffected by the Residential Tenancies Act 1997 were to apply, a breach by a landlord would, if it were of an essential term of the contract, give the tenant a right to rescind the contract. If the contract were validly rescinded, the obligation on the tenant to pay rent would cease. But equally, once the contract was rescinded, the tenant would not have any right to remain in possession of the premises. Accordingly, even having regard to common law contract principles, Ms Anderson would not be permitted to remain in possession while free of an obligation to pay rent.

E.1 Did the Tribunal err by hearing Mr Sharpe's applications without first determining, or determining at the same time, Ms Anderson's claim for compensation?

23 Ms Anderson felt aggrieved that the Tribunal had listed Mr Sharpe's applications for possession and for rent for hearing before it listed her applications for hearing. She contended that by doing this, and by hearing Mr Sharpe's applications before hers, or otherwise than with hers, it denied her natural justice. One of the orders sought by Ms Anderson in her proposed appeal against the Orders made by Deputy President Warren is that her application be heard with any application by Mr Sharpe so that 'financial liability can be fairly determined with due consideration to the rights of both parties under law'. It was her position that if the Tribunal had listed and determined her claim for compensation promptly, it would have found that Mr Sharpe's obligation to compensate her exceeded her outstanding rent.[62] She took the allegation further: she contended that the Tribunal was 'deliberately manipulating judicial processes to ensure' that she was evicted 'before she is heard'.[63] Ms Anderson also contended that the Tribunal was 'prioritising the interests of the rental provider over the interests of the renter' and that this was contrary the objective of the Residential Tenancies Act 1997 that it 'fairly balance the rights and duties' of tenants and landlords. This argument is related to Ms Anderson's argument that she is entitled to cease paying rent for so long as Mr Sharpe is in breach of his contractual obligations. If that were the position, then it might, logically, be necessary to decide Ms Anderson's claims at the same time as any application for possession based on the non-payment of rent. As noted above, however, I do not accept that Ms Anderson was entitled to cease paying rent for so long as Mr Sharpe is in breach of his contractual obligations.

24 I do not consider that the Tribunal has erred in law by listing and determining Mr Sharpe's applications for possession before it has determined her application for compensation or by not determining both at the same time. The Tribunal is entitled to schedule matters for hearing in the manner it thinks appropriate. Deputy President Warren explained, at the end of his reasons, that the Tribunal has a significant backlog of claims for compensation and gives priority to claims for possession. There is nothing unlawful in this. There is no breach of the rules of natural justice, and there is no basis to conclude that there is some conspiracy, if indeed that is what Ms Anderson is contending, between the Tribunal and Mr Sharpe to do her harm.

E.2. Did Deputy President Warren err by failing to make findings on Ms Anderson's compensation claim?

25 Deputy President Warren did not decide whether Ms Anderson was right in her claims that the premises did not meet the minimum standards or that she was entitled to compensation because he concluded that even if the premises did not meet the minimum standards, Ms Anderson still had to pay rent. Ms Anderson contended that it was an error of law for Deputy President Warren not to make findings on her claims in the course of determining Mr Sharpe's application for possession.

26 I disagree. Once Deputy President Warren took the view, correctly, that Ms Anderson remained under a legal obligation to pay rent, he was also entitled to take the view that the rights and the wrongs of, and facts underlying, Ms Anderson's compensation claim were for determination in that claim and did not have finally to be determined by him in this possession application. He was concerned with whether rent was owing, whether the notice of vacate was valid and, if so, whether to make an order for possession. It was sufficient and appropriate for him, when making the value judgments required, to take into account the existence of this dispute and Ms Anderson's contentions. This he did.

F. Did Deputy President Warren err in law in concluding that Ms Anderson was 14 days in arrears for the purpose of determining the validity of the notice to vacate?

27 On 8 July 2022, Mr Sharpe served notice in the prescribed form, accompanied with a 'comparative market analysis', that the rent would be increased from $330 to $350 per week as from 14 September 2022. Ms Anderson contends that the comparable properties referred to in the notice were not in fact comparable because they did not have the defects that her residence did. But, despite initially saying that she would apply to Consumer Affairs Victoria for a rental assessment, she did not do this or otherwise take the steps required by statute to challenge that increase. She said she was disillusioned with the Tribunal and did not want to incur the filing fee. Accordingly, there is no basis to contend that Deputy President Warren erred in law in his conclusion that rent of $350 per week was payable from 14 September 2022.

