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[2025] VSC 630
General information, not legal advice.
Supreme Court of Victoria
2025-10-07
Finanzio J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where Residential Rental Provider gave Renter a notice to vacate under s 91ZZB (premises to be sold) - Whether mandatory documentary evidence supporting the notice was valid - Whether redaction of time period on exclusive sale authority invalidated the authority, thereby invalidating the notice to vacate - Where no explanation provided for the redaction - Redaction affected the transparency of the authority - Authority found to be defective, therefore validity of notice impacted - Invalid notice - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
ADMINISTRATIVE LAW - Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) - Application to set aside VCAT decision ordering possession - Where Residential Rental Provider gave Renter a notice to vacate under s 91ZZB (premises to be sold) - Whether it was reasonable and proportionate for VCAT to make an order for possession - Whether Residential Rental Provider had a genuine intention to sell the property - Whether previous attempts to gain possession for the same reason constituted retaliation in response to repeated repair and related applications made by the Renter - Where rent was being paid into a rent special account - Whether Tribunal failed to take into account impact on Renter, as required by s 330(1(f) of the Act - Whether Tribunal actively engaged with Renter's submissions concerning the impact of a possession order upon her - Whether Tribunal placed greater emphasis upon unsubstantiated evidence provided by the Residential Rental Provider, at the same time discounting evidence provided by the Renter - Whether Renter given a reasonable opportunity to present her evidence and make submissions - Whether Renter afforded procedural fairness - Renter not given fair hearing - Leave to appeal allowed - Order for possession set aside - Appeal dismissed.
Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd (Domestic Building) [2006] VCAT 2120; Tomasevic v Travaglini [2007] VSC 337; Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2008] VCAT 1479; Metricon Homes Pty Ltd v Sawyer [2013] VSC 518; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301; Trkulja v Markovic [2015] VSCA 298; SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15; LKZ v CGS (Residential Tenancies) [2021] VCAT 1391; Hanson v Director of Housing [2022] VSC 710; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582; Kao v Mazi (Residential Tenancies) [2024] VCAT 1179; Moustra v Elder [2024] VCAT 813.
1 These proceedings have been commenced by Grace Mazi ('Applicant**'** or 'renter**'**), who has lived in a residential apartment located at Swanston Street, Carlton ('the property') since 23 June 2021.[1] The First and Second respondents, Spenser Hsiung-Pin Kao and Hung-Hsia Kao (collectively, 'the Respondents' or **'**rental providers') are the registered proprietors of the property.
2 On 20 June 2024, the respondents purported to give the Applicant a notice to vacate the property ('notice to vacate' or 'notice') under s 91ZZB of the Residential Tenancies Act 1997 (Vic) ('RTA' or 'the Act'). According to the notice, the Applicant had until 28 August 2024 to deliver up vacant possession of the property. The Applicant did not vacate the property within the period specified in the notice.
3 On 30 August 2024, the Respondents made an application to the Victorian Civil and Administrative Tribunal ('VCAT' or **'**the Tribunal') for a possession order, pursuant to s 322(1) of the RTA ('VCAT proceeding' or 'the Elmes proceeding').
4 Where a residential rental provider gives a renter such a notice, and the renter fails to deliver up vacant possession of the property, the rental provider may apply to VCAT for a possession order, pursuant to s 322(1) of the Act. Section 330 provides that the Tribunal must make a possession order requiring the renter to vacate the property, once satisfied that the rental provider was entitled to give the notice and has not withdrawn it; and that, in the circumstances, it is reasonable and proportionate having regard to s 330A to make such an order, taking into account the interests of, and the impact on, the rental provider and the renter in making the possession order.[2]
5 Section 330A sets out what the Tribunal must have regard to when determining whether it is reasonable and proportionate to make a possession order, and includes consideration of whether any other order or course of action is reasonably available, the behaviour of the rental provider, and any other matter considered relevant by the Tribunal.[3]
6 On 7 November 2024, the Elmes proceeding was heard by the Tribunal. At the conclusion of the hearing the Tribunal made an order that the Applicant was to vacate the property by 7 December 2024 ('the possession order').
7 On 20 November 2024, the Applicant filed a Notice of Appeal in this Court seeking leave to appeal the possession order ('the Elmes appeal'). The Elmes appeal was heard by me, together with two other proceedings. The Elmes appeal is the subject of this judgment. The Applicant represented herself in proceeding.
8 The hearings of two related matters were conducted alongside this proceeding. The first of these was filed by the Applicant on 3 October 2024 ('the Bygrave appeal')[4] which was an application for leave to appeal a decision of the Tribunal constituted by Member Bygrave on 23 July 2024. The Bygrave appeal concerned the Applicant's challenge to a proposed rent increase notice. That proceeding is dealt with in Mazi v Kao (No. 2) (Notice of Rent Increase).[5] The second related matter arose out of the Bygrave appeal, in which the Applicant filed a summons on 9 December 2024 seeking, inter alia, a declaration that the Respondents and two others were in contempt of this Court ('the contempt allegation'). The Respondents had filed documents in the Magistrates' Court and in VCAT for the purposes of the Elmes proceeding (the subject of this appeal) which had been prepared by the Applicant and filed in the Bygrave appeal. It was alleged by the Applicant that in doing so the Respondents were in breach of the rules of this Court, and in breach of the Harman[6] obligation, an implied undertaking arising at common law not to use documents filed in a proceeding for a purpose unconnected with that proceeding.[7]
9 At the outset of the hearing of these three proceedings[8], the Applicant requested that the contempt allegations be heard and determined first, on the basis that the grounds articulated in the Elmes appeal depended, in part, on findings in relation to the contempt allegation. The three proceedings were heard in the following sequence: 1) the contempt allegation; 2) the Bygrave appeal; and then, finally, the current appeal. At the conclusion of the hearing in respect of the contempt allegation, I reserved my decision, excused the third and fourth respondents in that proceeding from further attendance, and proceeded to hear the Bygrave and Elmes appeals.
10 In delivering judgment in each of these matters, I first considered the contempt allegations, and then proceeded to determine the Bygrave and Elmes appeals. I dismissed the contempt allegations and gave reasons in Mazi v Kao (No. 1) (Contempt Ruling)[9] ('Mazi v Kao (No.1)').
11 The Respondents purported to give the notice under s 91ZZB of the Act, on the basis that the reason for seeking possession was that the property was to be sold. The notice advised the Applicant that she would need to vacate the property by 28 August 2024, as the property would be offered for sale with vacant possession and stated that the rental provider, or their agent, would require access to the property, in order to conduct 'open for inspections' as part of the sale process, and to conduct repairs/maintenance.
12 The form of a notice to vacate is governed by s 91ZZO, which includes requirements for documentary evidence that must accompany the notice. Where a rental provider seeks to regain possession of a property for the reason that the premises are to be sold under s 91ZZB, the notice must be accompanied by documentary evidence of a kind approved for that purpose by the Director of Consumer Affairs Victoria, and published in the Government Gazette. The documentary evidence required for notices given under s 91ZZB includes a contract of sale, signed by the vendor and purchaser and dated; or a contract of engagement/authority to sell with a licensed estate agent; or preparation of a contract of sale prepared by a conveyancer or an Australian legal practitioner.
13 The notice given to the applicant attached a document described as 'Exclusive Sale Authority' ('sale authority' or 'the authority'). The sale authority takes the form of a standard template document, whereby an owner of property grants agrees to pay a commission upon the sale of the property to a real estate agent who agrees to advertise, market and endeavour to sell the property within the period of the authority. The authority indicated that the property was to be sold 'with vacant possession'.
14 The authority provided with the notice included redactions. The authority included a clause which could specify the period of the exclusive authority, which could be entered by the parties to the authority. The space within which to specify the 'exclusive authority period' was s redacted. The rental provider's address and mobile number were also redacted, as were the details of commission and advertising. The authority also included a clause which could specify the period of the continuing authority. There was no entry made by the parties for any 'continuing authority period'.
15 Item 7 of the sale authority provided that, if no time is stated, an exclusive authority period ends either 30 days after the auction date, or 'in any other case, 60 days after the date the agreement is signed by, or on behalf of, the seller'.
16 The Respondents' application to VCAT was made on 30 August 2024, two days after the expiry of the period for the Applicant to vacate the property.[10] The application was made pursuant to ss 91ZZB and 322(1) of the RTA, on the basis that the renter had failed to vacate the property by 28 August 2024, in accordance with the notice to vacate. The Respondents' application for possession was supported by the following statement submitted with the application:
Owner wants to sell property. A Notice to Vacate was served with an attached signed exclusive sales authority. Renter did not vacate. Renter refuses to communicate.
Residential Rental Provider has not received any rent from the renter, as funds are held in a special holding account due to dispute over outstanding repairs. As all outstanding repairs have already been successfully repaired, Residential Rental Provider is also seeking the release of special funds account. Residential Rental Provider is experiencing financial hardship and wishes to sell the property.
The required minimum 60 days notice period has already been given to the renter. It has now been more than 110 days since the notice was sent to the renter, which has given ample time for renter to find a new rental premise.
Residential Rental Provider would like the renter to move out immediately to allow the sales agent to determine if any repairs/improvements are needed for the purpose of organising the photography and advertising the property, including having the required compliance completed and selling the property.
Renter has not allowed access to the property despite recent Notice of Entries. Renter refuses to communicate despite several letters sent requesting a reply. Renter refuses to communicate other than via postal letters and therefore making it extremely difficult for the managing agent and selling agent to do their jobs effectively.
Managing Agent also does not have a copy of the property keys in order to access the property and therefore cannot complete any legislative compliance work/routine inspections/sales inspections even with a Notice of Entry in effect.
17 On 31 October 2024, the Applicant, as renter, responded to the Respondents' summary of proofs with a defence and attachments totalling 63 pages in length.
(a) claimed that the exclusive sale authority did not comply with s 486A(1) of the RTA, and that the evidentiary requirements of s 91ZZO were unmet,[11] citing Griffiths v Parcell[12] and Perri v Bertolusso;[13]
(b) rejected the Respondents' claim that they genuinely intended to sell the property, submitting that there had been successive notices to vacate for sale issued by the Respondents, none of which had resulted in any marketing or listing of the property for sale;
(c) contended that the sale authorities attached to the notices appeared to have been issued for appearances only;
(d) disputed the Respondents' wish to sell the property with vacant possession for the purposes of preparing the property for sale, stating that they had already accessed the premises for photography and marketing purposes on 15 December 2023;
(e) rejected the Respondents' assertion that she was refusing to communicate and preventing access to the property. Referring to the notices of entry sent to her by the Respondents, she submitted that she had permitted access on multiple occasions;
(f) submitted that VCAT had previously determined there was no basis for the allegations regarding denial of access and refusing to communicate. In support of this position, the Applicant sought to rely upon earlier orders of the Tribunal made on 3 November 2023, and the notices of entry sent by the respondents on 5 July 2024, 17 July 2024, and 15 August 2024, respectively; and
(g) confirmed that she was still paying rent into a special account established under a VCAT order, in the context of an ongoing repairs dispute;
19 The Applicant submitted that it would not be reasonable and proportionate for a possession order to be granted, stating that:
(a) the rental provider had not met the factors outlined in ss 330A(a)-(h) of the RTA;
(b) the application for possession was motivated by retaliation for numerous repair-related disputes initiated by her against the Respondents. The Applicant stated that the rental provider's repeated earlier notices to vacate, which had all been given on the basis that the Respondents wanted to sell the property, lacked a genuine intention to sell. She submitted that these efforts to have her vacate the property were a response to her legitimate efforts to enforce her rights, citing LKZ v CGS[14] as such an example;
(c) the rental provider was estopped from pursuing its claim, as a similar application made by the Respondents had been dismissed in November 2023,[15] citing Moustra v Elder;[16]
(d) the rental provider had not demonstrated that any clear financial benefit would be obtained from selling the property with vacant possession; nor had it established that the need to sell would outweigh the Applicant's hardship;
(e) her personal and financial circumstances outweighed the granting of a possession order. Specifically, that her income had been reduced due to a temporary workplace injury, which had prevented her from working full-time. Although her financial situation would improve as she recovered, the Applicant stated that an eviction would nevertheless impose significant financial and personal hardship, likely impacting her health and making it challenging to secure alternative accommodation; and
(f) she had actively sought alternative rentals, but financial constraints and health-related challenges had limited the options available to her, therefore it would be unreasonable and disproportionate for a possession order to be made at this time.
20 In her material filed in the Elmes proceeding, the Applicant sought to establish that between 2022 and 2023, there had been numerous disputes between the Applicant and the Respondents concerning repairs to the property. The full detail of this history is not contained in the material but it appears clear enough that there were in at least eight applications to VCAT, various orders for repairs to be carried out, and some compensation for the Applicant. At some point an order was made requiring the Applicant to pay rent into a rent special account under s 77 of the Act.
21 In the material filed in the Elmes proceeding , the Applicant sought to establish that earlier notices to vacate the property had been given by the Respondents, as part of her overall case that the Respondents efforts to evict the Applicant were motivated by retaliation rather than by a genuine intention to sell the property.
22 On 11 April 2023, a notice to vacate was sent to the Applicant, pursuant to s 91ZZB, advising that the property was to be sold with vacant possession. The notice attached an exclusive sale authority dated 25 January 2023, which included provision for the agent to specify whether the property would be sold 'subject to any tenancy' or with 'vacant possession'. The authority did not specify that the property was to be sold with vacant possession, but rather 'subject to any tenancy', apparently contradicting the notice to vacate. It provided for a 90-day 'exclusive authority period' and a 30-day 'continuing authority period'. The Applicant did not vacate the property, but the Respondents did not make any application to VCAT for possession in respect of that notice.
23 On 8 June 2023, a further notice to vacate was given to the Applicant. This was said to be the second such notice advising that the property was to be sold, and was made pursuant to s 91ZZB. It attached an exclusive sale authority dated 22 May 2023, which specified that the land was to be sold 'with vacant possession', and provided for a 60-day 'exclusive authority period', together with a 30-day 'continuing authority period'.
24 On 18 August 2023, an application for possession was made to VCAT on the basis that the Applicant had failed to vacate the property. The Tribunal made two orders in that proceeding.[17]
25 On 3 November 2023, Member Crocker adjourned the hearing because there was insufficient time to hear and determine the matter in the time available. The adjournment was also ordered to 'enable the parties to make submissions on the question of whether it [was] reasonable and proportionate to make a possession order having regard to the matters set out in section 330A of the [RTA]'.[18] To that end, the rental provider was ordered to file written submissions and supporting evidence addressing whether it was reasonable and proportionate to make a possession order.[19] Specifically, Member Crocker referred to the following:[20]
In particular, the residential [rental] provider has asserted that it would be reasonable and proportionate to make such order due to a history of [difficulty] gaining access to the rented premises to conduct inspections (both routine and in relation to other matters) giving rise to concerns about the ability to conduct a sales campaign including open for inspections. The Tribunal directs the residential rental provider to include in their submissions all evidence of prior notices of entry served on the renter, and any difficulty in gaining access after service of such notices.
26 In the same order, Member Crocker directed the Applicant to file any additional documentation that she wished to rely upon in relation to the question of whether it was reasonable and proportionate for a possession order to be made.[21]
27 On 15 November 2023, upon hearing the application and seized of relevant material, Member Crocker dismissed the application on the basis that '[h]aving regard to the matters set out in section 330A of the Act, the Tribunal is not satisfied that it would be reasonable and proportionate to make a possession [order]'.[22]
28 For completeness it is worth noting that, in addition to commencing the VCAT proceeding to obtain a possession order,[23] the Respondents also commenced proceedings in the Magistrates' Court under the misapprehension that because the rental provider lived interstate, only the Magistrates' Court could grant the relief that they sought, namely securing the release of funds held in the rent special account. On 11 October 2024, Senior Member Calabro adjourned the VCAT because the Magistrates' Court proceeding had been commenced. The VCAT proceeding was adjourned to be heard by teleconference (fixed for 45 minutes) on 7 November 2024, pending the outcome of the Magistrates' Court proceeding.[24] In his order, Senior Member Calabro expressed doubt that the Magistrates' Court had jurisdiction to hear the matter raised by the rental provider, but stated that it was appropriate to await the outcome of proceedings in that Court.
