Plaintiff v Defendants

2 The essential ground advanced by the plaintiff for the purposes of s 148 was that a notice to vacate served upon him was not in the form prescribed under Regulation 9(1) of the Residential Tenancies Regulations 2008 ("Regulations"), namely Form 3 in Schedule 1, and therefore that notice did not meet the requirements of s 319(a) of the Residential Tenancies Act 1997 ("Tenancies Act").

3 The plaintiff is the tenant of the premises under a tenancy agreement for a term of 12 months, expiring on 6 June 2013. In early January 2013 his employment as an information technology consultant/contractor ended and he was unable to obtain further work, at least immediately. He fell behind in the payment of rent. On or about 25 January 2013 he was served with a notice to vacate purportedly given pursuant to s 319 of the Tenancies Act, based upon non-payment of rent and s 246 of that Act. That notice was sent by registered post on 21 January 2013 and required the plaintiff to vacate on 7 February 2013.

4 At or about the same time the agent for the Landlord filed an application with VCAT pursuant to s 322(1) of the Tenancies Act claiming possession of the premises and an order for payment of arrears of rent.

5 The plaintiff attempted to negotiate with the Landlord's agent some payment arrangement, but without success.

6 There was a hearing before a Member of VCAT on 26 February 2013 at which the plaintiff brought to the attention of the Member that the notice to vacate purportedly given under s 246 of the Tenancies Act did not comply with the form prescribed by the regulations for the purposes of that section and s 319. It emerged that the notice to vacate was drawn by the Landlord's agent based upon an on-line service provided by VCAT. The Member of VCAT granted the plaintiff an adjournment to enable him to lodge a counterclaim raising his claim that the notice to vacate was invalid. This the plaintiff did by counterclaim (VCAT ref R 2013/6088/00).[1]

7 The matter came on before a Member of VCAT on 5 March 2013 at which time argument was heard on the counterclaim. In essence, the point agitated, so far as presently relevant, was that the notice to vacate was not in the form prescribed by the regulations made under the Tenancies Act and therefore did not meet the requirements of s 319 of the Tenancies Act and was thus invalid. That affected the jurisdiction of VCAT under s 43(a) of the Act. The notice to vacate in fact followed the form prescribed under earlier regulations and did not include a statement contained in paragraph 13 of the prescribed form (the prescribed form is set out in the schedule to these reasons). The VCAT Member stood the matter down and undertook some research. According to the affidavit of the plaintiff,[2] the Member stated that she would not be the one to upset 40,000 orders for possession and that she had been doing this for 15 years and "we have to trust the system".

8 In summary, the plaintiff's counterclaim was dismissed, but the proceeding was adjourned to enable the plaintiff to pay an interim amount of rent of $1,360 and, if that occurred, to enable a longer adjournment for the purposes of the plaintiff raising the money to pay the arrears of rent. The adjournment was until 19 March 2013. The matter was heard on that day. The plaintiff had not been able to pay the arrears of rent (apart from the interim amount) and orders were made that the plaintiff must vacate the premises that day. In addition, an order was made for the plaintiff to pay the outstanding rent of $5,632.64. The plaintiff's application for a stay of the order for possession pending an appeal to this Court was refused. Nevertheless, as I relate below, the plaintiff remains in possession and is not paying rent.

9 The Landlord entered an appearance on 25 March 2013 and her agent, Jenny Coughey, swore an affidavit that day. That affidavit exhibits the residential tenancy agreement entered into between the Landlord and the plaintiff in June 2012. It also confirmed the matters referred to by the plaintiff in his affidavit concerning the source of the notice to vacate. Ms Coughey states that all notices to vacate issued by her office (Garry Peer and Associates Pty Ltd of 55 Inkerman Street, St Kilda) are created using VCAT's on-line service. She states that Ms Mayo, who signed and gave the notice, informs her that the notice to vacate in this case (which was sent to the plaintiff) was created using VCAT's on-line service. She also deposes as to the amount of the outstanding rent as at 26 March 2013 (in the sum of $6,312.48). If the rent payable to 6 April 2013 is included, the amount of arrears and rent up to that time is the sum of $7,502.00. She also states, and it is common ground, that the plaintiff remains in possession of the property and has made no further payments of rent since the interim payment referred to above.

