The tenant's application is dismissed for the following reason:

1. The tenant has failed to show that the notice to vacate issued by the landlord on 25 August 2016 was given in response to the exercise, or proposed exercise, by the tenant of a right under the Residential Tenancies Act 1997.

1. The landlord, Zullaphella Pty Ltd, entered into a tenancy agreement with Damien Gillen on 10 May 2012.
2. A notice to vacate for no specified reason was served by the landlord on the tenant by way of registered post on 25 August 2016. The notice required the tenant to vacate on 31 December 2016. At the time the notice to vacate was served, a periodic tenancy agreement was in effect.
3. On 19 September 2016, the tenant lodged an application with the Victorian Civil and Administrative Tribunal (the Tribunal), seeking an order that the notice to vacate was of no effect, on the basis that it had been issued in response to the exercise, or proposed exercise, by the tenant of a right under the Residential Tenancies Act 1997 (the RT Act).

1. Section 263 of the RT Act enables a landlord to give a tenant a notice to vacate without specifying a reason for giving the notice. The notice must specify a termination date that is not less than 120 days after the date on which the notice is given. However, subsection 266(2) states that a notice under section 263 is of no effect if it is given in response to the exercise, or proposed exercise, by the tenant of a right under the RT Act.
2. Subsection 266(3) of the RT Act provides that a person is not entitled to apply to the Tribunal challenging the validity of a notice under section 263 after the end of 60 days after the date on which the notice was given. In the present matter, the application to the Tribunal by the tenant challenging the validity of the notice was made within 60 days of being given the 120 day notice to vacate, and subsection 266(3) does not impact on the tenant's right to bring this application.

1. The issues that need to be decided by me in this case are as follows:
   • Whether the 120 day notice to vacate for no specified reason served by the landlord on the tenant is valid or of no effect.
   • This in turn depends upon whether the notice was given to the tenant by the landlord in response to the exercise or proposed exercise by the tenant of a right under the RT Act.

1. Ms Cafarella, on behalf of the tenant, provided a history of the events that she believed were relevant to the tenant's application. She advised that the landlord had previously issued a notice to vacate to the tenant under section 246 of the RT Act for rent arrears. That notice was issued on 23 March 2016. The landlord successfully applied to the Tribunal for an order of possession, which was granted at a hearing on 9 May 2016. The tenant did not attend that hearing as he was in hospital at the relevant time.
2. On 11 May 2016, the tenant applied to the Tribunal for a review of the possession order made on 9 May 2016. On 26 May 2016, the tenant's application for review was granted, the order dated 9 May 2016 was set aside and the landlord's application for possession was reheard. However, the Tribunal made a further possession order in favor of the landlord on that day.
3. The tenant subsequently filed an application for leave to appeal in the Supreme Court of Victoria on the basis that the Tribunal had erred in its decision to make a possession order on 26 May 2016.
4. On 19 August 2016, the landlord and tenant reached an agreement and signed consent orders, as a result of which the tenant withdrew the proceedings in the Supreme Court. Each party was to bear their own costs. The landlord signed an undertaking that he would not rely on the possession order granted by the Tribunal on 26 May 2016.
5. There was also a hearing scheduled at VCAT for 19 August 2016 in case there was a need for the landlord to seek an extension of time for a warrant of possession, issued on 11 May 2016, to be executed. Ms Cafarella said that she advised the tenant he did not need to attend that hearing. However, the landlord attended and sought costs in breach of the settlement agreement.
6. I note here that the orders made by VCAT on 19 August 2016 were that the warrant of possession dated 11 May 2016 was cancelled and that the tenant was to reimburse the landlord the sum of $144.20, being the warrant fee. On 19 August 2016, the tenant sought a review of that order. On 13 September 2016, the order requiring the tenant to pay the landlord the cost of the warrant fee was revoked.
7. Ms Cafarella said that within six days of the settlement, the hearing on 19 August 2016 and the tenant's application for a review of that order, the landlord issued the 120 day notice to vacate. The landlord also issued a notice dated 25 August 2016 increasing the rent from $175 to $210 and a dispute arose about how the tenant was to pay rent (that dispute had since resolved).
8. Ms Cafarella submitted that the 120 day notice to vacate issued on 25 August 2016 was retaliatory as it had been given in response to the tenant exercising his right to challenge the earlier notice to vacate issued for rent arrears, and in response to the tenant initiating an appeal in the Supreme Court.
9. Asked to identify the relevant right under the RT Act that the tenant had exercised or proposed to exercise, Ms Cafarella said that the tenant had a right to challenge a notice to vacate for rent arrears under section 331 of the RT Act. She argued that a broad interpretation of subsection 266(2) was required, taking into account the Charter of Human Rights and Responsibilities Act 2006 (the Charter). She pointed out that the RT Act did not often use terms about rights, but instead set out responsibilities of the parties to a tenancy agreement.
10. Ms Cafarella conceded that the right to lodge an appeal in the Supreme Court arose under the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) and not the RT Act, but she argued that right was so closely linked to the tenant's rights under the RT Act, that it was an action that came within the rights contemplated by subsection 266(2) of the RT Act.
11. Mr Dwyer said that he managed a block of flats for low income tenants who were referred from the Salvation Army and other institutions. There had been past problems between the tenant and his neighbours, when the tenant's behavior was unpredictable and erratic. Mr Dwyer had issued multiple notices to vacate for rent arrears to this tenant and had previously issued a 120 day notice to vacate in December 2015, before there was any prospect of being taken to the Supreme Court. He had not sought a possession order in relation to that earlier 120 day notice because he instead successfully obtained the order for possession on the basis of rent arrears. He denied that he had issued the current 120 day notice to vacate in retaliation for any action taken by the tenant in reliance on his rights. Mr Dwyer said he just wanted the tenant to leave and had a right to ask him to leave.
12. Mr Dwyer agreed with statements made by Ms Cafarella that the tenant was up to date with his rent and there had been no recent trouble with neighbours.

