Order that rent be paid into the Rent Special Account.

1. At the time of renewal, the renter must send details of the orders sought and any claim for compensation to the residential rental provider and the Tribunal. The details of any compensation claim must, in relation to each item of repair:

explain the loss suffered by the renter due to the residential rental provider's failure to maintain the rented premises in good repair,

detail the sum claimed, how that amount has been calculated and, where relevant, the daily rate of compensation claimed for any ongoing failure to complete repairs.

1. The application may be renewed by the residential rental provider if it is necessary, for reasons that are beyond the residential rental provider's control, to seek a variation to the above repair orders.
2. At the time of renewal, the residential rental provider must specify details of the variation to the orders being sought and the basis for the requested variation. The residential rental provider must also send a copy of the renewal request, including this information, to the renter.

Geoff Fox, Sharon Stone and Jessica McFarlane from Miles Real Estate

1. In the three-month period since Michael Smyth ('Renter') has been named as a renter on a residential rental agreement for a property in Coburg ('rented premises'), there have been seven applications made by the Renter to the Tribunal related to repairs and has been given a notice to vacate.
2. The Renter had been living at the three-bedroom, two-bathroom penthouse unit on the old Pentridge gaol site for a number of years with his partner, Peter McKerrow, who passed away in August 2023. Mr Smyth was made a renter by order of the Tribunal,[1] from 18 December 2023 under an agreement with the owner of the premises, Trovato Investments Pty Ltd ('Rental Provider').
3. Six of the applications came before me for hearing on 19 March 2024, with the seventh matter having been struck out prior.[2] Four of the applications were related to requests for repairs at the rented premises, and the remainder an application for possession for the sale of the premises and a challenge to the validity of that notice.
4. For the reasons that follow, there will be repair orders made, limited to a few items, no order for compensation and the application for the renter to vacate will be dismissed as it is not reasonable and proportionate to make a possession order.

1. Peter McKerrow ('Former Renter'), moved into the rented premises as the sole renter named on a rental agreement on 18 October 2019. He resided at the rented premises with the Renter, up until his death on 4 August 2023.
2. The Renter says that he has been at the rented premises for the entire four and a half years, despite not being named on the rental agreement. He says he has been the point of contact and communication with the Rental Provider and its agents in relation to repairs, for at least the last twelve-month period, when the Former Renter was unwell.
3. On 7 August 2023, the Renter advised the Rental Provider that the Former Renter had died.
4. The Rental Provider says it told the agent to give the Renter time to move out before seeking the return of the rented premises.
5. Between August 2023 and October 2023, the Renter was in contact with the Rental Provider and agents over numerous repairs required for the rented premises, in particular repairs needed as a result of water leaking on the balcony.
6. On 27 September 2023, the Renter contacted the agents and advised there were a number of maintenance issues at the rented premises including a problem with the flow of water.
7. On 30 October 2023, the Renter, as the Former Renter's next of kin, was sent a notice to vacate the rented premises, under section 91N(3) of the Residential Tenancies Act 1997 (Vic) ('RT Act'), for the death of a sole renter.
8. On 9 November 2023, the Renter made application to the Tribunal asking for the following orders:

To set-aside the Notice to Vacate (Notice Number 4457890) dated 30 October 2023 > > To recognise Michael Andrew Smyth as the Renter of the property

9. The application was amended to be a creation of rental agreement in accordance with section 91S of the RT Act and proceeded to hearing on 7 December 2023. The application was opposed by the Rental Provider with the following findings and orders made by the Tribunal:

10. The applicant seeks an order requiring the residential rental provider to enter into a residential rental agreement with the applicant.
11. The applicant has resided in the rented premises as their principal place of residence and is not a party to a residential rental agreement applying to the premises.
12. One or more of the conditions of section 91S(1)(a) to (e) of the Residential Tenancies Act 1997 are satisfied and section 91S(2) does not apply.
13. Being satisfied as to the matters in section 91T(1), it is appropriate for the residential rental provider to enter into a residential rental agreement with the applicant.