29 The hearing of the VCAT proceeding took place before Member Elmes on 7 November 2024 and was conducted by telephone. The Applicant appeared on her own behalf, and the Respondents were represented by their property agent, Ms Hou.
30 In her affidavit filed in this Court on 28 January 2025, and her further affidavit filed on 10 February 2025, the Applicant exhibited copies of the Elmes proceeding transcript ('VCAT Transcript') and the Tribunal's reasons. She stated that her affidavit had been filed to comply with 'the Court's direction to file and serve an affidavit exhibiting and analysing the transcript'.[25] I take this to be a reference to the orders made by Judicial Registrar Lorenz on 15 January 2025.[26] The Applicant also provided what she described as an 'analysis' of both the transcript and the Tribunal's reasons in her affidavit. She said the purpose of her affidavit was to 'provide evidence demonstrating procedural irregularities, jurisdictional errors, and statutory non-compliance in the Tribunal's decision-making process'.[27]
31 The analysis included in the Applicant's affidavits is neither a requirement of the Court, nor is it appropriate for such material to be included in affidavit form. The content of the affidavit was the subject of objection in this Court on that basis. The basis of the objection is sound. The Applicant is not a lawyer and represents herself in these proceedings. In the circumstances, it is appropriate to treat the 'analysis' provided on affidavit as submissions, not evidence - and I proceed on that basis.
32 At the commencement of the hearing before Member Elmes - the Elmes proceeding - the Tribunal sought to understand the status of the Magistrates' Court proceeding, asking Ms Hou to explain the situation. Ms Hou explained that the proceeding had been struck out.[28]
Today is not going to be dealing with the money - - any money that is being held in the rent special account. That would need to be a special application by you under [section] 77. I understand it was previously - - that was previously dealt with and you were told that that matter couldn't be pursued in VCAT because of the current Magistrate's Court proceedings. Now those proceedings have fallen away, you should be free to essentially reinvigorate your previous Section 77 application.
...
[S]o today is just about possession. You are not precluded from, you know, making that additional [section] 77 application because if there is money sitting in the rent special account then that needs to be dealt with one way or the other.
...
... I am not in a position today to deal with the rent special account monies because that is a separate application that needs to be made but by the sounds of it, that will be made at some point on behalf of the rental provider.
34 Having set out the purpose of the hearing, the matter continued. The transcript of the proceeding stands for itself as a record of what transpired before the Tribunal, to which I will return when addressing the grounds of appeal.
35 At the conclusion of the hearing on 7 November 2024, the Tribunal announced its decision to allow the application for a possession order. When a possession order is made, a renter is required to give vacant possession within 30 days of the date of the order. Here the Tribunal made the following alternative proposal:[31]
I am going to make a possession order but I'm going to do something a little bit different. I'm going to put it into your hands, Ms Mazi, about a date. Now, I am technically bound if I make a possession order today I must not extend it beyond 30 days so that would mean you would need to vacate the property by the 7th of December. I can be a little bit creative with my discretion and I can extend that date by bringing this matter back before me at some point in the future for what we call an administrative mention. ... So, that's a way of providing you with additional time. It's probably much more time than what the rental provider would agree with, but I am minded to approach it from that point of view because I'm also conscious that there is Christmas coming up, and there is that break that usually occurs.
...
... what we do in these circumstances is, as I said, we adjourn the matter to an administrative mention and I would be thinking about an administrative mention sometime in the first or second week of January, and then, on that date, I make the formal orders for possession with a vacate date a week or two weeks after that date. So, we would be looking at about the middle of January as a vacate date. All right? Now, I've heard Ms Hou say to me that they want it straight away.[32] I'm not going to do that. I'm going to exercise my discretion and give you some additional time.
So, what I would be proposing is an administrative mention on the 14th of January, so that means the file gets referred to me in chambers on the 14th of January which is itself almost 8 weeks away, so I'm being very liberal here, Ms Mazi, very, very generous for you. If I said the 14th of January that the file comes back to me and then on that date I make a formal order for the property to be vacated by the 24th of January. That's my proposal. But, that gives you a significant amount of time, Ms Mazi. The rental provider won't be happy, but I'm going to suggest in the meantime the rental provider or the agent makes that application for access to the rent because if the repairs have been completed there's no reason why that rent can't flow back now to the renter - - to the rental provider, and that application, if you make it promptly, should hopefully be listed relatively quickly.
...
And that's got nothing to do with possession. That's a completely separate issue, but it might relieve some of the financial stress in the interim because it sounds as if there is a fair amount of rent that has been tied up. ...
36 The Applicant then requested written reasons for the Tribunal's decision, upon which the following exchange occurred between the Tribunal and the Applicant:[33]
MS MAZI: Member, I would like to request reasons for that decision, please.
MEMBER: No, I'm making my decision, Ms Mazi. The decision will be that possession will be granted. I'm satisfied on the evidence that a possession order can be made, all right, so - -
MS MAZI: Yes, yes, I understand that. I'm asking for reasons for the decision to be made ...
MEMBER: ... If I give you reasons though, I will need to make an earlier vacate date because the orders have to be final as of today.
MS MAZI: Yes, Member, I am requesting written reasons for the decision.
MEMBER: Yes, but I'm telling you, Ms Mazi, that if I give you written reasons, which I'm happy to do, the effect of that will mean that I need to make an order for possession today with written reasons for that to follow. All right? So, if you are happy with that I will do that but I will make the order the 7th of December. You will have to vacate the property by the 7th of December because I have to make - - if you are asking for written reasons, I have to deliver a final order today with written reasons for that order to follow.
MS MAZI: Whatever you have to do, but I'm just requesting written reasons --
MEMBER: But, I want you - - I want you to understand that you then lose the benefit of the option that I was giving you and if you understand that, that's fine. You will need to vacate the property by the 7th of December. My written reasons may not come out by the 7th of December. They probably will, but you will need to vacate by the 7th of December. Do you understand that?
MS MAZI: I was not aware that requesting written reasons for a decision was a condition for any of the orders that you intend - - that you initially made - -
MEMBER: I have to make a final order. So what - - my orders today that I was proposing, Ms Mazi, were to be interim orders pending a final order being made in January. I was attempting to give you some extra time. If you're after written reasons - which is not a problem - I must make final orders today to be able to give effect to those written reasons.
MS MAZI: So, if you make the interim orders does that mean in January you won't be able to give the written reasons?
MEMBER: No, that's right or I can give you written reasons - - no, no. I've got to make final - - if you want written reasons flowing from the hearing today I need to make a final order today - -
...
MEMBER: No, no, it has to be done today. You're asking for them today and I have to give written reasons flowing from orders, final orders, made today. So, I'm in your hands. I'm very conscious, Ms Mazi, I do need to conclude this matter because it's gone well over time and I have other parties with other hearings to be heard.
37 On 7 November 2024, the following findings and orders were made by the Tribunal:
VCAT finds:
The residential rental provider gave the renter not less than 60 days' notice to vacate under section 91ZZB of the Residential Tenancies Act 1997.
The residential rental provider has proven the reasons for giving the notice to vacate.
Having regard to the matters in section 330A of the Act, it is reasonable and proportionate to make a possession order.
The residential rental provider is entitled to a possession order in the terms set out below.
VCAT orders:
1. The renter must vacate the rented premises by 07 December 2024.
- At the request of the person who obtained the possession order and on payment of the prescribed fee the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. This request may be made after 07 December 2024 and no later than 07 May 2025.
38 On 9 December 2024, the Tribunal gave written reasons for its decision ('Reasons'). The Reasons were accompanied by an order. The order published with the Reasons on 9 December 2024 is not in the same terms as that made on 7 November 2024. Whilst the differences do not affect the substance of the orders made by the Tribunal on 7 November 2024, the findings and orders accompanying the Reasons on 9 December 2024 differ from the earlier version, in that the second finding is augmented by an express statement that the notice to vacate was valid; and the second order extends the date by which the rental provider may request a warrant of possession by one month.
39 In its reasons, the Tribunal accepted that there had been various repair issues associated with the property between 2022 and 2023, resulting in orders for repairs, payment of compensation to the renter, and for rent to be paid into a special account. Together with the earlier attempts to obtain possession of the property, the Tribunal observed that this appeared to have placed significant strain upon the relationship between the rental provider and the renter.[34]
40 The Tribunal noted that the Applicant had not disputed the notice's validity in her written submissions, but had done so during the hearing. The Tribunal characterised the Applicant's complaint about the notice as a failure to 'disclose the address of the premises for sale'.[35] In fact, the Applicant never raised this as her concern. The Applicant was at all times concerned with the redaction of the number of days for the 'exclusive authority period'.[36]
41 The error was first made by the Tribunal in the hearing. The Applicant attempted to correct the Tribunal's error but was admonished for interrupting.[37] It is apparent from the transcript of the hearing that the Tribunal's error was recognised without the assistance of the Applicant. In the hearing the Tribunal seems to have recognised (with the assistance of Ms Hou) that it was mistaken in thinking that the Applicant was concerned about the redaction of the rental providers address. Despite recognising its misunderstanding in the hearing, the Tribunal's written reasons again proceeded upon the assumption that the Applicant was concerned with the redaction of the rental provider's address.[38] In its written reasons, the Tribunal makes no reference to the substance of the Applicant's actual complaint.
42 The Applicant submitted that, in accordance with clause 7 of the authority, where no time is specified for the period of the exclusive authority, the terms operate to bring an end to the exclusive authority after 60 days from the date the authority is signed..[39] The authority was signed on 20 June 2024 and, on the Applicant's argument, the authority expired before 28 August 2024, the date by which she was required to provide vacant possession under the notice to vacate.[40] The Tribunal rejected this argument in the following terms:[41]
At the time the NTV was given, it was accompanied by a signed sale authority dated 20 June 2024. ('Sale Authority'). The Sale Authority was dated the same date as the NTV and had not expired. The documentary evidence requirements do not stipulate that an agent's authority to sell must be continuing throughout the notice period and as at the termination date. It is only that the notice to vacate be accompanied by an authority to sell with a licensed agent. I was satisfied that at the time the NTV was given, it was supported by the necessary documentary evidence in the form of a valid authority to sell.
[emphasis added]
43 There was no evidence before the Tribunal supporting a finding that the sale authority had not expired, as the period of the authority was redacted. This was the point sought to be made by the Applicant, which the Tribunal initially confused, and then did not address.
44 The Tribunal rejected the Applicant's argument that the Respondents did not have a genuine intention to sell the property, stating:[42]
I did not accept the renter's submission that the lack of a marketing campaign was evidence of the rental providers not truly wishing to sell. I explained to the renter at the hearing that it is a common experience of the Tribunal that rental providers wait for the property to be vacated before preparing the property for sale. There are obvious practical reasons for this. In my view the absence of any active marketing by the rental providers did not undermine the reasons for serving the NTV.
45 The Tribunal referred to the notice of entry served by the rental provider on 15 August 2024 for the purpose of enabling, amongst other things, a valuation of the property. This was considered in conjunction with the engagement of a sales agent as persuasive evidence of the rental provider's genuine intention to sell with vacant possession.[43] The Tribunal concluded: 'I was satisfied also that the rental providers' intentions had not changed over the passage of time, and the need to do so had not been ameliorated. If anything, their desire to sell the premises had increased'.[44]
On the contrary, I considered that the rental providers' evidence of having engaged a sales agent on no fewer than three occasions over a period of approximately 15 months showed clear intention to sell the property as soon as they were able to secure it back.
47 Ultimately, the Tribunal found that the rental provider had given the renter a valid notice to vacate, and was therefore entitled to make an application for possession.[47]
48 The Respondents' application for possession was not founded on any breach or misconduct of the Applicant, as such ss 330A(a)-(g) were properly regarded as irrelevant by the Tribunal. The focus of the Tribunal's consideration turned to the following provisions of s 330A:[48]
(a) Section 330A(h): whether any other order or course of action was reasonably available instead of making a possession order.
(b) Section 330A(i): the behaviour of the residential rental provider or the provider's agent.
(c) Section 330A(j): any other matter the Tribunal considers relevant.
49 The Tribunal's analysis of these factors included, 'consideration of the reasons for selling, why the premises are being sold with vacant possession, the renter's conduct in assisting with any marketing of the premises, the efforts made by the renter to find alternative accommodation and the current economic climate'.[49]
50 The Tribunal accepted, as evidence, the agent's submission that the rental provider's financial difficulties were 'severe', necessitating sale of the property, and that this had been so for at least 12 months.[50] It is of note that the rental provider was not present at the hearing, that the agent had been relatively recently appointed, and that there was no evidence substantiating the agent's submission regarding the rental provider's financial position. The Tribunal noted the agent's submission that the rent was being paid into a special account, pursuant to a VCAT order relating to repairs; and that neither the rental provider nor the agent had oversight of that account, including how much had been paid into it at the time of the hearing. The Tribunal noted in its summary of the rental provider's evidence that, although the repairs had been completed some time ago, rent monies remained in the account. The Tribunal stated that it understood the current balance of the rent special account exceeded $20,000. There was no evidence before the Tribunal as to the current balance of the rent special account. No explanation was provided to the Tribunal as to why the rental provider had not sought to obtain access to the funds in the rent special account to alleviate what was said to be the rental provider's financial hardship.
51 The Tribunal also noted the agent's submissions that there had been a lengthy dispute over repairs; that the Applicant had refused or made it difficult for tradespeople to attend the property to address those issues; and that the Applicant had made it difficult for the Respondents to market the property for sale.[51]
52 The Tribunal noted the Applicant's denial of the claim that she had made it difficult for people to enter the property for the purposes of repairs or marketing; and her submissions that the rental provider was retaliating against her.[52] The renter confirmed that she was still paying rent into the special account.[53]
53 The renter's evidence at the hearing, as recorded in the reasons, included a letter from a general practitioner dated 31 October 2024, which advocated for the renter to remain in the property, and referred to a workplace incident that the renter was managing, but which had reduced her income since September 2024. The letter further advised that the situation was temporary and looked to be improving.[54] The Tribunal commented that the renter had not given any oral evidence regarding the workplace injury or her finances;[55] that she had not provided further details or medical evidence of the 'health related challenges' referred to in her written submissions, or oral evidence of those challenges, all of which had been made in the context of hardship associated with eviction.[56]
54 The Tribunal referred to the renter's evidence that she had made a number of applications for alternative rental accommodation which were unsuccessful, but had been unable to say how many or when they were made, or why she might not have been successful. Further, that the renter had included images of rental properties without dates in her written submissions on this point.[57] The Tribunal noted the renter's evidence that she would be 'financially impacted' if required to move.[58]
55 The Tribunal noted the Applicant's submission that the rental provider was estopped from bringing its application, because an application of the same type had been dismissed in November 2023,[59] citing Moustra v Elder[60] as authority for the contention that VCAT decisions are capable of giving rise to cause of action estoppel or res judicata.
Section 330A(h): Was there any other order or course of action reasonably available instead of making a possession order?
56 As to whether the property could be sold with a tenant in occupation, the Tribunal noted that this was an alternative course of action, and that it was aware of the rental provider having unsuccessfully tried to pursue this option previously. The Tribunal accepted that 'this was because of difficulties in engaging with the renter including for the purposes of marketing and/or sales inspections' and, in the circumstances, 'did not consider this was a feasible alternative'.[61] It is evident that this finding is based solely on the submission of the rental provider's agent who, whilst appearing in the Tribunal under oath, could give no direct evidence of this matter, and furnished no detail to the Tribunal as to these matters. It is also clear that these matters were disputed by the Applicant. The transcript of the hearing reveals that this factual dispute was not explored by the Tribunal.
