Sied v Homes Victoria

Residential Tenancies Amendment Act 2018 (Vic)

Residential Tenancies Regulations 2021 (Vic) reg 21

Leonard v G & L Segal Pty Ltd Aft G & L Segal Family Trust (Residential Tenancies) [2025] VCAT 197

SHV v TAMS Management Company Pty Ltd (Residential Tenancies) [2025] VCAT 331

Silk Brothers Proprietary Limited v State Electricity Commission (Vic) (1943) 67 CLR 1

Pine Needles Village Pty Ltd v Residential Tribunal of NSW [2000] NSWSC 144

1. The requirement in paragraph 44(3)(b) of the Residential Tenancies Act 1997 (Vic) to include 'the method by which the rent increase was calculated' does not apply to periodic agreements that commenced before 29 March 2021, whether the periodic agreements arose from an initial fixed term or otherwise, and hence do not apply to the rental agreements that are the subject of these proceedings.
2. The notices of rent increase dated 12 September 2024 in these matters are valid, as they comply with section 44 of the Residential Tenancies Act 1997 (Vic) as it stood before 29 March 2021.

1. Yassin Mohammed Sied did not have reasonable grounds for failing to apply for an investigation and report from the Director of Consumer Affairs Victoria within 30 days of being given the notice of proposed rent increase dated 12 September 2024.

1. Shuaib Ali and Hodon Magan had reasonable grounds for failing to apply for an investigation and report from the Director of Consumer Affairs Victoria within 30 days of being given the notices of proposed rent increase dated 12 September 2024.

1. Leave is refused for Yassin Mohammed Sied to apply for an order declaring the rent or proposed rent excessive without receiving a report from the Director of Consumer Affairs Victoria.

1. Leave is granted to Shuaib Ali and Hodon Magan to apply for an order declaring the rent or proposed rent excessive without receiving a report from the Director of Consumer Affairs Victoria.

1. In respect of R2025/9456, the renter is directed to advise VCAT within 14 days whether they wish to continue the application, given that Homes Victoria has agreed to reduce the rent being charged to $350 per week, or alternatively, whether the application is withdrawn.
2. R2025/6478, R2025/9335 and (unless withdrawn) R2025/9456 will be set down for hearing in accordance with directions to be issued as separate orders.

1. Each of the applicants in this matter are renters under a periodic residential rental agreement with the rental provider, Homes Victoria. The rental agreements commenced before 29 March 2021, being the date significant amendments to the Residential Tenancies Act 1997 (Vic) ('RTA') came into effect.
2. On 6 June 2024, Homes Victoria issued to each of the renters a notice of proposed rent increase to take effect from 18 August 2024. However, a subsequent decision was made by Homes Victoria to delay the date on which the rent increase would come into effect. A further notice of proposed rent increase was issued to each of the renters on 12 September 2024, with the new rent amount to take effect from 24 November 2024.
3. Section 45 of the RTA enables a renter who has received a notice of proposed rent increase to apply to the Director of Consumer Affairs Victoria (CAV) within 30 days of receipt of the notice, asking CAV to carry out an investigation and provide a report in respect of the proposed rent.
4. The applicant in R2025/9456 Ms Gebre, together with her co-renter Mr Eshutu, requested such a report following receipt of the notice of proposed rent increase given on 12 September 2024. The CAV report was issued on 14 March 2025. The report concluded that the proposed rent of $450 per week was excessive and that $350 per week was an acceptable rental amount. Homes Victoria accepted the recommendation and adjusted the rent accordingly.
5. Nevertheless, on 19 March 2025, Ms Gebre lodged an application with VCAT under subsection 46(1) of the RTA which states that after receiving a report from CAV under section 45, the renter may apply to the Tribunal for an order declaring the rent or proposed rent excessive.
6. The applicants in R2025/224, R2025/6479 and R2025/9335 did not apply to CAV for an investigation and report within the required 30-day time frame. However, subsection 46(3) of the RTA provides that a renter may, with the leave of the Tribunal, apply for an order declaring a proposed rent increase excessive without receiving a report from CAV under section 45. Subsection 46(5) sets out the circumstances in which leave can be granted. To do so, the Tribunal must be satisfied that there are reasonable grounds for the renter's failure to request CAV to investigate and report within the required time.
7. The applicants in R2025/224, R2025/6479 and R2025/9335 applied to VCAT under subsection 46(3) of the RTA for such leave on 19 December 2024, 26 February 2025 and 6 February 2025 respectively.
8. All of the applicants were represented by a lawyer from Inner Melbourne Community Legal, who requested that the matters be heard together, on the basis that common issues were raised in each of the proceedings, most relevantly, the question of the validity of each of the notices.
9. The parties were notified by orders dated 19 June 2025, that the proceedings would be listed together for a hearing on 4 September 2025 to determine the following issues:
   1. Whether the current requirements relating to a valid notice of proposed rent increase as set out in section 44 of the RTA apply to a rental agreement that commenced before 29 March 2021.
   2. If so, whether the information set out in the notices of proposed rent increase dated 12 September 2024 met the requirements in paragraph 44(3)(b) of the RTA to include 'the method by which the rent increase was calculated' and of the prescribed form to provide 'the process and calculation used to reach the new rent amount'.
   3. If the notices of rent increase are valid, whether the renters in R2025/224, R2025/6478 and R2025/9335 had reasonable grounds for the failure to request CAV to investigate and report under section 45 of the RTA, such that leave to apply should be granted.

ISSUE 1: Do the current requirements relating to a valid notice of rent increase as set out in section 44 of the RTA apply to a rental agreement that commenced before 29 March 2021?

1. On 29 March 2021, the Residential Tenancies Amendment Act 2018 (Vic) ('RTAA') came into effect resulting in significant amendments to the RTA. Relevantly, section 44 of the RTA was amended. Prior to 29 March 2021, section 44 provided that:

(1) A landlord must give a tenant as least 60 days notice in the prescribed form of a proposed rent increase.