14. The residential rental provider must enter into a residential rental agreement with the applicant before 18 December 2023.
15. The residential rental agreement will be on the same terms and conditions as the residential rental agreement between the residential rental provider and the former renter.
16. During November and December 2023, various trades attended the rented premises to carry out repairs.
17. On 21 December 2023, the Renter signed a rental agreement with a commencement date backdated to 18 December 2023. The agreement was signed by the Rental Provider on 22 December 2023.
18. The rental agreement was in the standard form,[3] and as part of the disclosures statement provided the following:

Intention to Sell > > Has an agent been engaged to sell the property, a contract of sale prepared or an ongoing proposal to sell the property? If yes, please provide details below. > > √ Yes No

19. No details, documents or further comments were provided.
20. On 22 December 2023, the Rental Provider signed an Exclusive Auction Authority with Nelson Alexander and attached it to a Notice to Vacate ('NTV') and sent it to the Renter by email at 2:54pm that same day.
21. The NTV requested that the Renter vacate the rented premises by 21 February 2024 and gave the following reasons for being given:

Section 91ZZB Premises are being sold > > 91ZZB(1): The premises are to be sold or offered for sale with vacant possession immediately after the termination (sic). > > We have received a copy of an authority to sell, the Rental Provider is selling with vacant possession. Therefore we are seeking 60 days' notice with vacant possession. > > We note that it is currently on a periodic tenancy agreement and that the renter may give 14 days' notice should they wish to move out earlier than the expiration.

22. The Renter immediately lodged an application[4] at the Tribunal in proceeding R2023/38722 seeking non-urgent repairs under section 75 of the RT Act following written notice said to have been given to the Rental Provider on 8 November 2023 ('1st Repairs Application').
23. Another application[5] was lodged the same day by the Renter in proceeding R2024/416 seeking a refund of $15,100 in rent paid since the death of the Former Renter, and seeking to challenge the NTV under section 91ZZS of the RT Act, claiming that the same was discriminatory under section 91ZZI(2) ('NTV Challenge Application').
24. On 12 January 2024, the Renter lodged a further application[6] with the Tribunal in proceeding R2024/1482, relying on section 452 of the RT Act, seeking a restraining order for the Rental Provider and agents breaching his quiet enjoyment and to resolve a general dispute about the information provided and manner in which the rental agreement was entered into ('General Dispute Application'). The issues about repairs and the NTV were raised.
25. On 25 January 2024, the Rental Provider made application for possession based on the NTV in proceeding R2024/2904 ('Possession Application'), advising that an auction date had been scheduled for March 2024.
26. On 8 February 2024, the Renter made application[7] for repairs and compensation in proceeding R2024/4509 ('2nd Repairs Application').
27. On 17 February 2024, the Renter made a further application[8] for repairs under section 75 of the RT Act, following an investigation and report by Consumer Affairs Victoria in proceeding R2024/5592 ('3rd Repairs Application').
28. Each of the Applications will be dealt with in turn.

1. The 1st Repairs Application provided the following detail and basis for the claim:

The rental provider and Miles Real Estate agency will be in no doubt why this application has been bought. On 27 September 2023 I sent the following email: > > Hello Fiona, thankyou for your email. The following link takes you to 30 photos I have taken today showing aspects of the apartment that require repair or maintenance. Many of these items were defective/broken or in a poor condition when Peter moved into the apartment almost four years ago on 19 October 2019. I have many photographs of the condition of the apartment on 19th October 2019. The list of defective items at that time remains defective. Nothing was done to fix these items. The water does not flow properly from any of the sinks (both bathrooms and the kitchen) and has never done so. The dishwasher has been defective for years. I have spent hundreds of dollars purchasing new components because Miles Real Estate did nothing in response to Peter's numerous complaints over many months. The oven (which was in an appalling condition when Peter moved in) was replaced with something which cannot be used as a regular oven. It has never been used since its installation. Despite receiving more than $140,000 of rent since 19 October 2019, to my knowledge, very little has been spent by Miles Real Estate (or the landlord) on any maintenance or upkeep of the apartment other than numerous inadequate attempts to rectify leaking from the balcony, something which has been ongoing for at least the last two years to my knowledge. Throughout the tenancy, Peter was incredibly flexible at accommodating access to tradespeople. I have similarly been equally accommodating, even during Peter's long hospital stays. I cannot commend Miles Real Estate and/or the landlord for similar flexibility. Modest requests for minor repairs, improvements or changes went ahead unheeded. I would ask Miles Real Estate to make amends for this situation and fix these repair and maintenance items that I have outlined.