(1) A landlord may give a tenant a notice to vacate rented premises if the tenant owes at least 14 days rent to the landlord.

(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

11 This is the section under which the notice to vacate in this case was given.

12 Section 319 of the Tenancies Act prescribes the form of a notice to vacate. It provides:

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

(a) it is in the relevant prescribed form; and

(b) it is addressed to the tenant, resident or site tenant (as the case requires); and

(c) it is signed by the person giving the notice or by that person's agent; and

(d) except in the case of a notice under s 263, 288, or 317ZF, it specifies the reason or reasons for giving the notice; and

(e) it specifies the date by which compliance is required (the termination date).

13 All of the requirements set out in subparagraphs (b) to (e) were satisfied in the Notice to Vacate given to the plaintiff in this case.

14 The Residential Tenancies Regulations 2008 (SR No. 55/2008) ("Regulations") provides by Regulation 9 (so far as relevant) as follows:

1. Form of notice to vacate to a tenant of rented premises

(1) for the purposes of s 319(a) of the Act, the prescribed form of notice to vacate to a tenant of rented premises is Form 3 in schedule 1.

...

15 Form 3 in schedule 1 of the Regulations includes in paragraph 13 the following:

1. 13. Tenant please note: if you receive a notice to vacate, you may apply to the Victorian Civil and Administrative Tribunal to challenge the validity of the notice. An application must be made to the Tribunal within 30 days after the notice to vacate was given.

16 The notice to vacate given to the plaintiff was in all material respects, apart from the inclusion of paragraph 13, in accordance with Form 3. The only other difference was a reference to "Regulation 8" under the heading, which identified the form as one made under the Residential Tenancies Regulations 1998, being the former regulations now revoked.

17 Division 5 in Part 6 is headed "Can a notice to vacate be challenged?" It contains three sections, as follows:

321A Application of Division

Nothing in this Division affects any right a tenant or resident may have to challenge the validity of any other notice to vacate under this Act.

321B Tenant or resident may apply to Tribunal

(1) On or before the hearing of an application for a possession order in respect of a notice to vacate given under section 255, 256, 257, 258, 259, 260, 285, 286, or 310, a tenant or resident who has received the notice to vacate may apply to the Tribunal challenging the validity of the notice to vacate.

(2) An application under subsection (1) must be made within 30 days after the notice to vacate is given.

321C What can the Tribunal order?

(1) The Tribunal may consider an application under s 321B and may determine whether or not the notice to vacate is valid.

(2) If the Tribunal determines that the notice to vacate is valid, the tenant or resident is not entitled to bring any further application to the Tribunal to challenge the validity of the notice to vacate unless the Tribunal is satisfied that exceptional circumstances exist which justify reconsideration of the determination made under this section.

(3) Nothing in subsection (2) affects the operation of s 479.

18 I note that s 479 of the Tenancies Act relates to the review of certain determinations and orders, and permits a person to whom certain determinations apply to make application to the Tribunal for a review. None are presently relevant.

19 It should be noted that s 321B does not apply to a notice to vacate given under s 246. It applies to notices to vacate-

(a) based upon a landlord's intention to repair, renovate or reconstruct the premises (s 255);

(b) based upon a landlord's intention to demolish the premises (s 256);

(c) where the premises are immediately to be used for the purposes of a business or for any purpose other than letting for use principally as a residence (s 257);

(d) where the premises are to be occupied by the landlord (s 258);

(e) where the premises are to be sold or offered for sale with vacant possession (s 259);

(f) where the premises are required for public purposes (s 260);

(g) where the premises are a rooming house and the rooming house is to be sold or offered for sale with vacant possession (s 285);

(h) where the premises are a rooming house and the landlord intends to repair, renovate, reconstruct or demolish (s 286); and

(i) where the premises are a caravan in a caravan park and the landlord desires to sell the park (s 310).