(2) A notice of proposed rent increase under subsection (1) may only provide for one rent increase.

(3) The notice of proposed rent increase must include a statement informing the tenant of the tenant's right under section 45 to apply within 30 days after the notice is given to the Director to investigate and report on the proposed rent.

(4) A landlord under a fixed term tenancy agreement must not increase the rent before the term ends unless the agreement provides for a rent increase in the fixed term.

(4A) A landlord must not increase the rent payable under a tenancy agreement at intervals of less than 12 months.

(5) A rent increase in contravention of this section is invalid.

1. With effect from 29 March 2021, subsection 44(3) of the RTA was amended to read:

(3) The notice of proposed rent increase must include -

(a) the amount of the rent increase; and

(b) the method by which the rent increase was calculated; and

(c) a statement informing the renter of the renter's right under section 45 to apply within 30 days after the notice is given to the Director to investigate and report on proposed rent.

1. The RTAA also inserted a new Division 5, Schedule 1 into the RTA from 29 March 2021 setting out transitional provisions relating to the amendments. Relevantly, under the heading 'Fixed term tenancy agreements', subclause 16(1) of that Division provides that the amendments made in section 44 by the RTAA do not apply to:

(a) a fixed term tenancy agreement entered into before the commencement date of the applicable amendment until that agreement is terminated; and

(b) a periodic tenancy agreement that commenced before the commencement of the applicable amendment until that agreement is terminated.

1. Subclause 16(2) goes on to provide that section 44 of the RTA as in force immediately before the applicable amendment by the RTAA continues to apply to:

(a) a fixed term tenancy agreement entered into before the commencement of that amendment until the end of that agreement; and

(b) a periodic tenancy agreement that commenced before the commencement of that amendment until the end of that agreement.

1. Each of the rental agreements in these matters began as a periodic tenancy agreement long before the commencement date of 29 March 2021 referred to in the transitional provisions.

1. The renters submitted that there was a question of statutory construction arising from clause 16 of Division 5, Schedule 1. The correct construction was that clause 16 applied only to fixed term agreements and periodic agreements that followed after the expiration of the fixed term under a fixed term agreement, if either started before 29 March 2021. However, clause 16 does not apply generally to periodic agreements entered into before 29 March 2021.
2. According to the renters, the correct construction involved:

...taking into account the exact words and all of the words chosen by parliament in the transitional provision.[1] Key among those is the heading of the transitional provision and the use of the language of 'enter' as contrasted with 'commence' repeatedly throughout the transitional provision.

1. The submission placed heavy reliance on the fact that the heading to clause 16 is 'Fixed term tenancy agreements' (emphasis added). In addition, the explanatory memorandum accompanying the introduction of this transitional provision was said to have reinforced what was intended by the heading, as it states: 'New clause 16 provides transitional provisions in relation to fixed term tenancy agreements'.[2]
2. The renters argued that the construction they advanced paid respect to all of the words used in the clause.

The heading of the transitional provision and the explanatory memorandum, as well as the words in the provision read in their context,[3] all indicate a legislative intention to have the provision govern tenancy agreements arising from 'fixed term' arrangements. The heading is part of the Act[4] and can be used to resolve any ambiguity in the meaning of the words used in a provision.[5] In this instance, the heading refers only to 'fixed term' agreements, and not to periodic agreements. That focus is consistent with the explanatory memorandum, a recognised aid to the interpretation of the transitional provision.

1. According to the renters, context is not a matter that only arises in circumstances of ambiguity, but is to be taken into account in any event. However, the clause is plainly ambiguous, as there are two competing constructions. It is not permissible to simply ignore the heading, or the explanatory memorandum which says exactly the same thing.
2. The renters further contended that the words in the heading were complemented or reinforced by the words used in the clause itself. There was a distinction to be drawn between 'entry' into 'a fixed term tenancy agreement' and the 'commencement' of 'a periodic tenancy agreement'.

Naturally, one can 'enter' into a periodic tenancy agreement, just as one can 'enter' a fixed term tenancy agreement. However, only a periodic tenancy agreement can 'commence' without being 'entered' in the ordinary sense of being the subject of terms and conditions afresh. This is so by operation of the deeming provision of s 91Q of the RT Act. By that, a fixed term agreement converts to a periodic agreement. In that circumstance, the periodic agreement thereby 'commences' without being 'entered'.

1. The renters concluded that, 'taking into account those textual and contextual matters, it is plain that the transitional provision was intended to capture only agreements arising from fixed term arrangements, whether within the fixed term or after conversion to a periodic tenancy agreement'. They argued that the transitional provision was not intended to capture, and did not capture, circumstances where the parties 'enter' into a periodic tenancy agreement.
2. In response to Homes Victoria's contention that 'commencement' was a broader term or concept than 'enter', and that 'commencement' included the concept of 'enter', the renters asserted that there was no authority for this proposition, no dictionary definition was given to support the contention, and the rental provider's argument was not consistent with logic.
3. The renters said it was also illogical that Parliament intended renters who had signed an agreement before 29 March 2021, and who may be in public housing for many, many years, would be unable to benefit from the amendments to section 44.
4. As a cautionary note for the Tribunal, the renters referred to Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; [2009] 238 CLR 642, arguing that extremely unusual circumstances are required for courts to 'write in' words or 'write out' words in legislation. They argued that to adopt the construction put forward by Homes Victoria would involve 'writing out' the phrase 'fixed term' in the heading or 'writing in' the word 'periodic'. It was necessary to abstain from any course which might have the appearance of judicial legislation. To put 'meat on the bones' in this case, the Tribunal would have to be satisfied that the language is intractable or totally unworkable. However, the construction proposed by the renters provided a workable construction that gave effect to all the words in clause 16.

