1. There is a complex history to these proceedings, briefly summarised as follows.
2. On 1 August 2023, Mr Myers lodged an application to the Tribunal under section 91V of the RT Act. Section 91V is headed 'Application for termination or new residential rental agreement because of family violence or personal violence'. At the time of My Myers application there was no personal safety intervention order (PSIO) in effect between Mr Myers and Mr Satheeskumar.
3. On 10 August 2023, Mr Myers made an application to the Magistrates' Court and an interim PSIO was made against Mr Satheeskumar naming Mr Myers as the protected person.
4. On 21 August 2023, Mr Satheeskumar and Mr Gopalarathinam lodged a written application to the Dandenong Magistrates' Court and both obtained PSIOs including a clause which excluded Mr Myers from the rented premises.
5. Mr Myers challenged the validity of these interim PSIO orders and sought judicial review in the Supreme Court.
6. On 24 August 2023, Mr Myer's application to the Tribunal under section 91V of the RT Act was struck out on the basis Mr Myers had no standing. The reasons included that the perpetrator of the violence has to be another renter named on the rental agreement. Essentially, it was decided that because there was a sub-rental agreement between Mr Myers and Mr Satheeskumar, Mr Satheeskumar was the head renter and thus in the position of 'rental provider under the rental agreement with the Applicant.'[1]
7. Mr Myers appealed this decision to the Supreme Court and, on 13 December 2023, Justice Gray's judgment held section 91V does not require the so-called perpetrator to be another renter, and that section 91V(1) confers standing on a person specified in subsection (2)(a) which 'refers to a "party" to an existing residential rental agreement.'[2] Justice Gray ordered Mr Myers amend his application to add the owners of the rented premises as additional parties and serve the amended application on all parties. Further he ordered the Tribunal to hear the matter within four days.[3] Subsequently, the matter was commenced at the Tribunal on 19 December 2023 and then adjourned, part heard until 1 February 2024, at which time it was further adjourned until 9 April 2024.
8. On 31 January 2024, Justice Gray handed down his judgement regarding the validity of the interim PSIO orders and concluded the interim PSIOs were invalid and quashed the orders made against Mr Myers.[4]

1. Having given the renters, Mr Satheeskumar and Mr Baskaran, a 14-day notice to vacate as the rent had been in arrears for at least 14 days, on 31 January 2024 the residential rental providers made an application for possession for rent arrears to the Tribunal pursuant to section 91ZM of the RT Act.
2. On 25 March 2024, the Tribunal determined the residential rental providers were entitled to a possession order and made orders which directed the renters vacate the premises by 25 March 2024 and pay rent owed of $8409.35.[5]
3. Mr Myers was not a party or interested person in this proceeding, although he was in attendance at the hearing.

1. Following the Tribunal's orders on 25 March 2024, on 27 March 2024 Mr Myers made a General Application to the Tribunal seeking orders in respect of section 91R of the RT Act. The Tribunal directed that the Application be considered to be an application under section 452 of the RT Act seeking the Tribunal make orders under section 472(1)(b) to 'require any action in the performance of a residential rental agreement or of duties under this Act relating to a residential rental agreement.'
2. Mr Myers seeks orders declaring or confirming that a new residential rental agreement is created pursuant to section 91R of the RT Act where the head residential rental agreement has been terminated.
3. Given Mr Myers section 91V application was part heard and listed for hearing on 9 April 2024, his General Application under section 452 was listed for hearing on the same day.
4. Mr Myers represented himself and Mr Babet, Real Estate Agent, appeared on behalf of the residential rental providers. Mr Myers gave evidence and made submissions. Mr Babet made submissions and called one of the residential rental providers, Sarah Grimison, who gave evidence and was cross-examined by Mr Myers.

(1) A person becomes the renter of the residential rental provider in respect of rented premises if -

(a) the person is in possession of the premises under a residential rental agreement (a sub-residential rental agreement) granted to that person by a person who is a renter of the premises under another residential rental agreement (the head residential rental agreement) granted to the person who is the head renter by the residential rental provider; and

(b) the head residential rental agreement terminates or is terminated; and

(c) the sub-residential rental agreement does not terminate or is not terminated in accordance with this Act.

