Director of Housing v Fauth (Residential Tenancies) [2015] VCAT 403

1. The order of the Tribunal dated 9 February 2015 is confirmed.

1. The time for execution of the warrant of possession issued by the principal registrar on 12 February 2015 is extended so that it is to be executed no later than 24 April 2015.

3. The principal registrar shall send a copy of this order by facsimile

transmission to the police identified in the warrant

Ms S. Rose, Victoria Legal Aid and tenant in person

1. On 22 January 2015 the applicant landlord, the Director of Housing (the landlord) served a notice to vacate pursuant to section 244(1) of the Residential Tenancies Act 1997 ("the Act") on the respondent Paul Fauth (the tenant). An application for a possession order based on that notice was lodged with the Tribunal on 29 January 2015.

1. The matter was initially heard by the Tribunal on 9 February 2015 in the absence of the tenant and an order for possession was made at the request of the landlord. A warrant of possession was subsequently purchased by the landlord on 12 February 2015.

1. On 16 February 2015 the tenant applied for a review of the decision made by the Tribunal on 9 February. After a couple of adjournments, the matter came before me on 6 March 2015.

1. After hearing evidence of the tenant that he had been unable to attend the hearing on 9 February due to ill health, I decided to grant his request for a review of the decision made on that date and made an order accordingly.

1. The hearing of the original application was then re opened but after a short period it became apparent that there would be insufficient time for all relevant evidence to be given on that day.

1. The proceeding was adjourned part heard until 26 February 2015 and the remainder of the evidence was heard by me on that date.

1. The landlord provided a written submission and also a number of statutory declarations and sworn statements, a letter from Victoria Police, correspondence sent to the tenant and a series of photographs to the Tribunal. Oral evidence was given by Senior Constable Marcia Fabris from Northcote Police Station and Mr Michael Jones.
2. The tenancy commenced in August 2013 in a large block of units in Northcote with about 200 residents, most of whom were elderly.

1. Ms Rose made oral submissions on behalf of the tenant and the tenant also gave evidence at the hearing.

1. The notice to vacate that was served on the tenant by registered mail on 22 January 2015 states that the notice was given pursuant to section 244(1) of the Residential Tenancies Act 1977 on the grounds that:

"You or your visitor have endangered the safety of neighbours.

On January 13, 2015 police attended a serious incident between yourself and a neighbour during which you allegedly stabbed your neighbour and caused injury to him. It is further alleged that you made verbal threats to your neighbour at this time."

1. Oral evidence was given by Senior Constable M. Fabris prior to the hearing being adjourned on 6 March 2015. She stated that there had been a number of incidents involving the tenant and other residents including Michael Jones at or around the Northcote Housing property in recent months.

1. On 13 January this year in the early afternoon, Michael Jones had been served with an interim intervention order that had been obtained by the tenant, requiring him to effectively "stay away" from the tenant. The police had been contacted by the tenant shortly thereafter, alleging that the order had already been breached.

1. At about 9pm the same day the police were called to attend a stabbing incident outside Mr Jones' apartment. Statements were taken from Mr Jones and a neighbour Mr Quinn, who witnessed the incident.

1. The tenant was arrested and taken to the Northcote Police station where he was later charged with assault. He was released on bail to appear at Melbourne Magistrates Court on 5 May 2105.

1. Evidence given by Mr Jones orally at the hearing, in the sworn statement provided to the police on 13 January and the Statutory declaration dated 19 January 2015 can be summarised as follows:

at about 8pm on 13 January he went next door to his neighbour Patrick Quinn's place to have a coffee. Just before 9pm they heard loud banging outside and he discovered the tenant "Paul" at his door. He asked him what he wanted and was aware that he was not allowed to go near him because of the intervention order that had been served on him earlier in the day.

The tenant then walked towards him and threw a punch at him and proceeded to attack him with a key in his right hand. A scuffle then ensued for about ten minutes and Mr Jones sustained a number of cuts and bruises on his arm and stomach. The tenant had placed a key between his index and middle finger and was using it as a weapon. The tenant continued to attempt to punch and kick him also abused him verbally and made a number of threats before Mr Jones was able to get away. He believed that the tenant was intoxicated at the time.

1. In his oral evidence, Mr Jones confirmed the information provided in his statement given to the police about the incident on 13 January. He also stated that the tenant appeared to be "off his head" at the time and was deliberately using the key or keys in his hand to inflict injuries on him. He was extremely violent and tried to strike him in the eye and to kick him. In addition, he had threatened to "come back with a more efficient weapon". The incident had left him frightened for his safety and had caused him to go back on anti depressants.

