1. The central question in this case was whether the notice of proposed rent increase dated 31 August 2023 was valid. This involved a consideration of three issues:

(a) Whether the notice was invalid because it failed to include the method by which the rent increase was calculated, as required by section 44(3)(b) as the Act currently stands.

(b) Whether the notice was invalid because the rental provider included the incorrect amount as the 'current rent' in the notice.

(c) Whether the notice was invalid because it was given less than 12 months after a previous rent increase.

Was the notice of rent increase dated 31 August 2023 invalid because it failed to include the method by which the rent increase was calculated?

1. The Tribunal heard the renter's submissions in relation to a series of cases by the Tribunal and the Supreme Court.[2] The renter submitted that in light of those cases, the Tribunal should find that the notice of rent increase dated 31 August 2023 was invalid because it did not contain adequate reasons for the decision to increase the rent. The renter submitted that in the cases referred to, the Court and Tribunal essentially considered that a notice of rent increase is invalid where the reasons provided in the notice were inadequate, such that:

(a) they didn't give the renter sufficient understanding about why the notice was issued;

(b) they didn't include the method of calculating the rent increase; and

(c) they didn't allow the renter to adequately respond to and challenge the notice.

1. Section 44 of the Act deals with the requirements placed on rental providers when issuing notices of rent increases. The submissions from the renter were based on the current requirements set out in paragraph 44(3)(b) that a notice of proposed rent increase must include 'the method by which the rent increase was calculated'.
2. However, the rental agreement in this case started in 2019. Due to the effect of transitional provisions set out in Schedule 1, Division 5 of the Act, at clause 16, the relevant version of section 44 that applies is from a prior version of the Act,[3] which stated:
   1. How much notice of rent increase is required?

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

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

(3) The notice of a 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 within 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. As the legislative regime relevant to the parties' rental agreement did not require the rental provider to provide reasons for its decision or a method of calculation, the Tribunal did not consider the cases referred to by the renter to be persuasive.
2. The notice was not invalid because it failed to include the method by which the rent increase was calculated, because that requirement was not set out in the version of section 44 that applied to the rental agreement.

Was the notice of proposed rent increase dated 31 August 2023 invalid because the rental provider included the incorrect amount as the current rent?

1. The notice of proposed rent increase dated 31 August 2023 stated that the current rent amount was $1,980.60. The renter referred to the emails between the parties dated shortly after the August 2023 notice was given. In those emails, the renter queried the use of an existing rent figure of $1,981.60 with the rental provider, as this was the figure that the renter had been urging the rental provider to accept as the rent payable. The Tribunal notes that there had been a long running dispute prior to August 2023 about the terms of a reduced rate of rent that started during a covid period, including whether the rent payable had increased from $1,981.60 since 2020.
2. In the emails, the rental provider did dispute the existing rental figure at the time, as she thought it should have been a higher figure. Later however, the parties acknowledged that the rent payable up to 28 November 2023 was the figure in the notice, being $1,981.60.
3. The renter submitted that the figure of $1,981.60 in the notice caused him confusion, as evidenced by his emails. While it may have caused some confusion for the renter at the time, the Tribunal did not accept that putting in that figure invalidated the notice because:

(a) The current rent payable figure of $1,981.60 was not incorrect;

(b) The renter had been arguing that $1,981.60 was the correct figure when the notice was given and the rental provider subsequently agreed that it was the correct figure;

(c) The figure as stated doesn't contravene the requirements of section 44, as it then was.

Was the notice of proposed rent increase dated 31 August 2023 invalid because it was given less than 12 months after a previous rent increase?

1. Subsection 44(4A) states that the rental provider must not increase the rent payable at intervals of less than 12 months. The rental provider had previously issued a notice of rent increase on 13 April 2023, (which was within 12 months of the August 2023 notice of rent increase). The April 2023 notice stated that the current rent was $2,477.00 per calendar month and it was to be increased to $2,738.00 per calendar month, (an increase of $261.00 per month), to take effect from 29 June 2023.
2. There is no evidence that the renter paid the increased rental amount from 29 June 2023 or that the increase formed part of the arrears ordered during the bond hearing. As stated above, the parties agreed that the renter was paying $1,980.60 per month prior to 28 November 2023.
3. The Tribunal has not considered whether the April 2023 rent increase notice was otherwise invalid in the current proceeding because the renter has not paid the increased rent in accordance with the notice and when assessing the rental provider's bond claim, the Tribunal did not order that the rent had been increased in accordance with the notice. Further, because the renter did not pay the increased rent from June 2023, he has not suffered a loss in relation to that notice.
4. The Tribunal was therefore satisfied that the rent payable was not increased within the 12 months prior to the notice and subsection (4A) had not been contravened.

1. There was no other submission from the renter that the requirements referred to in subparagraphs (1)-(4) had not been met. Having regard to the notice dated 31 August 2023, the Tribunal was satisfied that those requirements were met, noting:

(a) there was at least 60 days' notice in a prescribed form[4] of a proposed rent increase;

(b) the notice only provided for one rent increase;

(c) there was a statement informing the tenant 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 the proposed rent;

(d) there was no submission from the parties that the rental agreement was subject to a fixed term at the time of it was issued.

1. For these reasons, the notice of rent increase dated 31 August 2023 was not invalid and renter has not overpaid rent after 28 November 2023.
2. The renter did not demonstrate a loss and therefore his claim was dismissed.

[1] While there may have been fixed terms of the rental agreement over the course of the renter's occupancy, the conclusion and commencement of the fixed terms did not result in new rental agreements being formed.

[2] Boyce v Mariella Nominees Pty Ltd ATF Lorusso Family Trust (Residential Tenancies) [2023] VCAT 89 (27 January 2023);

Smith v Director of Housing [2005] VSC 46;

Barlow v Fedele 1175 Pn Rosebud Pty Ltd (Residential Tenancies) [2024] VCAT 64 (17 January 2024);

Kennedy v Pan (Residential Tenancies) [2023] VCAT 529 (9 May 2023);

Barratt v Liu (Residential Tenancies) [2024] VCAT 165 (23 February 2024);

NSV v Zang (Residential Tenancies) [2024] VCAT 766 (12 August 2024).

[3] For a detailed analysis of why the older version of section 44 applies to rental agreements that commenced prior to 29 March 2021, see SHV v TAMS Management Company Pty Ltd (Residential Tenancies) [2025] VCAT 331, in particular paragraphs 28-35.

[4] There were no submissions as to the correctness or otherwise of the prescribed form used by the rental provider. If the prescribed form used by the rental provider was a more recent version than the one used in 2019, the form will be legally sufficient if it had a like effect of the prescribed form, unless Parliament intended otherwise. See Section 53 of the Interpretation of Legislation Act 1984 (Vic) and SHV v TAMS Management Company Pty Ltd (Residential Tenancies) [2025] VCAT 331, at paragraphs 36-43.