(2) The residential rental agreement created under subsection (1) is deemed to be a residential rental agreement on the same terms, as far as applicable, as the terms of the sub-residential rental agreement.

(3) Subsection (1) applies whether or not this Act applied at any time to the head residential rental agreement.

1. At the hearing on 9 April 2024, Mr Myers tendered written submissions and accompanying Exhibits 1-5.[6] He also gave oral evidence.
2. Mr Myers had also filed an earlier version of these written submissions which, while substantially overlapping, had some minor differences from the version tendered.[7] Paragraphs [1] - [14] of the earlier submissions stated, in summary:
   • He has a valid sub-residential rental agreement, consented to by the residential rental providers, which has not been terminated;
   • He disputed his sub-rental agreement was invalid on the grounds it was not signed by one of the head co-renters, Ms Baskaran. He referenced section 29A of the RT Act which provides a residential rental agreement can still be valid even if it is not signed by the residential rental provider. Further, he tendered as Exhibit 2 to his written submissions a signed stated from Mr Baskaran, dated 9 March 2024 expressing his consent to the sub-rental agreement;
   • Mr Myers should have been joined as an interested party to the residential rental providers' section 91ZM application to vacate; and
   • His application under section 91V would no longer be required to be heard if an order is made acknowledging him as renter, 'transitioned from a sub-renter as per s 91R of the RT Act. Now that a possession order has been made as of 25 March 2024, it is essential that an order be made acknowledging me as a renter as per 91R of the Act, as soon as possible.'[8]
3. In the longer set of written submissions My Myers tendered at the hearing, Mr Myers included details of his recent attendance at the owner's premises and the rented premises on 31 March 2024 and 1 April 2024 respectively. He stated he attempted to enter the rented premises as head renter. The police were called, and he was advised to leave. He was subsequently removed from the rented premises by the police.
4. Mr Babet made the following submissions orally at hearing:
   • The sub rental agreement with Mr Myers is invalid as it was only signed by Mr Satheeskumar and not Mr Baskaran;
   • Mr Myers has abandoned the rented premises;
   • Mr Myers only ever paid one fortnight of rent;
   • The interim intervention order obtained by Mr Satheeskumar had a provision whereby Mr Myers had an opportunity to remove his possessions from the rented property but did not do so, purposely; and
   • Mr Myers is not a resident in the rented premises.
5. Mr Babet called Ms Grimison, the second respondent, who gave evidence. She stated, summarised:
   • Mr Myers attended her home property on 31 March 2024 and the rented premises on 1 April 2024. On 1 April 2024 she called police, and they asked Mr Myers to leave as the renters had been evicted.
   • She agreed Mr Myers had possessions at the rented property, including in the garage and his bedroom.
   • She stated she has been in communication with Mr Baskaran, and he has minimal belongings at the property which he will collect this week.
   • She confirmed Mr Satheeskumar attended the rented premises on 1 April 2024 and has removed all his belongings and returned the key.
6. During cross examination by Mr Myers, she confirmed Mr Baskaran has his bed at the rented premises, as well as a fridge and various appliances but these appliances do not work and he does not want them. His bed and work gear are ready to collect.

1. Section 91R provides that, in the event the head residential rental agreement 'terminates or is terminated', a person in possession of the premises under a sub-residential rental agreement granted by the person who was a renter under the head residential agreement becomes 'the renter of the residential rental provider.'[9]
2. In Spiteri v Vincent Care Community Housing[10] ('Spiteri'), Acting Senior Member Campana considered the operation of section 91R of the RT Act. In that case the owners of a rented premises rented the property to Vincent Care Community Housing, the head renter, who in turn rented it to the occupier. On 1 September 2023, owing to damage to the rented premises, the owner gave notice under section 91ZI of the RT Act to the head renter to vacate the premises with a termination date of 2 September 2023. In accordance with section 91G of the RT Act, the head rental agreement terminated at midnight on 2 September 2023.
3. On 1 September 2023 the head renter had also sent the occupier a notice to vacate for damage in almost identical terms to that given to the head renter. It was held that, because of the new rental agreement created under section 91R, the head renter had no entitlement to give the occupier a notice to vacate.
4. Acting Senior Member Campana stated:

At the time the head renter gave notice to vacate to the Occupier, a new rental agreement had been created directly between the Owners of the rented premises and the Occupier. This New Rental Agreement did not require the parties to take any steps, but came into effect by reason of section 91R of the RT Act...

