Victorian Civil and Administrative Tribunal|2017-04-06

The application filed by Ms Choi had attached to it 3 statements by other residents of the rooming house. These statements appear to set out a number of allegations against Mr Matiu.
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 Matiu, Ms Choi responded by saying that the full reasons were set out in the application and the statements attached to it.
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.
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."

The NTV did not set out the section of the Act that Ms Choi sought to rely upon in giving the notice. The application makes reference to section 279 of the Act. The application says "Sec 279(1) danger".
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."

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.
There is no basis to distinguish the rationale and decision in Smith from the facts in this case.[7]
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] Tim Gardner is the respondent in Proceeding R2017/2089 that was heard at the same time as this proceeding.

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

[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.

Transactions (Victoria) Act 2000

Choi v Matiu (Residential Tenancies) [2017] VCAT 490 (6 April 2017)

Rooming House; Application for possession order alleging danger; Validity of Notice to Vacate; Service of Notice to Vacate; Residential Tenancies Act 1997 (Vic) sections 319 and 506(3); Smith v Director of Housing [2005] VSC 46.

Choi v Matiu

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Judgment (13 paragraphs)

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Choi v Matiu (Residential Tenancies) [2017] VCAT 490 (6 April 2017)