PBG v South East Housing Co-Operative (Residential Tenancies) [2025] VCAT 706

1. In accordance with section 166 of the Family Violence Protection Act 2008 (Vic) the principal registrar is directed to amend the register to anonymise the name of the applicant to PBG and the name of the second respondent to KKF.
2. The file is closed to any person without further order of the Tribunal in accordance with section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

For the written reasons provided, the Tribunal orders that:

1. The rental agreement between PBG and KKF ('the Renters') and South East Housing Co-Operative ('the Rental Provider') commenced on 2 September 2018, and no bond was paid.
2. On 1 April 2025 a Family Violence Interim Intervention Order (FVIIO) was made by the Magistrates' Court of Victoria, which varied a final intervention order previously made on 29 October 2024. The FVIIO names PBG and two other persons as protected persons under the order, and names KKF as the respondent who must obey the order. The terms of the order include restrictions upon KKF such as not contacting or communicating with a protected person, approaching or remaining within 5 metres of a protected person, or going to or remaining within 200 metres of where a protected person lives, or works or otherwise attends school or childcare. There is no term, notice or an order in effect contained within the FVIIO that a renter (either KKF or PBG) is excluded from the rented premises.[1]
3. On 18 June 2025 PBG made an application to the Tribunal for an order:

(i) terminating the rental agreement and requiring the Rental Provider to enter into a new rental agreement with PBG pursuant to section 91W(1A) of the Residential Tenancies Act 1997 (Vic) (the RT Act);

(ii) determining PBG's liability for any outstanding rent in relation to the rental agreement as 0% and KKF's liability for any outstanding rent in relation to the rental agreement as 100% pursuant to section 91X of the RT Act, and;

(iii) that the Rental Provider's application made on 6 January 2025 for possession and rent arrears pursuant to section 91ZM of the RT Act (the related application R2025-289) be dismissed.

1. No evidence or submissions were made by PBG in support of the order sought in this application to dismiss the Rental Provider's related application for possession and rent arrears. Having heard both parties' evidence and submissions for the Rental Provider's related application, there is no basis upon which a finding can be made in either application that the related application was invalid or should for any reason be dismissed or struck out.
2. In considering the claims and evidence provided for this application, it should be noted that at the date of the hearing, the evidence is that PBG and the two children have been staying with PBG's mother since 5 April 2025, and that only KKF continues to reside in the premises.
3. It should also be noted that the Tribunal has granted the orders sought by the Rental Provider in the related application R2025-289, and has terminated the residential rental agreement and ordered the Renters PBG and KKF to vacate the premises by 7 August 2025.

SECTION 91W(1A) - TERMINATION OF THE EXISTING RENTAL AGREEMENT AND CREATION OF A NEW RENTAL AGREEMENT

1. As to whether PBG could reasonably be expected to comply with the duties of a renter under the rental agreement to which this Act applies,[2] the Tribunal notes the Rental Provider is a community based agency that provides 'affordable, secure, and financially and environmentally sustainable housing for people on low incomes', and that the rent payable is determined by reference to household composition and income.
2. According to PBG's written application she is not wishing to end the rental agreement because she is experiencing severe hardship, and evidence available to the Tribunal is that she is in receipt of regular social support payments.
3. There being no evidence to suggest other than PBG could reasonably be expected to comply with the duties of a renter under a residential rental agreement to which this Act applies, this matter is supportive of an order being made pursuant to subsection 91W(1A) of the RT Act.
4. It is submitted on PBG's behalf for related application that if PBG and her two children are unable to continue living at the premises, the resulting homelessness would:[3]
   • - severely compromise PBG's ability to access vital health treatment and community based supports;
   • - negatively impact the children's emotional wellbeing, education, physical health and overall development, and;
   • - bring to an end PBG's eligibility for support under the Tenancy Plus programme.
5. There is no documentary evidence which supports the above claims made in relation to renter PBG's and / or the two children's past, current or potentially future need to access 'vital health treatment', or that the children's needs for emotional wellbeing, education, physical health and overall development could not or would not be met if they do not return to live at the premises under a new rental agreement between the Rental Provider and PBG.
6. It may be the case that PBG's eligibility for support under the Tenancy Plus programme ends if PBG and the two dependent children become homeless, and it is reasonable to expect that homelessness is likely to impact upon a person's physical, mental and emotional wellbeing, and in the case of children, their education and overall development. However, I am not satisfied these factors, whether considered separately or cumulatively, will likely result in PBG and the children suffering severe hardship if PBG is compelled to leave the premises, or more accurately in the current circumstance, is unable to enter into a new rental agreement with the rental provider. This matter is not supportive of an order requiring the rental provider to enter into a new rental agreement with PBG. [4]
7. Consideration must be given to the hardship the Rental Provider would suffer if the order sought by PBG was made in which the Rental Provider was required to enter into a new residential rental agreement with PBG.[5]
8. The Rental Provider does not oppose PBG's application that the existing rental agreement be terminated, which is the outcome sought by the Rental Provider in its related application R2025-289, and is consistent with the Tribunal's decision in that related application. However, the Rental Provider opposes an order that it be required to enter into a new rental agreement with PBG. In opposing PBG's application that it be required to enter into a new rental agreement with PBG, the Rental Provider relies upon the undisputed facts, being those that support the Rental Provider's related application, which are summarised as:[6]

(a) existing rental arrears owing (at the date of the hearing) in the amount of $9,447.53 with no evidence as to PBG's capacity to pay off what are significant arrears that have accrued over the past 6 years;

(b) PBG's repeatedly false representations to the Rental Provider regarding the household's composition which has resulted in rental undercharging in an amount exceeding $33,000.00 (which is in addition to the proven arrears of $9,447.53), and;

(c) PBG's non-performance of her duties as a renter in matters such as failing to be available for a planned routine inspection, failure to advise the Rental Poroivider of updated telephone contact details, ignoring the Rental Provider's attempts at contact with her since October 2024 and generally "abusive, dismissive or otherwise unconstructive" communications which have made "genuine dialogue impossible".

