In person and with the assistance of Mr B Pearce, Welfare Officer

1. Mr S. lived at premises in Victoria, pursuant to a residential tenancy agreement with the respondent, his landlord, the Director of Housing (the Director).
2. Mr S. lived at these premises for over 29 years. He vacated these premises on 27 September 2009.
3. The building was described as duplex. A brick plastered party wall separates two adjoining premises.
4. In April 2007, Mr and Mrs H, moved into the adjoining premises.
5. Mr and Mrs H have a residential tenancy agreement with, and are tenants of, the Director.

1. Mr S alleges that Mr H has a disability and is by reason of that disability, unable or unwilling to abide by the provisions of the Residential Tenancies Act 1997 (the Act).
2. Mr S further alleges that the Director was aware of Mr H's disability and his general behaviour when the Director placed Mr and Mrs H in the adjoining premises in 2007.
3. Mr S alleges that because of the placement of Mr and Mrs H in the adjoining premises the Director has knowingly breached Mr S's right to the quiet enjoyment of his premises.
4. Further, Mr S alleges that the Director, again in breach of Mr S's right to the quiet enjoyment of his premises, has failed to respond or adequately respond to Mr S's complaints about the behaviour of Mr H.
5. Finally, it is alleged that contrary to the provisions of the Act, the Director used the difficulties Mr S had with Mr H as a leverage to remove Mr S from his premises.
6. Mr S seeks compensation of $5,000.00 from the Director.