1. Homes Victoria submitted that the transitional provision in clause 16 applied in these matters, with the periodic agreements falling squarely within the terms of paragraph (b) in both subclauses 16(1) and 16(2).
2. With regard to the heading 'Fixed term tenancy agreements' in clause 16, Homes Victoria submitted that the heading did not detract from the plain words of that provision insofar as it related to periodic tenancy agreements. There was no ambiguity about the meaning to be attributed to the words in paragraphs 16(1)(b) and (2)(b).
3. Homes Victoria relied on Latham CJ in Silk Brothers Proprietary Limited v State Electricity Commission (Vic) (1943) 67 CLR 1 at 16 where his Honour held as follows:

The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous and may sometimes be of service in determining the scope of a provision... 'But where the enacting words are clear and unambiguous, the title or headings must give way and full effect must be given to the enactment' (Bennett v Minister for Public Works (NSW) [1908] HCA 50; (1908) 7 CLR 372 at 383).

1. Homes Victoria rejected the renters' contention that clause 16 only applied to fixed term agreements and periodic agreements that were originally fixed term agreements. It pointed out that this would result in an anomalous situation, namely, that the circumstances in which section 44 as amended would apply would depend entirely on whether the rental agreement commenced life as a periodic or fixed term agreement. This could not have been the intention of Parliament. A more rational reason for the use of the word 'commence' rather than 'enter' was to ensure unequivocally that all periodic agreements were captured.
2. Homes Victoria further submitted that:

In any event, the presumption against retrospectivity operates because the amendments to section 44 purport to affect rights under the relevant residential rental agreements. There is nothing in the [RTAA] that could be construed as an intention that it have retrospective effect to alter rights already established under residential rental agreements. To the contrary, item 16 of the transitional provisions makes clear that amendments to section 44 are not intended to apply to existing residential rental agreements.

1. Were the amended version of section 44 to apply to the agreements in this case it would have the effect of altering the parties previously agreed contractual arrangements. There is no clear intention expressed that amendments were intended to apply retrospectively to affect rights and liabilities. The presumption is that section 44 as amended is not intended to have retrospective operation.
2. Further, Homes Victoria argued, the heading cannot prevail over the clear words of the section. There is no ambiguity or lack of clarity in the text of clause 16, rather any ambiguity arises solely because of the heading.

1. The effect of the transitional provisions in rent increase cases has been considered by the Tribunal on a number of previous occasions. In Leonard v G & L Segal Pty Ltd Aft G & L Segal Family Trust (Residential Tenancies) [2025] VCAT 197 ('Leonard'), SHV v TAMS Management Company Pty Ltd (Residential Tenancies) [2025] VCAT 331 ('SHV v TAMS') and Hill v Katnelson (Residential Tenancies) [2025] VCAT 711, the Tribunal found that the requirement in paragraph 44(3)(b) to include the method of calculation in a notice of proposed rent increase did not apply because each of the rental agreements in those matters commenced before 29 March 2021.
2. However, in each case, the relevant tenancy commenced by way of an initial fixed term, that then became periodic.[6] The renters argued that the reasoning in these cases does not apply here, because the rental agreements in this case began as periodic agreements; there was never a fixed term agreement in place.
3. However, as Homes Victoria argued, there is no rational reason why Parliament would treat rental arrangements differently, simply because of the terms on which they commenced or began. The text of the transitional provision in clause 16 is, in our view, clear and unambiguous. The only ambiguity arises from the heading which refers only to fixed term agreements with the explanatory memorandum simply repeating the words of the heading and the text of clause 16, without further explanation as to what might be meant by the unequivocal reference in paragraph (b) to a periodic tenancy.
4. Thus, despite the heading 'Fixed term tenancy agreement', the clause is evidently not limited to fixed term agreements and hence on either of the two constructions put forward, the heading is incomplete. Clause 16 addresses fixed term and periodic agreements, and in particular, periodic agreements that commenced before the applicable amendment.
5. Turning to the legislative intent to be discerned from the use of 'entered into' in each of subclauses 16(1)(a) and (2)(a) and 'commenced' in each of subclauses 16(1)(b) and (2)(b), we agree with Homes Victoria. In our view, the most rational explanation for this distinction is that the drafters intended to ensure that subclause (b) in each case unequivocally captured not just periodic tenancies entered into by parties to a rental agreement (as in this case), but also period tenancies created pursuant to section 91Q of the RTA, following the end of a fixed term.
6. In a legal context, 'enter' means 'to assume the obligation of', 'to become a party to' and 'to make a beginning in'.[7] Similarly, 'enter into' has been defined as 'take upon oneself (a commitment, duty, relationship, etc.); bind oneself by, subscribe to, (an agreement)'.[8] That is, it connotes becoming legally bound by the contractual arrangement under a fixed term rental agreement.
7. 'Commence', on the other hand, is less precise. It simply means 'to begin; start', 'to have a beginning; come into being'.[9] Thus, a periodic agreement that started or began before 29 March 2021 whether by being entered into or by some other mechanism is, on a plain reading of the words, caught by the terms of clause 16.
8. Accordingly, in our view, Parliament's intention evinced by clause 16 was to ensure that the relevant amendments did not apply to a periodic tenancy agreement that arose before 29 March 2021, whether the rental agreement was periodic from its commencement or whether it became periodic as a result of the expiry of a fixed term.
9. Further, the submission that subclauses 16(1) and 16(2), at paragraph (b) only apply to periodic tenancy agreements that have arisen from a fixed term agreement, reads words into the legislation that are simply not there. We agree with Homes Victoria that the reasoning in Silk Brothers Proprietary Limited v State Electricity Commission (Vic)[10] applies. Where the enacting words are clear and unambiguous, the title or headings must give way and full effect must be given to the enactment.
10. We are therefore satisfied that section 44 as amended by the RTAA does not apply to the rental agreements in these matters, and that, in accordance with subclause 16(2), section 44 as it stood before 29 March 2021 is the applicable provision.
11. A matter not referred to in the renters' submissions, though discussed in Leonard to which the parties were referred by the Tribunal, is whether the rental provider was nevertheless required to provide details of the method used to calculate the proposed rent increase, because this requirement forms part of the currently prescribed form.
12. Both pre and post 29 March 2021, section 44 requires a notice of proposed rent increase to be in the prescribed form. Regulation 21 of the Residential Tenancies Regulations 2021 (Vic) ('RT Regulations') provides that, for the purposes of subsection 44(1) of the RTA, the prescribed form is Form 5 in Schedule 1. That form states in Part A - Information for the Renter 'the notice must include the method by which the rent increase was calculated'. It also includes in Part B - Details at Item 11:

Method used to calculate rent increase [insert method, for example 'Consumer Price Index', used to calculate rent increase. Provide details of the process and calculation used to reach new rent amount]

1. In Leonard, Member Hoel noted that the RTA did not confer any power to make regulations that were inconsistent with the RTA and concluded that it would be inappropriate to construe regulation 21 of the RT Regulations and the current prescribed form as prevailing over the clear words in clause 16.[11]
2. In SHV v TAMS, Member Bevan stated that:

[I]f strict compliance with the wording in the prescribed form were to prevail, it would have the effect of repealing the transitional provisions as they apply to section 44(3), or in the alternative have the effect of amending section 44(3) of the version of the Act applying to this tenancy.

It is a basic principle of law that delegated legislation can only amend or repeal a statutory provision of Parliament where it is clearly authorised to do so by an act of Parliament, usually the parent act. No such provision has been brought to my attention that would allow the executive to use the prescribed form to amend or repeal the relevant sections in the Act.[12]

Section 53 of the Interpretation of Legislation Act 1984 is as follows:

53 Strict compliance with prescribed forms not necessary

Where a form is prescribed by 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.

The extent to which compliance with the prescribed form is required is to be determined by reference to the "scope and purpose" of the Act and the intention of Parliament, the facts and circumstances of the particular case, and whether the departure from the wording of the prescribed form is likely to mislead the recipient. Omitting content from the prescribed form that is not otherwise required by the version of the Act applying to this tenancy is not likely to mislead the recipient in this case.[13]

1. Member Bevan considered that it was unambiguously Parliament's intention that the new section 44 requirements would not apply to all rental agreements from 29 March 2021, despite the wording in the current prescribed form.
2. We agree with the conclusion reached by Members Hoel and Bevan. As we have found, Parliament evidently did not intend certain amendments introduced by the RTAA, including the amendment to section 44, to apply to all rental agreements from 29 March 2021. Rather the law in effect before that date was expressly stated to apply to fixed term and periodic agreements commencing before that date. To mandate a contrary requirement by way of regulation and the prescribed form, is inconsistent with Parliament's clear intentions as set out in the RTA.
3. The notices of proposed rent increase in these matters are valid. They were sent by post to the renters by Homes Victoria in accordance with subsection 506(1) of the RTA, and gave 60 days' notice of the proposed rent increase, as required by section 44.
4. Two of the renters gave evidence that they did not receive the notices. However, subsection 49(1) of the Interpretation of Legislation Act 1984 (Vic) ('ILA') states that:

Where an Act or subordinate instrument authorizes or requires a document to be served by post (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 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.

1. 'Delivery' differs from 'receipt' by the intended recipient. The effect of subsection 49(1) of the ILA is that unless non-delivery is proved, 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. That means the relevant notice has been 'given'.[14]
2. Homes Victoria provided evidence by way of affidavit from a manager from the housing revenue team, as to the posting of the relevant notices of proposed rent increase to the renters. No evidence of non-delivery was presented in these matters. Accordingly, the notices were deemed to have been given to the renters, as required by subsection 44(1) of the RTA, at the time the notices were expected to have been delivered in the ordinary course of the post.

ISSUE 2: Did the information set out in the notices of proposed rent increase meet the requirements in paragraph 44(3)(b) of the RTA?

1. Although we have concluded that paragraph 44(3)(b) of the RTA as in force on and from 21 March 2021 does not apply to these rental agreements, we accept the submission by both parties that we should nevertheless make findings in relation to the meaning of the phrase 'the method by which the rent increase was calculated' as it appears in that paragraph.
2. Unfortunately, this new requirement has been the subject of considerable confusion for rental providers, renters, agents and others who rely on the RTA to regulate their contractual arrangements. Despite a submission by the renters that the purpose of the amendment was to provide clarity for parties, it seems to have had the opposite effect.
3. The information currently posted to the website of Consumer Affairs Victoria tends to highlight the confusion. It states:

[T]he law does require a rental provider to give their renter information about how they have calculated the rent increase.

In practice this means a rental provider must show that:

• the Notice of rent increase provides for a specific amount of rent increase, and
• the increase has been calculated in line with the method outlined in the Notice of rent increase.

The 4 most common methods for calculating a rent increase are:

• according to how much prices are generally changing in the economy, known as the consumer price index (CPI) - Australian Bureau of Statistics website
• according to average rent prices in Victoria, known as the metropolitan rent index or the regional rent index.
• by a fixed percentage increase - a percentage should be specified (e.g. 3%)
• by a fixed dollar amount - a dollar amount should be specified (e.g. $10)

However, rental providers can use other approaches if they prefer. It is important to remember that:

• Simply referring to a method in the rental agreement is not enough.
• The rent increase information in the rental agreement and in the Notice of rent increase must be sufficiently clear so the renter can work out:
  • how rent increases will be calculated and
  • if the increase matches what is specified in the agreement.

For example, the rental agreement may say that rent will be increased by $5 every 12 months. This means the rental provider can increase the rent by $5 per year by issuing the renter with a Notice of rent increase form.

The following are examples of rent increase calculations included in a written rent agreement or Notice of rent increase. The examples are not exhaustive and are provided as general guidance to assist renters and rental providers.