2. By order dated 11 January 2024, the Renter was put on notice that the Tribunal considered that without written notice being provided to the Rental Provider or a CAV report being obtained, and the Renter not being a named renter on a rental agreement in September or November 2023, the application was misconceived and would be struck out. The Renter was given until 11 February 2024 to object to the strike out.
3. The Renter objected and requested a hearing. This application was one that came on for hearing before me.
4. This application by the Renter for repairs is based on requests that were made in September and November 2023. The Renter was not a renter named on a rental agreement and had no "standing" under the RT Act to make such a request.
5. There being no written request for repairs between 18 December 2023, when the Renter was considered to have a rental agreement in his name, and when this application was made on 22 December 2023, this application was premature.
6. As such this application will be struck out as the Renter had no basis on which to seek a Tribunal order for repairs at that time.

1. The Renter's 2nd Repair Application made on 8 February 2024 seeks an investigation by the Director of Consumer Affairs ('CAV") under section 74 of the RT Act, after giving the rental provider a list of non-urgent repairs on 16 January 2024 and the same not being completed. The further particulars of claim details the following:

The amount I am asking for $1,699, the cost of a Fishyer and Paycal (sic) draw dishwasher. The residential rental provider is aware that the dishwasher on the premises has not functioned at all since 13 May 2022 (21 months). To completely fix the items set out in the Notice to Rental Provider dated 16 January 2024 which was sent to the residential rental provider on that day. There is internal mould, rotting wood and rotting carpet. My furniture has been damaged sitting on carpet that is wet during periods of wet weather. I had to relocate electrical items due to dampness in the wall where the electrical plug sockets are located. The landlord and Paul Evans (managing director of Miles Real Estate) have both been made aware of this issue when they visited the premises. The dishwasher has not worked for 21 months. The extractor fan in the bathroom has not worked for four years and three months. Miles Real Estate was requested to fix this on 23 October 2019. The extractor fan in the rangehood has also not worked since 18 October 2019. The lack of a fan in the bathroom is grossly unhygienic, when the bathroom is internal with no other ventilation and comprises a toilet, shower and laundry. The lack of a range hood extractor fan risks setting off the sensitive building smoke alarm. The living room lighting is faulty, generating incredible heat which has distorted the lighting structure. The switches mounted in the wall also get hot when the lights are on, indicating an electrical fault. This has resulted in the installed lights in the living room being unusable. The blinds are missing components and a blind in one of the bedrooms is inoperable. Please refer to the 16th January 2024 Notice to Rental Provider of Non-Urgent Repairs for the full list. All of the above incomplete repairs has resulted in a dimunition (sic) of amenity which has not been compensated for. Indeed, the rent was increased on 17 March 2023 from $2868 per month to $3,020.

2. The claim for repairs was made on 8 February 2024, a day after the CAV report was completed on 7 February 2024. It is important to note that the application references a request for a section 74 investigation by CAV. The Tribunal has no power to direct CAV to provide a report, and it is up to the Renter to make such a request directly.
3. In any event the report is the subject of the 3rd Repairs Application and there is no need for me to deal with it under this proceeding.
4. The balance of the claim of $1,699 in compensation for a dishwasher is misconceived. The Renter has not purchased a replacement dishwasher, nor incurred any cost associated with the repair of the item. Any claim for compensation associated with an inability to use the item is a matter to be considered for the period between when the Renter was named on the rental agreement and when the item is fixed. Any such claim should be considered as part of a renewal of the 3rd Repairs Application seeking compensation as discussed below.
5. For the reasons provided this application is dismissed.