1. Neither Mr S nor his welfare officer/advocate, Mr Pearce, is a legal practitioner. In completing the application, Mr S does not refer to a particular section of the Act under which he claims compensation.
2. On the other hand, when completing the Notice, Mr S specifically refers to section 67 of the Act and makes the specific allegation that Mr S has been denied quiet enjoyment of the premises.
3. Section 67 of the Act provides, "A landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement."
4. The significance of the specific allegation made by Mr S is that the allegation of a breach of duty isolates the claim from the more general compensation provision, section 210. Section 210 does not apply to a failure by a party to comply with their duties, where the duty is under a duty provision[1]. The duty provisions as defined by section 207, are contained within Part 2, Division 5 of the Act and include section 67.
5. The Act sets out the regime for compensation where a breach of duty is alleged. This regime was recently considered by His Honour Justice Cavanough[2]; 'The combined effect of ss 67, 207, 208, 209, 210 and 212 of the RTA is that an alleged breach of s 67 cannot be the subject of complaint or compensation in the Tribunal unless and until the complainant has given to the other party a "breach of duty notice" under s 208, being a notice requiring the other party, within 14 days, to remedy the breach if possible or to compensate the complainant, and the complainant has waited the requisite 14 days. Section 209 provides that, if a breach of duty notice is not complied with, the person who gave it may apply to the Tribunal for a compensation order or a compliance order.'
6. The parties agree that an undated Notice of Breach of Duty (the Notice) was served upon the Director on 21 July 2009.
7. Mr S commenced these proceedings by way of an application (the application) to the Victorian Civil and Administrative Tribunal (the Tribunal) dated 13 August 2009. Attached to the application is the Notice.
8. In accordance with the usual Tribunal procedure, a representative of the Tribunal has added "210", to the area of the application, marked 'Office use only; Act section/s'. I am familiar with this step. I understand it to be an administrative step that assists the representatives of the Tribunal in listing the hearing for an appropriate time. Because of this step, all future Tribunal orders carry a reference to section 210. I do not see the inclusion of 210 in these circumstances as binding Mr S's application to that particular section of the Act.
9. Subsequent to the filing of the application, Mr Pearce wrote to the Tribunal requesting that the heading of all documentation be altered from s 210 to s 209. I understand that Mr Pearce made the request because of comments of His Honour in the above-mentioned decision of Director of Housing v Andrews[3]. No such amendment has occurred but as indicated, I do not propose to limit Mr S's application, simply because of an administrative step taken by the Tribunal.
10. However, it is clear by virtue of the Notice and the details contained within that document, that Mr S is seeking compensation pursuant to section 209 of the Act. Section 209 of the Act provides; If a breach of duty notice is not complied with, the person who gave it may apply to the Tribunal for a compensation order or a compliance order.
11. As such, Mr S is required to satisfy the Tribunal that he was entitled to give the Notice and that the Director has failed to comply with the Notice[4].
12. The duty owed by the Director is to take reasonable steps to ensure that Mr S has quiet enjoyment of his rented premises[5].
13. In his submissions of 14 September 2009 and 25 November 2009, Mr S says that there are two breaches of the duty. First, by moving Mr and Mrs H into the adjourning premises when the Director knew or ought to have known that Mr H was a person who was unwilling or unable to comply with the terms of the Act. Second, that the Director has failed to respond, or adequately respond, to complaints made by Mr S about Mr H.
14. As detailed by his Honour above, it is a critical part of the regime for compensation that a landlord, in this case, the Director, has failed to comply with the allegations within the 14 day time period provided. This is critical because the regime is one that contemplates the opportunity for the landlord to correct the problem - to comply with the alleged breach.
15. On the Notice itself, appear the printed words; Reason for breach of duty notice 10 I believe you have breached your duty as a landlord because (write the section number and words from the opposite page). In the appropriate area, Mr S has inserted, Sect 67 Not allowed quiet enjoyment of the premises by maintaining a tenancy for Mr & Mrs H... at .........knowing they are unable or unwilling to abide by the RTA.
16. In the next section of the Notice, appear the printed words; 11 The loss or damage caused is. In the appropriate area, Mr S has inserted, Loss of Privacy. Loss of Peace. Loss of Comfort. Loss of Security of Tenure of my Premises. Financial Cost Repairing Vandalism and responding to legal orders issued by Mr H....
17. The application itself is much more expansive. After the printed words; The application is for:, Mr S has inserted, Compensation Breach of Duty Compensation of $5.000-.
18. After the printed words; More details about the application are;, Mr S has inserted, By accepting and maintaining a tenancy for ......H......the Director of Housing has knowingly breached my quiet enjoyment of my property. The H......'s have destroyed my letter box on 11/8/2009 and abused me on the same day. This abuse has been happening for 2 years and the Director has been aware of this.
19. Within the Notice, Mr S clearly gives the Director notice that she is in breach because of the placement of Mr H in the adjoining premises. The question is whether, within the Notice, Mr S has given the Director notice that she is in breach by failing to respond or adequately respond to Mr S's complaints about Mr H? Arguably, Mr S has not and if that is so, the Director has not been given an opportunity to comply with the Notice, and no claim for compensation on that count can follow.
20. Interestingly, the Director does not take this point. This may well be because the Director has been well aware of Mr S's complaints. Indeed, the Director says that she has taken all reasonable steps to respond to Mr S's complaints. Considering all relevant matters, I proposed to treat Mr S's complaints as forming part of his Notice and part of his application for compensation.
21. On the other hand, the Director does make the point that a duty provision relates to rented premises[6] and Mr S is no longer a tenant at these rented premises. The Director submits that Mr S no longer has standing to bring this claim.
22. I am satisfied that Mr S was a tenant at the relevant premises at the time he served the Notice and made the application. If he is right in his claims, he suffered his loss whilst a tenant of the rented premises. The fact he has since moved should not deprive him of a right to claim now. I am not satisfied that anything within the Act should encourage me to take a different view.
23. Determination of this matter requires a consideration of the concepts of "quiet enjoyment" and "reasonable steps".
24. The authorities would suggest that quiet enjoyment is not 'necessarily' enjoyment of the premises free of noise, but rather a right to possession of premises without interference from a landlord during the currency of the tenancy[7].
25. This raises the issue of whether this type of breach claim is confined to an allegation of activities of the landlord, rather than another tenant of the landlord. For reasons that are stated further, I do not intend to elaborate on this issue.
26. All reasonable steps have been determined to be a matter of fact, after taking into account all of the circumstances[8] and must be considered objectively rather than just through the eyes of the parties,[9] A useful consideration is, what steps could the Director have taken, but did not take?[10].
27. The final aspect of Mr S's claim relates to the allegation that the Director, contrary to the Act, has used Mr S's difficulties with Mr H as a lever to remove Mr S from his rented premises.
28. There is no specific duty provision, under the Act, alleged. The claim is general and relates to an allegation that the Director has failed to comply with its general duties under the Act. In this regard, s 210 is the applicable provision.
29. Section 210 of the Act provides;

(1) A party to a tenancy agreement may apply to the Tribunal for an order for payment to the

Applicant by the other party to the tenancy agreement of compensation for loss or damage

(a) the other party failed to comply with the tenancy agreement or that party's duties under

(b) the applicant has paid to the other party more than the applicant is required to pay in

(2) This section does not apply to a duty under a duty provision or section 66.