The reference in the legislation to an agreement being created means that there is no assignment of a head renter's interest in the sub-rental agreement across to the head rental provider, but a completely separate and new agreement commences directly between the rental provider and the sub renter...[11]

It is my view that this New Rental Agreement superseded (replaced or took the place of) the agreement between the Head Renter and Occupier, such that there is now just one rental agreement governing occupation of the rented premises.[12]

1. Unlike the present case, in Spiteri, the head renter was not an occupier so section 91G of the RT Act applied. Acting Senior Member Campana further stated:

This conclusion is in accordance with the general principles related to superseding agreements and gives purpose and effect to the intention of sections 91G and 91R. It resolves any issues that may arise from the written authority to sublet being revoked on termination of the head rental agreement and any competing interests and conflict from two concurrent rental agreements.[13]

1. 'In possession of the premises' is not defined in the RT Act.
2. In his submissions Mr Myers stated he has been 'locked out' of his home for seven months by the head renter. In his evidence he stated he had visited and entered the rented premises a month ago and again attended there on 1 April 2024. It appears that, since the interim intervention order against him dated 21 August 2023, he has not lived at the rented premises.
3. The first issue is whether Mr Myers is a person 'in possession of the premises'.
4. Mr Babet submitted Mr Myers had abandoned the property, has only paid two weeks rent, and had left his possessions at the property intentionally when he had opportunities to remove them.
5. At the hearing Mr Myers disputed that he only paid a fortnights' rent, stating he paid one month's rent. He gave evidence that since the interim PSIOs were made against him on 21 August 2023, he still has a 'truck load' of all his possessions at the property.
6. Mr Myers stated that these items include those in his bedroom, which are a bed, desk, drawers, filing cabinet and clothes. Further, in the lounge room, a wall unit, boxes which have not been unpacked since he was assaulted on 25 July 2023, and in the garage, his work equipment which includes juke boxes, and arcade and coin operated games which he restores and re-sells as a business.
7. He also stated he still has his original key to the rented premises, despite the head tenant changing the locks of the premises.
8. Although 'possession' is not defined, it is a question of fact in each case.
9. VCAT Annotated Residential Tenancies Act[14] commentary considering the meaning of 'entered into possession' in (now repealed) section 226 of the RT Act stated:

Words or conduct by the tenant indicating that the tenant accepted the condition of the rented premises and affirmed the tenancy agreement - and in some cases the taking up of actual occupation and moving of belongings into the premises would be enough - would usually establish that the tenant has 'entered into possession'.

1. In Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Shirvington (No. 3),[15] although it was not an issue in dispute, there was some discussion of the meaning of 'possession'.[16] In that case Mr Shirvington was a lessee of a number of properties owned by the Commonwealth which the Commonwealth sought to develop for an airport. It brought proceedings to terminate the lease and obtain vacant possession of the premises. It was not in dispute Mr Shirvington had been in continual possession for more than twenty years and used the property to store his 487 items including containers, trailers and tanks. Noting the word 'possession' can have a variety of meanings in different contexts, in his judgement Judge Smith refereed to Tabe v The Queen[17] where Gleeson CJ noted the comment by Earl Jowitt in United States v Dollfus Mieg et Cie SA[18] that 'the English law has never worked out a completely logical and exhaustive definition of "possession".'[19] Judge Smith went on to state '[i]t can mean actual physical possession or a right to exclusive possession equivalent to the unqualified right of a fee simple owner to exclude anyone and everyone from the land for any reason whatsoever...'.[20]
2. In Taylor v Reilly,[21] at the New South Wales Civil and Administrative Tribunal, Member Rose considered possession in the context of vacating premises and a landlord's claim on the bond for unpaid rent. The decision refers to Stuart v Leonardo[22] where an Appeal Panel stated:

The tenancy ends when possession is given up to a landlord. This is a question of fact. Matters relevant to determining whether possession has been given up include whether a tenant has left the premises and met their obligations under clause 17, including delivery up of the keys. This is because the performance of these obligations before the tenancy ends is consistent with a tenant relinquishing use and control of the premises and returning possession of the premises to the landlord in the state as required by the agreement. [23]