1. The 3rd Repairs Application by the Renter followed the attendance of an inspector from Consumer Affairs Victoria on 6 February 2024 and the report provided dated 7 February 2024.
2. The report provides general observations of the inspector in relation to particular items within the rented premises, has photographs attached, and generally recommends the Rental Provider "repair or replace as required".
3. The Tribunal's power to make a repair order comes from section 76 of the RT Act and only arises if the Tribunal is satisfied that the Rental Provider is in breach of the duty to maintain the rented premises.
4. While the duty to maintain the rented premises is strict and absolute,[9] a rental provider who takes reasonable steps to carry out the repair is not considered to be in breach if the reason why the work has not been done arises from an inability to engage trades or obtain any replacement parts as required.
5. It is also to be noted that just because a repair is considered to be urgent, does not mean that if the item is not replaced immediately a rental provider is in breach of the duty to maintain the premises. Any order made by the Tribunal for repairs to be carried out should include an assessment of the item requiring repair and the work involved and provide a realistic timeline to have the item placed in good repair.
6. It is in that context that each item will be addressed in turn with updated information from the parties provided as to the status of the item, almost six weeks after the attendance by the CAV inspector.

Mr Smyth reported the dishwasher has not been functioning properly since May 2022. Mr Smyth claims the internal rubber parts have worn out and the dishwasher does not drain after a cycle. Property manager, Ms Stone stated between May 2022 and November 2023 several quotes were obtained to repair the dishwasher which needed parts to be ordered. Ms Stone anticipates these repairs will occur in February 2024. I note that in email correspondence the replacement parts are in the NSW warehouse. On 1 February 2024 Ms Stone notified Mr Smyth with an update on the progress of the repairs. At the time of the inspection, I observed several worn out rubber seals and mechanisms within the dishwasher. Mr Smyth operated the dishwasher. I observed water pooling in the bottom at the end of the cycle. > > Recommendation: I recommend the Residential Rental Provider engage a contractor to repair or replace as required.

2. The Renter says that he has been waiting for repairs to the dishwasher for quite some time, and that there had been attendances and repairs carried out and that while the unit now drains, the fan continues to run and makes a sound during the drying cycle.
3. The agent for the Rental Provider advises that the issue with the dishwasher is the drying cycle fan continues to run unless and until the draw is pulled out and so it requires manual intervention to stop. She says a new electrical component is needed, but there is no estimated delivery on when it will be available.
4. In circumstances where the Rental Provider has been taking active steps to have the item repaired and is delayed by waiting for the part to arrive, and where I am satisfied that the Provider has every intention of repairing the item, an order for repairs is unnecessary and not warranted. I decline to make any order in relation to this item.

Mr Smyth reported when he moved into the apartment in October 2019, the oven was in a very poor condition. This was replaced in March 2020 with a new oven. Mr Smyth stated the replacement does not roast or bake and can only be used as a steamer or grill. At the time of the inspection, I attempted to investigate the oven's functions and was unsuccessful in finding the roasting and baking option Upon returning to the office, I searched the internet and found the user's manual for the exact make and model (Artusi 60CM BUILT-IN STEAM OVEN WITH GRILL ACSO45X). The user manual states the only functions are steaming and grilling. > > Recommendation: I recommend the Residential Rental Provider source a replacement oven that provides the same functions similar to the original.

2. The Renter believes that he is entitled to be considered a renter from the commencement of the rental agreement with the Former Renter and as such should have the oven replaced with a "like for like" item. The inspector has relied on this assumption and directed the oven be replaced with the same device as when the former rental agreement commenced.
3. The Renter is under a new rental agreement and at the time it commenced the Steam Oven was in place and it has been operating effectively and is in good repair. It does not need to be replaced.
4. The rental minimum standards do not require a specific type of oven or one that functions a certain way. The standard simply states at 5(3) that "any oven at the rented premises must be in good working order".[10]
5. The oven that was in the rented premises at the start of this rental agreement is in good working order.
6. The request for a repair order to replace the oven is refused.

Mr Smyth reported the rangehood fan does not work as intended. At the time of the inspection, I switched the rangehood on and observed it was slow to start. I heard the rangehood fan spinning very slowly. > > Recommendation: I recommend the Residential Rental Provider engage the services of a contractor to repair or replace as required_._

2. The parties advised that the rangehood had been replaced a few weeks prior to the hearing and was working. As such no order is required.