Section 330A(i): The behaviour of the rental provider
57 The Tribunal accepted that there was a background of repair and compensation applications made by the Applicant from which various orders had been made, including one directing rent to be paid into a special account, and that this would have been 'a significant distraction from the selling of the property'.[62] The Tribunal said that there was no evidence of repairs being outstanding when the application for possession was made. It inferred that the absence of outstanding repairs 'undermined the suggestion of retaliation' and, in the Tribunal's words, led it to be satisfied on the totality of the evidence' that the rental provider's motivation was to sell the property.[63]
58 The Tribunal said that the rental providers' desire to sell the property with vacant possession was 'not unreasonable' given the history between the parties. It added that: 'Sale with vacant possession typically attracts a wider range of buyers (not just limited to investors), there is no intrusion on renters due to inspections, and no need to negotiate entry times which, as was the case here, can be challenging for all involved.'[64]
59 The Tribunal noted that the rental provider had not previously attempted to terminate the tenancy for another reason, such as the fixed-term agreement coming to an end, or that the rental provider wished to move into the property. The Tribunal said that this confirmed her view of the rental provider's intentions as having only been to sell the property, in order to 'realise an asset' and 'extract themselves from a relationship which has potentially irretrievably broken down'.[65]
Section 330A(j): Any other matter the Tribunal considers relevant
60 The Tribunal considered the lack of rent going to the rental provider as a relevant factor, and accepted that they had unsuccessfully tried to access the rent being held in the special account. There was no evidence before the Tribunal of any application having been made to the Tribunal to obtain access to funds in the rent special account. The Tribunal considered that not having access to the rent would have added to the rental provider's financial stress and reinforced the need to sell the property. As the rent special account was established well before the notice to vacate and the possession application, the Tribunal did not accept that the possession application was retaliatory conduct on the part of the rental provider.[66]
61 The Tribunal found that, in light of the renter having provided limited evidence as to her medical and financial circumstances and how those would impact her ability to move, it 'did not consider there was a sufficient explanation from the renter as to why she could not or had not moved by the termination date'. The Tribunal was not satisfied that the renter's 'purported change of circumstances for health reasons would materially prevent her relocating to alternative accommodation'.[67]
62 The Tribunal also found that the Applicant had provided limited evidence of her efforts to find alternative accommodation, and was unable to explain why she had not been successful. It said that, in her oral evidence, the Applicant had been unable to confirm how many, or on what dates, she had submitted applications, nor had she provided documentary evidence of them. The Tribunal stated that this was evidence often put before the Tribunal by renters,[68] and also referred to the absence of evidence by the renter of her risk of homelessness should possession be ordered against her.[69]
63 The Tribunal accepted that earlier decisions of VCAT (such as Moustra v Elder) are capable of giving rise to an estoppel, but concluded that those cases were distinguishable from the present case, 'both on the facts and the law'.[70] The Tribunal went on to observe that there is 'no prohibition' on the number of notices to vacate that can be issued; that it was not uncommon for the same type of possession application to be made by a rental provider more than once; and that each application would be decided on its own facts. The Tribunal did not accept the Applicant's submissions that it should dismiss the application, as the previous decision of the Tribunal was concerned with an 'entirely different' notice to vacate'.[71]
64 The Tribunal concluded that it was reasonable and proportionate to make the possession order, having taken the 'interests of, and impact upon, both parties' into account. Whilst sympathetic to the renter's situation, the Tribunal observed that her obligation was to balance the renter's rights and preferences with those of the rental provider who wished to realise an investment, and had 'tried to do so now for some time'.[72] Ultimately, the Tribunal was satisfied that the rental provider was entitled to give the renter a notice to vacate, and that it was reasonable and proportionate for the Tribunal to make an order for possession.
65 The Applicant's Notice of Appeal raised the following grounds of appeal:
1. The Appeal be allowed.
That the decision of the Victorian Civil and Administrative Tribunal dated 7 July 2024 be set aside[.]
3. That the respondents, pay the appellant's costs of this appeal.
67 Under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), a party may only seek leave to appeal to this Court on a question of law.[73] The Court is not concerned with the merits of the case,[74] and may grant leave only if satisfied that the appeal has a real prospect of success.[75]
68 The Applicant's grounds are drafted in a way which no doubt seeks to describe the essence of the Applicant's complaint, but in many respects fails to engage with the legal framework within which an appeal may be brought to this Court against a decision of VCAT. For an appeal to succeed, it is necessary for an applicant to demonstrate legal error on the part of the Tribunal.
69 The Respondents submit that the weight attributed to relevant factors by the Tribunal when reaching a conclusion is not a question of law;[76] just as 'whether a decision was contrary to the evidence, or the weight of the evidence, is not a question of law'.[77] The Respondents submit that a question of law 'must be one which was "involved in the Tribunal's decision"';[78] and that the Tribunal 'will not err by failing to address a question extraneous to those it was required to address'.[79] Similarly, the Respondents submit that it cannot be an error of law for the Tribunal to fail to do something that it was not lawfully permitted to do.[80] Further, they say that the Tribunal's failure to take a particular matter into account will only be an error of law where the Tribunal was bound to take it into account, either by the express terms of the statute conferring decision-making power, or by implication.[81] If the statute 'neither obliges nor forbids' the Tribunal from taking a matter into account, the Respondents submit that no error of law can arise from the fact that it was or was not considered.[82]
(a) Ground 1: The validity of the Notice to Vacate and the required documentary evidence is considered by the Tribunal at paragraphs 14 and 15 of her reasons.
(b) Ground 2: The question of whether a possession order would be reasonable and proportionate is considered by the Tribunal from paragraph 21 of the reasons. The Applicant's submissions concerning retaliation by the Respondents are considered at paragraphs 16, 34, 40-41, 44, and 47 of the reasons. Her submissions on hardship are considered at paragraph 48.
(c) Ground 3: VCAT is not bound by other decisions of the Tribunal, therefore a failure to do so cannot constitute an error of law.[85]
(d) Ground 4: The Applicant's submissions on retaliation are also considered by Member Elmes at paragraphs 16, 34, 40-41, 44, and 47 of the reasons.
(e) Ground 5: The question of estoppel is considered by Member Elmes at paragraphs 51-52 of the reasons.
(f) Ground 6: The Applicant has not identified specific evidence that Member Elmes failed to consider, and otherwise claims that evidence was 'disregarded' or 'irrelevant'.
(g) Ground 7: The Applicant provides no evidence to suggest that any material going to the rent arrears claim or an offer by the rental provider was relied upon by Member Elmes in her decision. In any event, the Tribunal is not prevented from considering matters of that nature or in respect of the rent special account, in determining whether a possession order is reasonable and proportionate. As such, no error of law is raised.
(h) Ground 8: Member Elmes considered the Applicant's hardship at paragraph 48, and the Respondents' need for vacant possession at paragraph 45 of the reasons.
Question of law arising on the Applicant's grounds
71 I am conscious that the Applicant is a self-represented litigant and have therefore endeavoured to consider the questions and grounds raised by her to the extent that they are capable of giving rise to a question of law. Where they have not reached this threshold, I have indicated why this is so. I have been guided in this respect by the observations of the Court of Appeal in Trkulja v Markovic:[86]
Some cases have described the judge's duty in terms that suggest that it is owed to the self-represented litigant while others have more accurately described it as a general duty which is inherent in the discharge of the judicial function.
Whatever the rationale for the judge's duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial. It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.
72 It is unproductive to critique the drafting of grounds prepared by a self-represented litigant, some of which overlap. Rather, it is in the interests of justice to deal with the substance of the complaints, where discernible, from the totality of the Applicant's case, to assess whether the complaints disclose legal error. The Applicant's submissions make clearer the legal issues that she seeks to agitate on this appeal. Her initial submissions were filed in advance of the hearing and, where produced later, the Respondents were given the opportunity to respond to them; and indeed, did respond to them in a comprehensive way.
73 At the outset, it should be observed that whilst it is true (as the Respondents submit) that a mere failure to address, to consider, or have regard to a certain matter may not necessarily disclose legal error, it is clear enough that the grounds, when taken together with the Applicant's submissions, cite specific instances of a broader complaint.
74 Before this Court, the Applicant explained in detail the nature of the case which she had sought to advance before the Tribunal. Her response to the application for possession was focused on three key propositions, aspects of which are reflected in the complaints made in her grounds of appeal. The three central planks to the Applicant's case in the Tribunal were that:
(a) the notice to vacate was not valid, because the documentary evidence supporting the reason for seeking a possession order had either expired by the date upon which the application for possession was made, or failed to disclose important information ('validity of the notice');
(b) even if it can be said that the deficiencies in the documentary evidence supporting the notice to vacate did not render the notice invalid, the rental provider's reason for seeking possession was not genuine. The lack of genuineness could be inferred from: the absence of evidence showing marketing activity; and the true motivation for seeking possession being retaliation for the renter's multiple requests for repairs ('genuineness of intention to sell'); and
(c) eviction was not reasonable or proportionate in all the circumstances. The hardship inflicted on the renter was significant and outweighed the evidence of the rental provider's need to sell the property ('reasonable and proportionate').
75 Clearly enough, ground 1 of the notice of appeal is directed to the validity of the notice as it relates to the requirement to produce documentary evidence supporting the reason for giving the notice, and gives rise to a question of law. Elements of the Applicant's submissions on grounds 3, 4, 5 and, to some extent, part of ground 1, dispute the genuineness of the rental provider's reason for seeking possession, which goes both to the validity of the notice, and to the behaviour of the rental provider as a factor relevant to the reasonableness and proportionality of the application for possession. Finally, grounds 2, 7, and 8, in different ways, attack the Tribunal's finding that eviction was reasonable and proportionate in all the circumstances - either by directly attacking that conclusion (ground 2), or by attacking findings said to have a bearing on the assessment of reasonableness and proportionality, such as relative hardship or surrounding circumstances.
76 Each plank of the Applicant's case was directed either to the jurisdiction of the Tribunal (the validity of the notice) or mandatory considerations relevant to the Tribunal's exercise of discretion (i.e., whether the grant of the application for possession was reasonable and proportionate).
77 There can be little doubt that the Tribunal was required to actively engage with mandatory considerations. As Walker JA observed in Hanson v Director of Housing:[87]
[I]t will not be sufficient for the Tribunal, in assessing whether a possession order is reasonable and proportionate, to make a cursory, dismissive or passing reference to the impact of the order on the renter. Rather, the Tribunal is required to give active intellectual consideration to that matter. Thus, in Gautham v Panwar, when considering a submission that the Tribunal had not taken into account a relevant consideration, Ginnane J observed that the Tribunal 'must actively engage with the mandatory considerations, and that engagement must be evident in his or her reasoning'.[88]
[L]anguage such as "active intellectual consideration" must be understood in its proper context and that a phrase of that kind must not be allowed to create "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". But, as their Honours observed, that remark does not detract from the established principle that if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument, that may give rise to legal error.
79 Where the resolution of disputed questions of fact is required before discretion can be exercised, the Tribunal's task is guided by the terms of the VCAT Act. The statutory framework established by the VCAT Act makes clear that whilst the Tribunal is not bound by the rules of evidence, it is bound by the rules of natural justice,[91] and the obligation to act fairly and according to the substantial merits of the case.[92] What is required to discharge the obligation to act fairly in any given case might vary depending upon the circumstances: the complexity of the case; the nature of the issues; and/ or whether the litigant is represented.
80 In Metricon Homes Pty Ltd v Sawyer,[93] Garde J described the operation of VCAT's obligation to act fairly in a different context, stating that if the Tribunal 'is to act in accordance with the "substantial merits" of the case, it must facilitate the production of documents and the calling of evidence when sought by a party that will contribute towards the resolution of the substantial merits of the individual case'.[94] In this respect, his Honour referred to the Tribunal being 'bound by the rules of natural justice', and the need for it to give proper consideration to the matters before it.[95] In the course of considering the authorities, his Honour referred to Osborn J's observations in Gombac Group Pty Ltd v Vero Insurance Ltd[96] that:
It is a fundamental duty of a tribunal to address the question of a particular fact in issue in proceedings before it by reference to the whole of the evidence relevant to that issue and not some part of that evidence alone. It must not deny itself "the full benefit of the evidentiary impact of the combined weight of all the intermediary facts". Where a case turns on circumstantial evidence it will be open to the Tribunal to use some facts as tending to support conclusions with respect to other facts although they may not in themselves be directly probative of the matter in issue. In a civil case the Tribunal must ultimately conclude whether relevant inferences are more probable than not on the basis of all the circumstantial evidence before it.
For everyone is entitled to a fair trial at which the litigant's case can be put properly before the judge: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. This applies as much to the trial of an issue as to the trial of an action. Every court must ensure that trials before it are conducted in accordance with the principles of natural justice, and these principles require the giving of a reasonable opportunity to dispute your opponent's case and to present your own: Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1.
82 In applying these principles to the issues raised in Metricon, Garde J stated that:[99]
Information as to the amount of the owners' legal costs and disbursements as at the date of the second offer lay with the owners. The builder had knowledge of the steps taken and documents filed in the proceeding, but it had little or no knowledge of the costs that the owners had actually incurred, or of the work done on their behalf to bring their claim. It was not a case where knowledge was slight or documents did not exist. They did exist but they were with the owners. While it was not for the owners to assist the builder's case, nevertheless it was for the Tribunal to ensure, as the builder sought, that procedures and processes were put in train by which the true situation could be known, and the interests of justice attained.
83 In Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd,[100] a domestic building matter, Senior Member Cremean referred to s 97 of the VCAT Act, which requires the Tribunal to act fairly, as a provision usually seen as relating to procedural fairness.[101] In Shrestha v Migration Review Tribunal,[102] the Full Court of the Federal Court considered procedural fairness in the context of the opportunity given to the appellant to adduce evidence and present argument. It was considered axiomatic that 'the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions'.[103] Similarly, in SZVCP v Minister for Immigration and Border Protection,[104] the Full Court of the Federal Court described the principle as it applied to the primary judge, as follows:[105]
There can be no doubt that the primary judge was obliged to exercise his powers reasonably and to accord the applicant procedural fairness. His Honour was required to give the applicant a reasonable opportunity to present evidence and to make submissions in support of his applications. His Honour was also obliged to address and consider each of the applications that the applicant made to the Court. He could not act unreasonably by dismissing them without in substance addressing them.
As the Courts below recognised, the Tribunal's error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome.[108] The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense.[109]
85 Their Honours concluded that the appellant had 'discharged his onus of demonstrating that the Tribunal's denial of procedural fairness [had] deprived him of a realistic possibility of a different outcome', the realistic possibility being 'demonstrable from the record of the Tribunal's decision'. Their Honours held that the appellant 'was not required to articulate a specific course of action which could realistically have changed the result'.[110] Referring to MZAPC v Minister for Immigration and Border Protection ('MZAPC**'**),[111] their Honours expanded upon the notion of materiality, as follows:[112]
As explained in MZAPC, the materiality of a breach requires consideration of 'the basal factual question of how the decision that was in fact made was in fact made.[113] This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with 'as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined'.[114] The burden falls on the plaintiff to prove 'on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition'.[115]
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.[116] The standard of 'reasonable conjecture' is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive 'story' of the opposing party.[117] Where a Tribunal errs by denying a party a reasonable opportunity to present their case, 'reasonable conjecture' does not require demonstration of how that party might have taken advantage of that lost opportunity.[118] Nothing said in MZAPC denies this. To the contrary, the standard of 'reasonable conjecture', correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
86 This is a case where the Applicant was entirely unrepresented before the Tribunal, and where although professionally represented, the Respondents were not represented by a lawyer, whose duties to the court supersede those owed to a client. In such a situation the Tribunal has an important and special role in ensuring that a party has a reasonable opportunity to present their case.
87 In Tomasevic v Travaglini,[119] Bell J stated that, whilst maintaining judicial neutrality 'at all times and to all parties', the 'matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance'.[120] His Honour extended the application of the duty to assist self-represented litigants to 'masters, magistrates, commissions and tribunals', stating that 'of course the application of the duty would have to take into account the particular demands of those jurisdictions', and that it applied 'even when all the parties are litigants in person'.[121]
88 A unifying feature of the Applicant's grounds, and the submissions made before this Court, is a complaint that her arguments before the Tribunal were either not understood, if understood, not addressed or, if addressed, were not dealt with fairly. Whether that complaint is framed as a denial of natural justice, or as a failure to actively engage with the Applicant's case - it is capable of describing legal error of a kind which falls within s 148(1) of the VCAT Act.
