1. At the hearing, Ms Delamere, representing the landlord, told me that the agent had made a mistake in giving the tenants a notice to vacate under section 258. It was not the landlords' intention that they or family members or dependants move into the premises.

1. Ms Delamere told me a notice to vacate should instead have been served under section 259 of the RTA (premises to be sold). The tenants say in their application that the house was put up for sale after the first 6 monthly inspection, was kept in "spotless" condition during the sales inspections and sold for a "great" price.[1]

1. Section 259 provides, among other things, for the giving of a notice to vacate by a landlord to a tenant within 14 days of the landlord entering into an unconditional contract of sale of the rented premises, or in the case of a conditional contract of sale, within 14 days after the last of the conditions is satisfied.

1. Mr Magrath told me that as soon as the notice to vacate was received, he started to look for another place to rent. He said that because he has 5 children, he needs a house with 4 or 5 bedrooms, and such a house is "not easy to find".

1. On 17 November 2015, Mr Richard Kurz, the then director of the agent, together with a colleague, Ms Jenna Coward, and a bank valuer, attended the house for the purpose of a bank valuation. Mr Magrath says that after the bank valuer had left, Mr Kurz and Ms Coward asked whether they were looking to buy again (Mr Kurz had sold the tenants' home 5 years earlier). Mr Magrath says he told the agents that they were not, that they would be renting again in 2016, and that they were looking for another rental property (presumably to move into) once the current lease expired on 22 January 2016.

1. The tenants say "Both agents then clearly advised us and assured us that as a 60 day notice had been served to us we could rightfully as tenants give 14 days' written notice to leave when we had found a new property"[2].

1. On 18 November 2015 the tenants found new rental premises in Wheeler's Hill and notified Ms Lowry of the agent by email on the same day. In the email, Mr Magrath noted that they had just had an application accepted and wished to give 14 days' notice, and that the "last day" would be 2 December 2015. Mr Magrath noted also that rent was paid to 23 December 2015, as he had "double paid" the last month's rent by mistake. In an email in reply on the same day, Ms Lowry congratulated Mr Magrath on finding a new property and said she would speak to the landlord about refunding the overpaid rent.

1. At the hearing, Mr Clancy, representing the landlord, told me he has asked Mr Kurz (who has since left the agency) about his conversation with the tenants on 17 November 2015, and Mr Kurz said he advised the tenants that they "may be able to give 14 days' notice but I'm not sure". I prefer the sworn evidence of Mr Magrath on this issue to the hearsay evidence given by Mr Clancy, and I accept that the agent advised the tenants that they could vacate on giving 14 days' written notice.

1. The tenants moved into the new property on 23 November 2015. Mr Magrath told me that on the same day, Ms Lowry telephoned him and said that the advice they had been given about 14 days' notice was wrong, that they had broken their lease and owed 2 months' rent (to the end of the lease) and that the landlord would therefore keep the bond and the extra month's rent.

1. Mr Magrath told me that following this telephone call and because of the possibility of unexpected financial loss (ie loss of the bond and additional rent), he cancelled a much-needed family holiday that had been planned for December. He said both his wife and daughter had suffered serious health problems during the year, and "we had to re-plan our whole end of year." He told me the telephone call created turmoil, "incredible pressure" and caused great distress, and that his wife in particular suffered lots of stress and anxiety.

1. Mr Magrath told me that over the following few weeks, he emailed and telephoned the agent and requested that the bond and overpaid rent be returned to him but the agent refused to do so. He said the agent treated them "appallingly", despite their history of previous dealings. He said he approached the head office of Ray White[3] for assistance in resolving the issue but was advised to apply to the Tribunal when resolution could not be achieved.

1. As noted above, the bond was paid to the tenants on 24 December 2015 and the overpaid rent has been reimbursed to them.

