NS v CH [2008] VCAT 971 | Case summary | Zoe

VICVCAT

NS v CH

[2008] VCAT 971

Victorian Civil and Administrative Tribunal|2008-05-14

At a glance

AI case summary

Result

plaintiff. Tribunal declared the notice to vacate valid, ordered possession in favour of the landlord; tenant to vacate by 13 June 2008; issue of a warrant of possession postponed until 13 June 2008 and may...

Key principles

A notice to vacate sent by registered post is 'given' for the purposes of section 506(3) of the Residential Tenancies Act if, having regard to the deeming provision in section...
A tenant's failure to collect registered post or to take steps to enable collection (for example by not maintaining access to mail) may constitute resisting delivery, and such...
A notice given under section 258 that states the statutory ground by repeating the words of the section is not necessarily invalid for lack of specificity under section 319(d);...
A tribunal has power under section 126 of the VCAT Act to extend statutory time limits (here the 30 day challenge period in section 321B(2)) where fairness requires it,...

Issues before the court

Whether a notice to vacate sent by registered post but returned unopened and accompanied by delivery cards is 'given' under s506(3) of the...

Plain English Summary

The landlord sent a 60-day notice to vacate by registered post. The registered article was returned unopened but post office cards were left at the tenant's address; the tenant did not collect her mail and later complained of not receiving the notice. The Tribunal held that, under the Interpretation Act's deeming provision, delivery by registered post can be treated as effected even when the tenant did not personally receive the article, unless non-delivery is proved. The Tribunal therefore found the notice had been properly given, extended time to allow the tenant's late challenge, held the notice sufficient despite merely repeating the statutory ground, found the landlord proved reasons to take possession under s258, and ordered the tenant to vacate, but postponed the vacate date and the issue of a warrant for 30 days to reduce tenant hardship.

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Deep Dive

1,752 words · generated 01/07/2026

What happened

This VCAT decision concerned a landlord’s application for possession based on a 60‑day notice to vacate given under section 258 of the Residential Tenancies Act 1997 (Vic), the ground being that the premises were to be occupied by the landlord or a person dependent on her. The landlord’s agent posted the notice by registered post on 25 February 2008. The registered article was returned to the agent unopened; the post office had left cards advising collection on several dates (26 February and 3 March 2008, among others). The tenant said she never received the notice and produced evidence that she had mail problems and only recovered some post office cards after having the padlock on her mailbox removed (Reasons paras 2-7; see especially para 10 where the Tribunal finds non‑receipt).

The landlord applied to VCAT on 26 March 2008 for a possession order. The tenant served a letter dated 4 April 2008 challenging the notice but the challenge arrived after the 30‑day period set by s321B(2). The Tribunal held hearings on 5 and 12 May 2008 and delivered reasons and orders on 14 May 2008 (summary of procedural timeline set out in Reasons).

Primary outcomes:

The Tribunal declared the notice valid and found that the landlord had proved the s258 grounds.
The Tribunal ordered possession; the tenant was to vacate by 13 June 2008.
The Tribunal extended time under the VCAT Act to permit the tenant’s late challenge to be heard.
The Tribunal postponed the issue of a warrant and the vacate date by the maximum periods available to mitigate tenant hardship.

Why the court decided this way

Three interlocking statutory rules drove the Tribunal's decision:

Service by registered post and the deeming provision: s506(3) of the RTA permits service of an NTV by “sending the notice by registered post addressed to the tenant at the rented premises”. Section 49(2) of the Interpretation of Legislation Act contains a deeming rule that service by registered post is “deemed to be effected by properly addressing, prepaying and posting” and “unless the contrary is proved, be deemed to have been effected at the time at which the letter would ordinarily be delivered” (Reasons para 12). The Tribunal applied the High Court authority discussed in Fancourt v Mercantile Credits Ltd which treats delivery as a legal concept distinct from receipt by the addressee: non‑receipt does not necessarily prove non‑delivery (Reasons referencing Fancourt at the point following the quoted s49(2)).
The practical facts of this case: the agent had a registered post docket dated 25 February; post office cards showing attempts to deliver were left at the premises; the registered article returned unopened; the tenant produced some of the cards only after having the padlock removed. The Tribunal concluded that delivery had not been disproved and that the tenant's failure to collect the article amounted to resisting receipt. Therefore the NTV was “given” for statutory purposes (Reasons paras 2-9 and paras 13-17).
Sufficiency of particulars in the NTV: the tenant argued the notice was invalid because it merely repeated the words of s258 and did not specify the identity of the proposed occupier. The Tribunal distinguished Smith v Director of Housing (which concerned a notice based on alleged dangerous conduct) and held that where the ground concerns the landlord’s intentions to occupy, repetition of the statutory words can provide adequate information; requiring naming of a particular occupier would add requirements not set by the statute and might be impractical given s264 allows occupation by persons referred to in s258 without naming in the notice (Reasons paras in the section “Whether the NTV was valid, lack of detail”, especially paras 5–11 there).
Procedural fairness and mitigation: having found the notice “given” but not received by the tenant, the Tribunal used its discretion under s126 of the VCAT Act to extend the 30‑day challenge period so the tenant could challenge the notice. The Tribunal also used ss333 and 352 of the RTA to postpone the vacate date and the warrant for 30 days each, assessing that the tenant would suffer greater hardship from immediate enforcement than would the landlord suffer from a postponement (Reasons under those headings).

In sum, statutory deeming plus the practical delivery evidence led the Tribunal to treat the registered notice as given; statutory text and context led it to treat the notice’s wording as sufficient; and procedural discretion led it to extend time and postpone enforcement to avoid unfairness.

Before and after state of the law

Before this decision (and notably following Fancourt), Australian courts recognised the legal distinction between delivery and receipt where statutory deeming provisions exist. Smith v Director of Housing had earlier emphasised that for some categories of notice (for instance those alleging tenant misconduct) a mere recitation of the statutory words may not give sufficient particulars to enable a tenant to understand and rebut the case against them.

This VCAT decision applies and reinforces the effect of the Interpretation Act s49(2) deeming rule in the tenancy context, confirming that:

Delivery as a legal conclusion may be established by showing the registered article was duly posted and ordinary delivery attempts were made; non‑receipt does not automatically mean non‑delivery (Reasons paras 11–16).
For s258 notices (landlord occupation), the statutory words may be sufficient; tribunals should not require the landlord to identify the particular family member or give more private detail unless the statute or higher authority requires it (Reasons paras under “lack of detail”).

In practical terms the decision makes clear that registered post service in tenancy matters can be effective despite non‑receipt where delivery evidence exists, and that tribunals retain discretion to mitigate procedural unfairness by extending challenge periods and postponing enforcement.

Key passages with plain-English translation

Quotation (Reasons para 12: s49(2)):
- Court text: the full deeming provision of s49(2) is set out.
- Plain English: If a statute allows service by registered post, then normally the law treats a properly addressed and posted registered letter as having been served at the time it would ordinarily be delivered, unless someone proves otherwise.
Quotation (Reasons para 10):
- Court text: “Given that the NTV was returned unopened to the agent, I find that the tenant did not receive the notice to vacate.”
- Plain English: The Tribunal accepted as fact the tenant did not actually get the envelope the landlord sent.
Quotation (Reasons para 10, later): “I was therefore satisfied that the notice to vacate had been given as required by section 506...”
- Plain English: Even though the tenant had not personally received the notice, the Tribunal held the legal requirements for giving the notice were met because of the registered-post process and the lack of proof of non-delivery.
Quotation (Reasons under extension): “I exercise my discretion under section 126... to extend the time...”
- Plain English: The Tribunal used its power to extend the deadline to allow the tenant’s late challenge to be heard, because of the particular circumstances.

What fact patterns trigger this precedent

A landlord sends a notice to vacate by registered post and can produce a post office registration docket and evidence that collection cards were left or delivery attempts made, but the tenant alleges non‑receipt.
The registered article is returned unopened to the sender but there is evidence of ordinary delivery attempts and cards left at the premises.
A tenant delays challenging the notice because they genuinely did not receive it but later acts promptly on receipt.
Notices that rely on landlord intention under s258 that merely reproduce the statutory words, and where the tenant claims the notice lacks specificity.

In these scenarios the VCAT approach supports:

treating the notice as “given” where the posting and delivery attempts are established and non‑delivery is not proved,
accepting that statutory wording may suffice for s258 notices,
allowing the Tribunal to use its discretion to extend challenge periods and postpone enforcement where fairness demands.