• Rent increased by dollar amount.
• Based on the rental market valuation.
• As per rental provider's instructions.
• All properties in the same building are leased between (price range).
• CPI

• The next rent increase will be an increase of $20 per week.
• The next rent increase will be a fixed increase of 2%.
• The next rent increase will be by 1.8% in line with the Consumer Price Index increase as reported by the Australian Bureau of Statistics for the September 2022 quarter.
• The next rent increase will be by $20 in line with the statewide rent increase for the June 2022 quarter.

1. In our view, the 'valid wording' described above would make no sense in a notice of proposed rent increase. As the examples refer to the 'next rent increase' these instructions appear to relate to possible clauses that could be included in rental agreements. However, it is unusual for rental agreements to include clauses that govern subsequent rent increases or their method of calculation.
2. The CAV information also ignores the fact that the most common method for calculating a rent increase is for a rental provider to examine comparable market rents for like properties in the same area, based on publicly available information about currently advertised or recently rented properties. This is in fact (in part) the method used by the rental provider in these matters, Homes Victoria, being Victoria's largest rental provider.
3. The CAV information appears to be skewed towards rental agreements of 5 years or more (which are rare), where the standard terms include the four method options described for increasing rent.
4. In any event, the information set out by CAV does not provide any clear guidance for rental providers, renters or this Tribunal as to what the correct valid wording in a notice of proposed rent increase might look like.
5. There has also been a number of Tribunal decisions where members have grappled with the meaning to be attributed to paragraph 44(3)(b) of the RTA.[15]
6. In Boyce v Mariella Nominees Pty Ltd ATF Lorusso Family Trust (Residential Tenancies) [2023] VCAT 89 ('Boyce'), Member Klingender found invalid a notice of proposed rent increase which stated that the method used was 'Comparative Market Analysis'. The member said:

"Comparative Market Analysis" is not a term in everyday parlance, although I accept it is commonly used within the real estate industry. While I see no issue with the use of the phrase "Comparative Market Analysis", as a basis for calculation, it is somewhat vague and unhelpful unless there is some information provided about what that actually means. What is that analysis? What is being compared to what? How has it been applied to the current situation to justify the rent increase? Without that information it is probable that the renter may not be able to properly answer the question - why is this notice being given to me?

The notice of rent increase ... should contain sufficient information to the renters to enable them to not only answer the question as to why it is given, but also enough information for them to determine whether the rent being proposed is excessive and should be challenged.

A simple reference to a "Comparative Market Analysis" with no further information about the properties that were used, their location or features, which would enable the renters to make a proper assessment about the reasonableness of the increase is in my view against the spirit or purpose of the requirements to give a method of calculation.[16]

1. In Barlow v Fedele 1187 Pn Rosebud Pty Ltd (Residential Tenancies) [2024] VCAT 64 ('Barlow'), Member Buljan found invalid a notice of proposed rent increase that stated the method used was 'a fixed dollar amount of $522 per month increase'. Member Buljan concluded that more was required than a simple mathematical equation, and that the term 'method' involved a series of steps for reaching a particular outcome, rather than simply referring to the outcome or final result as the method. Member Buljan went further to state that the relevant method should be sufficiently described so as to enable the recipient of the notice to determine whether the rent increase had been fairly calculated.
2. In Janover v Liberman (Residential Tenancies) [2025] VCAT 264, Member Mahoney found invalid a notice which stated that the method used to calculate the rent increase was:

$480 per week divided by 7 days per week x 385 days per annum divided by 12 months per annum = $2,086 per month. The increase is based on 2 bedroom apartments in the St Kilda East/Balaclava area (comparable with courtyard/s) that are ranging around $500 - $550 per week.[17]

1. The member found the notice invalid because it did not include or was not accompanied by information actually identifying the two-bedroom apartments in the relevant area that were relied on, so that the renter could satisfy themselves as to the validity of the assessment.

1. In the present matters, the notices of proposed rent increase include the following information, as the "method" by which the rent increases had been calculated.

Public housing market rents are set based on independent values determined by the Valuer General of Victoria (VGV). Every five years, including this year, the market rent values are reviewed and set by the VGV and consider size, location, bedroom, age, property type, and comparable private market prices. Interim years use market rent indices validated by the VGV.

1. The renters relied on the reasoning of Member Klingender in Boyce and also referred to Pine Needles Village Pty Ltd v Residential Tribunal of NSW [2000] NSWSC 144 ('Pine Needles') at [4]-[6], where the Court was considering the meaning to be attributed to the 'method' of calculation of an increase in rent, as set out in a rental agreement. The Court stated that the words in the agreement:

"An amount commensurate with prevailing market value" is a statement of outcome in distinction from a method of calculation. Relevant dictionary references define "calculate" in terms of reckoning and computation, and "method" to procedure for attaining an object, which is to be distinguished from the object itself.

1. A similar approach was taken in in Shadforth & Shadforth v Pullen & Harding [2008] NTRTCmr 8, where the NT Commissioner of Tenancies said:

Although carrying out a valuation might involve some calculations, it cannot be said that the valuation itself is a method of calculation or that a comparison of the current rent with so called market rent is a method of calculation. To calculate means to ascertain by exact reckoning (Oxford Dictionary).