89 The Applicant's first ground concerns the validity of the notice to vacate. She describes this as her 'central' ground, with the others made in the alternative.[122] The Applicant argues that the notice to vacate does not comply with s 91ZZO of the RTA.[123] In her notice of appeal, she frames the relevant ground as follows:
The Tribunal erred in not considering the renter's submission regarding the applicant's failure to meet statutory requirements under Section 91ZZO, particularly the exclusive sale authority and compliance with evidentiary standards required by the Act and case law.
90 The precise language of the ground suggests legal error based on the failure to consider a relevant matter, or the failure to deal with a material argument. Neither represents the complete basis of the complaint, the substance of which emerged in written submissions and oral argument.
91 Section 91ZZB enables a rental provider to give a notice to vacate to a renter on the basis of their intention to sell the property. It states:
(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 sold or offered for sale with vacant possession.
(2) If a residential rental provider has entered into a contract of sale of the rented premises and the contract of sale is subject to one or more conditions which, if not satisfied, entitle a party to the contract to terminate the contract, the residential rental provider, within 14 days after the last of those conditions is satisfied, may give a renter a notice to vacate the rented premises.
(3) If a residential rental provider has entered into a contract of sale of the rented premises which is not a contract of sale of the kind referred to in subsection (2), the residential rental provider, within 14 days after the contract of sale is entered into, may give a renter a notice to vacate the rented premises.
(4) A notice under this section must specify a termination date that is not less than 60 days after the date on which the notice is given.
Note
See section 91ZZO regarding requirements for accompanying documentary evidence.
92 The requirements for the form of a notice, including the accompanying documentary evidence, are set out in s 91ZZO which states:
A notice to vacate given under this Division is not valid unless -
(a) it is in the relevant prescribed form; and
(b) it is addressed to the renter; and
(c) it is signed by the person giving the notice or by that person's agent; and
(d) it specifies the reason or reasons for giving the notice; and
(e) in the case of a notice to vacate given under section 91ZW, 91ZX, 91ZY, 91ZZ, 91ZZA, 91ZZB or 91ZZC, it is accompanied by documentary evidence, as approved by the Director from time to time, which supports the reason for giving the notice; and
Note
See section 486A.
(f) it specifies the termination date which is the date by which compliance is required.
486A Director may approve documentary evidence
(1) For the purposes of sections 91ZZO(e), 142ZT(e), 206AZI(e) and 498ZX(1)(h), (ha) and (k), the Director, from time to time, may approve documentary evidence which supports the reason for giving a notice to vacate under a section referred to in each of those sections.
(2) The Director must publish the approval of documentary evidence as soon as practicable after it is approved -
(a) in the Government Gazette; and
(b) on an Internet site maintained by the Director.
94 The Director approved the following documentary evidence to support a notice to vacate issued under s 91ZZB:[124]
(a) Section 91ZZO of the RTA requires, inter alia, that a notice to vacate must be supported by documentary evidence substantiating a rental provider's reason for seeking possession.
(b) Where a rental provider's reason for seeking possession of a property is to sell it, pursuant to s 91ZZB, the notice to vacate must be accompanied by a supporting document, such as an authority to sell with a licensed estate agent - one of the three types of documentary evidence approved by the Director.
(c) As s 91ZZO makes clear, the purpose of attaching documentary evidence is to support the reason claimed by the rental provider for seeking possession of the property.
96 Section 91ZZO expressly provides that a notice will not be valid unless it conforms with subparagraphs (a) to (f). It follows that, if the documentary evidence advanced in support of the reason, as required by s 91ZZO(1)(e), is impugned in some way, the notice may be rendered invalid.
97 In the present case, the notice to vacate was supported by the sale authority, which was executed on 20 June 2024. The sale authority is a standard form document containing various fields for information to be added, where applicable. The sale authority that was attached to the notice to vacate and provided to the Applicant, redacted the vendor's address and, more significantly, redacted the field within which the parties (being the vendor and the agent) had specified the period of the sale authority.[125] This second redaction made it impossible to know how long the sale authority was to remain in force. At no stage was any explanation for the redaction of this part of the form given, either in VCAT or in this Court.
98 The Applicant advanced two arguments in relation to the validity of the sale authority, both based upon the redaction of the exclusive authority period: the first argument contended that redaction of the exclusive authority period equated to 'no time' being stated, and therefore triggered the 60-day period in Item 7 of the authority; the second argument contended that the redaction of sections in the sale authority concealed 'critical information' relating to its validity.[126] Importantly, the Applicant made nothing of the redaction of the address, although in the hearing before the Tribunal, she pointed out that there was no basis upon which a document of this kind should contain any redactions.
99 The Applicant's first argument was that, by virtue of the redaction, the period attaching to the exclusive sale authority was left unspecified or with 'no time stated'. On that basis, she argued that clause 7 of the sale authority was triggered, and that the effect of the clause was that the sale authority period expired 60 days after the date on which it was signed; the date of expiry being 19 August 2024, 12 days before the VCAT proceedings were commenced. The Applicant submitted that the notice to vacate was invalid on, and from, 20 August 2024. In turn, she submitted that the notice to vacate could not ground an application for possession in VCAT.
101 The Applicant's first argument assumed that the redaction relating to the period of the authority should be treated as not specifying any period. In my view, the assumption that no period for the authority was specified is not a logical inference to draw from the fact of the redaction. A more logical inference is that a period was, in fact, specified but later redacted before it was sent to the Applicant. Counsel for the Respondent agreed, saying that a time was clearly stated, but had been redacted and could not be seen. It could not be assumed that no period was specified, only that the Applicant was not privy to the redacted information.
102 Leaving aside the Applicant's flawed assumption regarding the effect of the redaction, as the Tribunal correctly observed:[127]
The documentary evidence requirements do not stipulate that an agent's authority to sell must be continuing throughout the notice period and as at the termination date. It is only that the notice to vacate be accompanied by an authority to sell with a licensed agent.
103 The Tribunal was correct to say that the legislation does not require that a sale authority must be continuing throughout the notice period under the notice to vacate. There is also no requirement for the sale authority to be continuing at the time that the application for possession is made to VCAT. However, it is important not to overlook the requirements for documentary evidence and their purpose.
104 A sale authority is not a statutory document, rather it is treated by the RTA as evidence supporting the rental provider's reason for seeking a possession order. Ultimately, the extent to which a sale authority is good evidence of the reason for seeking a possession order lies in the terms of that authority, including the period given to an agent to prosecute a sale of the property. In oral submissions, the Respondents conceded for the purposes of argument that a sale authority which specified a period of zero days might render the notice invalid (cf. where the period is left unspecified with the result that the period would end after 60 days by operation of clause 7). That must be so, because it renders the sale authority of no effect, thereby leaving the notice to vacate unsupported by the required documentary evidence. Accepting that to be so, what is the effect of a sale authority extending for only 1 day or 12 hours? Although there may be a theoretical period within which the authority is enlivened at the time the notice is given, the length of that period may, however, have a bearing on whether the reason provided for the notice is the real reason, as opposed to a contrivance.
105 There is no basis in the RTA supporting the redaction of fundamental terms or aspects of the documentary evidence required by s 91ZZO. As a matter of construction, the text, context, and purpose of the provision supports the conclusion that the documentary evidence supporting the rental provider's reason for seeking possession must be capable of interrogation. This is supported by the fact that:
(a) a notice to vacate potentially has serious consequences for a renter in that it may, in the end, lead to eviction;
(b) because the consequences of eviction are serious, a rental provider is not permitted to seek orders for possession without a statutory reason;
(c) the RTA should be read in a way which demands that the reason for seeking a possession order must be real and not contrived;
(d) where the rental provider seeks to assert a reason under s 91ZZB, the RTA requires documentary evidence to be given with the notice to vacate - the necessary inference being that the renter should be provided with the evidence supporting the reason for the notice, not just the rental provider's statement of the reason;
(e) a notice issued under s 91ZZB which fails to comply with the requirements of s 91ZZO is invalid; and
(f) the validity of the notice (including the supporting documentary evidence) may be the subject of argument in an application for possession.
106 The facts of the present case illustrate this point well. I accept that the Applicant attempted to argue before the Tribunal, and argued more fully before me, that by redacting information about the period of the sales authority, the rental provider withheld information which may have been important to the formulation of her case. It was part of the Applicant's case below, and in this Court, that the Respondents:
(a) did not genuinely intend to sell the property;
(b) had tried on previous occasions to obtain orders for possession, asserting a desire to sell the property;
(c) were motivated to end the applicant's tenancy in retaliation for her numerous urgent repair requests;
(d) had made no serious or concerted effort to market the property in the period since they had first expressed their intention to sell; and
(e) had attempted to colour the Tribunal's impression of the Applicant by making false allegations to the effect that she was in rental arrears and was unreasonably difficult.
107 In the context of a case advanced in this way, the Applicant was entitled to know the precise terms of the sale authority said to support the rental provider's reasons for seeking possession. If the unredacted sale authority revealed that it had been given for only a short period of time, in the absence of other evidence, it would have been open for the Applicant to contend that the sales authority was not evidence supporting a genuine desire to sell. The Applicant submitted that by redacting this part of the sales authority, she was denied access to all evidence which may have assisted her in the presentation of her case and, as such, denied her procedural fairness. Further, she contended that the Tribunal accepted the validity of the sale authority without fully examining the redacted sections.
108 In my view, the adequacy of a sales authority supplied to support a rental provider's reasons for seeking possession may be discerned from the content of the document itself, and the detail of its provisions. The redaction of details such as the period of the authority which, if known, may be relevant to whether the documentary evidence supporting the reasons is adequate, suffices by itself to render the notice invalid because it impairs any interrogation of the extent to which the authority supports the reason for giving a notice to vacate.
109 The Applicant did not raise the validity of the notice in any material filed with VCAT before the hearing commenced, but sought to raise the matter orally in the hearing. In the result, the Tribunal dealt with the validity of the notice to vacate in its written reasons, but not in a way which properly reflected how the Applicant sought to advance the argument.
110 The transcript records the exchange between the Tribunal and the Applicant on the subject of the notice's validity. The hearing was conducted by telephone. In the hearing, the Tribunal referred to the notice to vacate in the application before it, and then asked the Applicant whether she had any comments regarding the notice. In response, the Applicant referred to the redactions in the sale authority, noting that it did not state when the sole agency would come to an end, and then directing the Tribunal's attention to clause 7 in the authority. It is clear that the Tribunal did not understand the point being made by the Applicant, who repeated that the authority did not state when the sole agency was to end. The Tribunal responded: 'Well, that's not uncommon. Usually they often do not include an end date.'[128]
111 The Applicant returned to clause 7, which she said applied if no date was provided for the period of the authority. Where no time was stated, and it was not a sale by auction, clause 7 provided for the sale authority to end 60 days after the date on which the authority was signed. The Applicant submitted that, as the mandatory documentary evidence attached to the notice to vacate was not valid, then the notice was also invalid.
112 The Tribunal did not respond directly to this point, but stated that she would like to hear from rental providers' agent (Ms Hou) about the sales authority and the points that the Applicant had made about the address of the rented premises being redacted. It is clear from the question posed by the Tribunal that she had not understood which redactions were the subject of the Applicant's complaint. The Applicant attempted to correct the misunderstanding, but the Tribunal cut her off by saying: 'No, I'm talking - - I'm talking - - excuse me, Ms Mazi please. You have had the opportunity. Please let Ms Hou speak'.[129]
113 Ms Hou attempted to respond to the Tribunal's query as to the redaction of the address. The transcript records that Ms Hou eventually realised the Tribunal's mistake after first explaining that she had no idea why the address was redacted.
114 For a third time, the Applicant attempted to direct the Tribunal to clause 7 of the sales authority, and the redactions with which her submissions were concerned. The following exchange ensued:[130]
MEMBER: ... All right, now, normally these authorities have a continuing authority period. So they - - for your benefit, Ms Mazi, they just roll on because very often what happens is we get this scenario where a notice to vacate is served and for whatever reason there are delays with the renter moving out and so inevitably the authority will go past its 60 days, but that doesn't make it fatal.
MS MAZI: Yes, I understand, I understand Member, but it particularly states in the ESA item 7, that if it is not stated then it's only valid for 60 days in - -
MEMBER: Well, I don't agree with that, Ms Mazi, but what I would like to ask you more specifically is - and this goes to reasonable and proportionate factors - why have you chosen not to vacate the property?
115 It is clear enough from the exchange between the Tribunal and the Applicant at the hearing, and in the written decision of the Tribunal, that:
(a) The Tribunal observed that the validity of the notice had not been raised by the Applicant in her written submissions filed before the hearing.
(b) Initially, the Tribunal wrongly thought that the Applicant's concern was directed to the redaction of the property address,[131] rather than the redaction of the period of the authority.
(c) The Tribunal's confusion was exacerbated by the oral submissions made on behalf of the Respondents. Ms Hou initially thought that the real estate agent who provided the authority had redacted the wrong address, but then realised that it was the rental provider's address that had been redacted, and not that of the property. The effect of these submissions was to distract the Tribunal from the matter sought to be ventilated by the Applicant.
(d) When the Applicant attempted to correct the Tribunal's misunderstanding, she was criticised for interrupting and asked to be quiet.
(e) In the hearing (as recorded on the transcript), the Tribunal referred to the Applicant's concern regarding the absence of an end date for the period attaching to the authority, but dismissed it, stating that sales authorities of this kind often did not include an end date. The Tribunal did not address the redaction applied to the exclusive authority period when making that statement.
(f) In the Tribunal's written reasons, its initial misunderstanding regarding the redacted address was repeated, and no mention was made of the redaction with upon which the Applicant's case was based.
(g) The Reasons record that the Tribunal proceeded on the basis that the sales authority was valid.
116 In the written reasons, the Tribunal demonstrated that it had not grasped the Applicant's point, when it said:[132]
I did not accept the renter's submission that the NTV was invalidated by redaction of the address of the premises. This was incorrect. It was the rental providers' home address which was redacted: the address of the rented premises was clearly identified. In my view, the masking of the rental providers' own address in the Sale Authority is not a factor on which the validity of the NTV turned.
(a) The Applicant's failure to raise the notice's validity in her written submissions filed with the Tribunal, before the hearing, did not preclude her from raising the matter in the hearing.
(b) Once raised, it was for the Tribunal to consider the matter. Properly understood, the submission was directed to the validity of the notice and, in turn, the jurisdiction of the Tribunal to hear the matter.
(c) Neither the transcript nor the reasons evidence that the Tribunal engaged with the argument concerning redaction of the part of the sale authority with which the Applicant raised issue.
(d) The exchange between the Tribunal and the Applicant at the hearing evidences that the Applicant was not given a fair opportunity to advance her arguments in relation to the point, not least because the Tribunal initially misunderstood the Applicant's true complaint, and then once it understood the complaint, pre-emptively dismissed the argument.
(e) The Applicant's argument was important to outcome of the case, and whether the approach of the Tribunal to that argument is best described as a failure to engage with the argument, or a denial of procedural fairness in relation to a matter material to the outcome, it was an approach infected by error of law.
118 By ground 3, the applicant challenges the Tribunal's factual finding that the Respondents genuinely intended to sell the property.[133] The ground is framed as follows:
The Tribunal erred in law by disregarding precedents, including LKZ v CGS, which require a landlord to show genuine intent to sell through concrete actions, such as active marketing. The Tribunal failed to demand this evidence, resulting in a possession order based on an unsubstantiated intent to sell and failing to consider whether repeated Notices to Vacate indicated misuse of the sale ground.
119 The Respondents correctly submit that the Tribunal is not bound to follow other decisions made by VCAT, and that failing to do so cannot constitute an error of law.[134] However, consistency between decisions is considered desirable, where possible; and where an inconsistent decision is made, it is prudent to explain and justify the inconsistency.[135] Although the Applicant's ground is framed as a failure to consider past decisions of the Tribunal (which by itself would not be an error of law), her case should be fairly and properly understood as a complaint that the RTA, on its proper construction, makes the genuineness of a rental provider's reasons for seeking possession a relevant area of inquiry. In substance, the Applicant submits that, under s 91ZZO, the Tribunal was required to assess whether the Respondents had a genuine intention to sell the property.