Mr Smyth reported that when he uses the sink, the water is slow to drain and not flowing fast enough. Mr Smyth stated this issue was intermittent. Mr Smyth reported when the dishwasher drained the waste water, it backed up into the kitchen sink. Ms Stone advised, contractor Lloyds Plumbing attended the property in November 2023 and they completed works to plunge and clean out kitchen trap as it was blocked. The contractor also flushed out discharge pipe and tested. The contractor confirmed it was working again. At the time of the inspection, Mr Smyth turned the tap on and after a short period of time, I did not observe any water draining slowly. At the time of the inspection, I was unable to test the dishwasher waste water backing up in the kitchen sink.

Recommendation: I recommend Mr Smyth monitor the sink and report to the Residential Rental Provider should the issue persist.

1. At hearing the Renter advised that he was not having any issues with drainage and would continue to monitor the sink. No repair order is required at this time.

Mr Smyth reported a piece of wooden skirt is missing near the fridge cavity and the cupboard below the sink. At the time of the inspection, I observed the wooden skirt to be missing near the fridge cavity and cupboard below the sink.

Recommendation: I recommend the Residential Rental Provider engage the services of a contractor to repair or replace as required.

1. From the photographs and evidence provided there is a small piece of quad missing from around the dividing wall that houses the fridge cavity. It is a piece of timber quad that would be no more than five centimetres in total length around two sides of the wall.
2. No evidence was produced that the quad provides any purpose other than an aesthetic finish. The quad has been missing since before the rental agreement commenced.
3. I do not consider it to be an item requiring repair as such and decline to make any order in relation to the gap in the quad.

Mr Smyth reported that the indoor adjustable wall lights had various problems. Two of these lights on the south wall work but start to dim after being used for 5 minutes. Mr Smyth reported the lights on the north wall are extremely bright, almost blinding. When the lights are hot, they make a cracking glass sound and the smell of burnt material is present. Ms Stone advised a contractor attended the property but did not carry out any works on these lights. The contractor reported, he HIGHLY recommended the lights be replaced with energy efficient LED versions. At the time of the inspection, I observed 5 lights. The adjustable mechanism was broken on 5 lights and these would not stay in position. I observed the brightness of these lights and felt the heat being omitted. I observed the bubbling on the light covers which Mr Smyth claims is caused by these lights heating up. I smelt an odour reminiscent to that of burnt plastic while the lights were on. > > Recommendation: I recommend the Residential Rental Provider engage the services of a qualified contractor to replace the lights.

2. The lights were attended to by the Rental Provider on 1 March 2024 when an electrician came and carried out repairs, following a prior inspection. This included the installation of LED lights.
3. With the lights now in good repair, no order is required.

1. The Renter raises issue with the blinds and their operation in most rooms in the rented premises. The CAV report has detailed its findings in relation to the blinds by reference to the room where they are located.
2. The Rental Minimum Standards require each window in a bedroom or living area to be fitted with a curtain or blind that can be opened and closed by a renter to (a) reasonably block light; and (b) provide reasonable privacy to that renter.[11]
3. In the living room, the report states the following:

Mr Smyth reported the blinds in the living area do not open evenly and are missing bottom rail end caps. Ms Stone advised a contractor attended the property in December 2023 and repaired the faulty blinds. At the time of the inspection, I observed and operated 5 sets of blinds and found them to function as intended. The blind on the far south, behind the desk did not roll down evenly. I observed 4-5 bottom rail end caps missing from the blinds.

Recommendation: I recommend the Residential Rental Provider engage the services of a suitable person to repair or replace as required.

