1. The Notice to Vacate does not identify both Mr Heydon and Ms Middleton as tenants.
2. The Notice to Vacate incorrectly states the address of the rented premises.
3. The rent payable by the Tenants from 12 November 2012 at the rented premises is an amount of $1161 per calendar month and not the amount of $736 per calendar month.

The application is dismissed for the following reason :

The Notice to Vacate is invalid as the same fails to comply with the requirements of s.319 of the Residential Tenancies Act 1997, in that it does not clearly identify the tenants or the rented premises.

1. The Notice to Vacate that forms the basis of the Landlords application for possession was served pursuant to s.246[1] of the Residential Tenancies Act 1997 ("the Act").
2. A Notice to Vacate pursuant to s.246 of the Act, is only valid if it complies with s.319 of the Act which provides :

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

(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 of by that person's agent; and

(d) except in the case of a notice under section 263, 288, 314 or 317ZF, 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 prescribed form of a Notice to vacate to a tenant is provided in r 9(1) and Form 3 in the Schedule to the Regulations.
2. Point 1 of the prescribed form requires that the notice names and is given to the tenants, while point 2 requires the rented premises to be identified.
3. The Notice to Vacate on which the Landlord relies for possession is dated 22 March 2013 ("the NTV"). The NTV is addressed to Mr Leigh Hayden and identifies the rented premises as 8/653 Park Street, Brunswick East, 3057.
4. I find that there are two tenants at the rented premises, Mr Leigh Heyden and Ms Sharon Middleton. Further the correct address of the rented premises is 8/653 Park Street, Brunswick, 3056.
5. As the NTV fails to correctly identify the tenants and the address of the rented premises, it does not comply with the prescribed form or s.319 of the Act and is invalid.
6. The Landlord concedes that it has made the errors identified in paragraph 10 herein, and seeks to amend the application and the NTV to correct what it refers to as an administrative error.
7. While an application can be amended, a Notice to Vacate on which it has been based cannot be corrected after it has been served.
8. As the Notice to Vacate is invalid, the Landlord has effectively not given the Tenants a notice to vacate and their application pursuant to s.322[2] of the Act for possession is dismissed.

1. While the application for possession had been dismissed, the Tenants sought and the Landlord consented to findings relating to the amount of rent that should be paid by the Tenants.
2. The dispute over the rent had been the subject of an application by the Tenants in proceeding R2013/9226 but had been deferred to the Member hearing any application for possession based on rental arrears.
3. Mr Heydon entered into a lease agreement with the Landlord for the rented premises on 29 January 2005. At that time, the rent payable per calendar month was $736.00.
4. Over time, the agreement reverted to a period tenancy, and in September 2012, the rent per month was $1,161.00. It is noted that Mr Heydon had been paying an additional amount of $100 per month on top of the monthly rental in reduction of some arrears outstanding for six months prior to September.
5. In October 2012, ownership of the Landlord changed and as a result, new property agents were appointed.
6. By way of a letter dated 22 October 2012 addressed to Mr Heydon, the new managing agents introduced themselves. Further the letter stated "We understand that your rental us due and payable on the 12th day of every month at the rate of $736.00. This amount is to be paid to our office. In the event we establish that your rental is in arrears we shall attend to the appropriate adjustments as required."
7. The error of the monthly rental amount was not picked up by the Landlords agent until 22 January 2013, when a letter to that effect was sent to the tenant. The letter states "We noticed that since our office has taken over the Management of the above property, you have paid the rental at $736.00 pcm, however the rental due is $1,161.00 pcm, and now advise that an amount of $1,275.00 is currently due and payable to bring your rental paid in advance to 11th February 2013."
8. Mr Heydon did not advise or alert the Landlord to it's mistake. He submits that he did not consider the Landlord had made a mistake, but that he was simply getting a reduction in his rent.
9. I do not accept the evidence of Mr Heydon on this point. Mr Heydon is meticulous when it comes to record keeping and to knowing his rights and obligations. That is made clear from the two volumes of submissions he prepared for the Tribunal. I find Mr Heydon knew that the agents had made a mistake on behalf of the Landlord and he sought to obtain the benefit of that mistake.
10. In the circumstances it would be unjust or unfair for the tenants to retain the benefit of the mistake made by the Landlord.
11. I therefore find the rent payable per calendar month by the Tenants to the Landlord from 12 November 2012 to date is an amount of $1161.00.

[1] S.246 of the Act provides :

(1) A landlord may give a tenant a notice to vacate rented premises if the tenant owes at least 14 days rent to the landlord.

(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

[2] S.322 (1) of the Act provides : "A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises (other than a notice under section 261 or section 263)."