How later courts have treated it

This decision expressly follows the High Court approach in Fancourt about the legal significance of delivery and non‑receipt. It also aligns with the approach in Perioris v Asiodu (Senior Member Vassie) in accepting that registered-post service may be effective despite non‑receipt, and it distinguishes the Victorian Supreme Court’s observations in Pavletic and Bongiorno J’s reasoning in Smith where those authorities dealt with different classes of notices or distinct factual matrices. The decision should therefore be read as an authoritative application of the Interpretation Act deeming provision in the residential tenancy context and as a reasoned tribunal-level posture on specificity for s258 notices. Practitioners should treat it as persuasive tribunal-level guidance; higher court authorities remain controlling where they address the same statutory provisions directly.

Still-open questions

Edge cases where delivery attempts are more equivocal: how much evidence of delivery attempts will suffice to rebut a tenant’s claim of non‑delivery? Steele emphasised cards left and the registered docket; but the line between adequate proof of delivery attempts and inadequate proof remains fact‑sensitive.
The decision distinguishes Smith on the basis that s258 concerns the landlord’s intentions. There remains possible tension about what particulars a tenant needs to fairly contest an s258 notice in scenarios where, for example, the landlord’s asserted intention is implausible or where identity of occupier is central to an allegation of misuse of process. The judgment asks but does not finally resolve where the boundary lies.
The decision treats tenant inaction in relation to mailbox access as ordinary resisting of delivery. But situations of genuine incapacity to collect (serious hospitalisation, institutionalisation, homelessness, domestic violence affecting mailbox access) may require a different result; the Tribunal acknowledged such possibilities but found no firm evidence of incapacity here. Triaging evidence of inability to collect will remain a practical question.
Finally, while this decision confirms the Tribunal’s discretion to extend time and postpone enforcement, it does not articulate fixed principles for exercising s126, ss333 or 352 discretions beyond balancing relative hardships. Future cases will refine the practical tests and evidentiary standards for such discretionary relief.

Conclusion: NS v CH is a careful application of the Interpretation Act’s deeming rule to residential-tenancy notices served by registered post. It balances the need for reliable service mechanisms against fairness to tenants who genuinely did not receive notices, and it confirms that a s258 notice need not do more than recite the statutory ground where the ground is the landlord’s intention to occupy.

Judgment (74 paragraphs)

For the reasons set out following these orders, the Tribunal makes the following orders.

The Tribunal extends to 16 April 2008 the time for the tenant to challenge the validity of the notice to vacate sent on 25 February 2008.

Having heard the challenge to the notice to vacate, the Tribunal orders and declares that the notice is valid. The Tribunal finds that:

The landlord gave the tenant not less than 60 days' notice to vacate under section 258 of the Residential Tenancies Act 1997.

The landlord has proven the grounds for giving the notice to vacate. The Tribunal orders and directs that:

The landlord is entitled to a possession order.

The tenant must vacate the rented premises by 13 June 2008.

The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 30 days after the date of issue. (Any request must be made no later than 14 November 2008).

The issue of a warrant of possession is postponed until 13 June 2008 but the landlord has leave to apply for an order that a warrant be issued without delay.

Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

On 26 March 2008, the landlord, Ms S, applied by her agent for an order for possession of the rented premises. The application was based upon a notice to vacate given under section 258 of the Residential Tenancies Act 1997.

On 5 May 2008 and 12 May 2008, I heard the application and reserved my decision. The circumstances gave rise to a number of issues. The tenant was assisted by the Tenant's Union of Victoria, on the first occasion by Ms Connell and on the second by Mr Darling. The landlord was represented by her agent.

[1]

A notice to vacate under section 258 of the Act must give the tenant at least 60 days' notice to vacate the rented premises.

[2]

Evidence given before me by the landlord's agent was that she sent the notice by registered post to the tenant at the rented premises on 25 February 2008. The agent produced a registered post docket stamped by the post office with that date.

[3]

The agent's further evidence was that the post office returned the registered post item unopened and undelivered. The agent produced this item at the hearing, still apparently unopened and on the front it bore several annotations indicating that on four occasions (26 February and 3, 12 and 17 March 2008) cards had been left at the rented premises informing the occupant that there was a registered item to be collected.