1. The Renter advises that a tradesperson has attended to the blinds, but effectively swapped the mechanism from the back room into the blind behind his office desk and this is the one that now is not operating properly. He says the blind rolls unevenly.
2. The agent says that she wasn't aware the works that were done were a swap as the invoice from 5 February 2024 suggests that works were undertaken and all blinds were operating effectively. She says she wasn't aware until now that an issue remained with the blind.
3. The agent advised that she would look into the issue and have the tradesperson reattend to fix the blind.
4. In the circumstances, accepting the representations made by the agent, I am not satisfied that the Rental Provider is currently in breach of the duty to repair. I therefore decline to make a repair order. If there has not been a reattendance to repair the blind, the Renter may renew the proceeding and seek such an order.
5. In relation to the Master bedroom blinds, the report states:

Mr Smyth reported the blinds in the master bedroom are cracked and are missing bottom rail end caps. At the time of the inspection, I observed the blinds condition is consistent with general wear and tear and are missing bottom rail end caps.

Recommendation: I recommend the Residential Rental Provider engage the services of a handy man to repair or replace as required.

1. At hearing the Renter claimed that the blinds are cracked and that the material allows the light to come through the blind itself.
2. The photographs provided by the inspector show some light coming from the edges of the blinds, as is consistent with roll down blinds, and some minor fraying on the edges of around 2 to 5 millimetres, also consistent with wear and tear in these blinds. There is no evidence of cracks to the material itself or anything that suggests the blind material has deteriorated such that it is no longer blocking out the majority of the light as designed.
3. The absence of the rail end caps does not seem to affect the operation of the blinds, however the Renter has suggested that it does mean that the blind is prone to slide within the base rail and that is why the edges are fraying when they sometimes hit the edge of the roller. It would be prudent for the Rental Provider to source replacement stops to ensure the blind does not fray any further which may ultimately require the blind to be replaced.
4. However, at this point in time, I am of the view that the blinds meet Rental Minimum Standards and reasonably block the light and provide reasonable privacy to the Renter.
5. While the blinds are old, I am not satisfied that they are not in "good" repair and decline to make any order.
6. The report makes the following observations in relation to the blinds in Bedroom 2:

Mr Smyth reported the blinds in bedroom 2 were aged and the edges of the blinds were frayed. All blinds were missing the bottom rail end caps. At the time of the inspection, I observed 3 blinds in bedroom 2. All blinds were consistent with age and general wear and tear. I observed all blinds were missing bottom rail end caps.

Recommendation: I recommend the Residential Rental Provider engage the services of a suitable person to repair or replace as required.

1. The blinds in bedroom 2 are in the same condition as those in the Master bedroom and for the reasons described above, I decline to make any order.
2. The CAV report identifies a repair required in Bedroom 3, due to the inability to effectively operate the blinds in that room:

Mr Smyth reported the blinds do not function as intended. The blind on the left side of the entrance does not go up and down. Mr Smyth stated the contractor who attended the job, took a piece from the blind in bedroom 3, to use for a blind in the living area. Ms Stone advised a contractor attended the property in December 2023 and blind has now been repaired. At the time of the inspection, I observed 2 blinds in bedroom 3. I operated the blind on the left side of the entrance and observed the blind was not going up and down. I observed the operating chain was not sitting on the roller mechanism.

Recommendation: I recommend the Residential Rental Provider engage the services of a suitable person to repair or replace as required.

1. Following the report from CAV the agent advises that a representative from Hillier construction attended to the blind and carried out repairs.
2. The Renter acknowledges the work was done and as such no repair order is required.

Mr Smyth reported that several pieces of timber skirting board have come away from the area around the fireplace and near the window on the right side of the fireplace. At the time of the inspection, I observed the loose timber skirting board around the fireplace and in the corner, at the base of the window on the right side of the fireplace.

Recommendation: I recommend the Residential Rental Provider engage the services of a contractor to repair or replace as required.

1. By the hearing date, the Rental Provider had arranged for a tradesman attend to re-attach the quad around the hearth of the fireplace. The Renter says the work has been done and as such no repair order is required.

1. The CAV report identified raised screws in the timber flooring in the living room:

Mr Smyth reported screws protruding from the timber floor in front of the fireplace. Mr Smyth stated he had tripped and injured himself on 4 November 2023. Ms Stone quoted "a contractor was assigned to attend the property and assess and quote for permanent repairs. Contractor attended on 8 November 2023 to rectify risen floorboards and ensure none are sticking up. Vince from Solomons attended on 17 January 2024 and provided a report and quote. Quote was sent to Residential Rental Provider (RRP) and advised as the issue stems from balcony concerns allowing water into the property base. Recommended temporary fix until balcony works attended to, due to large scale works. RRP is considering temporary repairs. At the time of the inspection, I observed 6 raised screws in the timber floorboards in front of the fireplace.

