Effendy v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 1435

1. The landlord gave the tenant not less than 14 days' notice to vacate when the tenant owed at least 14 days' rent.
2. The landlord is entitled to a possession order.
3. The rent, which is $2825 per calendar month is paid to 14 December 2018 and the rent owed to today is $19960.75.
4. The date of application to the Tribunal was 4 February 2019 and the rent owed to that date exceeds the bond.
5. The Bond is $2600.
6. The landlord has made separate application for rent arrears R2019/21784. That matter was heard and determined together with this application.

1. The tenant must vacate the rented premises by 16 July 2019.
2. The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 16 January 2020).
3. On termination of the tenancy agreement the Residential Tenancies Bond Authority shall pay to the landlord the sum of $2600 in respect of the rent owing to the date of application.
4. The tenant shall now pay the landlord $17,360.75 being the difference between the rent owed to today and the amount to be paid to the landlord by the Residential Tenancies Bond Authority on termination of the tenancy agreement.

Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

1. On 7 February 2019, VCAT received an application from the landlords of the relevant rented premises against Kornucopia Pty Ltd ("Kornucopia"), the tenant of the rented premises.
2. The landlords sought:
   • (a) an Order for Possession based on rent arrears;
   • (b) an order for the payment of the arrears; and
   • (c) a direction to the Residential Tenancies Bond Authority to pay the bond to the landlord on the termination of the tenancy;

under sections 322(1), 246 and 213A of the Residential Tenancies Act 1997 ('the Act").

1. On 21 June 2019, VCAT received a related application from the landlord (VCAT ref: R2019/21784) under the Australian Consumer Law and Fair Trading Act 2012 ("the ACLFTA") as his monetary claim exceeded $10,000.[1]
2. While such applications are usually heard and decided quickly, well within a morning or afternoon, I heard the application over three days, announcing my orders and reasons on 16 July 2019.
3. I describe the reasons for the three-day hearing in my decision in Hwang v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 1436.
4. On 5 August 2019, VCAT received Kornucopia's request for written reasons. With oral reasons given on 16 July, while VCAT is not obliged under the Act to give written reasons (not requested during the hearing) or the ACLFTA (not made within 14 days of final orders), I provide these reasons related to ACLFTA considerations.

1. These applications were two of eight (four groups of two, with four separate landlords) where Kornucopia was the tenant. They were all heard on 6 June, adjourned to 25 June then to 16 July 2019.

1. Mr Kuksal and Mr Youl were present at the start of this matter. It followed the hearing of Hwang v Kornucopia Pty Ltd, referred to above.
2. They began packing up as if to leave. Mr Kuksal indicated that he thought it would be logical to conclude that I would rule in this and the other matters the same way as in Hwang. He sought leave to be excused.
3. I informed Mr Kuksal that each matter would be determined on its own facts and circumstances. If there are any differences disclosed the orders might be different. I informed him that if he did not wish to remain, I would make a note to that effect on the files. Mr Kuksal and Mr Youl left.
4. Having considered Kornucopia's written submissions (see the Hwang decision), I found the notice to vacate was validly served by email, under s 506 of the Act and the Electronic Transactions (Victoria) Act 2000.
5. The landlord's evidence satisfied the threshold questions necessary for a possession order to be made under section 330 of the Act.
6. There was a tenancy agreement, the rent was $2,825 per calendar month, and that rent was paid to 14 December 2018 and at the date the notice to vacate was given, Kornucopia owed far more than 14 days rent.
7. At the date of the application to the Tribunal the arrears were in excess of the Bond. This enlivened the request for an order pursuant to section 213A of the Act. That order was made. The arrears at 16 July 2019 were $19960.75.
8. There was no basis, under s 331 of the Act, to conclude that financial loss to the landlord could be avoided (see Hwang).
9. The order for the payment of the rent owed was made pursuant to section 184(1)(b)(i) of the ACLFTA being an order for the payment of a sum of money found to be owing by one party to another party. The order was made for compensation for rent arrears payable at the date of the order being $19960.75.
10. At the date of the application under the Act to the Tribunal, the arrears were in excess of the Bond. This enlivened the request for an order pursuant to section 213A of the Act. That order was made.

[1] A landlord may make an application under the ACLFTA for an order for compensation against the tenant for more than $10,000; see Director of Housing v Young [2002] VCAT 227