[4]

Section 506(3) of the Act requires that a NTV must be given either by delivering it personally to the tenant or "by sending the notice by registered post addressed to the tenant at the rented premises".

[5]

The tenant's evidence was that she received none of the cards, was unaware that there was a registered post item to collect, may have been in hospital at the time one of the earlier cards was said to have been delivered and had had trouble with her mail disappearing.

[6]

No further evidence about the tenant's illness or hospitalisation was provided and in those circumstances I am unable to find that she was indeed hospitalised at the time, as her evidence on this point was quite vague.

[7]

When I asked Ms H about the problems with her mail, she described events in 2006, when she had contacted the police. As a result, Ms H bought a new padlock for her mailbox in about November 2006, she said. Then, in November 2007, she said she again suspected someone had tampered with her mail, found that the padlock was difficult to open and went to the police. The police eventually suggested she remove the faulty padlock with bolt cutters. Ms H said that about then she gave up collecting her mail, except for some larger items she was able to retrieve from the slot at the front of the mailbox. Then, she said, only last Thursday (7 May 2008), she had someone remove the padlock with bolt cutters and in the box, she found cards from the post office informing her of a registered post item for collection. They were dated 26 February and 3 March 2008. Ms H produced those cards at the hearing.

10. Given that the NTV was returned unopened to the agent, I find that the tenant did not receive the notice to vacate.

11. The more difficult question is whether the notice was "given" as required by section 506(3) of the Act.

12. Section 49(2) of the Interpretation of Legislation Act 1984 provides:

(2) Where an Act or subordinate instrument authorizes or requires a document to be served by registered post or by certified mail (whether the expression "serve" or the expression "give", "send" or "deliver" or any other expression is used), the service shall-

(a) unless the contrary intention appears, be deemed to be effected by properly addressing, prepaying and posting the

document as a letter either by the registered post or through the certified mail service to the person on whom it is to be served; and

(b) unless the contrary is proved, be deemed to have been effected at the time at which the letter would ordinarily be delivered by registered post or through the certified mail service, as the case requires.

Mr Darling of the Tenants Union referred me to Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154CLR 87. That case concerned a notice under the Queensland Hire Purchase Act, which allowed for notice by ordinary post. The hirer gave evidence that he did not receive the notice. The High Court considered a deeming a provision in the relevant Queensland Act which is similar to section 49 of Victoria's Interpretation of Legislation Act 1984. The High Court referred to a number of English cases about proof of non-delivery and said (at paragraph 21):

"Despite remarks in the judgments about non-receipt it was non-delivery which was significant, because the second limb of section 26 of the Interpretation Act refers to proof of the contrary of delivery. As the present case shows, delivery may be different from receipt by the intended recipient, and provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery."

[1]

So delivery is different from receipt and it is non-delivery which is the significant issue. Here, there is evidence that the post office returned the registered post article unopened to the agent. Does that mean it was not delivered? If so, then as Mr Darling submitted I am bound to find that it was not "given" as required by section 506(3).

[2]

As I understand the registered post process, someone from the post office brings the registered post item to the recipient's address and if no one answers the door, leaves a card in the mail box informing the occupant that there is an item for collection. On the evidence of the agent and the tenant, that is what occurred here. It is not disputed that cards relating to the notice to vacate were left on 26 February 2008 and 3 March 2008.

[3]

It is open to me to conclude that delivery of the card is delivery of the registered post article, so that even though the tenant did not receive the article, it was delivered to her. By not collecting her mail, the tenant has resisted receiving the registered post article. Ms H's evidence was that she decided not to take action to enable her to collect her mail. If she had fixed the problem with the padlock, she would have received the card from the post office on 26 February 2008 or within a day or two, when she collected the item.

[4]

If Ms H argues successfully in these circumstances that the notice to vacate was not delivered to her, so might any tenant resist having a notice delivered by simply leaving some items in his or her mailbox. That would render section 506(3) (b) ineffective, defeating the purpose of the statute to allow service by registered mail. The consequence of allowing service by registered mail (and of the deeming provision in section 49 of the Interpretation of Legislation Act 1984) is that there will occasionally be cases like this one in which a notice must be held to have been delivered even though it was not received. I note that in Perioris v Asiodu [2003] VCAT 146 (7 March 2003) Senior Member Vassie of this tribunal came to a similar conclusion about the application to section 506 of the principles in Fancourt v Mercantile Credit, although that case did not have the added factor of the registered post item having been returned unopened to the agent.

