1. I heard and determined this application for a possession order at Shepparton on 27 January 2017 in conjunction with Proceeding R2017/2081[1]. At the conclusion of the hearing I struck out the proceeding on the basis the notice to vacate given by the rooming house owner Sooae Choi ("Ms Choi") was invalid.
2. The resident, Tim Gardner ("Mr Gardner") was assisted in this proceeding by Victoria Legal Aid ("VLA"). VLA had prepared written submissions on behalf of Mr Gardner and had provided a copy of the submissions to the Tribunal on 25 January 2017. VLA did not represent Mr Gardner at the hearing on 27 January 2017. The written submissions provided by VLA sought written reasons for the Tribunal's decision. Mr Gardner confirmed he wanted written reasons.
3. Taking in to account the nature of the application by Ms Choi, it was important for the Tribunal's decision to be made on the day of the hearing. Detailed oral reasons for the decision were given at the time. This is the written version of the reasons for the Tribunal's decision to strike out Ms Choi's application.

1. Mr Gardner is a resident of the rooming house operated by Ms Choi. On 13 January 2017 Ms Choi prepared a notice to vacate ("the NTV") to give to Mr Gardner.
2. Mr Gardner disputed Ms Choi's entitlement to a possession order on two grounds. They were:
   • (i) the NTV was not served in accordance with the requirements of the Residential Tenancies Act 1997 (Vic) ("the Act"); and,
   • (ii) the NTV was invalid as it did not include the particulars required by section 319 of the Act.

1. When preparing the NTV, Ms Choi filled in the document so that it said the NTV was given by hand to Mr Gardner on 13 January 2017. Ms Choi gave evidence during the hearing that the NTV was given to Mr Gardner on 13 January 2017.
2. Mr Gardner gave evidence that the NTV was not handed to him by Ms Choi, or anyone on her behalf, but that he found the NTV in an envelope that had been slid under the door to his room at the rooming house. Ms Choi did not deny that the NTV was placed under the door of Mr Gardner's room in this manner.
3. Mr Gardner did not say on what date he found the envelope that had been placed under the door of his room. Specifically, he neither confirmed nor denied that he found the NTV placed under his door on 13 January 2017.
4. Section 506 of the Act sets out how documents are to be served, or given to another person. Section 506(3) relates specifically to service of notices to vacate. Section 506(3) reads as follows:

"(3) A notice to vacate given under Part 6 must be given-

(a) by delivering it personally to the tenant, resident or site tenant; or

(b) by sending the notice by registered post addressed to the tenant, resident or site tenant at the rented premises, room, site or Part 4A site; or

(ba) by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000; or

1. The use of the word "must" in section 506(3) of the Act means that a notice to vacate can only be given to a tenant, resident or site tenant by one of the four methods specified.
2. In this matter, the evidence excludes paragraphs 506(3)(b) and (ba) from consideration. In relation to paragraph 506(3)(c) there was no evidence of any order by the Tribunal allowing for service of the NTV in the manner adopted by Ms Choi.
3. It was submitted by VLA on behalf of Mr Gardner that the manner in which the NTV was "given" to Mr Gardner did not comply with section 506(3)(a) of the Act. VLA submitted that Ms Choi placing the NTV under the door of Mr Gardner's room would not amount to personal service and as such service did not occur in accordance with the requirements of the Act.
4. Section 506(3)(a) of the Act requires a notice to vacate to be given personally to the tenant. That is, it must be given directly to the tenant. Section 506(3) does not permit a notice to vacate to be placed under the door of the room or rented premises.
5. For the reasons set out below I found that the NTV was invalid. However, for the sake of completeness, I find that the NTV was not given to Mr Gardner in accordance with the requirements of Section 506(3) of the Act.

1. The NTV is in the prescribed form and has been completed by Ms Choi by hand.
2. In clause 2 of the NTV it states the address of the rented premises as "35 Jordan St Seymour VIC 3660"
3. In clause 9 of the NTV, the reason for giving the NTV reads as follows:

Violence for Partner and share person. Loudly and damaged furniture.

This Tenant (Tim) very dangers for shar people (sic)"

1. Section 319 of the Act sets out the requirements for a notice to vacate to be valid. Section 319 reads as follows:

A notice to vacate given under this Part is not valid unless -

(a) it is in the relevant prescribed form; and

(b) it is addressed to the tenant, resident or site tenant (as the case requires); and

(c) it is signed by the person giving the notice or by that person's agent; and

(d) except in the case of a notice under section 263, 288, 314, 317ZF or 317ZG, it specifies the reason or reasons for giving the notice; and

(e) it specifies the date by which compliance is required (the termination date)."