1. The terms of subsection 266(2) of the RT Act are as follows:

A notice under section 261 or section 263 is of no effect if it was given in response to the exercise, or proposed exercise, by the tenant of a right under this Act.

1. It is quite clear that, pursuant to subsection 266(2), the decision maker must consider two matters - firstly, whether there has been an exercise, or proposed exercise, of a right under the RT Act by the tenant; and secondly, whether the notice to vacate was given by the landlord in response.
2. Ms Cafarella urged me to interpret the phrase "exercise...of a right under this Act" taking into account the matters set out in the Charter, such as the tenant's right to non-arbitrary interference with his home. She argued that rights under the RT Act needed to be interpreted broadly, as the RT Act in fact said very little about rights.
3. Whilst the Charter is relevant to interpreting a provision of the law if the terms of that provision are unclear, in this case the law is not ambiguous in that subsection 266(2) clearly requires an exercise or proposed exercise of a right under the RT Act to be identified, before a notice to vacate can be regarded as of no effect under subsection 266(2). It is not enough merely to show that the relevant notice to vacate has been issued in response to some action of the tenant generally that the landlord may be unhappy about.
4. In my view, the rights of a tenant under the RT Act can be readily identified. The RT Act quite clearly sets out various rights which can be exercised by a tenant, for example, rights to have repairs effected or to ensure that a landlord otherwise complies with their duties. As an example of an exercise of a right by a tenant, under Part 5 of the RT Act, a tenant may serve on a landlord a breach of duty notice and if this is not complied with, apply to the Tribunal for a compensation or compliance order. However, none of these kinds of rights have been exercised by the tenant in this case.
5. Ms Cafarella relied on a number of matters, set out above, which she said were rights exercised by the tenant under the RT Act. I have carefully considered her submissions, the events that have occurred in this matter and the actions taken by the tenant, as follows:
   1. On 11 May 2016, the tenant applied for a review of the possession order dated 9 May 2016. His right to apply for a review is set out in section 120 of the VCAT Act. It is not a right under the RT Act, and it is not open to me to interpret a right granted under a different Act as a right under the RT Act.
   2. On 26 May 2016, the landlord's application for a possession order was considered. Ms Cafarella argued that the tenant had a 'right' under section 331 of the RT Act to resist an application for possession on the basis that satisfactory arrangements had been or could be made to avoid financial loss to the landlord. Section 331 of the RT Act provides that the Tribunal may dismiss or adjourn an application for possession if the Tribunal considers that satisfactory arrangements have been or can be made to avoid financial loss to the landlord. Section 331 clearly relates to the powers of the Tribunal and grants a discretion to the Tribunal to dismiss or adjourn an application for possession in the described circumstances. It does not, in my view, grant any rights to the tenant.

In any event, on 26 May 2016, the tenant was not successful, rather the landlord was granted the possession order, so that it cannot be said that the 120 day notice to vacate was issued in response to the tenant's reliance on section 331 of the RT Act at the hearing on this date.

1. On 22 July 2016, the tenant filed an originating motion in the Supreme Court seeking leave to appeal the Tribunal's possession order dated 26 May 2016 and an extension of time in which to seek such leave. Both of those applications were made under the VCAT Act and not the RT Act. As stated above, it is not open to me to interpret a right granted under a different Act as a right under the RT Act.