120 LKZ v CGS[136] concerned a notice to vacate issued under s 91ZZA, where the reason given for the notice was that the rental provider intended to occupy the property after it was vacated. Whilst the basis for seeking possession in that case was different, there are relevant parallels with the present case. LKZ v CGS correctly proceeds on the basis that the genuineness of the reason given for seeking a possession order is relevant to whether those orders should be made. It is also illustrative of the kind of factual inquiry that may be required to afford parties procedural fairness on the path to making ultimate findings as to genuineness.
121 In LKZ v CGS, the Tribunal correctly proceeded upon the basis that the assessment of genuineness depended upon the factual context in which the long-running dispute had arisen.[137] As in the present case, the renter in LKZ v CGS asserted that the rental provider's reason for seeking possession was not genuine. The Tribunal received evidence from both parties directed to the genuineness of the rental provider's reason, and ultimately concluded that the rental provider had never held a genuine intention to move into the property.
122 Even though the Tribunal is not bound by the rules of evidence, it remains bound by the rules of procedural fairness. What those rules might embody in any given case will depend on the nature of the factual contest between the parties, including their relative complexity.
123 In LKZ v CGS, the Tribunal was confronted with the combination of a complex and lengthy history between the renter and the rental provider, and with significant and wide-ranging contested facts. It undertook a proper exploration of the matters, hearing evidence as to the relevant facts, and making assessments as to the credibility and reliability of the parties and the available evidence. In approaching its task, the Tribunal remained focused upon its obligation to afford each of the parties a fair opportunity to be heard and to present their case fully, convening three separate hearings, in which oral evidence was given and documents tendered.
124 Reviewing the transcript of the proceedings in this case, it was or should have been clear to the Tribunal that there was a long history between the Applicant and the Respondents, and that the submissions made on both sides involved contested factual matters advanced by way of assertion, unsupported by documentary or other evidence, thus leaving the Tribunal in no position to make a rational choice as to which party should be preferred or believed. Taking the transcript of proceedings as a whole, the only course open to the Tribunal was to conclude that the allotted hearing time was insufficient to afford the parties a proper opportunity to ventilate what was obviously a complex matter, as had occurred in LKZ v CGS.
125 The Applicant's submissions in furtherance of this ground focused upon the absence of evidence supporting a genuine attempt to market the property for sale. She submitted that the Respondents provided no evidence of active marketing or listing of the property for sale. It was said that the absence of such evidence supported a conclusion that the rental provider was not genuine in their intention to sell the property. The Applicant submitted that the Tribunal was required to assess whether the Respondents had a genuine intention to sell the property by, inter alia, 'considering concrete actions taken to market the property'.[138] The Applicant submits that, instead of requiring evidence documenting the rental provider's efforts to market the property, the Tribunal relied on general industry practice;[139] and that this amounted to a relevant error of law. The Tribunal rejected the Applicant's submissions, stating:[140]
I did not accept the renter's submission that the lack of a marketing campaign was evidence of the rental providers not truly wishing to sell. I explained to the renter at the hearing that it is a common experience of the Tribunal that rental providers wait for the property to be vacated before preparing the property for sale. There are obvious practical reasons for this. In my view the absence of any active marketing by the rental providers did not undermine the reasons for serving the NTV.
126 By itself, the absence of evidence that the rental provider had sought to market the property for sale may not necessarily be sufficient to establish that the rental provider did not genuinely intend to sell the property. Equally, the so-called 'common experience' of the Tribunal cannot be taken as a general rule that the absence of activity directed toward the preparation of a marketing campaign will never be relevant to the reasons for serving a notice to vacate. It may be that, taken in combination with other evidence showing a lack of genuineness, the absence of marketing activity contributes to an inference that the rental provider is not genuinely pursuing a sale of the property. .
127 Construed narrowly as an attack on the Tribunal's finding in relation to the absence of evidence of marketing activity, ground 3 could not succeed on its own. But the tail or second limb of the ground, as framed, asserts a failure to consider the repeated attempts by the rental provider to seek possession of the property, which casts the net more broadly to pick up an aspect of ground 4 (retaliation) and 5 (estoppel).
128 Before the Tribunal, the Applicant submitted that the rental provider had made earlier efforts to evict her by serving two notices to vacate, one culminating in an application for possession to VCAT, which was ultimately dismissed. The Applicant contended that the attempts to evict her were motivated by a desire to be rid of her as a tenant, because she had caused difficulty to the Respondents by asserting her rights and, inter alia, making repeated requests for repairs to be carried out, as well as an application for rent to be paid into a special account.
129 The Applicant stated that the rental provider had sought possession on the basis of wanting to sell the property, but since first seeking possession, no effort had been made by the rental provider to market the property. At the hearing of the rental provider's first attempt to obtain possession, the Tribunal declined to grant the order sought on the basis that it did not consider a possession order was reasonable and proportionate at that time.
130 In the hearing before Member Elmes, one of the arguments put to the Tribunal by the Applicant was that the order sought by the rental provider was a recent manifestation of the same claim; and that the rental provider was motivated not by a genuine intention to sell the property but, instead, by a contrived attempt to be rid of what the rental provider regarded as a difficult tenant in retaliation for past events. This issue is also raised by grounds 4 and 5 on this appeal.
131 By ground 4, the Applicant complains that the Tribunal erred:
by failing to assess evidence supporting possible retaliatory action by the landlord in response to multiple repair disputes, contrary to tenant protections against retaliatory eviction.
132 The error is alleged in the context of the Applicant's claim that the rental provider's reason for seeking possession, being a desire to sell, was not genuine. In substance, the Applicant contends that an inference that the rental provider did not have an immediate intention to sell the property could be drawn, in effect, from the fact that the rental provider had sought possession on three previous occasions over the preceding 15 months.[141]
133 The hearing transcript reveals that the Applicant did not get very far in attempting to explain the basis of her claim, or draw out the basis upon which she said the inference could be drawn. The transcript exchanges are reflected in the Tribunal's reasons, where the Applicant's argument is dealt with as follows:[142]
The renter submitted that the issuing of the Prior Notices together with the current application was an act of retaliation for her past repair applications, and that the rental providers did not otherwise have an immediate intention to sell. I did not accept this. On the contrary, I considered that the rental providers' evidence of having engaged a sales agent on no fewer than three occasions over a period of approximately 15 months showed clear intention to sell the property as soon as they were able to secure it back.
134 In the simple terms of its expression, ground 4 does not explain the true nature of the complaint made by the Applicant. If confined to the language of the ground alone, the Applicant would confront significant difficulties because there can be no 'failure to assess' (as alleged) where the Tribunal's reasons acknowledged and rejected the Applicant's argument.
135 The Applicant's written submissions more fully articulate the nature of her complaint. She contends that the Tribunal failed to actively engage with the factual matters which could have provided a basis for inferences critical to the Applicant's case on retaliation. The Tribunal did not engage with the temporal proximity between the notices to vacate and the repair disputes, and the rental provider's 'history of resistance' to its repair obligations.[143] The Applicant submits that the close proximity of repair disputes and notices to vacate supports an inference of retaliation that was not assessed by the Tribunal.[144]
136 The Tribunal's reasons state that it:[145]
was persuaded on the rental providers' evidence that they were wanting to sell the premises with vacant possession as soon as possession was returned and had placed the same in the hands of a selling agent for that purpose. I was satisfied also that the rental providers' intentions had not changed over the passage of time, and the need to do so had not been ameliorated. If anything, their desire to sell the premises had increased.
137 In substance, the Applicant complains that the Tribunal reached this conclusion by pre-emptively dismissing her claim, and failing to actively engage with the argument that she sought to advance. The Applicant submits that the Tribunal's failure to address this point constitutes a 'procedural error', which 'undermines the fairness of the decision'.[146] She accepts that the Tribunal noted her retaliation claim, but says that the Tribunal did not engage with the claim in any substantive way. The Applicant submitted that the Tribunal:[147]
did not assess whether the NTV came after protected activity. It did not consider temporal proximity between the disputes and the NTV. It did not analyse whether other less drastic options were considered. Instead, it focused again on rental arrears and the rental provider's alleged financial hardship, despite the absence of supporting documentation.
138 An unfortunate consequence of the way in which the hearing unfolded in the Tribunal is that the Applicant was not able to fully ventilate her case. On this appeal, the Applicant explained the nature of her complaint, revealing that the Tribunal, deprived itself of the ability to judge the Applicant's case.
139 The context in which grounds 4 and 5 are advanced is of some importance. It is sufficiently clear that there was a notable history of requests for repairs made by the Applicant, as well as disputes about the adequacy of those repairs, and other proceedings in VCAT between the rental provider and the Applicant, which resulted in the establishment of a rent special account under s 77 of the RTA.
140 The Tribunal was aware that the Applicant was paying rent into a rent special account, as the result of an application made by the renter under s 77 of the RTA, which enables the creation of such accounts. If satisfied of certain factors, the Tribunal must make an order authorising the renter to pay rent into a rent special account. Relevantly, to make that order under s 77, the Tribunal must be satisfied of a number of factors, including that the rental provider has:
(a) failed to comply with their duty to carry out repairs; and
(b) not demonstrated that they are experiencing financial hardship, or would experience financial hardship if the rent was paid into a rent special account.
141 At the hearing before the Tribunal, it was clear that the Respondents had not obtained access to the rent paid into the rent special account. Section 77(3)(b) of the RTA permits the rental provider to seek orders for release of the funds, if the Tribunal is satisfied that the works have been carried out. It was not clear why the rental provider had not been able to access the rent in the special account at the time of the hearing.
142 The Tribunal was aware that the rental provider had sought to access the funds in proceedings at VCAT and the Magistrates' Court, but stated that it 'was not fully apprised of why these attempts [had] been unsuccessful'. The Tribunal recorded that:[148]
The agent advised that under order of the Tribunal in a previous proceeding where the renter had successfully applied for an order for repairs, a rent special account had been set up. Notwithstanding that the necessary repairs had been completed some time ago, there remained an amount of rent in the rent special account. It was further submitted that neither the agent nor the rental providers had any oversight over how much rent had been paid by the renter into the rent special account but it was understood the current balance of the rent special account exceeded $20,000.
143 The Respondents correctly made the point in this Court that there was no evidence before the Tribunal of outstanding repairs at the time of the application being lodged. That being so, it renders the Respondents' delay in obtaining release of the funds in the rent special account difficult to reconcile with the rental provider's claim of financial hardship. If the funds in the rent special account were accessible at the time of the hearing, or before or after the hearing for that matter, via a properly made application under s 77, then the Respondents' claim of financial hardship necessarily required closer examination by the Tribunal.
144 Ms Hou, who appeared for the rental provider at the hearing, described the rental provider's financial difficulty as 'severe'. Beyond that assertion, there was no independent or objective verification of the rental provider's financial position. The Tribunal inferred financial hardship from the fact that the rent special account existed, and from an understanding that the balance of those funds was in excess of $20,000. There was no evidence supporting the figure arrived at by the Tribunal as to the balance of those funds. The Applicant's complaint is that the Tribunal accepted the Respondents' assertion that their financial position was 'severe' at face value. It must be observed that, at the hearing, the Applicant had no way of interrogating the Respondents' claim of financial hardship.
145 It is important context that a rent special account will not be established if the rental provider can demonstrate that they will suffer financial hardship, or will enter financial hardship as a result of such an order. At the time the rent special account was established, it is open to infer that the rental provider was unable to demonstrate financial hardship or, at least, did not claim financial hardship.
146 In the course of the hearing, the Tribunal observed that, as the Magistrates' Court proceedings had 'fallen away', the rental provider 'should be free to essentially reinvigorate' the s 77 application to request access to the funds in the rent special account. If access to the funds could be achieved at the time of the hearing or shortly thereafter, via a properly made application (as the Tribunal seems to have suggested), then the Respondents' claim of financial hardship required closer examination.
147 The Tribunal's preparedness to accept, at face value, the assertion that the required works were completed 'some time ago', and that the rental provider was experiencing 'severe' financial hardship was, in all the circumstances, characteristic of a failure to actively engage in a resolution of the factual disputes that the Applicant sought to agitate.
148 It should also be noted that, at the time of the hearing in these proceedings, the Applicant had already commenced separate proceedings in this Court concerning the rental provider's attempt to increase the rent by approximately 50%.
149 On 31 October 2024, prior to the hearing in the Elmes proceeding, the rental providers' agent sent an email to the Tribunal. The email disclosed the existence of separate proceedings in this Court (the Bygrave appeal), regarding a challenge to a notice to increase the rent on the property. The notice of rental increase had been given on 23 November 2023, and had been the subject of a hearing in VCAT in July 2024. The email could properly be characterised as an open offer to compromise the Bygrave proceeding in exchange for a rent reduction. The underlying premise of the offer was an assertion that the Applicant was in rental arrears, and that the amount owed was in excess of $23,000. The Applicant contended that the content of the email was designed as an attack on her credibility to falsely paint her as a troublesome tenant, by wrongly and baselessly asserting that she was in rental arrears. There was no direct evidence that the email was considered by Member Elmes. There was no mention of the email at the hearing before Member Elmes.
150 At the hearing of the Elmes proceeding, the Applicant confirmed that she was paying rent and, by implication, was not in arrears. The Applicant maintained that she had been paying rent into the rent special account. There is no mention of the amount contained in the rent special account; indeed, at the hearing, Ms Hou stated that the rental providers had no oversight of the rent special account, and were unaware of the account's balance. Inexplicably, the Tribunal recorded its understanding that the current balance of the rent special account stood at more than $20,000.
151 It was clear enough before this Court (and any decision maker confronted by these parties) that the Applicant and the rental provider had a history of interactions which were litigious and long running; and comparable in nature and apparent complexity to that described by the Tribunal in LKZ v CGS.
152 The Tribunal in the Elmes proceeding:[149]
accepted that the repair and compensation applications which have been made by the renter since 2022 and which have resulted in orders including for compensation and the payment of rent into the rent special account, will have been a significant distraction from the selling of the property.
153 The Tribunal also said that it:[150]
understood the renter's beliefs that she was being targeted and that the rental providers were only trying to sell the property in retaliation. However, there was no evidence before the Tribunal that there were any repairs outstanding at the time of the possession application being filed. This, in my view, undermined the suggestion of retaliation, and I was not satisfied on the totality of the evidence before me that this was the motivation for selling the property.
154 Directed to the substance of ground 4, the Applicant submits that the rental provider's earlier attempts to obtain possession by notices to vacate commenced after the Applicant first began to make applications for repairs and compensation in 2022. The Respondents submit that the Tribunal acknowledged the Applicant's submissions regarding the previous notices to vacate, their temporal proximity to past repair disputes, her allegation of retaliation by the Respondents, and her assertion that the Respondents did not otherwise have an immediate intention to sell.[151] They say that the Tribunal rejected those submissions in favour of the Respondents having previously engaged a sales agent on three occasions, over 15 months, which was said to show an intention to sell the property as soon as they regained possession.[152] It was said that the Tribunal was not satisfied, on the totality of the evidence, that retaliation was the motivation for selling the property.[153]
155 It is true that the Tribunal's written reasons cast its conclusions that way, but the course of the hearing before the Tribunal invites a different conclusion.
156 The Applicant first raised the history of multiple notices to vacate at an early stage of the hearing, in the context of her submission that the reason for the notice was not genuine. She sought to summarise the point before developing it further.[154] In broad terms, the Applicant pointed to a combination of factors - being, the earlier notices to vacate (given in April 2023 and June 2023), and the absence of any attempt to sell or list the property. At this point, the Tribunal interrupted the Applicant, stating:[155]
All right. For your benefit, Ms Mazi, it might help for you to understand there is not - - it's very common for - and this is the experience of the Tribunal - - it's very common for notices to vacate for the property to be sold to be served on renters, and if the renter chooses not to move out for whatever reason it's very unusual that agents will do anything actively to sell the property because they can't. They simply have to wait, and they either have to make an application as has been the case here, or they choose not to sell the property any more. It's not common that agents will actively advertise the property when a renter is still in the property, regardless of the reason. I mean, your case, you have chosen not to vacate because you have your reasons.