F.2 The rent owing as at 25 January 2023 notice to vacate

28 Ms Anderson accepts that she did not pay the extra $20 per week that she owed from 14 September 2022. She told me that she assumed that the agents had decided not to claim it because they did not actively chase it up. Be that as it may, in light of the finding that rent was $350 per week and the fact that Ms Anderson only paid $330 per week, she fell behind from 14 September 2022 and then, as noted above, ceased paying rent altogether from January 2023.

29 The notice to vacate was issued on 25 January 2023. At that time, the rent ledger indicated that rent was last paid on 16 January 2023 and the 16 January 2023 payment meant that her rent was paid to 3 January 2023 with a partial payment of $120, or, (at $50 per day) up to 5 January 2023 with a $20 credit. Consistently with this, the notice to vacate asserted that Ms Anderson owed at least 14 days rent, that her rent was paid up to and including 5 January 2023 with $20 on account, and that she owed $980 (being 20 days rent at $20 per day less the $20 on credit). The notice to vacate required her to pay this amount together with an additional two weeks rent to keep her 'in advance'. Ms Anderson did not pay any of this at the time.

30 Ms Anderson contended that she was only in arrears in the sum of $702.68 at the time of the notice to vacate. Ms Anderson produced a 'rent reconciliation' listing and adding each payment she had made and when she made it, and she compared that to the total rent that she determined was payable. She produced bank statements that supported her reconciliation. Mr Sharpe's representative did not challenge that evidence. I note that arrears of $702 would mean that Ms Anderson was more than two weeks in arrears. But more importantly, Ms Anderson's calculations did not accommodate the fact that her rent, the Deputy President found, had gone from $330 to $350 per week from 14 September 2022. If the extra $20 per week for the 16 week period between 14 September 2022 and 5 January 2023 is added, that takes the rent owing, on her own calculations, to $1,022. Accordingly, even on her own reconciliation, but adjusting for the rent increase, she did owe 'at least 14 days rent' on 25 January 2023 and, indeed, owed a higher amount than that claimed in the notice to vacate.

31 In those circumstances, there is nothing to Ms Anderson's challenge to the Deputy President's factual finding that she was in arrears in the amount of $970 and the notice to vacate overstated the rent owing by $10 or the Deputy President's conclusion that this was not sufficient to invalidate the notice to vacate.

G. Did Deputy President Warren or Senior Member Campana otherwise make errors of law in their determinations?

32 As the summaries set out above make clear, both Deputy President Warren (in the claim based on non-payment of rent) and Senior Member Campana (in the claim based on Mr Sharpe's desire to have his daughter move in) made a number of factual findings, considered the various factors that the Residential Tenancies Act 1997, required them to consider, and then reached a conclusion that it was 'reasonable and proportionate' to make a possession order. There can be no doubt that in making that evaluation, both had regard to the consequences of the making of a possession order against Ms Anderson.

33 Ms Anderson submitted, however, that the factual findings made were wrong in law. In her notice of appeal against the decision of Deputy President Warren, as an example, she contended that he erred in law by 'cherry picking' evidence. I will not set out in these reasons the many 'grounds' relied on by her in her notices of appeal. Ms Anderson placed considerable reliance on an article in the Western Australian Law Review by Geoffrey Flick, who was later appointed to the Federal Court of Australia, entitled 'Error of Law or Error of Fact?'.[64]

34 The legislature has entrusted the task of deciding facts and concluding whether a possession order should be made to the Tribunal. This Court is only entitled to interfere if it is established that the Tribunal erred on a question of law. I am not persuaded that either Deputy President Warren or Senior Member Campana did so.

