Smith v Director of Housing [2005] VSC 46

5. On 7 October 2004 Mrs Smith was served with a notice to vacate her flat under the Residential Tenancies Act 1997. The form of that notice, which is prescribed by regulations made under the Act, contains 12 numbered paragraphs, each of which is designed to provide information to the reader concerning the tenancy to which the notice relates and, materially for present purposes, the reason the notice is being given.

8. The notice to vacate served on Mrs Smith describes the landlord as the Director of Housing and her as the tenant. It describes the property and is signed by one Faye Killoran who is (incorrectly) described as the landlord, although it can be inferred that she has so signed the document as the landlord's agent so as to comply with the statutory provision under which the notice was given. Curiously, the only direction to vacate the premises found in the document is in the context of its stating a date by which the landlord required the tenant to vacate. In this case that date was 12 October 2004.

11. Paragraph 9 of the document is headed: "Reason for notice to vacate". It is in the following terms:

"Section 244(1) You or your visitor have endangered the safety of neighbours. On 05/10/04 at approximately 10.10 a.m. housing workers visiting the rented premises, 1/32 Hunter Street, Lakes Entrance, were threatened by a visitor to the property with a knife."

15. On 11 October 2004 the Director of Housing lodged an application with VCAT for a possession order against Mrs Smith pursuant to s.322(1) of the Act. That application described the Director of Housing's claim against Mrs Smith by reference to ss.322 and 244 of the Act and the words "possession - danger". The application was signed by one Brenda Orford who, it may be inferred, was an employee of the applicant, although that fact is not expressly stated in the document.

18. On 18 October the matter came before VCAT member Ms H Lambrick where Ms Orford appeared for the Director of Housing and Mrs Smith represented herself. At that hearing Ms Lambrick recognised a possible defect in the notice to vacate and questioned Mrs Orford about it. She asked her to explain what the Director of Housing's application was about. In reply Ms Orford described the reason for the application in these terms:

"The reason for actually sending the application out, its because of the threat to our staff when they went there which was in relation to threats to other neighbours."

22. Ms Orford then referred to events which had allegedly occurred on 21 September involving abusive language and loud music which were not alleged in the notice to vacate. Eventually, when pressed by Ms Lambrick, Ms Orford expanded on her earlier statement of her case by referring to allegations of threats and an assault upon a neighbour by Mrs Smith's daughter which allegedly occurred on 21 September, verbal abuse between 2 September and 10 September and a threat to kill allegedly made by Mrs Smith's grandson on 5 October against a neighbour, and the brandishing of a knife by him at one of the Director of Housing's employees.

25. Following the receipt of this information from Ms Orford, Ms Lambrick referred to the defects in the notice to vacate and set about trying to rectify the situation by amending the application then before her to allege the matters not previously raised, conscious as she obviously was that Mrs Smith had never heard these allegations prior to the day of the hearing.

28. The end result of the hearing before Ms Lambrick was that the application of the Director of Housing was adjourned to a date to be fixed and it was amended to include two further paragraphs, namely

"(1) It is alleged that on 21 September 2004, the tenant's daughter, Lillian Sampford, verbally abused and physically assaulted [by slapping] an occupier of neighbouring premises, Ms Cheryl Lorenz; (2) It is alleged that after the Director of Housing staff members attending the rented premises and the occupiers of neighbouring premises on 5 October 2004 that the tenant's daughter, Lillian Sampford, and grandson Kim, made threats to kill Ms Cheryl Lorenz".

32. Neither of these allegations were referred to in the notice to vacate served on Mrs Smith on 7 October, nor were they themselves the subject of any other notice or notices to vacate.

35. On 26 October, the Director's application again came before another VCAT member, Ms Good, who after hearing evidence and argument which ranged across the whole of the series of incidents now the subject of the application, came to the conclusion that the Director of Housing had made out his case and was entitled to an order for possession. However, as I have determined that the process initiated by the notice to vacate had irretrievably miscarried well before this hearing commenced there is no need for me now to engage in any further analysis of it or its outcome.

38. The Residential Tenancies Act 1997 provides a procedure whereby a landlord may obtain possession of rented premises where his tenant or his tenant's visitor endangers the safety of occupiers of neighbouring premises. The procedure is designed to protect the quiet enjoyment of neighbour' properties by permitting a rapid eviction to occur in appropriate circumstances. The procedure involves the service of a notice to vacate, followed, if necessary, by an application to VCAT pursuant to s.322(1) of the Act. This application can result, in theory at least, in an order for possession in favour of the landlord effective virtually immediately.

41. Smith J in Director of Housing v. Pavletic[1] aptly described the procedure as being "blunt and speedy". As might therefore be expected, the Act lays down strict requirements for a notice to vacate to be valid.