[5]

Mr Darling also referred me to the words of His Honour Justice Smith in Director of Housing v Pavletic [2002] VSC 438 (15 October 2002). At paragraph 28, His Honour said: "If, however, one considers the evidence, uncontested, that the notice to vacate has never been received, it was not given".

[6]

I was not persuaded that these words bind the tribunal or even that they apply in the present case. I respectfully agree with the views of Senior Member Vassie in Perioris v Asiodu (at paragraphs 33 to 39) about these words. In essence, Senior Member Vassie considered that these words may have referred to particular evidence in the Pavletic case and in any case were not binding on the tribunal, because they were not the basis for the decision in that case and were not binding if they were inconsistent with the High Court authority which allowed that non-receipt did not mean non-delivery.

[7]

Mr Darling submitted that the tribunal should decide these matters case by case, so that while a tenant should not ordinarily be able to thwart the registered post process by ignoring the cards left by the post office, there should be room for difficult circumstances where the tenant could not possibly have received even the post office card. If such an approach were reasonable, this would not be an appropriate case in my view. The tenant in this case knew that there was mail in her letterbox and she did not take the necessary action to collect it.

[8]

On 5 May 2008, Ms H gave evidence that she had in the past made applications about repairs issues and attended hearings at the tribunal, which would have involved the giving of written notices of hearing, so she must have known that is was important to have a means of communication by post open.

[9]

Ms Nyland, the agent, gave evidence that she had always found the tenant difficult to contact, that she never answered her door and resisted receiving registered items. This evidence was quite vague, but I had no reason to doubt Ms Nyland's evidence and it did assist in persuading me that the tenant's failure to clear her own mailbox should not be an occasion for thwarting the landlord's attempt to give a notice to vacate. 10. I was therefore satisfied that the notice to vacate had been given as required by section 506. The notice was dated 25 February 2008 and on its face required the tenant to vacate by 1 May 2008, thus allowing several days for the registered post to arrive and be collected as well as the 60 days notice.

Whether the tenant may challenge the validity of the NTV

On 15 April 20088, a letter from the tenant was filed with the registry. It was dated 4 April 2008 and had apparently been sent by post to the Law Courts at Moorabbin, where the date stamp shows it arrived on 10 April 2008 and from where it was sent to VCAT, arriving on 16April 2008. The letter said that the tenant wanted to challenge the notice to vacate, on several grounds.
Section 321B provides for challenge to the validity of a notice to vacate. Subsection (2) of that section requires that a challenge be made within 30 days of the notice being given. I have found that the notice was sent on 25 February 2008 and allowing for postage time, it was therefore given on about 28 February 2008. Thirty days from 28 February 2008 would have been 1 April 2008, so the tenant's challenge to the notice was out of time.
The tenant's evidence was that she first received the notice to vacate on 26 March 2008 when it was left in her letterbox attached to a copy of the landlord's application to VCAT for a possession order based on the notice. At the hearing, on 5 May 2008, I explained to the landlord's agent that the tenant wished to challenge the validity of the notice and the agent consented to have that challenge proceed without further notice.
Considering all the circumstances, in particular that the notice had been given but not actually received, I exercise my discretion under section 126 of the VCAT Act to extend the time for the tenant to challenge the validity of the notice. I therefore order that the time for the tenant to challenge the notice pursuant to section 321B(2) is extended to the date the tenant's letter was filed.

I take in to account the fact that the tenant did not receive the notice when it was given and that she appears to have responded fairly quickly when she finally did receive it.

Whether the NTV was valid - irrelevant grounds for challenge

The tenant's letter outlined a number of grounds for challenging the validity of the notice.

The landlord had apparently given the tenant a second notice to vacate, on the same grounds. On the agent's evidence, this appeared to have occurred about the time the first notice was returned unopened. It was clearly invalid as it purported to give three days' notice to vacate. The landlord's agent said it was a mistake and did not rely on it. Section 320 of the Act provides that the invalidity of one notice to vacate does not affect the validity of any other notice, so it need not be considered further.

The tenant challenged the notice "on medical grounds". This is not relevant to the question of whether the notice was valid.