1. The issue of compensation for the Director using Mr S's difficulties with Mr H as a leverage to remove Mr S from his premises is not contained within the application to the Tribunal. This issue arises in Mr S's submissions dated 14 September and 25 November 2009.
2. There is no objection from the Director, alleging that this aspect of the claim is not included in the application. The Director does not claim that this issue has caught her by surprise. The Director submits that Mr S's claim is confined to section 209 and for an order pursuant to s 212(1) of the Act and therefore this aspect of the claim cannot be contemplated.
3. Mr S says that if the Director wanted to remove him from his premises because the Director intended to demolish and upgrade the area, there are specific sections under the Act to do so. Mr S says that by taking an alternate course, the Director has failed to comply with the Act and he is entitled to compensation.
4. Mr S's allegation does not involve a duty provision. Section 210 of the Act is the relevant section relating to his claim for compensation. I have already said that I will not limit the sections upon which he can rely simply because of his lack of legal qualifications.
5. I propose to deal with this issue on its merits.
6. Section 256 of the Act provides;

(1) A landlord may give a tenant a notice to vacate rented premises if-

(i) in the case of a building owned by a landlord containing 5 or more

rented premises, immediately after the last tenant vacates; or

(ii) in any other case, immediately after the termination date; and

(b) the landlord has obtained all necessary permits and consents to

(2) The notice must specify a termination date that is not less than 60 days after the date on

1. If a tenant does not give up vacant possession of the premises after service of the relevant notice and after the termination date, the landlord may apply to the Tribunal for possession of the premises[11].