20 Thus there are notable exceptions from the operation of s 321B of -

(a) a notice to vacate for a non-payment of rent (s 246);

(b) a notice to vacate for failure to pay a bond (s 247);

(c) a notice to vacate for failure to comply with an order of the Tribunal under s 212 (compensation and compliance) (s 248);

(d) a notice to vacate for successive breaches by a tenant (s 249);

(e) a notice to vacate for use of premises for illegal purposes (s 250);

and there may be others.

21 The significance of this analysis of the different treatment of notices to vacate is that those that are mentioned in s 321B are all affected by subsection (2) of that section, which contains the requirement that an application to challenge the validity of the notice must be given within 30 days after the notice was given to the tenant. The others are, so far as one can tell, not affected by the 30 day window. But the form applicable to a notice given under s 246 (which it will be remembered is not a section referred to in s 321B) nevertheless specifies in paragraph 13 the 30 day window. This could only be relevant if there were a requirement in the legislation that a challenge to the validity of such a notice must be brought within that 30 day window. So far as it was submitted to me, and so far as I can tell from analysis of the legislation, there is no specific requirement that a challenge to the validity of a notice to vacate under s 246 must be made within 30 days of the notice being given. Indeed, s 246 quite plainly allows a notice to specify a period of 14 days as the termination date. It is an odd contrast with a notice alerting the tenant to his right to challenge the notice within 30 days. It seems to me that the prescription of the form applicable in this case has in fact included paragraph 13 in error, at least to the extent that that paragraph requires an application to challenge the notice to be made within 30 days after the notice was given.

22 There are six prescribed forms of notices to vacate. They all contain a note similar to Note 13 of Form 4, although there are some variations not presently material.

23 The Interpretation of Legislation Act 1984 (Vic) provides by s 53 as follows:

Strict compliance with prescribed forms not necessary

1. Where a form is prescribed an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law.

24 This section is similar to s 25C of the Commonwealth Acts Interpretation Act 1901. That section provides:

Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.

25 This was probably the position at common law: see Quinney v United Stevedoring Pty Ltd[3] but the section puts the issue beyond doubt: Hamilton v Minister for Immigration, Local Government and Ethnic Affairs[4] and see Pearce and Geddes, Statutory Interpretation in Australia, 6th ed. para 11.28.

26 As the section provides, it is subject to any contrary intention that appears. The question arises in this case whether or not the terms of s 319(a) of the Tenancies Act do disclose a contrary intention. In my view they do not. Section 319 states that a notice to vacate is not valid unless it is in the relevant prescribed form. It is not now appropriate to apply any distinction between mandatory and directory requirements as a test for the validity of any particular act done under a statute or regulation. That test was discarded by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[5] The better test for determining the validity of the issue is to ask whether it was the purpose of the legislation that an act if done in breach of the provision should be invalid. In determining the question of purpose, regard must be had both to the language of the relevant provision and the scope and purpose of the whole statute.[6]

27 The question of whether noncompliance with the prescribed form gives rise to invalidity is to be solved by a process of construing the relevant statute and, in particular, to determine whether the legislature intended that the failure to comply with the stipulated requirement would invalidate the act done or whether the validity of the act would be preserved notwithstanding noncompliance.[7]

28 It is material to this question that s 319 not only provides that a notice to vacate is not valid unless it is in a relevant prescribed form, but also sets out in sub-paragraphs (b) to (e) the very things that the prescribed form itself sets out. There is in effect a doubling up of requirements within s 319 itself. This tends to indicate, in my view, that the aspects of the prescribed form that are essential are those set out in sub-paragraphs (b) to (e) and that the prescription of the form is made with the object of setting out the format and providing a useful mode of achieving one of the main purposes of the Tenancies Act, that is to provide for the inexpensive and quick resolution of disputes under the Act.[8] Insofar as the note in paragraph 13 of the Form is concerned, it is apparent that the Form is to be used for multiple reasons, some of which would require notice of the right specified in s 321B of the Tenancies Act, and the 30 day window, and others of which do not.