44. Section 319 of the Act provides that for a notice to vacate given on the ground referred to in S.244 to be valid, it must comply with five statutory criteria. It must be in a relevant prescribed form, it must be addressed to the tenant or resident, it must be signed by the person giving the notice or their agent, it must specify the reason or reasons for giving the notice and it must specify the date by which compliance is required. These conditions are conditions precedent to the validity of the notice. If they are not all present the notice is invalid. In the absence of some saving provision in the Act a notice which is deficient in one or other of the requirements referred to is void and of no effect.

47. In this case, the notice to vacate has been attacked by Mrs Smith on the ground that it does not comply with s.319(d). Ms Richards QC for Mrs Smith argued that the reason for giving the notice expressed in paragraph 9 was not a reason which, on its face, invoked s.244 of the Act at all. The reference to the incident of 5 October described threats made to "housing workers", not neighbours.

50. Mr Williams for the Director replied that although the reference to the incident of the 5 October may have been erroneously included in paragraph 9 of the notice, the fact that it was preceded by the words "You or your visitor have endangered the safety of neighbours" saves it as a valid notice as that was the reason for its being given. But, that submission ignores not only the fact that that was not the reason for giving the notice as expressed by Ms Orford to VCAT member Ms Lambrick, but also that a reason which merely repeated the words of the Act which were invoked could not satisfy the requirements of s.319.

53. The requirement laid down in s.319(d) is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no particular formal verbal formula and no particular legal knowledge to answer the question "Why is this notice being given?" A basic facility for communication in plain English is enough.

56. The answer, for the notice to comply with s.319(d), requires the setting out of the facts upon which the assertion that the tenant or her visitor has endangered or is endangering the safety of relevant neighbours with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes.

59. In Atkins v Taip[2] Murphy J of this Court was dealing with a notice to a tenant under previous legislation, the Residential Tenancies Act 1980. The provision there under consideration required a landlord to specify what a tenant had done which the landlord alleged breached his tenancy agreement. Murphy J expressed the view that the landlord had to specify what the tenant had done so that the tenant might understand what provision of his tenancy agreement he had breached. Although, in that instance, one of the purposes of the notice was to enable the tenant to remedy a breach if he could, it was also to enable him to contest the existence of the breach if he wished.

62. Mr Williams sought to distinguish this case on the ground that it dealt with breaches of tenancy agreements which might be able to be remedied, whereas conduct giving rise to a right to give a notice under s.244 of the current Act cannot be remedied. That distinction, although real, ignores the purpose of s.319 which is to lay a proper basis for the pursuit by a landlord of a very summary method of terminating a tenancy and thus extinguishing the rights of the tenant. It is incumbent upon a landlord who seeks to avail himself of such a summary remedy to comply strictly with the law so as to ensure that by resorting to such a remedy he is neither deliberately nor accidentally trampling on the rights of the person against whom the remedy is being sought.

65. Mr Williams' argument that in reading the notice to vacate one can ignore the last part of paragraph 9 is rejected. It ignores the purpose of the document and would permit it to become an instrument which mislead rather than informed the tenant. The notice to vacate in this case does not comply with s.319(d) of the Act. It was, accordingly, ineffective to support an application under s.322 of the Act for possession and the situation could not be cured as Ms Lambrick tried to do by widening the ambit of the application before her by amending it. The source of the application, and thus the jurisdiction of VCAT, was the notice to vacate. The application could never be wider than that notice nor could it validly allege any facts not alleged in the original notice to vacate.

68. Mr Williams also argued that the VCAT member had at her disposal a number of powers of amendment and he referred particularly to the provisions of ss.126 and 127 of the Victorian Civil and Administrative Tribunal Act 1998. It is sufficient to say to dispose of this argument that nothing in those sections would have empowered Ms Lambrick to alter or amend in any way the notice to vacate which was given in this case.

71. The jurisdiction of VCAT to entertain the application by the Director of Housing for possession of Mrs Smith's flat was dependent upon a valid notice to vacate having been given to her. For the notice to vacate to have been valid it must, on it's face, have identified, with a sufficient degree of precision, the facts said to constitute the endangering of Mrs Smith's neighbours by her or her visitor or visitors so as to bring the case within s.244 of the ACT: See Nestle Australia Ltd v The President and Members of the Equal Opportunity Board[3] relying up R v. Gray; ex parte Marsh[4] and Farquharson v Morgan[5].

74. VCAT, had no jurisdiction to consider the Director of Housing's application. It should have been struck out in limine. Accordingly, this appeal will be upheld and the decision of the Victorian Civil and Administrative Tribunal of 26 October 2004 will be quashed.

[1] [2002] VSC 438.

[3] [1990] VicRp 71; [1990] V.R 805.

[4] [1985] HCA 67; (1985) 157 CLR 351.

[5] [1894] 1 QB 552.