1. The decision also referred to Phoenix v Guangyue Chen[24] where the Appeal Panel stated, quoting British authority, that '[a]ctual possession of empty premises, or of chattels which are locked up within a building or in a package of some sort, is retained by retaining the key. Possession of the key gives actual possession.'[25]
2. We note that section 91R is within Part 2, Division 9, Subdivision 2 of the RT Act which is entitled 'Variations or creations of residential rental agreements'. Section 91Q uses the expression a renter is deemed to 'occupy' rented premises, and section 91S refers to a person 'residing' in rented premises. Section 91R uses the expression a 'person in possession'. In our view, 'possession' is less specific that occupy or reside (neither of which are defined), and both words have a stronger connotation of a physical presence at the premises.
3. In this case, Mr Myers possessions are still in the rented premises. His evidence was clear regarding his intentions and belief in his right to live in the premises and he has not sought to leave or abandon his possessions. He questioned why he would remove his possessions (as per Mr Babet's submission) when he had a valid sub-lease. He has visited the property one month ago and has recently attended the rented premises and sought to exercise his rights under section 91R with the residential rental providers.
4. Having his possessions at the property, including in his bedroom, the loungeroom and his work goods in the garage, in addition to him retaining the key, strongly points in favour of Mr Myers being a person 'in possession of the premises'. Despite the fact he has not been living in the rented premises, he has not relinquished his claim under the sub-lease. He left the rented premises because of the legal requirements of the interim PSIO, not through choice. During the time he left the rented premises because of the interim PSIO made against him, he has been enforcing his rights through the Court and Tribunal processes. Firstly, by judicial review in the Supreme Court, which quashed the validity of those interim PSIO orders, and secondly, through his appeal to the Supreme Court from the Tribunal decision striking out his section 91V application. We reject the submission by Mr Babet that, because Mr Myers had only paid one rent instalment and his possessions were still at the rented premises, he had abandoned the rented premises. His retention of the key, although somewhat symbolic as the locks had been changed, also indicates he has not relinquished 'possession'.
5. Taking the facts of this case into account, we are satisfied on the balance of probabilities Mr Myers satisfies subsection (1)(a) in that he is a person in possession of the premises under a residential rental agreement of the premises (a sub-residential rental agreement).

1. The second issue is whether section 91R(1)(b) is satisfied.
2. With respect to section 91R(1)(b), the evidence is clear that the head residential rental agreement is terminated. The Tribunal made an order for possession on 25 March 2024. However, the order for possession alone does not terminate the rental agreement. It also requires the renter to deliver vacant possession or a warrant of possession to be issued by the Tribunal and executed by the police. Whilst a warrant of possession has been issued by the Tribunal, the evidence confirms that on 1 April 2024 Mr Satheeskumar removed all his possessions, vacated the rented premises and returned the key to the owner. Mr Baskaran has not resided at the rented premises since mid-2023 and has a few personal possessions ready for collection. Mr Grimison confirmed this in her evidence. The orders were made under section 91ZM of the RT Act, which is one of the termination of residential rental agreement provisions in Division 9 of the RT Act.