1. The tenants sought legal advice from Mr Roy Stenning of Harding Stenning & Co Lawyers. Mr Stenning wrote to the agent on 11 January 2016 on behalf of the tenants claiming compensation of $10,000 and legal costs of $2420, and alleging that the notice to vacate was invalid, breach of sections 67 (quiet enjoyment) and 229 (offence to obtain possession etc of premises) of the RTA, breach of the tenancy agreement, breach of the Australian Consumer Law & Fair Trading Act 2012 (Vic) ("ACLFTA") and breaches by the agent of the Estate Agents (Professional Conduct) Regulations 2008 (Vic)("Estate Agents Regulations").

A landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement.

(1) A landlord or person acting on behalf of a landlord must not, except in accordance with this Act, require or compel or attempt to require or compel the tenant under the tenancy agreement to vacate the rented premises...

1. The tenants say that they moved to the new property in reliance upon the advice they were given by Mr Kurz and Ms Coward that they could vacate before 22 January 2016 provided they gave 14 days' written notice to do so. They say the agent and landlords (presumably in serving the notice to vacate and providing this incorrect advice) "effectively required and compelled" them to vacate the rented premises, in breach of section 229, and they allege a breach of section 67.[4]

1. A breach of section 229(1) is considered to amount to a breach of quiet enjoyment at common law and under section 67.[5]

1. At the hearing, Mr Magrath claimed that the tenants had been evicted illegally because the notice to vacate was invalid, the advice given by the agent on 17 November 2015 was wrong, and "the agents still haven't served the right notice to vacate." He said the tenants did not want to move and "shouldn't have had to move".

1. Mr Magrath later in the hearing agreed with Ms Delamere that "no-one said they must move in 14 days", but said he "didn't want to leave it to the last month" because a property with 4 or 5 bedrooms isn't easy to find. He told me this is why he started looking for a new place to rent as soon as the notice to vacate was received, and why he took the property in Wheeler's Hill that came up on 18 November 2015, observing that "when you have a large family, if something comes up in your price range, you have to take it." Mr Magrath said the family would have preferred to stay in Wantirna South, to be close to the children's school.

1. The items of compensation set out in Mr Stenning's letter are moving costs which total $2674, "compensation for new location" of $3000, and compensation for "stress and emotional distress" of $10,000. This gives a total of $15,764, but the claim is "limited to" $10,000 plus legal costs of $2420.

1. The moving costs consist of $400 (including $50 for petrol) for hiring a truck for 3 days (from 23 to 26 November 2015)[6], $1864 for loss of one week's wages by Mr and Mrs Magrath (time required to pack boxes and load and unload the truck), $280 (being the loss by Mr Magrath of net income for one day) for cleaning of the rented premises before vacating, and $220 paid for steam cleaning the carpets before vacating.[7]

1. Mr Magrath conceded that the tenants would have incurred moving costs had a valid notice to vacate been served and had they moved out (in response to such notice) on or around 22 January 2016. He did not provide any evidence upon which I could conclude that such costs are likely to have been less than those claimed.

1. The tenants claim $2700 for "extra travel time and car costs associated" for one year as "compensation for new location now further from work for Andrew and Karen and two older children's part time work and school for children."[8]

1. Mr Magrath told me that the family now lives 5 kilometres away from the children's school (which is in Wantirna South) whereas the rented premises were only 1 kilometre away. He said he drives the children to school and that because of the move to Wheeler's Hill, he drives an extra 10 kilometres on average per weekday.

1. Mr Magrath initially seemed uncertain as to how the figure of $2700 was calculated, but eventually said it assumes 2400 kilometres (extra 50 kilometres per week for 48 weeks) at $1.125 (2700/2400) per kilometre. He said that had the agent not wrongly advised him that they could leave before the termination date, he would have had "more time to look around", would not have been looking "under stress", and is more likely to have found a new rental property in Wantirna South, closer to the school.

1. The tenants claim $300 compensation for spending one day "renewing address details for banking, utilities etc and policies for insurance - car and home".[9] Mr Magrath told me his daily income is $280 for 8 hours work, and that he spent 10 - 12 hours renewing these details.