1. The renters submitted that paragraph 44(3)(b) requires the inclusion of 'the method by which the rent increase was calculated' and the word 'calculated must be given effect'. According to the renters, the rental provider had not set out the method in the notices of proposed rent increase dated 12 September 2024. They had not stated what values were identified by the VGV or how those values were used or weighed.
2. The renters further submitted that a level of detail was required about the particular factors taken into account by the VGV. They argued that paragraph 44(3)(b) provided particularity for renters, that is, a clear line for determining the validity of the notice. The notice had to be unequivocal about the method used for reaching the rent increase.
3. Further, at common law, the test to be applied to determine the validity of the notice is whether a reasonable recipient who is credited with knowledge of the terms of the lease, and taking into account the surrounding circumstances, would have doubt as to the meaning of the notice or have regarded it as equivocal.[18] This is helpful to understand the mischief that Parliament intended to address. Parliament was aiming at unequivocal clarity.
4. Finally, the renters argued that the fact they have the option of asking CAV to investigate and report on the proposed rent, does not detract from the unequivocal and mandatory requirements of section 44. The construction urged by Homes Victoria flew in the face of the principal of construction set out in Nathanson v Minister for Home Affairs and Another [2022] HCA 26 at [30] that 'legislation should be construed to discourage unnecessary litigation, to reduce wasting time and cost and to preserve the dignity of the law'.

1. Homes Victoria submitted that the reasoning in Boyce had erroneously implied additional procedural fairness obligations into paragraph 44(3)(b) by requiring a notice of proposed rent increase:

(a) to set out enough information for the renter to determine whether the rent increase is excessive and should be challenged; and

(b) make reference to the location and features of comparable properties to enable renters to make a proper assessment about the reasonableness of the increase.

1. If these requirements were intended, Parliament could simply have said so.
2. Homes Victoria further submitted that it was erroneous for the member in Boyce to apply the reasoning in Smith v Director of Housing [2005] VSC 46 ('Smith') to a notice of proposed rent increase.
3. In Smith, the Court stated that the legislation required a rental provider to give sufficient detail in a notice to vacate to put the renter on notice as to why the notice to vacate was being given. However, a notice of proposed rent increase makes no allegations, it simply conveys information about changes to the terms of the rental agreement.
4. Homes Victoria argued that the legislative scheme has already ensured procedural fairness to a renter in both the content of the notice and the ability of the renter to challenge the proposed increase. The renter has a right to seek an investigation and report from CAV simply because they consider the proposed rent excessive.
5. Homes Victoria therefore took issue with the member's approach in Boyce, because the reasoning in that case was based on a false analogy, in order to draw the conclusion that notices of proposed rent increase require the same procedural obligations as a notice to vacate.
6. Further requirements that have been imposed by subsequent VCAT decisions, as to the extent or specificity of the information required in a proposed notice of rent increase when describing the method used to calculate the rent increase, has no foothold in the statutory scheme.
7. Homes Victoria agreed that it would be insufficient for a notice to refer to rent being increased by an amount 'commensurate with market value' or 'as set by the Valuer-General Victoria' but in these matters the notices of proposed rent increased dated 12 September 2024 set out that:

(a) the amount charged in public housing was set on the basis of an independent value determined by the VGV;

(b) every 5 years, the market rent was reviewed and set by the VGV;

(c) the exercise had taken place in 2024; and

(d) in coming up with the market rent values, the VGV had considered the size, location, number of bedrooms, age, property type and comparable private market rents.

1. Homes Victoria further submitted that the prescribed notice of proposed rent increase in the RT Regulations contained requirements that went beyond the words set out in paragraph 46(3)(b), which was impermissible. The RT Regulations and the prescribed form could not prevail over the clear language of subsection 44(3). Homes Victoria argued that it was therefore not required to 'set out the process and calculation used to reach the new rent amount' when the requirement under paragraph 44(3)(b) is limited to including 'the method by which the rent increase was calculated'.

1. We agree with the renters that the language in subsection 44(3) should be construed conformably with the reasoning of the NSW Supreme Court in Pine Needles. A method of calculating rent is more than a statement of an outcome or a label that is used to describe or name a particular process, such as 'comparative market rent'. As noted by Member Buljan in Barlow, 'method' involves a series of steps for reaching a particular outcome.
2. Thus, what is required by the words 'the method by which the rent increase was calculated' as used in paragraph 44(3)(b), involves setting out the steps taken to arrive at the proposed rent increase in the particular case. Although the prescribed form uses different words, in our view, it is in substance asking the user of the form to complete that task, by requiring the user to 'provide details of the process and calculation' (steps) used in arriving at the proposed rent.
3. However, we do not agree with a number of VCAT decisions that appear to stand for the proposition that more than this is routinely required. In particular, in our judgment, compliance with paragraph 44(3)(b) does not require that:

(a) enough information is included to enable the renter to determine whether the rent increase is excessive and should be challenged;

(b) the notice make reference to the location and features of comparable market properties sufficient to enable renters to make a proper assessment about the reasonableness of the increase;

(c) the actual properties considered in a comparative market analysis be specified; nor

(d) the evidence used to make such analysis be attached to the notice.

1. Including additional requirements to the effect of those listed above is to read into the Act words that are simply not there.
2. The Macquarie Dictionary defines method as 'a mode of procedure, especially an orderly or systemic mode...a way of doing something, especially in accordance with a definite plan'. Thus, in our view, the notice must describe the procedure or process that the rental provider used to arrive at the calculation.
3. Put another way, it must show the workings that led to the figure that constitutes the proposed rent increase. This could be as simple as disclosing a percentage increase to the current rental by reference to a stated index (the most recent CPI, for example), or a more complex process involving disclosing the average of rentals for a specified number similar properties, newly rented over a stated period.
4. We would add that there is nothing in the section that obliges the rental provider to use a method that is consistent with common practice or even relevant to determining a fair market rental. So long as the method used is coherently stated, and shows how the proposed rent has been determined, this will satisfy the section. For example, but without intending to be prescriptive, we consider that acceptable wording where comparative market analysis forms the basis of the rent increase for a two-bedroom apartment could be as follows:

The method by which the rent increase was calculated was as follows:

• The rent charged for newly rented two-bedroom apartments in East Brunswick with similar features to the rental property over the last six months ranges from $500 to $550 per week, based on a total of 5 rental properties.
• The average of that range is $525 per week.
• The rent increase to $525 per week has been calculated by applying that average.