1. The third issue is whether the subsection 91R(1)(c) applies.
2. We accept Mr Myers has a valid sub-residential rental agreement. In our view, this agreement is valid as it was made with consent of the residential rental providers as required. We reject Mr Babet's submission it is invalid because it was not signed by the co-head renter Mr Baskaran. Section 29A of the RT Act allows, in particular circumstances, for a residential rental agreement to have effect when not signed by the residential rental provider. Further, we note the definition in section 3 of the RT Act for 'residential rental agreement' is 'an agreement, whether or not in writing and whether express or implied...' and does not include a specification it be signed. On its face, although Mr Baskaran did not attend the hearing or give evidence, his statement dated 9 March 2024 expresses his knowledge of and consent to the sub-rental agreement.
3. The requirement under subsection (1)(c) is that the sub-rental agreement does not terminate or is not terminated in accordance with this Act. 'Terminate' is not defined in the RT Act. Subdivision 1 of Part 2, Division 9 of the RT Act concerns the termination of residential rental agreements and when a residential rental agreement can be terminated. Section 91B of the RT Act provides a residential rental agreement does not terminate and must not be terminated except in accordance with Division 9 or Parts 7 or 8 of the RT Act.
4. We have already rejected Mr Babet's submission that Mr Myers abandoned the rented premises and do not find under section 91F that the renter abandoned the rented premises.
5. The sub-rental agreement clause 5 notes it is a for a fixed term, with a start date of 9 July 2023 and end date of 9 January 2024. This fixed term has now expired. Under section 91Q, where a renter continues in occupation of the rented premises and a fixed term residential agreement ends, a renter is deemed to occupy rented premises under a periodic residential rental agreement. The reference in section 91Q(1) refers to the term of a fixed term residential rental agreement ending rather than terminating. Although Mr Myers may not be a renter continuing in occupation, he has been excluded from the rented premises as a result of interim PSIOs, the validity of which were quashed on judicial review.
6. This situation does not appear to fall within the provisions in Division 9 or the provisions in Parts 7 or 8 of the RT Act which concern termination. Under section 91B of the RT Act, the expiry of the fixed term of the lease does not constitute the sub-residential rental agreement terminating or terminating in accordance with the RT Act.
7. In conclusion, we are satisfied on the balance of probabilities the factors in section 91R are satisfied and make an order under section 472(1)(b) that a new residential rental agreement is created by reason of section 91R of the RT Act between the residential rental providers and Mr Myers.

1. As noted above, this application was listed part heard for hearing on 9 April 2024 and was heard subsequent to the section 91R proceeding.
2. We have detailed the history of this proceeding before the Supreme Court and remittal back to the Tribunal.
3. To some extent, events have overtaken this application given the Tribunal's order of possession on 25 March 2024, as noted above, that the renters, Mr Baskaran and Mr Satheeskumar, have vacated the rented premises. The owner, Ms Grimison, confirmed this in her evidence. Mr Baskaran left the rented premises in mid-2023 and Mr Satheeskumar vacated the rented premises on 1 April 2024.
4. At the hearing of this proceeding Mr Myers made submissions and gave evidence. He called his brother, Russell Myers who gave his evidence via a phone call to the hearing room. Mr Babet made submissions on behalf of the residential rental providers.

(1) A person specified in subsection (2) may apply to the Tribunal for -

(a) an order terminating the existing residential rental agreement; or

(b) an order -

(i) terminating the existing residential rental agreement; and

(ii) requiring the residential rental provider of the premises to enter a residential rental agreement with the person and other persons (if any) specified in the application.

(2) For the purposes of subsection (1), the following persons are specified-

(a) a party to the existing residential agreement -

(i) who has been or is being subjected to family violence by another party to the existing residential rental agreement; or

(ii) who is a protected person under a personal safety intervention order made against another party to the existing residential rental agreement;

(b) a person -

(i) who is residing in the rented premises as the person's principal place of residence; and

(ii) who is not a party to the existing residential rental agreement; and

(iii) who -

• (A) has been or is being subjected to family violence by a party to the existing residential rental agreement; or
• (B) is a protected person under a personal safety intervention order made against a party to the existing residential rental agreement.

(3) For the purposes of subsection (2), a reference to a person who has been or is being subjected to family violence includes a protected person under a family violence safety notice, family violence intervention order or recognised non-local DVO.

(4) An application under subsection (1) may be made without the consent of the residential rental provider or any other party to the existing residential rental agreement.

(5) If a person specified in subsection (2) is a child, an application under subsection (1) may be made on that child's behalf by a parent or guardian of the child who lives at the rented premises with the child.

(6) For the purposes of a proceeding for an order under subsection (1), each of the following persons is a party to the proceeding -

(a) the applicant or the person on whose behalf the application is made;

(b) the residential rental provider;

(c) any other party to the existing residential rental agreement;

(d) any other person specified in the application.

(7) The Tribunal must hear an application under subsection (1) -

(a) within 3 business days of the application being made; or

(b) if the application cannot be heard within the period referred to in paragraph (a), no later than the next available sitting day of the Tribunal after the end of that 3 business day period.