1. $10,000 is stated to be the value of the tenants' claim for "stress and emotional distress". As noted above, Mr Magrath says that after Ms Lowry called him on 23 November 2015 saying that they had broken the lease and owed two months' rent he cancelled a much needed family holiday, had to "re-plan our whole end of year" and great distress was caused with his wife in particular suffering stress and anxiety. The tenants say the agent was "aggressive in their attitudes and attempted to lay all the blame on us, refusing to negotiate or compromise". They say their numerous communications with the agent in an attempt to resolve the matter created "added unnecessary stress....."

1. Although the application was amended to be one for compensation for loss including loss due to the "inconvenience" of moving due to the notice to vacate, Mr Magrath did not give specific evidence of the "inconvenience" suffered. After noting that the bond and overpaid rent had been paid back, he told me the compensation he was seeking was for having to cancel the holiday and "re-plan our whole end of year", which had caused "emotional loss" but no financial loss. I accept that the events that occurred on the day the tenants moved out and in the ensuing weeks caused them significant distress and undoubtedly inconvenience - including having to cancel the holiday and replan the end of year, and trying to negotiate with the agent with respect to the bond and overpaid rent, and moving out in itself is an inconvenience, as is having to drive further to the children's school from Wheeler's Hill.

1. In a letter to Harding Stenning & Co dated 22 January 2016, Mr Michael Clements of Harris Carlson Lawyers, representing the agent, denied all the alleged breaches (including of sections 67 and 229 of the RTA) and denied that the tenants suffered any loss or damage as a result of the conduct of the agent or landlords.

1. Mr Clements observed that although the notice to vacate was inadvertently served under section 258(1) instead of section 259 of the RTA, the tenants were aware that the notice was served because the premises had been sold, and in any event, "the effect of the notice was the same, namely that your clients were provided with the requisite 60 days' notice to vacate the Premises on expiry of the lease."

1. Mr Clements went on to say that the landlord had offered the tenants the opportunity to vacate the premises before the expiry of the lease provided they gave 14 days' notice, "in the event they were able to find suitable alternative premises prior to the Expiry Date." He noted that the tenants were not obliged to vacate before the end of the lease, but had the option of doing so "at their discretion", and therefore there was no breach of sections 67 or 229 of the RTA or of the Regulations.

1. Mr Clements said most of the expenses claimed by the tenants "would have been incurred.....in the process of vacating the Premises on the Expiry Date irrespective of our client's or the Landlord's conduct."[10]

1. At the hearing, Ms Delamere conceded, and I find, that the notice to vacate was invalid, there being no intention on the part of the landlords that they or family members or dependants move into the rented premises. Ms Delamere essentially repeated the arguments made by Mr Clements in his letter dated 22 January 2015.

1. Ms Delamere pointed out also that the notice to vacate was sent 81 days before the termination date stated on the notice, and that there were (as at 12 February 2016) two 5-bedroom rental properties in Wantirna South on the agent's books. She argued, in effect, that there was ample time for the tenants to find an appropriate property between the time they received the notice to vacate (albeit it was served under the wrong section of the RTA) and the expiry of the 12 month lease on 22 January 2016.

1. Before considering the alleged breaches of the RTA, I will deal with the other alleged breaches.

ALLEGED BREACHES OF THE ACL&FTA AND OF THE ESTATE AGENTS REGULATIONS

1. As noted above, as well as claiming the landlords breached sections 67 and 229 of the RTA, in his letter to the agent dated 11 January 2016, Mr Stenning on behalf of the tenants also claimed breach of the ACL&FTA. Mr Stenning referred to various representations allegedly made by the agent to them - including on 17 November 2015 - that were "false, misleading and deceptive" and claimed that the agent's "action in this matter is unconscionable."[11]

1. The tenants have not, however, made an application to the Tribunal under the ACL&FTA. Whilst the various items set out in Mr Stenning's letter under the heading "Compensation Claim" total $15,764, as already noted the actual claim is stated to be limited to $10,000 plus costs of $2,420 and the application was amended accordingly on 27 January 2016. Had the tenants wished to pursue a claim for $15,764, they would have to have made an application under the ACL&FTA and paid the applicable fee, as the Tribunal's monetary jurisdiction under the RTA is limited to $10,000. I say nothing further about the ACL&FTA, no such application having been made.