So, that in itself is not necessarily evidence of their motivation or lack of motivation in selling the property, because it's very common there will be no active marketing until the renter vacates one way or another.
157 This passage reflects the complaint made in this appeal by the Applicant - that the Tribunal did not engage with the submission being made. Whilst it may be the case that an absence of marketing activity will not necessarily amount to evidence of a lack of motivation to sell, the Applicant's was being advanced on the basis of a course of conduct stretching back 15 months, against the backdrop of a long-running dispute. The Applicant endeavoured to press the point, and the Tribunal again responded as follows:[156]
Sometimes agents just say it's too hard because there are people staying in the property. So - - but what we're looking at today, we are looking only at the notice to vacate, which is dated the 21st of June which has attached to it an exclusive sales property dated the 20th of June and it indicates that the property is to be sold with vacant possession. Do you have any comments on the actual notice to vacate itself, Ms Mazi?
158 Following the exchanges between the Tribunal and the Applicant regarding the validity of the notice to vacate, the Applicant again raised the earlier notices. In particular, the Applicant raised the fact that an earlier notice to vacate had been the subject of a hearing by the Tribunal where, after hearing detailed submissions, the rental provider's application for possession was dismissed by VCAT. The Tribunal responded:[157]
I think all they're doing is asking the Tribunal to look at the notice to vacate on its face and if they get a possession order then they will go ahead and start marketing the property. I think that's [what] they are doing today.
159 The Applicant then said, 'I could take you to the evidence in the notice of authority', at which point, the Tribunal said:[158]
No, I would like to hear, Ms Mazi - - we do have a time limit and I have other hearings that will need to start soon, but I would like to hear from you about alternative accommodation. Have you looked for another property?
160 The matter is not addressed again, until the Tribunal invites the Applicant to make any concluding remarks. At this stage of the hearing, it is sufficiently from the transcript of proceedings that at this point of the hearing the Tribunal had all but made up its mind. That notwithstanding, in response, the Applicant sought to reagitate her position in a closing submission of sorts:[159]
I am submitting that the possession application appears to be retaliatory in nature, stemming from the repair matters dispute that I have filed. The repeated notices to vacate over an extended period combined with successive exclusive sale authority issued without any marketing activity with and without possession, so I guess the claim lacks genuine intent, and may be a response to my efforts to enforce my rights to have a habitable property. This issue was reviewed in the precedent LKZ v CGS (2021) VCAT number 1391 and it was found that those events contributed to a state of affairs where the rental provider was not intentionally aiming to sell the property but was trying to get rid of the renter due to the issues in the relationship breakdown that stemmed from repairs that had been brought by the renter in that case.
... The [rental provider] has in the past brought a similar possession order which has been dismissed, and they were alleging that they have no access to the property, they cannot carry out marketing sales because I was denying them access. As I have submitted before, this Tribunal today, there is no evidence that the rental provider has been denied access to the property to carry out whatever marketing actions they want to do, and the rental provider has submitted in their summary of proofs that I am denying them access to the property, with entry notices, and there is no such thing. Especially, there is evidence that the rental provider is lying, saying that she was denied the property when she didn't turn up, and there is evidence in that text message of her saying that her friend died. But it's been turned around to saying that I am denying them access to the property to carry out their marketing activities.
161 In response to this submission, the Tribunal moved to rule on the application. Immediately before ruling, the Tribunal said:[160]
Ms Mazi, there is nothing to stop any party making multiple applications in this Tribunal. Each application is considered on their own facts, their individual facts. I do thank you for all of your submissions. I am very conscious that I have other parties waiting for matters to be heard now. We have gone well over the half-hour allocated timeslot, notwithstanding the slight delay.
Consideration of the Tribunal's findings on the retaliation claim
162 It is well established that, if a decision-maker's reasons disclose that they ignored, overlooked, or misunderstood relevant facts or materials, or a substantial and clearly articulated argument, this may give rise to legal error.[161] A fair reading of the VCAT transcript, and the Tribunal's reasons for decision, show that it was dismissive of the Applicant's claims, and did not engage with them in any meaningful way.
163 The Tribunal ultimately found that, on the totality of the evidence, it was not satisfied that retaliation was the motive for selling the property. This finding is based on reasoning that was unjustifiably dismissive of a central claim made by the Applicant at the hearing; an important (but not the only) plank of which was the rental provider's successive attempts at obtaining eviction on the basis of a desire to sell the property. That finding sits uncomfortably with the Tribunal's finding that the rental provider's decision to sell was 'not unreasonable' given the history between the parties - a history which involved multiple disputes over repairs. If anything, this finding alone should have been a red flag to the possibility of retaliation, with the Tribunal alert to the antagonistic history between the parties, and therefore possessed of an obligation to explore the Applicant's claim with greater rigour.
164 A fair analysis of the transcript is that the Tribunal disengaged with the Applicant's submission early in the hearing, in relation to the relevance of the earlier notices to vacate and, in broad terms, the contention that the rental provider's intention of selling the property was not genuine. The Tribunal was unwilling to hear evidence as to the matter, and demonstrated an unwillingness to hear the Applicant's submissions or have them developed. Instead of responding to the submissions with curiosity as to the factual basis upon which they were advanced, the Tribunal discounted the submissions by reference to what it described as 'common experience'.
165 The Applicant relies on LKZ v CGS[162] to support her submission that 'retaliatory intent can undermine the validity of a possession application',[163] and can be 'inferred from repeated legal actions taken shortly after disputes'.[164] She refers to LKZ v CGS as confirming that 'patterns of repeated possession attempts and compliance actions can suggest an improper motive', and asserts that the pattern suggested in her case was not considered by the Tribunal.[165] The decision in LKZ v CGS is not (and does not purport to be) an authoritative statement of principle; nor is the Tribunal bound by previous decisions. That said, the decision highlights the nature of the inquiry that is sometimes necessary when issues of the kind raised in that case (and here) are in dispute. Having reviewed the Tribunal's approach in this case, it is fair to say that the Applicant was not provided with an opportunity to fully ventilate the matters on which she sought to rely, or to properly interrogate the matters advanced against her by the rental provider. The Applicant cited LKZ v CGS in her written submissions,[166] and in her closing oral submissions, where she identified the point on which she sought to rely.[167] Considering the speed with which the Tribunal conducted the hearing and delivered its determination, it is unlikely that it had time to consider the similarities between the case advanced by the Applicant, and that considered in LKZ v CGS.
166 At this point it is appropriate to observe that the extensive and complex areas of dispute between these parties mean that the hearing and determination were time consuming, both in this Court and the Tribunal. The Residential Tenancies List at VCAT operates at high volume and delivers efficient justice in the vast majority of cases. However, from time to time, cases will emerge that require a closer examination of the factual issues. A desire for efficiency or timeliness cannot supplant the overarching obligations imposed upon the Tribunal by ss 97 and 98 of the VCAT Act, which includes the obligation to act fairly and the need to afford the parties natural justice. Whilst the efficient resolution of disputes is the touchstone of s 98(d), it is qualified by the need to ensure a proper consideration of the matters before the Tribunal. This was a case concerning the eviction of a renter. Of its nature, the proceedings had the potential to significantly affect both parties. The RTA enacts protection for renters, such as requiring a rental provider to have a valid reason for giving a notice to vacate, supported by documentary evidence. An attack on the genuineness of the reason given by a rental provider against a backdrop of long running disputes is the kind of case where those protections have the most value, and where the provisions of the RTA have the most work to do. If the scheduled amount of time for the hearing was or became insufficient to properly deal with the matters raised, it should have been adjourned and completed on a different date. Indeed, this is what occurred in the Respondents' earlier (unsuccessful) possession application. The proper resolution of factual disputes is essential to a just outcome. Parties must be afforded the opportunity to develop complex, detailed arguments if that is what the case at hand requires. That will not be every case, but as LKZ v CGZ reveals, there are some cases where the Tribunal must engage with the detail to properly discharge its obligation to deliver a fair hearing. On its face, this was such a case, and the Tribunal did not provide the Applicant with an opportunity to fully ventilate the matters essential to her case, and because it had pre-emptively dismissed the one of the main planks of the Applicant's case, neither did the Tribunal engage with the case advanced by the Applicant.
167 In ground 5, the Applicant complains that the Tribunal erred by:
disregarding estoppel principles, which may bar the [rental provider] from pursuing the same claim based on prior dismissed proceedings, resulting in the improper continuation of a potentially barred claim.
168 It is clear from the course of the proceedings before the Tribunal that the Applicant did not get an opportunity to develop her case in a cohesive way. The first time that the estoppel argument was raised, it was in response to the Tribunal's invitation to the Applicant to make concluding remarks. It is clear that the Tribunal had reached the view that the hearing was all but over by this time and that the Applicant's submissions to the Tribunal did not develop in detail the basis upon which an estoppel was said to arise. This may well have been a function of the time allocated to the hearing by the Tribunal, and its insistence upon progressing the matter quickly to meet the allotted timeframe.
169 In its Reasons the Tribunal recited the Applicant's argument on estoppel as follows:[168]
The renter referred to a previous section 91ZZB possession application made by the rental providers in November 2023, which had been dismissed. This application had been based on a notice to vacate with vacant possession dated 8 June 2023. The renter drew my attention to the fact that it was the same type of application as the present one.
The renter relied in her written submissions on the decision of the Tribunal in Moustra v Elder [2024] VCAT 813, to argue that the rental providers were estopped from pursuing the present application because they had failed previously with the same type of application.
170 The Tribunal ultimately rejected her argument, saying:[169]
In respect of the decision of Moustra v Elder as relied upon by the renter, whilst it confirms that prior decisions of VCAT are capable of giving rise to an estoppel or res judicata where there are causes of action which are substantially the same, that decision was in the context of a bond and compensation dispute between a renter and their rental provider. The decision was distinguishable from the present case both on the facts and the law.
There is no prohibition on the number of notices to vacate which may be issued by a rental provider during the course of a rental agreement. [footnote omitted] Each possession application will be decided on its own facts. It is not uncommon for the same type of possession application to be made by a rental provider against a renter more than once. For these reasons, I did not accept the renter's submissions that I was bound to dismiss the application because the Tribunal had dismissed a previous application based on an entirely different notice to vacate.
172 As the Respondents observed before me, it is clear from the passages of the Tribunal's reasons that it did not 'disregard' the estoppel principles. As framed by the Applicant, this ground cannot be made out.
173 In her submissions, the Applicant's complaint shifted to alleging that the Tribunal had failed to address the estoppel argument.[172] As I understand it, the Applicant complains that the reasoning of the Tribunal was generalised, and when it said that Moustra v Elder[173] was distinguishable on the facts and the law, the Tribunal failed to articulate how it came to this conclusion.[174]
Consideration of the Tribunal's reasons for rejecting the estoppel argument
174 It is correct that the Tribunal does not explain how the present case is distinguishable from the decision in Moustra v Elder, either on the facts or the law. It is unclear how the Tribunal reached that conclusion, given the limited way in which the matter was advanced in submissions by the Applicant, and the Tribunal's lack of engagement with the argument. The transcript of the hearing reveals that the issue received very little attention at the hearing.
175 The Tribunal's observation that there is no prohibition on the number of notices to vacate that may be issued by a rental provider is theoretically correct, but requires qualification. First, the notice must comply with the requirements of s 91ZZO of the RTA and it must be supported by a valid reason, otherwise it will fail to meet the validity threshold and will fall at the first hurdle. Provided that there is a valid reason for issuing a notice to vacate, which is supported by documentary evidence where applicable, and the notice otherwise complies with the statutory requirements, I agree with the Tribunal that there is no limit on the number of notices that can be given.
176 Second, the Tribunal's statement about notices to vacate should not be conflated with applications to VCAT for possession orders. In the hearing, the Tribunal responded to the Applicant's estoppel argument by stating that 'there is nothing to stop any party making multiple applications in this Tribunal', with the proviso that each application would be considered 'on their own facts'.[175] Whilst a properly formulated notice to vacate is a necessary prerequisite to an application for possession, it does not follow that there is no constraint on the number of applications for possession that a rental provider can make. As Moustra v Elder correctly observes, the application of res judicata principles to possession applications in VCAT operates to prevent successive applications for possession where the circumstances of an application enliven those principles. Irrespective of whether it is common or not for a rental provider to give a successive notices to vacate on the same basis, or make successive applications for possession on the same basis, each application for possession will be decided on its own facts[176] - provided that those facts have not been the subject of an earlier order of the Tribunal. To permit persistent applications concerning the same facts would invite an abuse of process.
177 In the hearing below, the Tribunal found that he rental provider's application for possession was based upon an 'entirely different notice to vacate', and that this was significant in defeating the alleged estoppel.
178 While there is no prohibition on the rental provider giving multiple, successive notices to vacate, either for the same reason or for different reasons, merely giving a new notice does not by itself defeat any claim in estoppel. Rather it is the Tribunal's adjudication in earlier proceedings, on the same facts as between the same parties, which has the potential to enliven the estoppel.
179 Similarly, there is no prohibition on a rental provider making multiple, successive applications for possession for the same reason (e.g., to sell the property). Each application for possession will fall to be determined on its own facts. However, where such an application proceeds upon the same facts as between the same parties as an application for possession previously adjudicated by the Tribunal, estoppel may arise, notwithstanding that the claim is initiated by a new notice to vacate and application for possession. In this case, the Tribunal rejected the Applicant's estoppel argument by saying that the application for possession determined by Member Crocker in November 2023 was 'based on an entirely different notice to vacate'.
180 The Applicant bears the onus of demonstrating the factual basis upon which the estoppel is said to arise, in respect of both the material before Member Crocker, and the material alleged to be the same before Member Elmes.[177] Member Crocker's order contained a finding that the application for possession was dismissed on the basis that it was not reasonable and proportionate to make a possession order at that time, but did not record any findings as to particular matters upon which the decision was made.[178] There was no evidence before the Tribunal in the Elmes proceeding (such as the transcript from the hearing before Member Crocker) that substantiated the Applicant's submissions as to the findings made by Member Crocker.[179] On their face, the documents the Applicant relied upon in the hearing before Member Elmes do not contain a basis upon which the alleged estoppel could be made out.
181 Nevertheless, the Applicant's submissions, particularly as a self-represented litigant, ought to have prompted the Tribunal to enquire as to the precise basis upon which the estoppel was raised. This was not done. The transcript and the written reasons disclose that at a relatively early stage in the proceeding, the Tribunal dismissed the relevance of the rental provider's earlier attempts to evict the Applicant. The hearing was largely directed by the Tribunal's inquiries and meant that the Applicant addressed the estoppel ground for the first time in her concluding remarks. The Tribunal's error does not lie in its rejection of the asserted estoppel because, on the evidence before it, there was no basis to conclude one way or the other whether an estoppel arose.
Grounds 2 and 8: Application of the proportionality test under s 330A
182 By ground 2, the Applicant attacks the Tribunal's conclusion that it was reasonable and proportionate to make a possession order as 'unbalanced and legally unsound'.[180] The ground is framed as follows:
The Tribunal erred in failing to adequately apply the proportionality test factors (a) to (h and (i-j) pursuant to the rental provider's behaviour, resulting in an assessment that was neither balanced nor thorough. This includes disregarding relevant considerations of the respondent's hardship, potential retaliatory intent, and the applicant's lack of financial benefit.
183 By ground 8, the Applicant alleges that the Tribunal failed to assess whether the Respondents had 'demonstrated financial need or benefit' for the purposes of obtaining vacant possession, which should have been weighed against her hardship.[181] She frames the ground as follows:
The Tribunal erred in not conducting a balanced and fair assessment, failing to weigh the respondent's hardship against the lack of demonstrable financial benefit or need for vacant possession by the applicant.
184 In truth, ground 8 is a subset of the matters raised by ground 2. It is convenient to consider and deal with both grounds together. Like the Applicant's other grounds, when construed narrowly, grounds 2 and 8 disguise the true nature of her complaint, which was drawn out in written and oral submissions.