35 Underlying Ms Anderson's contentions was, it seemed to me, a misconception of what amounts to an error of law. In these cases, the Tribunal had documentary material before it and heard from witnesses. The Tribunal was entitled to inform itself from the material before it as it saw fit.[65] The fact that the Tribunal preferred the material that supported Mr Sharpe's case to the material that supported Ms Anderson's case does not establish an error of law. It seemed to me that Ms Anderson did not fully appreciate this. Ms Anderson did not identify any particular relevant finding made for which she asserted that there was simply no evidence. Rather, she asserted, speaking generally, that a proper evaluation of the material would have resulted in success for her - that the evidence in her favour was stronger and more persuasive than the evidence upon which the Tribunal relied. But that is not the test: I am not deciding what I consider to be the better view of the evidence; I am only determining whether the Tribunal erred in law. To give some examples:

(a) When I suggested to Ms Anderson that Deputy President Warren had heard her version and heard Mr Sharpe's version and preferred Mr Sharpe's version, Ms Anderson replied that Deputy President Warren's conclusion was erroneous because:

He drew that conclusion from wrong findings because the findings he makes are errors of fact, so the errors of fact led to him making the wrong conclusion.

(b) When she was challenging Deputy President Warren's conclusion that it was reasonable and proportionate to make a possession order in circumstances where it would likely make her homeless, Ms Anderson accepted that Deputy President Warren did take that consequence for her into account. The following exchange then took place in the hearing of the proceedings before me:

HIS HONOUR: So he's taken that into account.

MS ANDERSON: Yes, but he hasn't applied that in a way that makes it reasonable - - -

HIS HONOUR: Are you saying that he hasn't given it the weight that it ought to have been given?

MS ANDERSON: Yes, exactly. That is better worded.

(c) When contending that Senior Member Campana had erred, in response to my suggestion that the Senior Member had accepted Mr Sharpe's evidence that he intended to have his daughter move in, Ms Anderson submitted:

That's right, which was contrary to the evidence that I had presented. So she weighted his oral evidence with no documentation, same as Member Warren, weighted his oral evidence with no documentary evidence to support it, over, gave that more weight than my evidence with all my documentary evidence. So she incorrectly weighted the evidence in his favour.

(d) She contended that Deputy President Warren's finding that she was responsible for repairs not being carried out was 'wrong on the evidence that was presented'. (Deputy President Warren in fact concluded that Ms Anderson 'placed obstacles in the path of [Mr Sharpe's] ability to conduct such repairs.'[66]) When it was pointed out that Mr Sharpe had given evidence to that effect,[67] Ms Anderson contended that 'the better evidence' - the documentary evidence - was the other way.

36 Another example concerned Senior Member Campana's finding that Mr Sharpe did genuinely intend for his daughter to move into the premises. Mr Sharpe swore a statutory declaration to that effect. Both he and his wife gave evidence to that effect. They relied on reports from an occupational therapist that their daughter is 'required to live in mainstream housing' with full-time care from a NDIS funded care agency and from a report from their daughter's support worker that referred approvingly to her moving into the premises. Ms Anderson contends that Mr Sharpe and his wife had no such intention. She contended that it did not make sense that they would want their daughter to reside at those premises or that there would be funding that would permit that to happen or that full time care could be provided there. She submitted that Mr Sharpe perjured himself, that the occupational therapist and support worker were unqualified to express the views they did, and that, if Mr Sharpe and his wife had such an intention, their daughter 'needs to be protected from' her parents. This was, then, a clear example where the Tribunal was required to determine the factual question of whether Mr Sharpe served the notice to vacate with the genuine intention that his daughter would move into the premises. The Tribunal concluded, as a matter of fact, that he did:

On the basis of the evidence provided by [Mr Sharpe], his wife, and others engaged in the care and welfare of the Daughter, I am satisfied that [Mr Sharpe] wants to move his Daughter into the rented premises and that he has proved the grounds under section 91ZZA.[68]

37 Ms Anderson challenges that finding not because there was no material that could support it, but because she contends that that material should have been rejected.

38 Each of these examples reveals a misunderstanding. Choosing what evidence to accept and deciding what weight to give to a relevant consideration are matters for the finder of fact. I accept that an irrational or unreasonable finding, in the sense of a finding that no reasonable person could make, or an assessment that has regard to irrelevant considerations, could be set aside as an error of law. But I am not satisfied that this is the case here. In the circumstances of this case, it was not legally wrong for the Tribunal members to make the findings they did.

39 Equally, the Tribunal members had then to consider whether it was in the circumstances 'reasonable and proportionate' to make a possession order. That is an assessment entrusted to the Tribunal and is not the subject of 'merits review' in any appeal. Both sets of reasons reveal that the Deputy President and Senior Member, with respect, conscientiously went about the process of balancing the relevant matters.[69] In my view, based on the findings they made, they both reached a conclusion that was open.