The next ground of challenge raised by the tenant in her letter was that the notice was given in retaliation for her exercise of her rights as a tenant. A copy of orders made by the tribunal on 6 June 2007 was attached to the letter. They required the landlord to carry out some repairs following a report obtained by the tenant from consumer Affairs Victoria. Section 266(2) of the Act provides that a notice to vacate given under section 261 or 263 is of no effect if it is retaliatory. Section 261 concerns fixed term tenancies and section 263 provides for a 120-day notice to vacate "for no reason". The landlord did not rely on section 261 or section 263, so the tenant's claim that the notice is retaliatory is not relevant to the issue of the validity of this 60-day notice.

Whether the NTV was valid - challenge for lack of specific reasons

The third ground on which the tenant said in her letter that she wished to challenge the notice was that it was "not specific". Here it is necessary to consider carefully the content of the notice.

In the space on the notice headed "Reason for Notice to Vacate" there appeared the following words: "258(1) occupation by landlord or family the premises are to be occupied by me, my partner, son daughter, parent, partners parent or a person who normally lives with and is dependent on me, immediately after the termination date". That is almost an exact repetition of the words of paragraphs (a) and (b) of section 258(1) of the Act.
Attached to the application received at the tribunal was a copy of a letter from the landlord to her agent. The letter was dated 4 February 2008 and asked the agent to "get vacant possession" of the rented premises because "I need to occupy a two bedroom unit". The agent's evidence was that a copy of that letter had been attached both to the notice to vacate served on the tenant and to the application served on the tenant. When at the hearing the agent opened the registered post article which had been returned to her by the post office unopened, it did not contain a copy of the landlords' letter. I find that the only reason given in the notice merely repeated the words of the relevant section of the Act.

It was submitted for the tenant that I should find the NTV failed to comply with section 319(d) of the Act and was therefore invalid, so that the Tribunal lacked jurisdiction to deal with the application for a possession order. Section 319 relevantly provides:

"A notice to vacate given under this Part is not valid unless-

... it specifies the reason or reasons for giving the notice..."

[1]

In support of this submission, Ms Connell of the Tenants Union (and later Mr Darling) directed me to the decision of His Honour Justice Bongiorno in Smith v Director of Housing [2005] VSC 46 (20 January 2005), a case about a notice to vacate given under section 244 of the Act. Section 244 allows notice to be given requiring a tenant to vacate immediately on the ground that the tenant or their visitor endangers the safety of a neighbour.

[2]

In Smith v Director of Housing, His Honour Justice Bongiorno said, at paragraph 16, "a reason which merely repeated the words of the Act could not satisfy the requirements of section 319(d)".

[3]

His Honour decided that such a notice could not be a valid notice. He went on (in paragraph 17) to explain that "the requirement in section 319(d) is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy." In addition, at paragraph 18 added "with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes." The question for me was whether and how that principle should apply to the challenge to the validity of a notice given under section 258.

[4]

The issue arises quite often in applications for possession at this tribunal, but apart from Smith's case, there are no decisions about it made by a court which might guide me in reaching a decision. Mr Darling submitted that some members of the tribunal have found 60-day notices which gave no reason besides a mere repetition of the words of the relevant section were invalid for lack of detail. He suggested that I should agree with those decisions for the sake of consistency. Consistency is desirable, but consistent application of principles will not lead to the same outcome in each case.

[5]

It may be putting it too widely to say that Smith's case stands for the principle that every notice to vacate should provide the tenant with sufficient detail so that the tenant may understand the alleged facts upon which the tenancy is to be terminated and to contest them if she wishes. That case concerned a notice to vacate which alleged particular behaviour by the tenant or her visitor.

[6]

To extrapolate from there to hold that a notice to vacate given under section 258 lacks sufficient detail if it fails to mention the name of the proposed new occupier and how that person is related to the landlord is a stretch. It would increase the requirements imposed by an ordinary reading of the Act.

[7]

In Smith's case, there was an allegation related to the tenant. The principle in that case may require that other notices under the Act include more information than can be given by merely repeating the words of the section under which the notice is given. However, the reason for giving the notice under section 258 is related to the landlord and his or her intentions and not to any occurrence or circumstances which would normally be within the tenant's knowledge.