1. The first part of Mr S's claim and the first significant point of contention between the parties is the question of what knowledge the Director had, or ought to have had, of Mr H when the Director moved him to the adjoining premises in April 2007.
2. Mr S says Mr H was involved in legal proceedings before the anti discrimination list of the Tribunal[12] immediately before he moved to the adjoining premises. Mr S says that a report of these proceedings was included in the local paper. The Director does not challenge these statements.
3. Mr S says that the transcript of these proceedings make it clear that Mr H is unwilling and unable to comply with the provisions of the Act. The Director challenges the efficacy of using the previous Tribunal decision to reach the conclusion, proffered by Mr S. I agree with the Director.
4. There were different issues and considerations involved with the previous Tribunal hearing. The witnesses faced different questions and the Tribunal looked at different conclusions. I am satisfied that the decision in the earlier Tribunal matter provides little or no conclusive substance for the present proceedings.
5. In addition, the Director says that she was not aware of the earlier Tribunal decision at the time Mr and Mrs H were moved into the adjoining premises. Mr S says that the Director at least ought to have been aware as the previous Tribunal hearing involved staff within the Department of Human Services. The Director is part of this Department.
6. Even if the earlier Tribunal decision could be regard as useful, Mr S did not present any evidence that confirms that the Director had actual knowledge of the earlier decision. There are thousands and thousands of clients of both the Department and the Director. The submissions of Mr S do not satisfy me that the Director should have been able to see though this maze to identify the case involving Mr. H. I am also not satisfied the fact there was a local newspaper article takes me any closer to that conclusion.
7. Mr S says that Mr H was moved, as he was trouble and needed to be housed elsewhere. This is purely speculation on Mr S's part, based on the content of the earlier Tribunal decision. The speculation is not supported by the facts.
8. Mr Edward Farnsworth, Mr H's Housing Services Officer gave evidence to the effect that the Director did not have knowledge of allegations of prior poor behaviour or unwillingness or inability of Mr H to comply with the Act. I accept this evidence.
9. Mr Farnsworth gave evidence to the effect that Mr H was moved in April 2007 for his own safety. I accept this evidence.
10. Correspondence from two community support groups, supports a move for Mr and Mrs H on the basis that they were concerned for their own safety at their previous residence. I accept this evidence.
11. The parties agree that there has been extensive communications and incidents surrounding the relationship between Mr S and Mr H since Mr H moved into the adjoining premises and from approximately February 2008. Two sets of submissions from both Mr S and the Director document the communications and incidents.
12. The second part of Mr S's claim and the second major point of contention, is the Director's response to Mr S's complaints.
13. The difficulties between Mr S and Mr H have not been confined to matters strictly under the Act. There are intervention orders taken out by Mr H and hearings held, within the Magistrates Court. The local police are very familiar with the saga and attended at the premises on many occasions.
14. The difficulties include, property damage, abuse, both physical threats and threats to property, loud noise, music, intimidation and banging on walls and doors.
15. Mr S says that in most cases Mr H is the aggressor and his account of events cannot be relied upon. Mr S concedes that he may have retaliated on one occasion but that he saw this as fair as he had been pushed to the limit by Mr H and that his response was reasonable and appropriate in the circumstances.
16. Mr H did not give evidence.
17. The Director, through the Department of Justice, arranged a mediation at the Magistrates Court in April 2008. Mr S says that Mr H did not effectively participate in this process, but the fact is that the Director arranged a mediation. Regrettably, it failed.
18. Concerning the intervention orders, I note the evidence of the Director that in November 2008 one of the intervention order applications was resolved with Mr S entering into terms. I am not aware of the precise terms. A further intervention order lodged by Mr H was withdrawn.
19. Mr H lodged numerous complaints relating to Mr S and Mr S lodged numerous complaints relating to Mr H. The Director, in response to complaints made by Mr S, served Mr H with breach of duty notices dated 29 October 2008, 22 July 2009 and 14 August 2009.
20. In response to complaints made by Mr H, the Director served Mr S with Breach of Duty Notices dated 8 October 2008 and 14 August 2009.
21. Mr H served the Director with a Breach of Duty Notice dated 31 July 2009.
22. Mr Farnsworth referred Mr H to the SHASP program. This is a voluntary community access program that assists tenants with special needs. Unfortunately, Mr H disengaged from the program.
23. Mr Farnsworth also gave evidence that whenever a complaint was made, it was investigated and where action was appropriate, it was taken. In this regard, I was given a copy of the Directors policy document - Tenancy Breaches & Dispute Resolution, May 2008. This is an extensive document that is designed to provide assistance to Housing Officers when they face difficult situations.
24. Mr Bradley McDowell, one of two housing services officers dedicated to Mr S's premises, conceded that because of the ongoing and extensive nature of the dispute, not all complaints were subject to a new or fresh investigation. He said that most investigations produced the result of all parties denying everything. However, he did confirm that all complaints were included as part of the ongoing investigation and action was taken in each case
25. Each Housing Officer who appeared at the hearing confirmed with Mr Pearce that they had training in dealing with difficult situations.
26. The Director attempted to arrange mediation between the parties on three occasions. Not surprisingly, Mr S refused, as the previous mediation in the Magistrates Court had failed, because of what Mr S saw as Mr H's refusal to cooperate.
27. The evidence of each of the Housing Officers was that they tried to work with the parties with a view to resolution. Working with the parties included, listening to the complaints, investigating complaints, issuing breach notices where appropriate, attempting to arrange mediation, working with Mr H's social worker, disability worker and the various Housing Officers applicable to both Mr H and Mr S.
28. The final part of Mr S's claim is Mr S's allegation that the Director used Mr S's dispute with Mr H as a leverage to remove him from his property
29. The evidence from the Director is that she intended to demolish both premises and build upgraded premises. There is no evidence that the Director had obtained the necessary permits to carry out this work.
30. Mr S submits that if it was the intention of the Director to carry out the demolition then the director should have obtained the necessary permits and then proceeded in accordance with section 256, as referred to above.
31. Mr S says that rather than proceeding in this fashion, the Director used his difficulties with Mr H as a lever to remove Mr S from the premises. The contention is based upon Mr S's desire not to move from his premises. Premises he had been a resident of for 29 years.
32. Again, this is simply speculation on the part of Mr S.
33. The evidence of the Housing Project Officer, Ms Lesley Wrzuszczak, is that she had conducted a state wide audit and that the premises in question were to be demolished consistent with an asset renewal program.
34. Ms Wrzuszczak gave details of a program under which the Director works with her tenants to find alternate accommodation and a program where the tenant may be able to return to the premises once they are rebuilt.
35. Ms Wrzuszczak agreed that Mr S had told her of his problems with Mr H and that she had suggested he take advantage of the properties that are available under the demolition program. Mr S suggested that this was the Director using the demolition program to solve the problem Mr S had with Mr H. Ms Wrzuszczak denied this suggestion.
36. Ms Wrzuszczak confirmed that her role was to work with tenants to find alternate accommodation where their premises are to be demolished. She denied that there was any plan to resolve a different problem as part of a separate solution. Ms Wrzuszczak agreed that there were procedures under the Act to force a tenant to move but that the Director preferred to work with her tenants in these circumstances, rather than impose herself on her tenants.
37. Mr S questioned the concept of the Director working with her tenants. Mr S saw it more as a David verses Goliath unbalanced contest. If it is such a contest, I cannot see how using the Tribunal to force a tenant to move makes it any less an unbalanced contest. If the Director is within her rights to obtain possession, on the basis of demolition, the presence of the independent Tribunal only serves to ensure that the Director acts legally. As a Member of the Residential Tenancy List of the Tribunal my own experience is that I prefer to see landlords acting both fairly and legally. Genuinely working with a tenant, appeals to me as a very fair approach.