1. In this case, Mr Myers firstly seeks an order under section 91V(1)(b)(i) terminating the existing residential rental agreement.
2. As discussed above in consideration of section 91R, we are satisfied that the existing head residential rental agreement is terminated, and we have outlined our reasons.
3. The second order Mr Myers is seeking is an order under s 91V(b)(ii) requiring the residential rental providers of the premises to enter a residential rental agreement with him as the person specified in the application.
4. As noted in our order in the section 91R proceeding, the operation of section 91R is such that a new rental agreement is created between the residential renter providers and Mr Myers.
5. Further, since the termination of the head residential rental agreement, Mr Myers may not be a person specified in section 91V(2)(a)(ii) of the RT Act. This is because, although he is a protected person under a personal safety intervention order, it is not made against 'another party to the existing residential rental agreement' as that is now terminated and, as a result, Mr Satheeskumar has vacated the rented premises.
6. It does not appear Mr Myers falls into other categories of a person specified as outlined in section 91V(2), although we note in the VCAT appeal before Justice Gray, Mr Myers submitted he may meet the requirements of section 91V(2)(b). Justice Gray did not proceed to decide on this point as he was satisfied Mr Myers was a specified person under section 91V(2)(a)(ii). It is not necessary for us to decide this for the following reasons.
7. Given the termination of the existing residential rental agreement and the operation of section 91R, which is confirmed in our order above, the relief sought by Mr Myers by this application under section 91V appears to be satisfied.
8. Although we heard evidence in support of this application regarding the requirement for the Tribunal to satisfy itself of matters set out in section 91W(2), given our decision in the section 91R proceeding it is not necessary to consider this.
9. We note this course was foreshadowed by Mr Myers in his submissions to the section 91R proceeding at paragraph [20] above.
10. Further, Justice Gray also contemplated the operation of section 91R in Mr Myers' favour, albeit in the context of the residential rental agreement being terminated following consideration of the evaluative factors in section 91W of the RT Act.[26]
11. In these circumstances, the orders sought by the application under section 91V are already operative by virtue of the Tribunal orders dated 25 March 2024 and Mr Satheeskumar and Mr Baskaran having vacated the rented premises, together with the operation of section 91R. The application under section 91V of the RT Act is struck out.

[1] VCAT Orders in R2023/25011 dated 24 August 2023

[2] Myers v Satheeskumar (Apeal from VCAT) [2023] VSC 747 [33]

[3] Supreme Court Orders in S ECI 2023 04660 dated 14 December 2023

[4] Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12. The reference to the interim PSIOs in the plural is because Mr Thuyaparan Gopalarathinam, a lodger at the rented premises, also obtained an interim PSIO against Mr Myers at the same time.

[5] VCAT Orders in R2024/4322 dated 25 March 2024

[6] Applicant's 'Outline of Submissions' REF: R2024/10837 (undated) including Exhibits 1-5

[7] As all parties had access to both versions of these written submissions, and were referred to during the hearing, both versions have been considered in this decision.

[8] This quote is extracted from the earlier version of the submissions at paragraph [12].

[9] Myers v Satheeskumar (Appeal from VCAT) [2023] VSC 747 [54]

[10] (Residential Tenancies) [2023] VCAT 1286 ('Spiteri')

[14] John Billings, Jacquellyn Kefford, Alan Vassie, Heather Barker, VCAT Annotated Residential Tenancies Act (Anstat, September 2020), P6-12

[15] [2015] FCCA 3234

[16] Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Shirvington (No. 3) [2015] FCCA 3234 [27]

[17] (2005) 225 CLR 418

[18] [1952] AC 582

[19] Tabe v The Queen (2005) 225 CLR 418, 423 [7], quoting United States v Dollfus Mieg et Cie SA [1952] AC 582, 605.

[20] Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Shirvington (No. 3) [2015] FCCA 3234 [27]

[21] [2021] NSWCATCD 74

[23] Stuart v Leonardo [2012] NSWCATAP 111 [60]

[24] [2020] NSWCATAP 255

[25] Phoenix v Guangyue Chen [2020] NSWCATAP 255 [75], quoting Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210 [216].

[26] Myers v Satheeskumar (Appeal from VCAT) [2023] VSC 747 [54]