Hwang v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 1436

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 $2608 per calendar month is paid to 14 December 2018 and the rent owed to today is $18427.48.
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 $2400.
6. The landlord has made separate application for rent arrears R2019/21890. 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 $2400 in respect of the rent owing to the date of application.
4. The tenant shall now pay the landlord $16027.48 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. In February 2019, VCAT received an application from Mr Sebastian Hwang, landlord of the relevant rented premises against Kornucopia Pty Ltd ("Kornucopia"), the tenant of the rented premises.
2. Mr Hwang 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. In June 2019, VCAT received a related application from the landlord (VCAT ref: R2019/21890) 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. 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. On the first hearing day, the four applications under the Act were before the Tribunal.
2. Mr Christian Hidayat, real estate agent appeared for the landlord.
3. Ms Lulu Xu, Kornucopia's director appeared with Mr David Youl, Project Director of Efektiv Pty Ltd. I understand Kornucopia and Efektiv Pty Ltd are owned by Efektiv Group Pty Ltd.
4. By early in the hearing, there were three potential reasons for the hearing to be adjourned.
5. First, the landlord sought a monetary order over $10,000, where the Tribunal is unable to order payment of over $10,000, without the parties consenting to such jurisdiction.[2] On the hearing day, Kornucopia was not on notice of the claim in excess of $10,000 and did not consent to the extension of jurisdiction.
6. Second, Mr Youl requested an adjournment on the grounds that Ms Xu required an interpreter.
7. Third, Ms Xu sought to have the matter adjourned so that Mr Shivesh Kuksal could attend. Mr Kuksal was described as the owner of the business.
8. With the landlord seeking orders for more than $10,000, the hearing was adjourned, to return before me on 26 June 2019. In the interests of fairness VCAT arranged for an interpreter to attend the next hearing.

1. On the second hearing day, the eight applications, four groups of two, were before the Tribunal.
2. Mr Hidayat and Mr Ali Lee, also a real estate agent, represented the landlord.
3. Ms Xu, Mr Kuksal and Mr Youl represented Kornucopia.
4. An interpreter was present. She was sworn in and acknowledged her acceptance of the Interpreters Code of Conduct. The parties were informed of the role of the interpreter as an independent officer of the Tribunal, who would interpret all things said in English into Mandarin and all things said in Mandarin into English.
5. Shortly after start of the hearing the interpreter requested direction from the Tribunal. She advised Ms Xu had indicated that she did not want all things interpreted, only things that she required clarification on. Ms Xu was informed that the role of the interpreter is to provide language assistance to both herself and the Tribunal, and that the interpreter could only accept instruction and direction from the Tribunal. Having all things interpreted from English into Mandarin ensured I would be confident that she was able to linguistically fully participate in the proceedings. As the obligation to provide a fair hearing is an obligation that I take very seriously, the interpreter would continue to interpret all things said in English into Mandarin. Ms Xu was informed that she could choose to speak in Mandarin or English or both. The interpreter continued to perform her duties diligently.
6. Mr Kuksal was authorised by Ms Xu to speak on Kornucopia's behalf in these proceedings. He also made objection to the interpreter, in my view as an attempt at distraction. He was reminded that the Tribunal had arranged the interpreter at Ms Xu's request to ensure that she was not at a disadvantage in the proceedings.
7. Kornucopia made submissions challenging the service of the notice to vacate under the Act by electronic transmission. The submissions related to each of the four applications - all having been served electronically on the same day and time.
8. The submissions were sufficiently complicated to require Kornucopia to put them in writing and for time to be provided for consideration - by the landlord and the Tribunal. The hearing was adjourned to 16 July 2019.

1. Mr Kuksal and Mr Youl appeared for Kornucopia.
2. Having considered Kornucopia's written submissions, for reasons given orally, not encompassed in these written reasons, I found the notice to vacate was validly served by email, under s 506 of the Act and the Electronic Transactions (Victoria) Act 2000.
3. I then turned to the substance of the landlord's application.
4. The landlord's evidence satisfied the requirements necessary for a possession order to be made under section 330 of the Act.
5. Kornucopia did not dispute there was a tenancy agreement, that the rent was $2,608 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.
6. The landlord submitted that arrears at 16 July 2019 were $18,427.
7. Mr Kuksal submitted Kornucopia had an "offsetting claim". He said that this was not a matter of withholding rent but a situation requiring the landlord to use the offset to compensate Kornucopia for the lack of rent.
8. Kornucopia presented no evidence to support this claim that there was any order, direction or agreement between the parties to provide rent free periods or that the rent was not paid and payable. It did not provide any detail of the purported offset claim - neither the nature nor the amount.
9. The landlord disputed Kornucopia's submissions.
10. I found that the landlord was due the rent owed to the date of the order of $18,427.
11. Section 331 of the Act requires the Tribunal to consider making an order other than an order for possession, if satisfied that financial loss to the landlord can be avoided.
12. Mr Kuksal said Kornucopia would be open to considering a payment plan, and making a commitment from the tenant that they are open to a brokered solution that ensures that the landlord was not financially jeopardised and that the tenant "advocate for the tenant's rights". This proposition was vague and uncertain despite further investigation by the Tribunal.
13. I was not satisfied that financial loss to the landlord could be avoided and a possession order was made. The exercise of the Tribunal's discretion under section 331 of the Act had no bearing on the finding in relation to the amount of the rent arrears which constitute the debt owed by the tenant to the landlord.
14. The order for the payment of the arrears 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 $18,427.
15. 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