1. The tenant was arrested by the police that night, held in custody and was later charged with "aggravated assault with kicking". Bail conditions included the requirement that he stay away from Mr Jones.

1. Mr Jones' neighbour Mr Quinn witnessed the incident. In his statement given to the police, Mr Quinn confirms that Mr Jones was visiting him on 13 January and they heard banging outside around 9pm. Mr Jones went out to see who it was and he heard a man calling out and verbally abusing Mr Jones. Mr Quinn went to the doorway and saw a man trying to push Mr Jones around. Mr Quinn told the man to "leave him alone, go back to your own house downstairs, ... give up" but he then saw the man stab Mr Jones in the right arm, which immediately drew blood. Mr Quinn then called the police.

1. He heard Mr Jones tell the man to go back downstairs but he continued to hold onto him and shout obscenities in his face. After about 5 to 10 minutes the man left and walked away around the corner. He then attempted to return and enter Mr Quinn's apartment but Mr Quinn was able to stop him and lock the security door. The man then left. Mr Quinn stated that he did not know who the man was but the description he gave to the police fitted that of the tenant.

1. Mr Quinn further stated that he was very "shaken up" by what had happened and was concerned for his and Mr Jones' safety which was why he had called the police.

1. Other relevant evidence included a letter dated 15 January 2015 written by Senior Constable Fabris to Ms Temple at the Collingwood Housing Office in which she outlines police concerns for the safety of Mr Jones and other residents living at 1 Holmes Street, Northcote. She states that police attended "a serious incident" on 13 January during which it is alleged that the tenant stabbed Mr Jones in his right forearm and that the tenant had been charged with recklessly causing injury. He was bailed on condition that he does not approach or come within 5 metres of Mr Jones in the street and does not come within 10 metres of his premises.

1. The letter continues "The major concerns are for the safety of Michael Jones and other residents, due to past issues, and (the tenant's) irrational behaviour, especially when he has been drinking, which occurs on a regular basis. Many issues have been reported to Collingwood Housing by other residents".

1. A number of photographs were provided at the hearing. Three of them, dated 16 January, are of Mr Jones' right arm and stomach. They show a deep gash across his upper right arm and significant bruising on the lower arm as well as one long gash and a smaller cut on his stomach. Two other photographs are of the tenant. His left shirt sleeve is bloodstained in one, and a photo of his hands shows a couple of small cuts on his left hand and a finger. The bloodstains are consistent with the injury to Mr Jones' right arm.

1. Ms Rose questioned Mr Jones about an incident that occurred mid afternoon on 13 January when the tenant and Mr Jones saw each other by chance in a street near their homes. Mr Jones admitted that he had been upset when he had been served with the interim intervention order a short while earlier but denied that he had verbally abused the tenant and threatened to kill him and his dog. However it was clear from Mr Jones' demeanour at the hearing that there was "bad blood" between the two men.

1. The tenant, in his oral evidence, confirmed that there had been issues and problems between him and Mr Jones for some time which prompted him to seek the interim intervention order. He confirmed that it was served early afternoon on 13 January and within a very short time he had seen Mr Jones in the street. He claimed that Mr Jones had deliberately crossed the road to come over and verbally abuse him, which was in breach of the order. He stated that Mr Jones was "right in my face" in a rage and that he "took a swing" at him and threatened to kill him and his dog. The tenant phoned to report the incident to the police.

1. Later that night after having half a glass of wine, he decided to go up to Mr Jones' apartment to try and talk to him "as grown ups". He stated that he suffered from migraine headaches and had taken some medication for that prior to deciding to visit Mr Jones. He knocked on his door and Mr Jones came out of his neighbour's place. He claimed that Mr Jones was very angry and grabbed him by the throat and kept bashing him against the wall. The tenant also claimed that he was bitten on the throat and had blood on his shirt as a result.

1. In his view, he had acted in self defence after Mr Jones physically attacked him and the only reason he had the keys in his hand was because he had just come upstairs from his own place. The tenant denied that he was under the influence of alcohol at the time or that he had a drinking problem. He agreed that he was taken to the police station and has since been charged with assault in respect of the incident.

1. Ms Rose made a number of submissions on behalf of the tenant. She contended that the notice to vacate was invalid on the grounds that it failed to give sufficient particulars of the alleged incident or danger at the time; that it was "an isolated incident" that was unlikely to recur; that there was no "continuing risk" to the neighbours and that the notice had been issued too long after the alleged event. The tenant had continued to live at the property without any further incidents. She also submitted that the tenant had acted in self defence and that he had his own significant health issues that ought to be taken into account.