40 In those circumstances, the Tribunal's conclusions may not be set aside on appeal. The fact that Ms Anderson remains of the view that the Tribunal came to the wrong conclusions as to what the true position was and is, does not mean that it erred on a question of law in coming to those conclusions.

41 As noted above, Ms Anderson expressed the questions of law as follows:[70]

Question of law 1) Is VCAT's decision fair and reasonable when the findings are not supported, or a directly contradicted, by the evidence presented to the hearing?

Question of law 2) Do the orders meet the reasonable and proportionate test prescribed by s330 and s330A of the RTA?

Question of law 3) Did VCAT exercise its powers in accordance with its obligations under the VCAT Act - specifically s97, s98, and s102 - in its conduct of the proceedings and making of the orders?

Question of law 4) Did VCAT meet its obligations, and consider the rights of the appellant, under the Charter of Human Rights and Responsibilities Act 2006 - specifically s8, s13, s15, s18, s20, s24 - in its conduct of the proceeding and making of the orders.

42 Question of law 1, as I understand it, encompasses the arguments that Ms Anderson made to the effect that the factual findings were wrongly made. Question of law 2 raised the contention that the Tribunal members had come to a wrong conclusion that it was reasonable and proportionate to make a possession order. Question of law 3 encompasses the arguments that Ms Anderson made to the effect that the Tribunal should not have heard the applications for possession orders without also hearing her compensation application. I have considered those arguments above.

H.2 The Charter of Human Rights and Responsibilities Act 2006 (

43 Question of law 4 concerns the Charter of Human Rights and Responsibilities Act 2006(Vic). Section 8 of that Act concerns 'Recognition and equality before the law'. Section 13 concerns 'Privacy and reputation'. Section 15 concerns 'Freedom of expression'. Section 18 concerns 'Taking part in public life'. Section 20 concerns 'Property rights'. Section 24 considers 'Fair hearing[s]'.

44 Ms Anderson did not refer to this question of law in the written submissions that she filed. However, she included as a ground of appeal in the application for leave to appeal against the orders of Senior Member Campana:

Senior Member Campana made an error of law by finding discrimination is confined only to the matters referred to in equal opportunity law. Discrimination occurs when those with power selectively deny those without access to rights, services and opportunities, including access to law. The appellant alleges the tribunal has discriminated against her as a renter and is to depriving of her rights under rental laws and the Charter of Human Rights and Responsibilities Act 2006 because it has refused to hear her applications while fast-tracking the rental provider/respondent's.

45 Senior Member Campana observed that a notice would be of no effect if the giving of that notice would constitute 'direct discrimination' within the meaning of the Equal Opportunity Act 2010 (Vic). That was a correct observation.[71] 'Direct discrimination' occurs if a person treats a person with an 'attribute' unfavourably because of that attribute.[72] 'Attributes' is defined to mean attributes such as age, gender identify, disability, marital status, political beliefs, race, religious beliefs, sexual orientation and the like.[73] Senior Member Campana was also correct to state, as she did, that Ms Anderson made no claim of direct discrimination. Nor could she. I otherwise conclude that this question of law encompasses Ms Anderson's arguments that the Tribunal was unlawfully hearing Mr Sharpe's application for possession before rather than with her application for compensation. For the reasons set out above, the Tribunal's doing this was not in breach of the Charter of Human Rights and Responsibilities Act 2006.

46 Ms Anderson included as a ground of appeal in the application for leave to appeal against the orders of Deputy President Warren:

Deputy President Warren made an error of law by finding the tribunal was not bound to the Charter of Human Rights.

47 Deputy President Warren said this in his reasons:

In her closing oral submissions, Ms Anderson said that she was also "relying on the Charter of Human Rights and Responsibilities Act" ("the Charter"). Furthermore, Ms Anderson said she was advised by Justice Connect to refer to section 32 of the Charter. This was the totality of her submission in respect of the Charter.[74]

48 Section 32 of the Charter of Human Rights and Responsibilities Act 2006 provides that statutory provisions must, as far as it is possible to do so consistently with their purpose, be interpreted in a way that is compatible with human rights. The relevance of s 32 of the Charter of Human Rights and Responsibilities Act 2006 is difficult to ascertain, as there was no dispute below as to the interpretation, as opposed to the application, of the statutory provisions in the Residential Tenancies Act 1997.