29 The cases on the application of s 53 largely turn on their own facts. Some of the matters arising from the cases are:

(a) the Commonwealth section does not mean that the prescribed form may not have to be used at all. That would depend upon the intended effect of the section requiring use of the form: Hamilton v Minister for Immigration Local Government and Ethnic Affairs;[9]

(b) in a group of immigration cases it has been held that while use of the prescribed form is necessary for an application to be valid, that does not preclude the section operating to make it sufficient for there to be only substantial compliance with the content of the form: Fang v Minister for Immigration and Ethnic Affairs,[10] Minister for Immigration and Multicultural Affairs v A,[11] and see Pearce and Geddes, Statutory Interpretation in Australia, 6th ed. para 11.28;

(c) the failure to comply with a requirement in such a way that the purpose behind the requirement is thereby thwarted cannot be excused under the section on the ground that there has been substantial compliance. The section cannot make unessential something that the purpose reveals to be essential: Australian Steel Company (Operations) Pty Ltd v Lewis.[12]

30 The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. One of the rules that needs to be noticed is r 4.09(1) which provides:

(1) On the hearing of the summons the Associate Judge may grant or refuse leave to appeal.

(2) Without limiting (1), the Associate Judge may refuse leave to appeal if satisfied -

(a) that the applicant does not have a prima facie case on appeal; or

(b) that to refuse leave would impose no substantial injustice.

31 The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[13] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners' Board of Victoria.[14] That summary is as follows:

(a) Whether leave is granted or not must always depend upon the justice of the particular case;

(b) if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;

(c) the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;

(d) although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;

(e) once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and

(f) where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.

(footnotes omitted)

32 Warren CJ also pointed out in Myers that the guidelines laid out are not hard and fast rules and set out a part of the following passage from the reasons of Phillips JA in Hulls:

There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

(emphasis added)

33 In Hulls, Phillips JA considered an argument that the provision made by r 4.09 in some way provided criteria for the granting of leave to appeal. He somewhat emphatically rejected that this was the proper interpretation of the rule. But it is apparent in my view that the matters identified in r 4.09(2) which may guide an Associate Judge in refusing leave to appeal are consistent with, even on all fours with, the matters identified by the Court of Appeal in Hulls as circumstances in which leave to appeal may be refused.

34 Is there a 'real or significant argument' - or a prima facie case - that the notice to vacate is not valid? In my view there is not. For the reasons given above, it is my view that the words in paragraph 13 of the prescribed form are not essential to the validity of the notice. That paragraph has been included in the Form to cater for the variety of provisions under which a notice to vacate may be given. They are apt to notices given under the sections specified in s 321B, but not to a notice given under s 246, of the Tenancies Act. In the case of a notice given under that section there is no utility in including paragraph 13 at all. In the result, it seems to me that the form of the notice given in this case is sufficiently 'in or to the effect' of the prescribed form once the purpose of the notice and the sections under which it is given are given full force and effect.[15] Put another way, the omission of paragraph 13 from the notice did not materially affect the substance of the Form.[16]

35 If I am found, hereafter, to be wrong in this view, there is another ground upon which I conclude that leave to appeal should be refused. In paragraph 32 above, where I quoted from the reasons of Phillips JA in Hulls, I emphasised the passage "ultimately what must govern is the justice of the case as it appears to the Court from which leave is sought, and that means justice to all parties, not just the applicant". If this is a case where there is an arguable basis for the plaintiff's contention that the notice to vacate was invalid because it was not in the relevant prescribed form, the question arises whether to refuse leave would impose "no substantial injustice".[17]

36 The Landlord is faced with actual and potential injustice arising out of the use of a notice to vacate found on the VCAT website. That injustice is the nonpayment of rent for a considerable period and the prospect of expensive legal proceedings in order for the plaintiff to vindicate his argument that the notice to vacate is not valid. For the plaintiff, the injustice is the termination of his tenancy in circumstances where he has not paid the rent now for some months, a position which is hardly commensurate with the degree of fault (if it be a fault) in the notice.

37 Were I to grant leave in these circumstances, the plaintiff also applies for a stay of execution of the order made for possession. He does so because only in that way can he remain in occupation of the premises.