1. I considered Ms Rose's submission that the notice to vacate did not contain sufficient particulars in accordance with the requirements of section 319(d) of the Act. That section states that a notice to vacate given under that Part of the Act must specify "the reason or reasons for giving the notice". In the case of Smith v Director of Housing [2005] VSC 46, Bongiorno J found that such a notice must, on its face, have identified with a sufficient degree of particularity and precision the facts said to constitute the endangering of the safety of neighbours.

1. Ms Rose submitted that the notice was defective because it did not provide enough particulars including a precise time that the incident occurred and did not name the neighbour who was allegedly attacked.

1. I did not accept this argument. Although the information provided in the notice could have been more detailed in that way, in my view the details provided were sufficient to advise the tenant of the conduct that was said to endanger the safety of one of his neighbours. It set out the date of the incident and described what was alleged to have happened ie. that on 13 January 2015 police had attended an incident during which the tenant had stabbed and injured a neighbour and made verbal threats to him. I was satisfied that the information set out in the notice was sufficient to enable the tenant to be aware of the incident and the allegations upon which the notice was based.

1. I also rejected Ms Rose's argument that there was too long a delay between the date of the incident and the date that the notice to vacate was issued. The notice was not issued and served on the tenant until 9 days after the event.

1. In this instance, it was clear that there was a history of dispute and antagonism between the tenant and Mr Jones, such that an interim intervention order was granted to the tenant. The Director of Housing is frequently placed in an unenviable position when attempting to deal with many of the disputes that arise from time to time between its tenants. The letter sent by Senior Constable Fabris to the Director of Housing Office at Collingwood on about 15 January 2015 that set out the concerns of the police for the safety of Mr Jones and other residents and advised them of the fact that the tenant had been charged as a result of the incident on 13 January may not have been received by the Housing Office until Monday 19 January.

1. The notice to vacate was issued on 22 January which is not an undue delay in the circumstances. In my view, it is both appropriate and desirable for the Director of Housing and indeed, the police to take whatever time is necessary to fully investigate such incidents prior to taking any further potentially serious action, as eventuated in this case.

1. It was further submitted that the word "endangers" in s 244 indicates that the danger must be continuing, rather than a "one-off event" and that it is necessary for the landlord to show that at the time the notice to vacate was served, the endangering conduct was continuing.

1. In the present case, although he denied having a problem with alcohol abuse, the evidence indicated the contrary. I accept that from time to time the tenant does drink excessively and that he becomes aggressive when intoxicated. I also accept that he may well have significant health issues but that does not excuse his behaviour towards others when in that state.

1. It is possible that Mr Jones may have "baited" the tenant on occasion and it is likely that each has verbally abused and threatened the other from time to time. The dislike between them was palpable at the hearing.

1. It was the tenant who sought and gained an interim intervention order against Mr Jones. I do not know what to believe about the circumstances in which it was allegedly breached shortly after being served. It is quite possible that there is guilt on both sides, but it simply illustrates that the problem was not going to be easily solved.

1. In addition, it was the tenant who later chose to go out of his way that evening, to go up to Mr Jones' unit in clear breach of the terms of his own intervention order. That meeting was not something that occurred "by chance" in the street. On the evidence provided I am satisfied that the tenant was intoxicated at the time and intended to "have it out with Mr Jones". I do not accept his assertion that he merely went there to try and discuss the situation "as adults". Their previous interactions clearly showed that this was not possible.

1. Even with an intervention order in place, the potential for conflict appeared to escalate rather than reduce or disappear and hence I am not satisfied that it was a "one off" event or that the danger was not continuing. It is also important to note that the tenant's bail conditions prevent him from approaching or being within a certain distance of Mr Jones or his premises, but in the event that he again becomes intoxicated, it is quite possible that all reason and commonsense will evaporate.

1. The weight of evidence indicates that the tenant became aggressive and violent towards Mr Jones when he appeared from Mr Quinn's front door in response to the loud knocking noise outside. The incident was witnessed by Mr Quinn and his statutory declaration supports Mr Jones' evidence. The photographs provided also clearly show the injuries that were sustained by Mr Jones. Any scratches that the tenant received would have occurred as a result of the altercation and Mr Jones' attempts to defend himself from the attack.

1. After investigating the incident, the police have charged the tenant with serious assault. I accept that the tenant's conduct in assaulting Mr Jones in the evening of 13 January amounted to one in which he seriously endangered the safety of an occupier of neighbouring premises and that the landlord was entitled to give the notice to vacate. The grounds for giving the notice have been proven.

1. Accordingly, I made an order confirming the previous order for possession made by the Tribunal on 9 February 2015 and, with the consent of the landlord's representatives, extended the warrant of possession that was issued on 12 February for 30 days, so that it was to be executed no later than 24 April 2015.