185 Section 330 of the RTA outlines the circumstances in which the Tribunal must make a possession order, and relevantly provides:
(1) The Tribunal must make a possession order requiring a renter ... to vacate rented premises ... on the day specified in the order if the Tribunal is satisfied -
(a) in the case of an application where notice to vacate has been given, that -
(i) the residential rental provider ... was entitled to give the notice; and
(ii) the notice has not been withdrawn; and
...
(d) that the renter ... is still in possession of the rented premises ... after the termination date specified in the notice to vacate ...; and
...
(f) that in the 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 ...;
...
186 Section 330A outlines the factors that the Tribunal must have regard to, when determining whether it is reasonable and proportionate to make a possession order, and relevantly provides:
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, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement ...;
(b) whether the breach is trivial;
(c) whether the breach was caused by the conduct of any person other than the renter ...;
(d) whether the renter ... has made an application for a family violence safety notice, family violence intervention order, non-local DVO or personal safety intervention order ...;
(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 ...;
...
(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, the provider's agent ...;
(j) any other matter the Tribunal considers relevant.
187 The Tribunal directed its attention to s 330A and in its written reasons correctly identified those parts of s 330A which were relevant to the application before it. The Applicant's complaint in this appeal concerns how the Tribunal addressed the material, before reaching its conclusions.
188 The process of determining whether a possession order is reasonable and proportionate requires the decision-maker to establish the facts directed to the relevant aspects of s 330A. Having established the facts, the Tribunal is then engaged in an evaluative process, attributing weight to the various matters it has identified as relevant to its determination. This often involve the consideration, and balancing, of countervailing factors to arrive at a finding of whether the possession orders sought are reasonable and proportionate. Fact finding and the attribution of weight is the province of the primary decision-maker, and appellate courts are properly slow to disturb findings of a factual or evaluative nature. That said, the process by which a decision-maker reaches findings or makes evaluative judgements must be fair.
189 The Applicant's complaint on this appeal is that the approach taken by the Tribunal in its assessment of the relevant evidence was unbalanced and unfair.
190 In its written reasons, the Tribunal properly identifies the matters relevant to consideration of an application for possession based on a notice to vacate for sale:[182]
In the context of an application for possession where the rental provider wishes to sell the premises, consideration of the reasons for selling, why the premises are being sold with vacant possession, the renter's conduct in assisting with any marketing of the premises, the efforts made by the renter to find alternative accommodation and the current economic climate, I deemed relevant in this case in determining whether it was reasonable and proportionate to make a possession order.
191 In prematurely dismissing the Applicant's attempt to argue that the rental provider's motivation for seeking possession was not genuine, the Tribunal removed an important factor in the Applicant's case from the balancing exercise required by s 330A; one that spoke directly to whether granting the application was reasonable and proportionate - specifically, that the Tribunal was required to consider the behaviour of the residential rental provider under s 330A(i). For the reasons already stated, the Tribunal's approach to this matter was infected by error. It follows that the Tribunal's evaluative assessment of the reasonableness and proportionality of the possession orders sought by the rental provider was skewed against the Applicant at the outset.
192 In assessing the rental provider's reasons for selling the property, the Tribunal regarded the 'lack of rent' going directly to the rental provider as a relevant factor.[183] The Tribunal was satisfied that the rental provider had tried to access the rent being held in the special account, but for various reasons had not been successful. The Tribunal considered that this 'would have added' to the financial stress, and reinforced the need to sell. In its summary of evidence relating to the rental provider,[184] the Tribunal noted that the rental provider and its agent were said to have no oversight over how much rent had been paid into the special account, but had understood that the current balance exceeded $20,000. It is clear enough that the Tribunal relied upon this 'understanding' as to the relevant figure - although it is unclear how it obtained that information - as a basis for reaching the conclusions that it did regarding the rental provider's financial position.
193 The Tribunal's findings in this respect are troubling. There was no evidence before the Tribunal as to the current balance of the rent special account. The Tribunal appears to have accepted the submissions made by the rental provider's agent that the financial position of the rental provider was 'severe' and had been so for 12 months.[185] There was no independent evidence before the Tribunal upon which those submissions could be founded. There was no way in which the Applicant could have interrogated those assertions. In the hearing before me, the Respondents agreed that this was accurate, and that the only option open to the Applicant was for her to assert that the assertions were incorrect. The Respondents consigned the difficulty confronted by the Applicant to a feature of litigation in the Tribunal, which was not bound by the rules of evidence. It is true that the Tribunal is not bound by the rules of evidence or procedure, and that hearings (particularly in the Residential Tenancies List) adopt a greater degree of informality, but it remains the case that a litigant is entitled to understand and address the case against them, and to interrogate the basis upon which factual assertions are advanced.
194 In the hearing before the Tribunal, the rental provider was represented by a real estate agent who had only been relatively recently appointed to manage the property. The agent admitted to the Tribunal that she was not familiar with all of the background. The rental provider was not present at the hearing. The only 'evidence' as to the rental provider's financial position was the agent's oral submissions. The Applicant had no opportunity to challenge the basis of the case advanced by the rental provider as to their current financial position, or their need to sell the property. The Applicant disagreed that the rental provider's reason for seeking possession was genuine. She was entitled to contest any evidence said to support the rental provider's reason for selling, and for selling with vacant possession. She was also entitled to interrogate the rental provider's assertion of financial hardship, which was at the core of their reason for selling the property.
195 The rental provider's agent also made submissions to the effect that the Applicant had denied access to the property and had over a long period of time been a difficult tenant, refusing to communicate with the rental provider or their agent.
196 The Tribunal's approach, and its findings in relation to the balance of the rent special account, the past repairs, and the relationship between the rental provider and the Applicant are not easily reconciled with the statements made at the commencement of the hearing, where the Tribunal made it clear at the outset that the hearing would not be concerned with the rent special account, or with money held in the rent special account.
197 The Tribunal's positive treatment of the unsubstantiated assertions regarding the rental provider's financial position stands in stark contrast to the Tribunal's treatment of the Applicant, and the matters that the Applicant advanced in support of her claim that eviction, at that time, would cause her hardship.
198 The Applicant appeared in person. Unlike the real estate agent appearing for the Respondent, who had no personal knowledge of the history of the matter, the Applicant's submissions could be treated as direct evidence of her position. She relied upon a written statement from a medical professional as to her situation and provided some details of her efforts to find alternative accommodation. The Applicant explained to the Tribunal that she had evidence upon which she could rely to support her submission that the claims made against her by the rental provider's agent (that she had been difficult, had denied the rental provider access, and the like) were false. In truth, the Applicant was the only person in the hearing with direct knowledge of the complete history of the rental relationship between her and the rental provider.
199 The transcript records that the Tribunal was critical of the extent of evidence provided by the Applicant regarding her efforts to find alternative accommodation. In its written reasons, the Tribunal said:[186]
The renter's written submissions included a number of coloured images of rental properties. None of the images were date stamped. The renter's evidence was that she had applied for some properties, but had not been successful with her applications. She did not say how many applications she had made or when the applications had been made, nor the reasons why she had been unsuccessful. She said she did not know why she had not been successful.
200 The transcript reveals that the Tribunal's questions concerning the Applicant's efforts to find alternative accommodation were raised immediately after the Tribunal had advised that it had a time limit within which to complete the hearing and that there were other hearings which would need to start soon. The Tribunal commenced the discussion by asking the Applicant if she had sought alternative accommodation and stating that she had not provided details of how many properties had been applied for and the status of any current applications. It was apparent that the Tribunal was rushed, and that it had not reviewed all of the material provided by the Applicant, or if it had, had not understood that material. The Applicant directed the Tribunal to the part of her materials where she had included photographs of properties that she had visited. The Tribunal then observed that the material did not include evidence of applications. In response, the Applicant said:[187]
Currently most real estate agencies, they have their own on line applications, applications where you apply for properties on their applications. They don't necessarily give feedback that you have not been approved for the property or you have been approved for the property. They don't really usually relay that feedback that yes, I have been approved, unless you have been successful.
201 The Applicant advised that she had not only inspected and applied for the properties in the photos, but also other properties. The Applicant's answers were not queried or challenged by the Tribunal. In the hearing, the Tribunal did not query the absence of date stamping on the images, but nonetheless counted the absence of date stamping against the Applicant in the written reasons.
202 In light of the answers given by the Applicant, and the tenor of the exchange between the Tribunal and the Applicant recorded in the transcript, the Tribunal's criticism of the Applicant's evidence in the written reasons was unfair.
203 In relation to the Applicant's claims of financial hardship based on her medical condition, the Tribunal said:[188]
The renter provided a letter from a general practitioner dated 31 October 2024 advocating for her to remain in the rented premises. The doctor stated in the letter that the renter has been managing a workplace incident and so had reduced income because of this (since September 2024). The letter further advised that 'this situation is temporary and now looks to be improving'. [emphasis in original]
The renter did not give any oral evidence about the workplace injury or her current (or future) finances. In her written submissions she simply referred to her 'health related challenges' in the context of the hardship of an eviction but she gave no details (including any specific medical evidence) of these health challenges, nor did she speak about them in the hearing.
204 At the hearing before the Tribunal, there was barely any discussion of the letter from the Applicant's treating doctor. It was mentioned first by the Applicant, in the course of the Tribunal querying her attempts to obtain alternative accommodation. In that discussion, it was the Applicant who advised the Tribunal that there was an issue with her health, which she said had resulted in reduced income. The matter is not raised or otherwise discussed in the hearing.
205 The letter from the doctor is dated 31 October 2024, and advocates against her eviction, stating:[189]
I have been caring for Grace in relation to injury she sustained in the workplace and as a result she has had reduced income since September. This situation is temporary and now looks to be improving so I request this be taken into account and would request consideration be given to the fact that she would be at high risk of struggling to find accommodation [sic] if evicted which would be significantly detrimental to her health ongoing.
206 The Tribunal's observation that the Applicant did not give oral evidence about the workplace injury or details of her medical condition/health challenges is concerning. If these were deficiencies in the Applicant's evidence which could have counted against the Applicant, they are matters which the Tribunal should have raised with her. In this respect, the Applicant was not provided with an opportunity to respond to matters considered adverse to her case.
207 More troubling though is the Tribunal's criticism of the Applicant's failure to adduce evidence as to her current (or future finances) which stands in stark contrast to its unquestioning acceptance of the assertions by the real estate agent as to the financial hardship said to have been experienced by the rental provider.
208 The Applicant complains that no interrogation was made of the rental provider's unsubstantiated assertions of financial hardship, their purported difficulties in dealing with the Applicant, or any other feature of the rental provider's case - yet, the Tribunal accepted the substance of all of them. By comparison, the Tribunal interrogated aspects of the claims made by the Applicant, but treated them all with suspicion or outright criticism, in some instances without providing the Applicant with an opportunity to explain what the Tribunal ultimately treated as a deficiency or failing. In her submissions to this Court, the Applicant contends that the Tribunal 'disproportionately favoured' the Respondents.
209 A fair reading of the hearing transcript against the findings made by the Tribunal in its written reasons reveals that the Applicant's complaints are well-founded.
Ground 6: Failure to consider relevant evidence
The Arbitrator erred in law by failing to consider relevant evidence, compromising procedural fairness and impartiality. Specifically, the Arbitrator disregarded key evidence from the renter challenging the rental provider's claims for possession, allowed irrelevant issues to be raised, questioned the renter on these unrelated matters, and provided procedural advice to the rental provider.
211 The Respondents correctly describe the material covered by this ground as, in substance, embracing the matters addressed by all other grounds. Given the conclusions that I have reached on those other grounds, it is unnecessary for me to separately address ground 6.
The Rental Provider's unsubstantiated arrears claim, and coercive offer violate protections under the Residential Tenancies Act against misleading conduct, while the Tribunal's focus on unrelated rent account funds contravenes the principles of procedural fairness and relevance mandated under the VCAT Act. Such actions have compromised the fairness and impartiality of the proceedings.
213 By itself, this ground, as framed, ranges widely across different aspects of the procedural history and the Tribunal's reasons. The Applicant's submissions illuminate the substance of the Applicant's complaint more manageably.
214 A central element to the Applicant's argument on this ground is her allegation that the Respondents misused the existence of unrelated legal proceedings,[190] and disclosed confidential documents in breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 and the Harman obligation.[191] It was alleged that documents filed in this Court, in the Bygrave appeal, were emailed to VCAT before the hearing of the application for possession had commenced, and that this disclosure was impermissible. These allegations formed the basis upon which the Applicant sought relief by summons charging the Respondents (and two others) with contempt of this Court in Mazi v Kao (No. 1).
215 In that case, I dismissed the Applicant's summons, concluding in substance that there had been no breach of the rules of court, or the implied undertaking. The documents disclosed to the Tribunal were not documents to which the implied undertaking applied, because they had been filed voluntarily to initiate proceedings in this Court; and in the hands of the Respondents, as parties to that separate proceeding, they were not documents to which r 28.05 applied. It follows that, to the extent that the Applicant's case depends upon a finding of contempt on the part of the Respondents, it must fail.
216 The content of the email sent to VCAT, and its relevance to the matters raised in this appeal, have otherwise been addressed in these reasons.
217 It is apparent from the Applicant's submissions that she conflates what she alleges to be the disclosure of confidential information (arising from a breach of the implied undertaking) with the rental provider's assertion (made by the agent in the email attaching the documents) that the Applicant was in rental arrears for an amount exceeding $20,000. The two are not the same. Even if the disclosure of the court documents amounted to an impermissible breach of the implied undertaking, the Respondents' assertion that the Applicant was in rental arrears would not have been subject to the Harman obligation, or the rules of court.
218 The only question for the Tribunal was whether or not the assertion of rental arrears was relevant to the application for possession and, if so, whether the Tribunal conducted the hearing fairly in reaching a conclusion as to whether the allegations were proved, and if so, the weight to be attributed to them.
219 The Tribunal asked the Applicant directly if she was continuing to pay rent. The Applicant advised the Tribunal that rent was being paid into the rent special account. The Tribunal did not proceed upon the basis that the Applicant was not paying rent when reaching its conclusions. It must follow then, that an appeal on this ground is not made out.
220 Having found that the notice to vacate was invalid, the appeal must succeed.
221 The appeal would be allowed in any event, and independently of the validity of the notice to vacate. Whilst her grounds of appeal were inexpertly drawn, in combination with her written and oral submissions, the Applicant has, in summary, established that the Tribunal's exercise of discretion miscarried because the Applicant was not afforded a fair hearing.
222 A finding that the notice to vacate was invalid would have been a sufficient basis to dismiss the rental provider's application for a possession order before VCAT. Section 148(7)(b) of the VCAT Act permits this Court to make any order that the Tribunal could have made in the proceeding, including an order dismissing the Elmes proceeding. Subject to anything the parties might say, it is my preliminary view that the such an order would be appropriate in this case. I will provide the parties with an opportunity to make submissions before making final orders.
223 On 27 November 2024, Judicial Registrar McCann made an order granting the Applicant's request for a stay on enforcement of the possession order, and noting that the Respondents had not consented to the stay application. The stay was to remain in effect until 5pm on 20 March 2025, on the condition that the Applicant continued to pay rent.[192] The stay was extended by this Court in orders made on 20 March 2025 and 15 April 2025.
224 The Respondents submitted that a stay should not be granted and invited me to discharge the stay, in part, on the basis that, according to the Respondents, the grounds of appeal advanced by the applicant could not be made out. As I have ultimately allowed the appeal, it is unnecessary to deal with these matters.
225 The judgment in this matter will be delivered electronically. Given the nature of this matter and the related matters, it is appropriate to give the parties the opportunity to consider the final form of orders, including the appropriate orders as to costs. Upon the delivery of the judgment I will make orders requiring the exchange of brief written submissions as to the final form of orders and as to costs. Having not yet heard the parties, and subject to anything they might say, my preliminary view is that the orders in this matter would be to the effect that:
(a) Leave is granted.
(b) The appeal is allowed.