49 Deputy President Warren, however, did make some broader observations in relation to the Charter of Human Rights and Responsibilities Act 2006. He concluded that it was 'open to find' that the Charter does not 'bind the Tribunal' when it was exercising judicial rather than administrative powers under the Residential Tenancies Act 1997.[75] However, Deputy President Warren went on to consider the relevance of ss 13 and 24 of the Charter. Section 13 provides that a person has a right not to have that person's home unlawfully or arbitrarily interfered with. Deputy President Warren said he was satisfied that the making of the possession order was lawful and not in breach of that section.[76] Section 24 gives a party to a civil proceeding a right to a fair hearing. Deputy President Warren concluded that Ms Anderson had had such a hearing. I have no reason to disagree with Deputy President Warren's conclusions that the Charter of Human Rights and Responsibilities Act 2006 had not been breached.

H.3 The failure of the parties to notify the Attorney-General or the Commission

50 Section 35 of the Charter of Human Rights and Responsibilities Act 2006 requires a party to a proceeding to give notice to the Attorney-General and the Commission[77] if 'a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter.' Neither party complied with that obligation. The purpose, no doubt, of this provision is to enable the Attorney-General or the Commission to apply to intervene if they wish to do so in order to present submissions on the operation of the Charter of Human Rights and Responsibilities Act 2006. The Charter of Human Rights and Responsibilities Act 2006 does not set out the consequences of a party not complying with that obligation. It does not preclude a Court from hearing the proceeding in the absence of such notices being given.

51 In the unusual circumstances of this case, I will not delay the hearing of Ms Anderson's applications for leave to appeal so that the appropriate notices may be served and responded to for the following reasons:

(a) Ms Anderson did not contend that any particular interpretation of the Residential Tenancies Act 1997 should be interpreted in any particular way because of, or was inconsistent with any provision of, the Charter of Human Rights and Responsibilities Act 2006. Accordingly, I do not propose to make any declarations under s 36 of the Charter of Human Rights and Responsibilities Act 2006 that any particular provisions of the Residential Tenancies Act 1997 cannot be interpreted consistently with a human right;

(b) In truth, the arguments presented did not turn on the text of the Charter of Human Rights and Responsibilities Act 2006 in a way that requires me to express views on its application or operation; and, most significantly

(c) When I raised with Ms Anderson the prospect of her undertaking to pay a week's rent as a condition of my extending the stay of the possession orders for a week in order to allow me to make my decision and to prepare these reasons, she made it clear that she was not able to do so. Delaying the delivery of my reasons would, as a matter of practicality, require a further stay of the two orders for possession made by the Tribunal and increase the prejudice that Mr Sharpe has experienced due to Ms Anderson's ongoing possession of his premises without her paying rent.

52 Mr Sharpe submitted that these appeals were abuses of process because their purpose was to force the Tribunal to hear her claims for compensation before the applications for possession. Mr Sharpe relied, in particular, on:

(a) Ms Anderson's email to Mr Sharpe's agent on 20 January 2023 in which Ms Anderson said:

I advise that rent payments ... will be put on hold until the resolution of the financial claim I lodged with VCAT in October 2022.

As already advised, any possession or other orders produced by VCAT on 14/2/23 that do not reflect my rights under law will be appealed to the Supreme Court.

As VCAT refused to combine the two applications for the sake of efficiency, the owner will need to be prepared for several months of litigation as they separately move through the court system.[78]

(b) An email from Ms Anderson dated 14 March 2023 in which she confirmed that any orders that precede orders for urgent repairs will be appealed to the Supreme Court.

53 For the reasons set out above, I am satisfied that any appeal must fail. In those circumstances, I see no need to determine whether Ms Anderson is pursuing either appeal for an improper purpose.

54 It seems to me, with respect, that both Deputy President Warren and Senior Member Campana provided thorough and detailed reasons that demonstrate that they carefully evaluated the voluminous material and engaged with the considerations with which they were required to engage. Ms Anderson considers that they reached the wrong conclusions. I am satisfied that the findings and assessments they made were well open to them and that, in those circumstances, there is no prospect that an appeal on a question of law against their orders would succeed.

55 Accordingly, I will dismiss both applications for leave to appeal.

56 The stay of the possession orders is until 31 May 2024 or further order. I will hear the parties whether any and if so what further orders should be made in that respect, and also on the question of costs.