1. The Rental Provider opposes the creation of a new rental agreement for the further reason of safety for PBG and the two children, based on evidence of Renter KKF having previously made numerous unauthorised modifications to the premises, KKF's entering into the premises via windows, and the high likelihood the premises are not currently secure from any unwanted intrusion.
2. In contrast to private rental providers whose primary goal in offering a residential premises for rent is to reap a financial benefit by way of profit that can be utilised in any way it so chooses, the respondent Rental Provider in this application has as its primary goal the provision of sustainable housing for people on low incomes who are committed to cooperative democracy and engagement, and who (the renters being members of the cooperative) believe in (and therefore act in accordance with the values of) honesty, openness, social and self-responsibility.
3. PBG gave oral evidence at the hearing that she would be "happy to negotiate with [the Rental Provider] and give [the Rental Provider] my income statement and go on a payment plan, and try my best as I can do unfortunately with the family violence lots of things got mixed up, but now my main goal is to sort of return back to my home with just myself and my kids, and pay whatever".
4. Whilst PBG's persistent and numerous failures to comply with her duties under the rental agreement are not determinative, or even necessarily indicative of her future behaviour, it is nonetheless not evidence that can be ignored when the Tribunal is called upon to consider hardship to the Rental Provider, hardship which directly impacts upon the resources available to the Rental Provider in meeting its primary goal of providing sustainable housing for people on low incomes who are committed to the values of honesty, openness and self-responsibility. Taking into account PBG's persistent and numerous breaches of the existing rental agreement, and her oral evidence of how she intends to conduct herself in the future if a new rental agreement with the Rental Provider is entered into, the Tribunal is not satisfied any hardship PBG would suffer would be greater than the hardship the Rental Provider would suffer if a new rental agreement was entered into. This matter is not supportive of an order requiring the Rental Provider to enter into a new rental agreement with PBG.
5. The written terms of FVIIO does not exclude either PBG or KKF from the rented premises, other than indirectly by prohibiting KKF's contact and / or communication with PBG and the two children, his approach to or remaining within 5 metres of them, or of going to or remaining within 200 metres of where they live, or work or otherwise attend school or childcare.
6. PBG's evidence is that she and the two children moved to live with her mother on 5 April 2025, being 4 days after the FVIIO was made, and there is evidence she and the children have previously stayed with her mother on occasions when she has been unwell. There is no information before the Tribunal as to why PBG and the children are not continuing to reside at the rented premises and why it is that KKF continues to reside the premises. This matter is not supportive of an order requiring the rental provider to enter into a new rental agreement with PBG.
7. There are no other renters other than Renter PBG and Renter KKF, thus rendering this matter neither supportive or not supportive of an order to be made pursuant to section 91W(1A).
8. In determining PBG's application made pursuant to section 91V(1) of the RT Act, the prescribed matters contained in sub-regulation 36(1)(a) to (g)[7] have been taken into account where such matters are present in this application.
9. The length of the rental agreement which commenced in September 2018, the desirability of providing stable housing for two young children and PBG's evidence of a progressively deteriorating relationship with KKF over the past seven years are matters the Tribunal has borne in mind in determining whether or not to grant PBG's application terminating the existing rental agreement and requiring the rental provider to enter into a new rental agreement with her. Regard has also been given to PBG's evidence that some of the breaches of the rental agreement (unauthorised modifications, the unauthorised keeping of some 100+ pigeons requiring removal by local council authorities and damage to roofing, more recent entry to the premises via windows) were committed by KKF, and were not actions in which she was complicit and indeed in the case of the pigeons was an action to which she voiced to KKF her objections regarding their presence.
10. However, the Rental Provider's objection to PBG's application that a new rental agreement be created for PBG, centre heavily upon the numerous and uncontested actions of PBG that go to the heart of the existing rental agreement, that being compliance with the fundamental duty to pay rent as and when it falls due and providing honest information about the household composition to facilitate accurate calculation of rent payable as required by the rental agreement.
11. As the Tribunal is not satisfied as to the matters set out in subsection 91W(2) of the RT Act, the application is dismissed.

SECTION 91X - DETERMINATION OF PARTIES' LIABILITY UNDER TERMINATED RENTAL AGREEMENT

1. As the Tribunal dismisses PBG's application for an order pursuant to section 91W(1A) of the RT Act, the application for an order to be made pursuant to section 91X of the RT Act must also be dismissed.

1. The grounds relied upon for the application have not been proved.

Orders will be made in accordance with the finding above that:

[1] Subsection 91W(3)(b) of the Residential Tenancies Act 1997 (Vic).

[2] Subsection 91W(2)(a) of the Residential Tenancies Act 1997 (Vic).

[4] Subsection 91W(2)(b) of the Residential Tenancies Act 1997 (Vic).

[5] Subsection 91W(2)(c) of the Residential Tenancies Act 1997 (Vic).

[6] Summary of Proofs dated 3 July 2025, page 6, submitted for related application R2025-289.

[7] Residential Tenancies Regulations 2021 (Vic).