[8]

Mr Darling submitted that including the name and family relationship of the proposed occupier in the notice would allow the tenant to know "the case she must meet". I was not persuaded that the tenant's ability to prepare her case would be improved merely by that information. These are not allegations a tenant can really prepare to contest, as was the information omitted from the notice in Smith.

[9]

When the application for possession based on the notice is heard, the tenant can require the landlord to prove that the facts stated in the notice are true. If a landlord was required to give more information in a notice under section 258, where should it end? If for example the tenant is entitled to know in advance which of a landlord's five sons is to live at the property, is she also entitled to know why the son is suddenly homeless so that she may contest that as well?

[10]

Looking at related provisions of the Act, it seems that the landlord may in any case change his or her mind after the tenancy is terminated. Section 264 prohibits letting the premises for 6 months after the date of the notice, except to "a person referred to in section 258". It does not require that only a person named in a notice may occupy the premises. It is not reasonable to require the landlord to name a particular person for the purposes of the notice (so that the tenant may contest it) when the landlord can apparently then install a different family member in the premises.

[11]

In the absence of a different interpretation of the legislation made by a superior authority on such matters, I am not persuaded that a notice under section 258 is invalid for lack of detail only because it gives no more than the words of the section as the reason for the notice.

Whether the landlord has proved the grounds of the NTV

In order to obtain an order for possession, the landlord must as required by section 330(1)(a)(i) prove the grounds of the notice are true. The grounds of the notice in this case are set out in section 258 which relevantly provides:

(1) A landlord may give a tenant a notice to vacate rented premises if the premises are immediately after the termination date to be occupied-

(a) by the landlord; or

(b) in the case of a landlord who is an individual-

(i) by the landlord's partner, son, daughter, parent or partner's parent; or

(ii) by another person who normally lives with the landlord and is wholly or substantially dependent on the landlord.

[1]

The agent's evidence was that the landlord is a woman who lives with her husband, that the husband is elderly and requires nursing home care, that when the husband moves to a nursing home the woman intends to move out of her house and in to a smaller place and needs the rented premises for this purpose. The agent said she had seen the landlord's husband and was sure he did indeed require nursing home care.

[2]

When the tenant pointed out that the landlord owns all the units in the block where the rented premises are situated the agent said that most of the units have only one bedroom and the landlord wanted a two bedroom unit and the rented premises are the most recently refurbished premises owned by the landlord. The Act does not require that the landlord explain why she wants to occupy these particular rented premises rather than others she owns.

[3]

On 12 May 2008, the agent's evidence was that the landlord's husband is now in hospital currently being assessed as to the level of residential care he needs and will be moved to residential care in the coming weeks. Further, the agent stated that the landlord intends to move to the rented premises as soon as possible so as not to be alone at the larger premises she has occupied until now with her husband. In particular, the agent stated that the landlord has no intention of letting the premises even for a short time while her husband's accommodation is arranged and is most anxious to obtain an order for possession. I had no reason to doubt any of this evidence and accepted it.

[4]

I found that the grounds of the notice to vacate had been proved.

[5]

I also found, as required by section 330(1) (c) that the landlord complied with section 72 of the VCAT act 1998 by sending a copy of the application to the tenant within the time permitted by section 326(1).

Postponement of the order for possession and warrant

The tenant's evidence was that she is having great difficulty finding somewhere else to live. It was also clear that the tenant has known of the landlord's intention only since 26 March 2008, and has not had the 60 or more days notice she would have had if she had collected her mail.
Under section 333 of the Act, the tribunal may postpone the day upon which the tenant must vacate the premises for up to 30 days. Under section 352, the tribunal may postpone the issue of a warrant for up to 30 days, if satisfied that the tenant would otherwise suffer hardship which would be greater than the hardship caused to the landlord by the postponement. On the evidence before me, that the landlord lives in her own home (albeit that she soon needs to leave) and that the tenant has great difficulty finding somewhere else to live, I am satisfied the hardship for the tenant of not postponing would be greater than any hardship to the landlord caused by a postponement . I also consider on that basis that the tenant should have the maximum time possible to find alternative accommodation.

Accordingly, I postpone the issue of the warrant for thirty days, set the day on which the tenant must vacate at thirty days from now and allow for thirty days for execution of the warrant.
Finally I note that this order is made today, 14 May 2008 as I reserved my decision on 12 May 2008.