1. The renter brought this application on 7 July 2024. In his application, the renter alleges that the notices did not comply with s 44(3) of the Act and are, therefore, invalid.[1] Pursuant to s 44(3)(b) of the Act, as in force on 7 July 2024, a method of calculation must be provided in a notice of proposed rent increase ('calculation requirement').
2. The renter alleges that the first notice did not contain such a method so was invalid. The renter alleges that the second notice was, as a consequence, also invalid because the "current rent amount" incorrectly referred to the allegedly invalid rent amount referred to in the first notice.
3. The application does not allege that the rent rises set out in the notices were excessive.
4. The renter's application appears to be put on the basis that the version of s 44 of the Act in force at the time of his application (or alternatively, at the time of the notices being issued, or now) was the provision that the residential rental provider was required by law to comply with. The application does not specifically refer to the issue of which version of the Act is relied upon, but it is clear enough that, at minimum, the renter relies upon a post-28 March 2021 version of s 44.
5. In determining this application, the Tribunal is required to make a finding as to which version of s 44 was operable in respect of the notices. That involves consideration of the transitional provisions set out in Division 5 of Schedule 1, to the Act.

1. When the rental agreement was signed on 10 November 2018, s 44 of the Act provided:
   1. How much notice of rent increase is required?

(1) A landlord must give a tenant at least 60 days notice in the prescribed form of a proposed rent increase.

(2) A notice of a proposed rent increase under subsection (1) may only provide for one rent increase.

(3) The notice of a proposed rent increase must include a statement informing the tenant of the tenant's right under section 45 to apply within 30 days after the notice is given to the Director to investigate and report on the proposed rent.

(4) A landlord under a fixed term tenancy agreement must not increase the rent before the term ends unless the agreement provides for a rent increase within the fixed term.

(4A) A landlord must not increase the rent payable under a tenancy agreement at intervals of less than 6 months.

(5) A rent increase in contravention of this section is invalid.[2]

1. At that time, s 44 contained very minimal requirements and, relevantly to this application, no calculation requirement.
2. Section 44 remained in substantially this form up to and including 28 March 2021.[3]
3. On and from 29 March 2021, a wide-ranging set of amendments to the Act commenced pursuant to the Residential Tenancies Amendment Act 2018 No. 45/2018 ('Amending Act'), including a substituted version of s 44(3) containing the calculation requirement.[4]
4. The new version of s 44 provided (emphasis added):
   1. Rent increases

(1) A residential rental provider must give a renter at least 60 days notice in the prescribed form of a proposed rent increase.

(2) A notice of a proposed rent increase under subsection (1) may only provide for one rent increase.

(3) The notice of a proposed rent increase must include -

(a) the amount of the rent increase; and

(b) the method by which the rent increase was calculated; and

(c) a statement informing the renter of the renter's right under section 45 to apply within 30 days after the notice is given to the Director to investigate and report on the proposed rent.

(4) A residential rental provider under a fixed term residential rental agreement must not increase the rent before the term ends unless the agreement -

(a) provides for a rent increase within the fixed term of a specified amount and the increase is not more than that amount; or

(b) specifies the method by which a rent increase within the fixed term is to be calculated and the increase is not more than an amount calculated using the specified method.

(4A) A residential rental provider must not increase the rent payable under a residential rental agreement at intervals of less than 12 months.

(4B) For the purposes of this section, rent is not increased merely because -

(a) a rental rebate is applied, adjusted or cancelled under a residential rental agreement where the residential rental provider is the Director of Housing or a registered agency; and

(b) the application, adjustment or cancellation of that rental rebate caused an increase in the amount payable by the renter under that residential rental agreement.

(5) A rent increase in contravention of this section is invalid. [5]

21 The endnotes to the Act describe the commencement information in respect of the Amending Act, the relevant amending clause commencing on 29 March 2021.[6] Division 5 of Schedule 1 to the Act sets out detailed transitional provisions[7] specifically in respect of the Amending Act. Relevantly, item 16 provides, as follows (emphasis added):

(1) The amendments made to sections 17, 19, 26, 26A, 27, 27A, 30, 36, 37, 38, 39, 40, 41, 42, 43, 44, 49, 50, 66 by the Residential Tenancies Amendment Act 2018 do not apply to -

(a) a fixed term tenancy agreement entered into before the commencement of the applicable amendment until that agreement is terminated; and

(b) a periodic tenancy agreement that commenced before the commencement of the applicable amendment until that agreement is terminated.

(2) Sections 17, 19, 26, 26A, 27, 27A, 30, 36, 37, 38, 39, 40, 41, 42, 43, 44, 49, 50 and 66 as in force immediately before the applicable amendment by the Residential Tenancies Amendment Act 2018 continue to apply to -

(a) a fixed term tenancy agreement entered into before the commencement of that amendment until the end of that agreement; and

(b) a periodic tenancy agreement that commenced before the commencement of that amendment until the end of that agreement.

(3) Sections 3A, 27B, 27C, Divisions 1A, 1B and 1C of Part 2 and sections 35A and 65A, as inserted by the Residential Tenancies Amendment Act 2018, do not apply to a fixed term tenancy agreement or a periodic tenancy agreement referred to in subclause (1).

22 Regulation 21 of the Residential Tenancies Regulations 2021 (Vic) also relevantly provides: ('Regulations')

For the purposes of section 44(1) of the Act, the prescribed form is Form 5 in Schedule 1. [of the Regulations]

1. The relevant notices in this case were issued by the residential rental provider on the forms prescribed by the Act which contained line items that reflect the calculation requirement.
2. It could be argued that, by requiring the prescribed form to be used (which contains line items including a calculation requirement consistent with s 44(3)(b)), r 21 requires a residential rental provider to comply with the calculation requirement.
3. Alternatively, it could be argued that by virtue of the transitional provisions, the pre-29 March 2021 version of s 44 applies, and there is no necessity to include a calculation requirement in a proposed notice of rent increase.