1. In the present case, Homes Victoria has described the basis on which 'market rents' are set (namely, based on 'independent values determined by the VGV'), how frequently market rents are reviewed (every 5 years) and what the VGV considers as part of that review (size, location, bedroom, age, property type and comparable market prices). However, the notice does not disclose how those factors have been applied by the rental provider to arrive at the rent increase for the individual renter receiving the form.
2. More particularly:

(a) it describes a valuation process used for all Homes Victoria renters, without explaining how the process was applied in determining the appropriate rent for each of the specific rental properties in these proceedings;

(b) it uses generic information without identifying how the particular features referred to as being part of the valuation process - such as size, location and age - related to the relevant rental properties;

(c) it does not say what information the investigation yielded about comparable private market prices (for example, that 2-bedroom apartments in the area are achieving on average rents of $525 per week); and

(d) most notably, it does not say how the information yielded was used to arrive at the proposed rent increase for the individual renter (for example, 'we have therefore increased the rent to $525 per week in line with comparable rents for 2-bedroom apartments').

1. Accordingly, had it been necessary for us to decide, we would have concluded that the notices of proposed rent increase dated 12 September 2024 failed in each case to include 'the method by which the rent increase was calculated' within the meaning of paragraph 44(3)(b) of the RTA.

ISSUE 3: Do the renters in R2025/224, R2025/6478 and R2025/9335 have reasonable grounds for their failure to request the Director to investigate and report?

1. Subsection 46(5) of the RTA provides that the Tribunal may grant leave to a renter to apply for an order declaring rent to be excessive, if 'there are reasonable grounds for the renter's failure to request the Director to investigate and report' within the required 30-day time frame.
2. Early submissions provided by the renters with their VCAT application referred to the decision in Hassan v Director of Housing [2015] VCAT 1501 ('Hassan'), where Member Davies turned to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to provide guidance as to how 'reasonable grounds' for leave might be determined.
3. The member concluded that relevant considerations included whether the applicant for leave could demonstrate a proper explanation for the delay, whether it would be fair and equitable to grant the application, whether the respondent had been prejudiced by the delay and whether the substantive application had merit.
4. The most recent submissions from the renters stated that the meaning and function of the term 'reasonable grounds' was long settled: 'it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person'.[19] It also requires the grounds to be 'objectively viewed'.[20]
5. Homes Victoria argued that the correct test was not that set out in Hassan with the exception of the first enquiry, that is, whether the applicant for leave has a proper explanation for the delay.
6. We agree that the relevant enquiry under subsection 46(5) is simply whether the Tribunal can be satisfied that the renter had 'reasonable grounds' for failing to ask CAV to investigate within 30 days after the notice of proposed increase is given, or deemed to have been given in accordance with subsection 49(1) of the ILA. The test for reasonableness is as stated by the renters, at paragraph 94 of these Reasons.

1. The renters in R2025/6478 and R2025/9335, Shuaib Ali and Hodon Magan, gave evidence on oath or affirmation that they failed to apply to CAV for an investigation and report within the 30-day time limit because they did not receive the notices of proposed rent increase, which were sent by ordinary post. They said that the notices were lost in the mail collection of the high-rise towers in which they each reside.
2. Homes Victoria noted that the relevant notices of proposed rent increase were sent by post and were deemed to have been received in the ordinary course of the post, unless the contrary is proved.[21] Homes Victoria submitted that the renters had not proved that there was a failure of delivery.
3. Homes Victoria also argued that Mr Ali had changed the reason given for his failure to apply to CAV within the required time frame. He did not state in his VCAT application that he had failed to receive the notice of proposed rent increase. However, Mr Ali's evidence was that he advised the lawyer who prepared his VCAT application that he did not get the notice; and he could not say why the lawyer did not include that reason in the application.
4. We accept the evidence given by Mr Ali and Ms Magan. They presented as honest and straightforward witnesses and we are satisfied on the balance of probabilities that the notices did not come to their attention or that they did not in fact receive them. While the renters are deemed to have been given the notices as a matter of law, because there is no evidence that there was a failure of postal delivery, it can still be the case that the renters did not as a matter of fact, receive them or have those notices brought to their attention. As noted at paragraph 51 of these Reasons 'delivery' differs from 'receipt'.
5. We are also satisfied in the circumstances that both Shuaib Ali and Hodon Magan had reasonable grounds for failing to apply to CAV for an investigation and report within the required 30-day time frame. Leave is therefore granted to Shuaib Ali and Hodon Magan to apply for an order declaring the rent or proposed rent excessive without receiving a report from CAV.
6. In a statutory declaration dated 14 July 2025, the renter in R2025/224 Yassin Mohammed Sied said he received the relevant notice, but he was not able to read or understand the letter setting out the proposed rent increase. He struggled to read complex English and required an Arabic interpreter for legal proceedings. He said he only learned that there was a 30-day deadline to appeal the rent increase when Homes Victoria contacted him in November 2025 to advise it was time to pay the higher rent.
7. Homes Victoria provided evidence on affidavit that when a client's details are recorded on the Housing Integrated Information Program ('HiiP'), the client's preferred spoken and written language is recorded on their profile. Hiip currently records Mr Sied's preferred spoken and written language as English.
8. In addition, renters are encouraged to contact local housing officers to discuss any matters about their tenancy, and they can arrange interpreters if needed, this being standard practice. The relevant housing office for Mr Sied is located on the ground floor of his high-rise complex. Records kept by the housing office since June 2024 show that Mr Sied has had regular interactions with his local housing officers, and he does not seek the assistance of an interpreter when he engages with them.
9. Further, the fifth page of the letter accompanying the notice of proposed rent increase was called Language Link and in a number of languages, including Arabic, informed the renter that if he needed help understanding the letter he could contact his local housing officer or call a Language Link telephone number that was provided, for an interpreter.
10. The notice of proposed rent increase also included a section entitled 'Rent increase investigation' and an extra page which stated in a number of languages, including Arabic, that if the reader had difficulty understanding English, they should contact the Translating and Interpreting Service (with the telephone number provided) and ask to be put through to an Information Officer at CAV.
11. Homes Victoria also provided evidence of the content of Mr Sied's interactions with the local housing office. As noted earlier in these Reasons, Mr Sied was sent an earlier notice of rent increase on 11 June 2024. The housing office records suggest that on 13 June 2024, Mr Sied attended his local housing office and asked in substance how he could challenge the market rent increase. He was advised that CAV could undertake an independent evaluation.
12. The records indicate that he was again provided with information on 3 July 2024 about how he could challenge the market rent increase through CAV. However, there is no record of contact with Mr Sied about the subsequent notice of proposed rent increase issued on 12 September 2024, until 27 November 2024.
13. At the hearing, Mr Sied's evidence was that he could neither read nor write in either Arabic or English. He said that he lives at the rental property with his wife and four children, aged 17 to 22 years. His evidence was that he did not ask any of his family members to help him understand the letter or notice of proposed rent increase that he received in September 2024, as he did not have the time or opportunity. He said that he leaves for work at 5am and gets home late. He also works on weekends. When he comes home from work, he is tired and not in a state to ask them. Mr Sied agreed in cross-examination that whenever he receives a notice of rent increase, he discusses it with the local office. Since this last rent increase, he did not ask.
14. Asked about his language preference for spoken and written communication in English, as recorded with Homes Victoria, Mr Sied said he did not remember stating this preference.
15. Asked about the record of his interactions in June 2024 with the local housing officers in respect of the earlier notice of rent increase, when he was given advice about approaching CAV for a rent investigation, Mr Sied said he could not recall these discussions. In respect of another contact in July 2024 with the local housing office, Mr Sied agreed that he was shown information about CAV and their telephone number so that he could challenge the rent increase.
16. Mr Sied said that when he got the September 2024 notice of rent increase, he decided to look for another house; he took four weeks off work to look for a private rental without success, and then he decided to go to lawyers for help. He did not go to the local housing office until November 2024.
17. Homes Victoria did not adduce direct evidence from anyone at the local housing office verifying the accuracy of the records of their interactions with Mr Sied. It was also not directly put to Mr Sied that at the time he received the September 2024 notice he knew that he could apply to CAV to investigate the rent increase. Having regard to the whole of the evidence, we are nevertheless satisfied on balance that Mr Sied was so aware.
18. We make the following further findings of fact:

(a) Mr Sied was given advice in June and July 2024 by his local housing office about how to challenge a rent increase through CAV;

(b) it is possible that Mr Sied was not made aware of the time frame for doing so, however that information was set out in the documentation given to him;

(c) when Mr Sied received the September 2024 notice, he was aware that he could approach his local office again for further advice, and he also had family members to whom he could have turned for help - Mr Sied's evidence to the effect that he did not have an opportunity to do this was unconvincing;

(d) Mr Sied received the September 2024 notice, but despite having the opportunity to clarify the action he could take to challenge the notice, he instead chose to look for alternative private rental properties over the following four weeks; and

(e) Mr Sied only decided to seek assistance when the rental increase came into effect.

1. In the circumstances, we are unable to conclude that Mr Sied had 'reasonable grounds' for failing to seek an investigation within 30 days of being given the notice of rent increase dated 12 September 2024. Leave is therefore refused for Mr Sied to apply for an order declaring the rent of proposed rent excessive without receiving a report from CAV.

[1] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 281.

[2] Explanatory Memorandum, Residential Tenancies Amendment Bill 2018 (Vic) 291.

[3] AB (a pseudonym) v Independent Broad-based Anti-Corruption Commission [2024] HCA 10; 278 CLR 300, [21]; Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 [38]; Vicinity Funds Re Ltd v Commissioner of State Revenue (No 2) [2021] VSC 687, [42].

[4] Interpretation of Legislation Act 1984 (Vic) s 36(2A).

[5] Victoria v Intralot Australia Pty Ltd [2015] VSCA 358, [60]-[61].

[6] Section 91Q of the RTA provides that a renter is deemed to occupy rented premises under a periodic residential rental agreement of the term of a fixed term residential rental agreement ends, and the renter continues in occupation otherwise than as a renter under another fixed term agreement.

[8] The New Shorter Oxford Dictionary, 1993 Ed.

[10] Silk Brothers Proprietary Limited v State Electricity Commission (Vic) (1943) 67 CLR 1, 16.

[12] SHV v TAMS, [42]-[43], citing De L v Director General of Community Services (NSW) (1990) 190 ALR 171, 174 (Brennan CJ and Dawson J).

[14] Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, [21]; NS v CH (Residential Tenancies) [2008] VCAT 971; Director of Housing v NES (Residential Tenancies) [2017] VCAT 989.

[15] Examples include Kennedy v Pan (Residential Tenancies) [2023] VCAT 1042, Asif v Jian Ding Property Pty Ltd (Residential Tenancies) [2023] VCAT 1042, Maurer v Sia (Residential Tenancies) [2024] VCAT 571.

[16] Boyce v Mariella Nominees Pty Ltd ATF Lorusso Family Trust (Residential Tenancies) [2023] VCAT 89, [26]-[28].

[17] Janover v Liberman (Residential Tenancies) [2025] VCAT 264, [25].

[18] Lactose Fresh Pty Ltd v Finishing Services Pty Ltd [2006] FCA 219.

[19] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, [12].

[20] Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309, [90]-[92]; Milicevic v Campbell (1975) 132 CLR 307, 320; SZOQC v Minister for Immigration and Citizenship [2012] FCAFC 40; (2012) 200 FCR 174, [21]; Goldie v Commonwealth of Australia [2002] FCAFC 100, [4].

[21] Interpretation of Legislation Act 1984 (Vic) s 49(1).