1. I am satisfied that when Mr and Mrs H moved to the adjoining premises, the Director had no knowledge of any troubling behaviour or an inability or unwillingness of Mr and Mrs H to comply with the Act. In those circumstances, I am not satisfied that the Director failed to take all reasonable steps, to ensure Mr S's quiet enjoyment of the premises.
2. In the words of Senior Member Vassie[13], what could the Director have done that it failed to do? Any suggestion that the Director must carry out a background check of all potential tenants and search all prior Tribunal decisions is disproportionate and unreasonable.
3. The first aspect of Mr S's claim therefore fails and is dismissed.
4. I pause to comment on submissions Mr Pearce made on Mr S' behalf about Mr H's alleged incapacity, the Director's obligations to Mr S (when considering Mr H's alleged incapacity) and where to house Mr H.
5. Many of the submissions were outrageous and misconceived. Having made the first finding above, I will not analyse each of the submissions. However, while I am satisfied that Mr S has had a difficult and stressful period, any suggestion that Mr H, or for that matter Mr S, is not entitled to adequate housing or that he should be discriminated against, is plainly wrong.
6. Having made those comments I believe it is also necessary for me to say that I accept Mr S's statement that he did not blame Mr H for events. Mr S says he regarded Mr H as being mentally ill and in need of care, not punishment. Given what Mr S has been through, I regarded this as a generous and balance attitude towards events.
7. The Director encourages me to regard this whole episode as a personal dispute between Mr S and Mr H. I regard the problem as greater than that. However, that is not the issue. The issue is whether the Director took all reasonable steps as required by the Act.
8. The evidence details the action taken by the Director. Based on that evidence I am satisfied that the Director has taken all reasonable steps to ensure that Mr S had quiet enjoyment of his rented premises during the tenancy agreement.
9. The second aspect of Mr S's claim is dismissed.
10. I am satisfied that the Director took reasonable steps in respect to all matters

95.For this reason I do not propose to further cover the question of whether a Section 67 breach is confined to the actions of the landlord rather than the actions of another tenant.

96.Finally, I accept the evidence of the Director that it is proposed that the premises be demolished. However, I am not satisfied that the absence of any permits held by the Director should prevent the Director from seeking to assist tenants to move, pending the proposed demolition.

97.I prefer the option of a landlord working with its tenants rather than simply applying a strict adherence to the relevant provisions of the Act. Strict adherence to the Act may have the result of summarily forcing a tenant to move. I am satisfied that the Director was completely upfront with Mr S concerning her motives and that there was no attempt to deceive Mr S or to move him for an alternate reason. In the circumstances, I see nothing in the Act that prevents a landlord from taking the former course rather than the latter.

98.Section 229 of the Act provides that it is an offence for a landlord to require or compel or attempt to compel a tenant to vacate premises except in accordance with the Act. I do not regard, working with a tenant as being requiring or compelling or attempting to compel. There is no evidence of Mr S being required or compelled to do anything.

99.I accept the evidence of the Director that Mr S's move was related to the proposed demolition of his premises rather than his difficulties with Mr H and that the Director worked with Mr S rather than required, compelled or attempted to compel him.

100.Mr S's third aspect of his claim therefore fails and is dismissed.

[2] Director of Housing v Andrew [2009] VSC 441, 32-38.

[8] Re Taylor v Commonwealth of Australia (1988) 15 ALD 393 at para 33.

[9] Department of Health v Multichem Laboratories Ltd [1987] 1 NZLR 334.

[10] AA v Ron Tribe & Associates Pty Ltd [2008] VCAT 586.

[12] H...v K......(citation removed).

[13] AA v Ron Tribe & Associates Pty Ltd (Civil Claims) [2008] VCAT 586.