1. To date, there has been no decision of the Tribunal, nor of the Supreme Court, conclusively determining the effect of the transitional provisions on notices of proposed rent increase issued on or after 29 March 2021 in relation to a rental agreement that commenced before that date.[8]
2. There are a number of Tribunal decisions dealing with other amendments to the Act which were made by the Amending Act and which also commenced on 29 March 2021, including in respect of the applicability of the rental minimum standards (under s 65A of the Act) to rental agreements that commenced before 29 March 2021. It is unnecessary to chart all such decisions, but the Tribunal notes the written decision of Acting Senior Member Treble[9] and the decision of Deputy President Warren.[10] Both decisions found that s 65A did not apply to pre-commencement rental agreements. The decision of Deputy President Warren was appealed by the applicant to the Supreme Court and then to the Victorian Court of Appeal, the appeals being dismissed by both courts.[11]
3. In the renter's submissions, he referred to a number of previous written decisions of the Tribunal in respect of s 44(3)(b) of the Act and the calculation requirement, including:

(a) Asif v Jan Ding Property Pty Ltd [2023] VCAT 1042;

(b) Boyce v Mariella Nominees Pty Ltd [2023] VCAT 89;

(c) Kennedy v Pan [2023] VCAT 529 ('Kennedy'); and

(d) Maurer v Sia [2024] VCAT 571.

1. In respect of at least one of the above decisions (Kennedy), a review of the written decision suggests that a rental agreement relevant to the claim was signed before calculating requirement set out in the Amending Act took effect. It is not clear from that decision whether some later rental agreement was signed, whether that would have changed the legal position and/or what regard the Tribunal had to such matters, nor what the position of the parties was.
2. The Tribunal is not bound by its own decisions so it is unnecessary for the Tribunal to delve further into whether some other approach may have been adopted by a differently composed Tribunal.

1. The renter's application is predicated on the assumption that the calculation requirement set out in s 44(3)(b) applied in respect of the notices of proposed rent increase. The residential rental provider's written submissions, though generally disputing the claim, did not assert that some other version of s 44 applied to the notices. Irrespective of this, the Tribunal is legally obliged to identify and apply the applicable law.
2. The combined effect of items 16(1) and (2) is that the version of the Act in force immediately before the relevant provisions of the Amending Act commenced is the version of the Act that governs rent-rises in respect of this rental agreement.[12]
3. The Act does not appear to confer the Governor with the power to make regulations inconsistent with the Act (ie a so-called Henry VIII clause).[13] On this basis and in any event, the Tribunal will not construe r 21 and form 5 of Schedule 1 to the Regulations so as to prevail over the clear words of item 16 of Division 5 of Schedule 1 to the Act.
4. The applicable version of s 44 for the purpose of this application does not contain any calculation requirement, meaning that the first notice was not invalid. It flows from this that the second notice was also not invalid.
5. On this basis, the application is dismissed.

[1] The renter's application alleges that the first notice "did not comply with s 44(2)... lacking adequate detail on the method of calculation for the new rent" and alleged the second notice was, as a consequence, also invalid. This reference to s 44(2) appears to be in error, s 44(3) being the relevant subsection containing the requirement for a method of calculation.

[2] Authorised version 083 of the Act (incorporating amendments as at 25 November 2017).

[3] Authorised version 097 (incorporating amendments as at 28 March 2021) was the final version of the Act in force prior to 29 March 2021. The version of s 44 of the Act in force at that point had been amended in one small way - the period referred to in (4A) had been amended from "6 months" to "12 months". The version in force immediately before that, authorised version 096 (incorporating amendments as at 10 March 2021), was identical in respect of s 44.

[4] Authorised version 098 of the Act (Authorised Version incorporating amendments as at 29 March 2021). A small number of amendments in the Amending Act, which are irrelevant to this proceeding, did not commence on that date.

[5] Section 44 has been slightly amended since 29 March 2021, but not in a way material to this application (Section 44(4B) was amended slightly). The current version of the Act is authorised version 109 (incorporating amendments as at 18 September 2024).

[6] The calculation requirement was substituted pursuant to s 34(3) of the Amending Act.

[7] Including to the effect that changes in legislative terminology (eg "residential rental agreement" vs tenancy agreement") do not invalidate an agreement, however described.

[8] The issue was briefly considered in the case of Barratt v Liu [2024] VCAT 165, but ultimately, in that case, the Tribunal found that a post-29 March 2021 rental agreement had been signed ([5]-[11]). The Tribunal took the view that this meant that the calculation requirement was operable.

[9] Niblett v Broadbent [2023] VCAT 1236, [10], [13], [19] and [21].

[10] Sharpe v Anderson [2024] VCAT 375, [61]. This was a possession application in which the renter attempted to raise the rental minimum standards, among other things, by way of defence to her not paying rent, but not as a part of any renter claim for compensation This decision also considered allegations of invalid rent-rises but did not find them proven for reasons other than those considered in this matter (the issue of the commencement of the Amending Act not being raised in respect of the calculation requirement) (see [27]-[37]).

[11] Anderson v Sharpe (No 2) [2024] VSC 279 and Anderson v Sharp [2024] VSCA 166.

[12] Even in the absence of item 16, the presumption against retrospectivity may have led the Tribunal to form the view that Parliament did not intend the calculation requirement to apply to a rental agreement signed prior to 29 March 2021. This presumption is the subject of myriad decisions, including Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (per Dixon CJ).

[13] See s 511 of the Act which empowers the Governor in Council to make regulations under the Act, including prescribing forms.