[1] Save for a period from July to September 2023 when she was required to do so as a condition of her obtaining a stay arising from an earlier decision of the Tribunal - as to which see Anderson v Sharpe [2023] VSC 559.

[2] The four notices to vacate were dated: 15 November 2021, 26 October 2022, 25 January 2023 and 3 March 2023.

[3] The only difference in the questions of law posed in the two notices of appeal is that s 148 of the Victorian Civil and Administrative Act 1998 (Vic) is included in question of law 3 in the appeal against Deputy President Warren's orders in proceeding S ECI 2024 01930. This, I assume, is a mistake, as s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) gives the right of appeal.

[4] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.

[5] Residential Tenancies Act 1997 (Vic) s 322(1).

[6] Ibid s 91ZM(1)(d).

[7] That is, the Director within the Australian Consumer Law and Fair Trading Act 2012 (Vic) s 3; Residential Tenancies Act 1997 (Vic) s (1).

[8] This acceptance was correct. See: Victoria, Gazette: Special, No S 142, 25 March 2021.

[9] See Residential Tenancies Act 1997 (Vic) s 65A.

[10] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375, [207] (Warren DP).

[27] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381, [22] (Campana SM).

[33] Ibid [46]-[53]. As noted above, Ms Anderson did commence a proceeding against Mr Sharpe's agents in the Federal Circuit and Family Court of Australia in which she alleged that Mr Sharpe's agents had engaged in unconscionable conduct in connection with the provision of services in breach of the Competition and Consumer Act 2010 (Cth).

[43] Ibid [90]. See also Anderson v Sharpe [2023] VSC 559. I heard that appeal. The only legal error I found to have been committed by the Tribunal was a failure to give reasons that accorded with the statutory requirement, and the matter was remitted, subject to any direction by the Tribunal to the contrary, back to the same Tribunal member for the provision of further reasons without the hearing of further evidence. Both parties confirmed that they had no concerns with my hearing of these appeals.

[44] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381, [86]-[89], [91]-[92].

[46] Ibid [111]; see generally [101]-[110].

[50] Ibid [224]; see also [225]-[229].

[62] She relied on Young v Chief Executive Officer (Housing) (2023) 414 ALR 479; [2023] HCA 31, where the High Court concluded that damages for breach of an obligation on a landlord in a lease agreement may include compensation for non-economic loss in the form of disappointment or distress.

[63] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375, [248] (Warren DP).

[64] Geoffrey Flick, 'Error of Law or Error of Fact?' (1983) (11) University of Western Australia Law Review 193.

[65] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(c).

[66] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375, [182] (Warren DP).

[67] At the hearing before the Tribunal on 9 January 2024, Mr Sharpe said: "... the fact is she denied me access to do the maintenance .... I then made enquiries with Daniel Symes .... He confirmed to me that she denied him access. I then made enquiries with Joel Bates .... He attended at the property. Was going to fix all the repairs. I gave the go ahead for that work to be done. Joel Bates informed me that he, on a number of occasions, tried to contact Ms Anderson and she refused to get back to him. Under questioning from Ms Anderson, he said: '... you've made it so difficult for them that they can't do it'; '... but through you not allowing them access they haven't been able to do it'. One of the agents said: 'we were being denied access and having difficulty obtaining - or gaining access to the property'. Another said: 'We needed the VCAT order to gain access to the property because we were having so much difficultly. And there was a lot of back and forth and trades were not - they were - because they were cancelled so many times they were refusing to go back to the property. We were running out of people to send to the property..."

[68] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381, [159] (Campana SM).

[69] Cf, eg, Hanson v Director of Housing [2022] VSC 710, where Walker JA concluded that the Tribunal had failed to have regard to the impact a possession order would have on the renter.

[70] As I noted in footnote 3 above, s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) gives the right of appeal.

[71] Residential Tenancies Act 1997 (Vic) s 91ZZI(2).

[72] Equal Opportunity Act 2010 (Vic) s 8(1).

[73] Ibid s 6.

[74] Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375, [221] (Warren DP).

[77] Being the Victorian Equal Opportunity and Human Rights Commission established under the Equal Opportunity Act 2010 (Vic).

[78] As set out by Senior Member Campana: Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381, [63].