1. Nor do I say anything further about the alleged breaches of the Estate Agents Regulations, such a matter not falling within the Tribunal's jurisdiction under the RTA. I turn now to the alleged breaches by the landlords of the RTA.

DID THE LANDLORDS BREACH SECTIONS 67 AND 229 OF THE RESIDENTIAL TENANCIES ACT?

1. If the tenancy agreement was terminated in accordance with the RTA, the landlords did not breach sections 67 and 229 of the RTA. Was the tenancy agreement terminated in accordance with the RTA?

1. Section 216 of the RTA provides:

Despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.

1. The provisions of the RTA referred to in section 216 are a complete statement of the way in which a tenancy agreement governed by the RTA can be terminated, and it is not legally possible to terminate a tenancy agreement governed by the RTA in any other way.[12]

1. Those provisions include section 219, which states:

A tenancy agreement terminates if the landlord or the tenant gives a notice to vacate or a notice of intention to vacate the rented premises under this Division and-

(a) The tenant vacates the rented premises on or after the termination date specified in the notice;.............

1. I have already found that the notice to vacate was invalid.

1. Although in this case the tenants gave the landlord a notice of intention to vacate - in the form of the email sent to the agent by Mr Magrath on 18 November 2015 - there is no provision in the RTA allowing for the giving of that notice in the circumstances in which it was given.

1. Section 237 of the RTA allows a tenant in a fixed term tenancy agreement to give a 14 day notice of intention to vacate (rather than the usual 28 day notice) if the tenant has been given a 60 day notice to vacate under various sections of the RTA - including sections 258 and 259. However, the termination date on the notice of intention to vacate must be on or after the end of the fixed term. In this case the termination date was 2 December 2016 ie before the end of the fixed term. So even if the notice to vacate given under section 258 had been valid, the tenant's notice of intention to vacate was not.

1. I find that there was no lawful termination under section 219.

1. The tenants handed back the keys on 1 December 2015 after moving out of the rented premises and the tenancy agreement undoubtedly came to an end at that time. Was the tenancy agreement terminated in accordance with some other section of the RTA?

A tenancy agreement may be terminated by agreement of the landlord and tenant.

1. I find that as a result of the conversation between Mr Kurz and Ms Coward and the tenants on 17 November 2015 described above, the tenancy agreement was terminated in accordance with section 217.

1. As already noted, there is no provision in the RTA permitting a tenant in a fixed term tenancy who has been given a 60 day notice to vacate to vacate the rented premises before the end of the fixed term by giving a 14 day notice of intention to vacate. In this respect, the advice given by Mr Kurz and Ms Coward on 17 November 2015 that the tenants could leave before 22 January 2016 on giving 14 days written notice was incorrect. However, it seems from Mr Magrath's evidence that on being given the notice to vacate, the tenants' initial plan was to vacate by (or on) the termination date of 22 January 2016; it is clear the landlords' intention was that the tenants vacate the rented premises at the end of the 12 months lease and it is clear the tenants were prepared to do so. Although they were advised by the agent that they could leave earlier, it is clear they understood that they could remain at the rented premises until 22 January 2016 if they wished to. It was the tenants' choice to move out earlier. They were not compelled to do so.
2. The landlords, through the agent, in effect reached an agreement with the tenants on 17 November 2015 that if the tenants wished to move out before 22 January 2016, they could do so without penalty on giving 14 days' written notice. The tenancy agreement terminated when the tenants moved out and handed back the keys, in accordance with this agreement.

1. I therefore find that the tenancy agreement was lawfully terminated by way of agreement between the landlords and the tenants, and there was no breach of sections 67 or 229 of the RTA, and I order that the application is dismissed.