In lodging the application with the Supreme Court, the tenant's originating motion indicated that the tenant's grounds for appeal were that the member had taken into account irrelevant considerations outside the scope of the power reposed in section 331 of the RT Act and had failed to take into account relevant considerations, namely that satisfactory arrangements had been made to avoid financial loss to the landlord. Ms Caferella's submission appeared to be that in lodging an appeal on these bases, the tenant was relying on his rights under the RT Act. However, I do not accept Ms Cafarella's submission.

Firstly, if a tribunal member has taken into account an irrelevant consideration or fails to take into account an irrelevant consideration, there is an error of law that may give rise to judicial review. Nevertheless, an appeal against such error does not involve the exercise of any right granted to the tenant under the RT Act.

Further, the fact that the tenant sought to rely on section 331 of the RT Act in his originating documentation does not demonstrate that he is exercising a right under the RT Act. As stated above, section 331 of the RT Act does not grant any rights to a tenant, rather it sets out the powers of the Tribunal in certain possession applications and the matters that the Tribunal may consider.

1. On 19 August 2016, the tenant applied for a review of the order dated 19 August 2016 whereby he was required to pay the cost of the warrant. His right to apply for a review is set out in section 120 of the VCAT Act. It is not a right under the RT Act.

The basis of the tenant's application for a review and rehearing of the decision made on 19 August 2016 was that the landlord had breached a settlement agreement relating to the Supreme Court proceedings in seeking an order for the cost of the warrant to be paid by the tenant. There was no apparent reliance on a right of the tenant under the RT Act in making that argument.

1. Ms Cafarella also mentioned that the landlord issued a notice of rent increase dated 25 August 2016. A tenant has a right to challenge such a notice but in this case the notice was issued on the same date as the 120 day notice to vacate, and there was no evidence led that the tenant proposed to exercise his right to challenge the rent increase notice. The 120 day notice could not be said to have been issued in response to any right of the tenant associated with the rent increase notice. A problem also apparently arose about the manner of payment of rent. Again this seems to have arisen at the same time the 120 day notice to vacate was issued or afterward. There is no evidence that the tenant proposed to exercise any right under the RT Act in relation to the manner of rent payment, prior to the 120 day notice to vacate being issued.

1. Having considered all of the matters put forward on behalf of the tenant in this matter, I was unable to find that there was an exercise, or proposed exercise, by the tenant of a right he held under the RT Act, prior to the 120 day notice to vacate dated 25 August 2016 being served on him.
2. In any event, even if the tenant had been able to prove that there was an exercise or proposed exercise of a right under the RT Act, I was not satisfied that the landlord in this matter issued the notice to vacate in response to the tenant's actions as set out above.
3. Ms Cafarella argued that I should apply the reasoning set out in the matter of Fitzgibbon v Borazio [2008] VCAT 319 where the member stated:

"It is, initially, for the tenant to provide some proof that there was a nexus between the tenant exercising her rights and the landlord's notice to vacate so that, prima facie, a connection as set out in s266 has been established. If that is done, the burden of proof shifts to the landlord to prove that the reason for serving the notice is not caught by that section. Accordingly, the landlord would probably need to give evidence as to the reason for giving the notice to vacate."

1. The submission appeared to be that the landlord had no reason in this case to issue a 120 day notice to vacate because the tenant was now paying rent regularly and his mental health had improved, so that his behavior toward neighbours was no longer an issue.
2. However, the landlord's evidence indicated that he did in fact have reasons for asking the tenant to leave and issuing a 120 day notice to vacate, namely that the tenant's behavior had, in the past, been disruptive for other residents in the block. That disruptive behavior initially resulted in the landlord issuing a 120 day notice to vacate in December 2015. The reason that notice had not resulted in an order of possession was because an order had instead been granted for rent arrears. Evidence was also presented by the landlord to show that the tenant had been issued with a number of notices to vacate for rent arrears on 16 December 2015, 12 February 2016 and 23 March 2016. He submitted these documents to show that he had reasons to ask the tenant to leave.
3. I find from the evidence presented that the landlord had reasons why he wanted the tenant to leave when he issued the 120 day notice to vacate on 25 August 2016 that were not associated with the tenant's attempts to resist his eviction for rent arrears or the Supreme Court appeal. Those reasons were that the tenant's past behavior had created disturbance for neighbours and that he had been inconsistent with the payment of his rent. Whilst it is acknowledged that the tenant is now paying rent on time and has ceased causing any disturbance due to an improvement in his mental health, those matters do not detract from the fact that the landlord has experienced such problems in the past and may wish to ensure that such problems do not arise again in the future.
4. In conclusion, I was not satisfied that the tenant had demonstrated the 120 day notice to vacate, issued on 25 August 2016 by the landlord, was given to the tenant in response to an exercise, or proposed exercise, of the tenant's rights under the RT Act. Accordingly, I must dismiss the tenant's application.