38 I indicated in the course of argument yesterday, that I was disinclined to grant a stay of execution without a condition that the rent be brought up to date within a reasonable period. I am inclined to that view because only in that way could the injustice being suffered by the Landlord be adequately addressed, whilst at the same time affording the plaintiff the opportunity of pursuing his argument (and thus retaining possession of the premises). The plaintiff indicated that in order to satisfy such a condition he would need to borrow money to pay the rent. The likelihood of that is unknown. But, even if he did meet such a condition, to what real end does the prosecution of the appeal go? It does no more than establish a procedural breach by the use of a form that was not in the prescribed form in a presently immaterial particular. True, if my analysis is wrong, that notice lacks validity and the whole process of ejecting the plaintiff from the premises is undone. But, if any stay is conditioned on bringing the rent up to date, prosecuting the appeal results in declaring nothing of real significance to the parties, although it may clear the air in a general way for the giving of notices in the future, and the plaintiff would retain possession, providing he paid the rent, until the end of the term. The term of the tenancy agreement is likely to end before the trial is heard. Then the question is entirely academic.

39 In my view the justice of the case leans heavily against the grant of leave.

40 For these reasons, I conclude that in the exercise of the discretion given to me by s 148 of the VCAT Act and Rule 4.09 of Chapter II of the Rules, I should refuse to grant the plaintiff leave to appeal the orders of VCAT sought to be appealed in the Originating Motion.

Residential Tenancies Act 1997

(Section 319(a))

RESIDENTIAL TENANCIES REGULATIONS 2008

(Regulation 9(1))

1. This notice is given to (insert tenant/s name)

1. Regarding the rented premises at (insert address of rented premises)
2. Tenant's address (if same as address in 2, write "as above")
3. I am giving you this notice as

1. Landlord's or owner's or mortgagee's address for serving documents (can be an agent's)

7. Contact telephone numbers for landlord/owner/mortgagee

1. The Residential Tenancies Act 1997 requires me to give you at least ...... days notice to vacate (insert the number of days notice that is required under that Act) and I require you to vacate on ......... TERMINATION DATE
2. Reason for notice to vacate

(Insert the reason and the section number of the Residential Tenancies Act 1997 for the notice to vacate. You must also provide supporting factual information regarding the specific premises to validate the reason given. However, if the notice is given under section 263 of the Act, insert that section number and the words "no reason is required").

1. Signature of landlord, owner, mortgagee or agent
2. Name of landlord, owner, mortgagee or agent signing the notice (include the name of the estate agency, where applicable)
3. Tenant please note: If you receive a notice to vacate, you may apply to the Victorian Civil and Administrative Tribunal to challenge the validity of the notice. An application must be made to the Tribunal within 30 days after the notice to vacate was given.

[1] Exhibit 6 to the affidavit of Mark William Rowson sworn 20 March 2013. The counterclaim is not dated.

[3] [1957] VicRp 64; [1957] VR 484 at 489.

[4] [1993] FCA 657; (1993) 48 FCR 20 at [32]- [33].

[5] [1998] HCA 28; (1998) 194 CLR 355 at 390-391 per McHugh, Gummow, Kirby and Hayne JJ.

[7] See Tasker v Fullwood [1978] 1 NSWLR 20.

[8] Section 1(d) of the Residential Tenancies Act 1997.

[9] [1993] FCA 657; (1993) 48 FCR 20 at [32]- [33].

[10] (1996) 135 ALR 583 at 617.

[11] [1999] FCA 1679; (1999) 91 FCR 435 at 444; [1999] FCA 1679; 168 ALR 594 at 602.

[12] [2000] FCA 1915; (2000) 109 FCR 33 at [43].

[13] [1999] VSCA 117; [1999] 3 VR 331.

[14] [2007] VSCA 163; (2007) 18 VR 48 at [28].

[15] See s 53 of the Interpretation of Legislation Act 1984.

[16] See Swann v R [1999] WASCA 106 at [31].

[17] See Rule 4.09(2)(b) of Chapter II of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2009.