1. I would make the same order even if I had found that the landlords breached those sections, on the basis that the tenants have failed to prove they have suffered compensable loss as a result of such breach. With respect to each of the items of compensation set out in Mr Stenning's letter, the tenants have failed to prove the alleged loss - essentially, they have failed to prove the alleged loss would not have been incurred had they moved out on or around 22 January 2016 (or within a few months after that date[13]) - and even if they had proved this, because it was their decision to move out earlier, they have failed to prove the alleged loss was the result of the alleged breach by the landlords.[14]

1. Also, with respect to the claim for compensation for "stress and emotional distress", the Tribunal does not have jurisdiction to make an order for such compensation[15] - another reason why I would not have made an order for such compensation even if I had found that the landlords had breached sections 67 and 229 of the RTA.

1. Similarly, even if I had found the landlords had breached those sections, I would not have made an order that they be compensated for "inconvenience". Although the Tribunal is not restricted to awarding compensation for pecuniary loss only[16] and has awarded compensation for "inconvenience" for breach of section 67 in unlawful eviction cases, the tenants here - unlike the tenants in those cases - were not compelled to leave[17] but chose to do so, and could have avoided being inconvenienced had they remained. Some of the inconvenience and stress experienced by the tenants may well have been avoided had they not been advised by the agent that they could move out early.[18] Similarly, however, such inconvenience and stress is also likely to have been avoided had the tenants not chosen to move out when they did.

1. In any event, I have found that the tenancy agreement was terminated in accordance with the RTA. There was no breach by the landlords of the RTA.

1. For the above reasons, I order that the application is dismissed.

[1] It is reported as having sold on 17 August 2015 for $1.312 million on realestate.com.au

[2] From document provided by the tenants and received by the Tribunal on 22 December 2015.

[3] The business name of Wantirna Realty Pty Ltd is "Ray White Wantirna"

[4] Letter dated 11 January 2016 from Harding Stenning & Co Lawyers to The Directors Ray White Wantirna.

[5] Annotated Residential Tenancies Act, by John Billings, Jacquellyn Kefford, Alan Vassie and Heather Barker, at [67.02].

[6] Evidence of payment of $349.37 for hiring the truck was provided

[8] Letter dated 11 January 2016 from Harding Stenning & Co to Ray White Wantirna

[9] Letter dated 11 January 2016 from Harding Stenning & Co to Ray White Wantirna

[10] Letter dated 22 January 2016 from Mr Michael Clements to Harding Stenning & Co Lawyers

[11] Letter dated 11 January 2016 from Harding Stenning & Co Lawyers to Ray White Wantirna.

[12] Annotated Residential Tenancies Act, J Billings, J Kefford, A Vassie, H Barker at [216.01]

[13] I suspect the tenants did not become aware the notice to vacate was invalid until the Tribunal hearing on 22 December 2015. I suspect also that had the landlords/agent become aware before that date that the incorrect notice to vacate had been sent, a notice to vacate under section 259 would have been given to the tenants and depending upon when the error was discovered, the termination date on this notice may have been a date in February or March 2016 as section 259, like section 258, requires that the notice specify a termination date that is not less than 60 days after the date on which the notice is given.

[14] It could also be said that the tenants could have avoided the alleged loss by not moving out when they did ie that they failed to mitigate their loss

[15] Section 447(2) of the RTA provides that the Tribunal must not "make a compensation or compliance order requiring the payment of money as a consequence of death, physical injury or pain and suffering."

[16] Reardon v Ministry of Housing, unreported, Supreme Court of Victoria, Smith J, 13 November 1002

[17] In EL v EL (Residential Tenancies) [2006] VCAT 2049 the tenants were handed an eviction notice by someone from the sheriff's office which stated that they would be evicted unless they vacated within the next 4 days; in Awwad v Patel (Residential Tenancies) [2015] VCAT 1016 the landlord changed the locks to the rented premises (and the Wifi password) and on the following day told the tenants they had to leave by midday on the next day.

[18] They would not have avoided the inconvenience associated with moving from one house to another, and they did not satisfy me on the balance of probabilities that they would have found a new rental property in Wantirna South thereby avoiding the inconvenience of being further away from the school and their workplaces