1. The rented premises are merely described by the street address for the rooming house. It does not refer to the specific room occupied by Mr Gardner, being room 1.[2]
2. It was submitted on behalf of Mr Gardner that the wording of clause 9 of the NTV did not comply with the requirements of section 319(d) of the Act.
3. In Smith v Director of Housing[3] Justice Bongiorno discussed at length section 319(d) and its requirements. His Honour said:

"The requirement laid down in s.319(d) is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no particular formal verbal formula and no particular legal knowledge to answer the question "Why is this notice being given?" A basic facility for communication in plain English is enough.

The answer, for the notice to comply with s.319(d), requires the setting out of the facts upon which an assertion that the tenant or her visitor has endangered or is endangering the safety of relevant neighbours with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes."[4]

1. Smith's case related to an application for possession where it was alleged that members of the tenant's family had caused danger to the occupiers of neighbouring premises and to officers of the Director of Housing. The notice to vacate did not provide full details of the alleged events that the landlord sought to rely upon. The Tribunal amended the landlord's application to include full details of the allegations being made by the landlord. At a subsequent hearing the Tribunal made a possession order. The tenant appealed the decision to the Supreme Court of Victoria.
2. In allowing the appeal and setting aside the possession order, Justice Bongiorno further said[5]:

"It was, accordingly, ineffective to support an application under s.322 of the Act for possession and the situation could not be cured as [the Tribunal member] tried to do by widening the ambit of the application before her by amending it. The source of the application, and thus the jurisdiction of VCAT, was the notice to vacate. The application could never be wider than that notice nor could it validly allege any facts not alleged in the original notice to vacate."

1. As in the proceeding relating to Frank Matiu which was heard concurrently with this proceeding, the application filed by Ms Choi had attached to it the same three statements by other residents of the rooming house as was attached to the application relating to Mr Matiu. These statements appear to set out a number of allegations against Mr Gardner.
2. When it was put to Ms Choi in the hearing that the NTV did not set out the required detail as to why the notice was given to Mr Gardner, Ms Choi responded by saying that the full reasons were set out in the application and the statements attached to it.
3. The facts of this matter are similar to those in Smith; the detail in the notice to vacate is insufficient to answer the question "Why is this notice being given?", and as such comply with the requirements of section 319(d) of the Act. The additional detail in the statements attached to the application cannot be relied upon by Ms Choi to overcome the obvious deficiencies in clause 9 of the NTV.
4. In Smith, the notice to vacate was given to the tenant pursuant to section 244 of the Act. Section 244 entitles a landlord to give a tenant a notice to vacate that requires the tenant to vacate the rented premises immediately. Justice Bongiorno said[6]:

"It is incumbent upon a landlord who seeks to avail himself of such a summary remedy to comply strictly with the law so as to ensure that by resorting to such a remedy he is neither deliberately nor accidentally trampling on the rights of the person against whom the remedy is being sought."

1. Once again, as in the proceeding relating to Frank Matiu, the NTV did not set out the section of the Act that Ms Choi sought to rely upon in giving the notice. The application in this proceeding makes reference to section 279 of the Act. The application says "Sec 279(1) danger".
2. Section 279 of the Act reads as follows:

(1) A rooming house owner may give a resident a notice to vacate the room occupied by the resident if the resident or the resident's visitor by act or omission causes a danger to any person or property in the rooming house.

(2) The notice may specify a termination date that is the date on which the notice is given or a later date."

1. Section 279 allows a rooming house owner to require a resident to vacate the rooming house immediately. Accordingly, section 279 of the Act allows for a "summary remedy" on the part of the rooming house owner as section 244 of the Act did in Smith's case.
2. There is no basis to distinguish the rationale and decision in Smith from the facts in this case.[7]
3. I accordingly found that the notice to vacate prepared by Ms Choi did not satisfy the requirements of section 319 of the Act, and as such was invalid. As the notice to vacate was invalid, the only order that the Tribunal could make was that the proceeding be struck out.

[1] Choi v Matiu [2017] VCAT 490.

[2] The number of the room occupied by Mr Gardner was set out in the Application dated 16 January 2017.

[3] [2005] VSC 46.

[4] [2005] VSC 46 at [17] - [18].

[5] [2005] VSC 46 at [21].

[6] [2005] VSC 46 at [20].

[7] A number of decisions of the Tribunal made subsequent to the decision in Smith have sought to distinguish Smith and have held that strict compliance with the principle in Smith may not apply where a notice to vacate does not require the tenant or resident to vacate immediately, or is given in circumstances that do not amount to an allegation of wrong doing on the part of the tenant or resident.