(c) The decision of the Tribunal is set aside.
(d) Pursuant to s 148(7)(b), the rental provider's application to VCAT for possession orders is dismissed.
(e) No order as to costs.
[1] Respondents' summary of proofs filed in relation to the possession order hearing.
[2] Residential Tenancies Act 1997 (Vic), s 330(1)(f) ('RTA').
[3] RTA, ss 330A(h)-(j).
[6] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[7] See Davey v Silverstein [2019] VSC 724, [20]; Yap v Lee (No 2) [2024] VSC 730, [80].
[8] The Bygrave appeal, the contempt allegation and the Elmes appeal.
[11] Defence of Grace Mazi dated 31 October 2024, [5].
[12] [2022] VCAT 665. Notice to Vacate (premises to be demolished), where the NTV did not attach the documentary evidence required under s 91ZZO, and was therefore not valid.
[13] [2022] VCAT 126. Notice to Vacate (premises to be sold), where the NTV did not attach any documentary evidence, and was therefore not valid.
[14] [2021] VCAT 1391. Application for a possession order, where the Tribunal was not satisfied that the grounds for giving the notice to vacate had been established, nor that it would be reasonable and proportionate to make a possession order.
[15] The order made by Member Crocker on 15 November 2023, states that the Tribunal was not satisfied that it would be reasonable and proportionate to make the possession order.
[16] [2024] VCAT 813. Concerned two separate applications (the first, a bond application; the second, a compensation application), both of which were brought by the rental provider, dealt with substantially the same dispute. The Tribunal stated that it was not open to the rental providers to re-open the same controversy (essentially, the same cause of action) in the compensation application, because the orders in the bond application gave rise to a cause of action estoppel.
[17] Order of Member Crocker dated 3 November 2023; Order of Member Crocker dated 15 November 2023.
[18] Order of Member Crocker dated 3 November 2023.
[19] Order of Member Crocker dated 3 November 2023, [3(a)].
[20] Order of Member Crocker dated 3 November 2023, [3(a)].
[21] Order of Member Crocker dated 3 November 2023, [3(b)].
[22] Order of Member Crocker dated 15 November 2023, [2].
[23] Which would become the Elmes proceeding.
[24] Order of Senior Member Calabro dated 11 October 2024.
[25] Affidavit of Grace Mazi filed 28 January 2025, [2]; supplemental affidavit of Grace Mazi filed 10 February 2025, [2].
[26] Order made by Judicial Registrar Lorenz on 15 January 2025, Order 1.
[27] Affidavit of Grace Mazi filed 28 January 2025, [3].
[28] Ms Hou's explanation was that the proceeding was struck out 'because all the repairs and maintenance [had] been completed and therefore now it [was] not under the Federal jurisdiction'. Whether that explanation entirely represents the situation is unclear, but unimportant.
[29] VCAT Transcript, 7 November 2024, 2.
[30] VCAT Transcript, 7 November 2024, 2-4.
[31] VCAT Transcript, 7 November 2024, 23-25.
[32] In response to the Tribunal's question regarding a proposed date, if a possession order was made, Ms Hou responded: 'As soon as possible. So, if Ms Mazi needs more time to have allowed I'm happy to allow her an extra month for her to find a property to move into' (VCAT Transcript, 20).
[33] VCAT Transcript, 7 November 2024, 25-28.
[34] Reasons of Member Elmes dated 9 December 2024, [6].
[35] Reasons of Member Elmes dated 9 December 2024, [10].
[36] VCAT Transcript, 7 November 2025, 10-11.
[37] VCAT Transcript, 7 November 2025, 13-14.
[38] Reasons of Member Elmes dated 9 December 2024, [15]: 'I did not accept the renter's submission that the NTV was invalidated by redaction of the address of the premises. This was incorrect. It was the rental providers' home address which was redacted: the address of the rented premises was clearly identified. In my view, the masking of the rental providers' own address in the Sale Authority is not a factor on which the validity of the NTV turned'.
[39] VCAT Transcript, 7 November 2025, 10-11.
[40] Reasons of Member Elmes dated 9 December 2024, [11].
[41] Reasons of Member Elmes dated 9 December 2024, [14].
[42] Defence of Grace Mazi dated 31 October 2024, [5]; Reasons of Member Elmes dated 9 December 2024, [12]; Reasons of Member Elmes dated 9 December 2024, [17].
[43] Reasons of Member Elmes dated 9 December 2024, [18]-[19].
[44] Reasons of Member Elmes dated 9 December 2024, [19].
[45] Reasons of Member Elmes dated 9 December 2024, [16].
[46] Reasons of Member Elmes dated 9 December 2024, [16].
[47] Reasons of Member Elmes dated 9 December 2024, [20].
[48] Reasons of Member Elmes dated 9 December 2024, [23]-[25].
[49] Reasons of Member Elmes dated 9 December 2024, [26].
[50] Reasons of Member Elmes dated 9 December 2024, [27].
[51] Reasons of Member Elmes dated 9 December 2024, [31].
[52] Reasons of Member Elmes dated 9 December 2024, [33]-[34].
[53] Reasons of Member Elmes dated 9 December 2024, [35].
[54] Reasons of Member Elmes dated 9 December 2024, [36].
[55] Reasons of Member Elmes dated 9 December 2024, [37].
[56] Reasons of Member Elmes dated 9 December 2024, [37].
[57] Reasons of Member Elmes dated 9 December 2024, [38].
[58] Reasons of Member Elmes dated 9 December 2024, [39].
[59] Reasons of Member Elmes dated 9 December 2024, [40]-[41].
[61] Reasons of Member Elmes dated 9 December 2024, [42].
[62] Reasons of Member Elmes dated 9 December 2024, [43].
[63] Reasons of Member Elmes dated 9 December 2024, [44].
[64] Reasons of Member Elmes dated 9 December 2024, [45].
[65] Reasons of Member Elmes dated 9 December 2024, [46].
[66] Reasons of Member Elmes dated 9 December 2024, [47].
[67] Reasons of Member Elmes dated 9 December 2024, [48].
[68] Reasons of Member Elmes dated 9 December 2024, [49].
[69] Reasons of Member Elmes dated 9 December 2024, [50].
[70] Reasons of Member Elmes dated 9 December 2024, [51].
[71] Reasons of Member Elmes dated 9 December 2024, [52].
[72] Reasons of Member Elmes dated 9 December 2024, [53]-[54].
[73] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) (VCAT Act).
[74] McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [4].
[76] Respondents' reply submissions filed 14 March 2025, [15], citing Psychology Board of Australia v Mair [2010] VSC 628, [61].
[77] Respondents' reply submissions filed 14 March 2025, [15], citing Crick v Bunnings Group Ltd [2011] VSC 298, [48].
[78] Respondents' reply submissions filed 14 March 2025, [13], quoting Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [44].
[79] Respondents' reply submissions filed 14 March 2025, [13], citing Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [44].
[80] Respondents' reply submissions filed 14 March 2025, [14], citing Auslong v Morey [2021] VSC 250, [201] (Croucher J).
[81] Respondents' reply submissions filed 14 March 2025, [16], citing Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 222, [18].
[82] Respondents' reply submissions filed 14 March 2025, [16], citing Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 222, [21].
[83] Respondents' reply submissions filed 14 March 2025, [43].
[84] Respondents' reply submissions filed 14 March 2025, [43]-[45].
[85] Citing Charnley Glen Pty Ltd v Boroondara City Council [2000] VSC 340; (2000) 110 LGERA 52 (Balmford J).
[86] [2015] VSCA 298, [36]-[37] (Kyrou and Kaye JJA, Ginnane AJA).
[87] [2022] VSC 710, [45] ('Hanson**'**).
[88] [2021] VSC 157, [18]. See also DZ (a pseudonym) v Union Housing Ltd [2022] VSC 249, [26] (Moore J).
[89] [2022] HCA 27; (2022) 275 CLR 582, 599-600 [26]-[27].
[90] Hanson [2022] VSC 710, [46].
[93] [2013] VSC 518 (Metricon).
[94] Metricon [2013] VSC 518, [48].
[95] Metricon [2013] VSC 518, [48], citing VCAT Act, ss 98(1)(a), 98(1)(d).
[96] [2005] VSC 442, [20] (footnotes omitted), cited in Metricon [2013] VSC 518, [48].
[97] [1998] 4 VR 439 (Palmer Tube Mills).
[98] Palmer Tube Mills [1998] 4 VR 439, 452, cited in Metricon [2013] VSC 518, [51].
[99] Metricon [2013] VSC 518, [66].
[100] [2006] VCAT 2120 (Dura).
[101] Dura [2006] VCAT 2120, [33].
[102] [2015] FCAFC 87; (2015) 229 FCR 301 (Mansfield, Tracey and Mortimer JJ). See generally, 308-9 [36]-[46].
[103] Ibid 308-9 [38], citing Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J); Commissioner of Police (NSW) v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395-6 (Dixon and Webb JJ).
[104] [2016] FCAFC 24; (2016) 238 FCR 15 (Kenny, Robertson and Griffiths JJ).
[106] [2022] HCA 26; (2022) 276 CLR 80 ('Nathanson').
[107] Nathanson [2022] HCA 26; (2022) 276 CLR 80, 92 [1].
[108] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 445 [45]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 514 [2], 538 [85] (MZAPC); see also Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, 134-5 [30]-[31].
[109] SZMTA [2019] HCA 3; (2019) 264 CLR 421, 433 [4]; MZAPC (2021) 273 CLR 506, 514 [2].
[110] Nathanson [2022] HCA 26; (2022) 276 CLR 80, 92 [2] (footnote omitted).
[112] Nathanson [2022] HCA 26; (2022) 276 CLR 80, 103 [32]-[33].
[113] MZAPC (2021) 273 CLR 506, 524 [38].
[115] Ibid 524 [39] (emphasis in original).
[116] Cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13-14 [36]-[38].
[117] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 633; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 380 [143]; Condon v Pompano Pty Ltd (2013) 252 CLR 38, 107 [186].
[118] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 342-3 [60].
[119] [2007] VSC 337 (Tomasevic).
[120] Tomasevic [2007] VSC 337; (2007) 17 VR 100, 130 [141]-[142], cited in Seachange [2008] VCAT 1479, [55].
[121] Tomasevic [2007] VSC 337; (2007) 17 VR 100, 119 [89] (footnotes omitted). See also, Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294; (2015) 101 ATR 339, in which Croft J applies the principles identified in Tomasevic and Seachange; and more generally, Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022) [97.60], on the effect of s 97 as it relates to self-represented litigants.
[123] Applicant's written submissions filed 28 January 2025, [5].
[124] Victoria, Victoria Government Gazette, No. S 142, 25 March 2021, 2.
[125] The other redactions were to the vendor's mobile and email address, the fixed commission, and the advertising cost.
[126] Applicant's written submissions filed 28 January 2025, [6].
[127] Reasons of Member Elmes dated 9 December 2024, [14].
[128] VCAT Transcript, 7 November 2024, 11.
[129] VCAT Transcript, 7 November 2024, 13-14.
[130] VCAT Transcript, 7 November 2024, 15-16.
[131] The only address redacted on the authority was that of the rental provider.
[132] Reasons of Member Elmes dated 9 December 2024, [15].
[133] Applicant's written submissions filed 28 January 2025, [15], [18].
[134] Respondents' reply submissions filed 14 March 2025, [44], citing Charnley Glen Pty Ltd v Boroondara City Council [2000] VSC 340; (2000) 110 LGERA 52.
[135] Charnley Glen Pty Ltd v Boroondara City Council [2000] VSC 340; (2000) 110 LGERA 52, 62 [33] (Balmford J).
[136] LKS v CGS (Residential Tenancies) [2021] VCAT 1391.
[137] LKS v CGS (Residential Tenancies) [2021] VCAT 1391, [24].
[138] Applicant's written submissions filed 28 January 2025, [16].
[139] Supplemental affidavit of Grace Mazi filed 10 February 2025, [31]-[32]. See also, Transcript, 2 April 2025, 384.
[140] Reasons of Member Elmes dated 9 December 2024, [17].
[141] Reasons of Member Elmes dated 9 December 2024 [16].
[142] Reasons of Member Elmes dated 9 December 2024 [16].
[143] Applicant's written submissions filed 28 January 2025, [20]. Applicant's outline of written submissions for a stay of enforcement filed 26 November 2024, [12].
[144] Supplemental affidavit of Grace Mazi filed 10 February 2025, [46].
[145] Reasons of Member Elmes dated 9 December 2024, [19].
[146] Applicant's written submissions filed 28 January 2025, [22].
[148] Reasons of Member Elmes dated 9 December 2024, [28].
[149] Reasons of Member Elmes dated 9 December 2024, [43].
[150] Reasons of Member Elmes dated 9 December 2024, [44].
[151] Transcript, 15 April 2025, 446, citing Reasons of Member Elmes dated 9 December 2024, [16]; see also, Transcript, 15 April 2025, 483.
[152] Transcript, 15 April 2025, 446; See also, Transcript, 15 April 2025, 483.
[153] Transcript, 15 April 2025, 456, citing Reasons of Member Elmes dated 9 December 2024, [44]; see also, Transcript, 15 April 2025, 457.
[154] VCAT Transcript, 7 November 2024, 8-9.
[155] VCAT Transcript, 7 November 2024, 9.
[156] VCAT Transcript, 7 November 2024, 10.
[157] VCAT Transcript, 7 November 2024, 17.
[158] VCAT Transcript, 7 November 2024, 17.
[159] VCAT Transcript, 7 November 2024, 21-22.
[160] VCAT Transcript, 7 November 2024, 23.
[161] Recalling Hanson v Director of Housing [2022] VSC 710, [46]; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582, 599-600 [26]-[27].
[162] [2021] VCAT 1391 (18 November 2021) (Member Campana).
[163] Applicant's written submissions filed 28 January 2025, [21].
[166] Defence submissions prepared for VCAT hearing, 3.
[167] VCAT Transcript, 7 November 2024, 21.
[168] Reasons of Member Elmes dated 9 December 2024, [41]-[42].
[169] Reasons of Member Elmes dated 9 December 2024, [51]-[52].
[170] Transcript, 15 April 2025, 454-5.
[172] Applicant's written submissions filed 28 January 2025, [29].
[174] Supplemental affidavit of Grace Mazi filed 10 February 2025, [56].
[175] VCAT transcript, 7 November 2024, 23.
[176] Transcript, 15 April 2025, 495, quoting Reasons of Member Elmes dated 9 December 2024, [52].
[177] Transcript, 15 April 2025, 499, 501.
[180] Applicant's written submissions filed 28 January 2025, [10].
[181] Applicant's written submissions filed 28 January 2025, [40].
[182] Reasons of Member Elmes dated 9 December 2024, [26].
[183] Reasons of Member Elmes dated 9 December 2024, [47].
[184] Reasons of Member Elmes dated 9 December 2024, [28].
[185] Reasons of Member Elmes dated 9 December 2024, [27].
[186] Reasons of Member Elmes dated 9 December 2024, [38].
[187] VCAT Transcript, 7 November 2024, 18.
[188] Reasons of Member Elmes dated 9 December 2024, [36]-[37].
[189] Affidavit of Grace Mazi filed 26 November 2025, [13], citing Letter from Dr Alessandra Briglia dated 31 October 2024.
[190] Applicant's written submissions filed 28 January 2025, [33].
[191] Applicant's written submissions filed 28 January 2025, [34], citing Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.
[192] Order made by Judicial Registrar McCann on 27 November 2024, para D and [1].
Mazi
Kao
(2015) 229 FCR 301
(2016) 238 FCR 15
(2022) 275 CLR 582
(1986) 161 CLR 141
(1979) 143 CLR 1
(2000) 110 LGERA 52
(1944) 68 CLR 571
(1958) 98 CLR 383
(2022) 276 CLR 80
(2019) 264 CLR 421
(2021) 273 CLR 506
(2018) 264 CLR 123
(2003) 214 CLR 1
(1985) 159 CLR 550
(2009) 240 CLR 319
(2013) 252 CLR 38
(2015) 256 CLR 326
(2007) 17 VR 100
(2008) 235 CLR 125