Recommendation: I recommend the Residential Rental Provider carry out rectification works as required.

1. The agent advises, and the Renter agrees, that a tradesman attended to ensure that the screws were within the timber floor so that they were not protruding in mid February.
2. The Renter advised at hearing that following that attendance the timber was cracked and fragments of timber flooring are now raising up and splintering. The Renter says he advised the contractor who attended who said he would pass the information on to the agency. The agent says she was not made aware of this until the hearing.
3. The agent indicated that they would have a tradesperson reattend to address the splitting timber floor and in the circumstances an order directing the repair is unnecessary at this point in time.

Mr Smyth reported the carpets are worn, aged and bubbling in certain areas of the master bedroom. At the time of the inspection, I observed patches of carpet in the master bedroom that were faded, raised and worn consistent with the apartment's age and general wear and tear.

Recommendation: I recommend the Residential Rental Provider engage the services of a qualified tradesperson to repair or replace as required.

1. The report by the CAV inspector, while identifying a carpet that is worn for its age and recommending for the repair or replacement of the carpet as required, it does not suggest that the carpet is threadbare or is a tripping hazard. It is old, but it does not mean that it needs replacing or repair. The recommendations made do not assist the Tribunal in determining whether any repair order is required.
2. The Renter says the carpet is a tripping hazard and that it is bunched up in a tunnel like effect in a number of rooms. The agent says that if the tripping hazard had been identified in the CAV report then they would have had a tradesperson attend and had it repaired.
3. It is evident that an inspection by the agent and Rental Provider is necessary to determine if the carpet needs repair, if it hasn't already happened. If the carpet is "tunnelling" as described, it does need to be repaired as it is unsafe.
4. I decline to make any order at this point in time as the absence in the CAV report of any suggestion of the carpet being a safety issue, has not adequately put the Rental Provider on notice of the need for repair. If the need for repair is established upon inspection and if the Rental Provider does not attend to the issue in a reasonable period of time, then the Renter may renew the proceeding and seek an order.

1. The CAV report has identified some screws that are visible in the Master Bedroom:

Mr Smyth reported 2 screws protruding from the ceiling in the master bedroom. At the time of the inspection, I observed 2 screws protruding from the master bedroom ceiling.

Recommendation: I recommend the Residential Rental Provider engage the services of a suitable person to repair or replace as required.

1. The Renter advises that he first notice the screws in the ceiling in early 2022 and that since then a representative from the Owners Corporation management company had attended to look at the issue. He says nothing has been done about the screws.
2. The Renter says he is concerned about the screws as it sounds like something metallic is hitting or scraping on the other side of the plaster and it has pushed the plaster out onto the floor and that is not great for keeping the place clean and tidy.
3. The agent says she was aware of the inspection by the Body Corporate and that it is a raked ceiling and that the screws are likely to be from the exterior of the building. She says she was advised that the sounds the Renter is referring to are expansion and contraction noises.
4. A review of the photographs of the two screws that protrude from the ceiling plaster by what looks like less than a few millimetres does not show any cracking of plaster around the screw and looks to be contained to the small head of the screw.
5. This appears to be more about aesthetics and the Renter's concerns about what potentially could happen. As the screws have maintained the same position for more than two years without incident and the plaster is not showing any signs of degradation or further impact, I am not satisfied that this is an item requiring repair.
6. I decline to make any order in relation to the screws.

Mr Smyth reported the mixer taps for the basin and the shower in the en-suite are missing the pin lever part of the handle. Mr Smyth reported the drain plug in the basin does not function correctly. Water leaks from the basin when the plug is in situ. Ms Stone advised, a plumber attended in November 2023 and noted they were unable to source a replacement pin lever at the time of their visit. The mixer tap is functional and operates without leaks. Further investigation into locating a replacement pin lever would be required. If a replacement is no longer available, replacement of the entire tap would be required. At the time of the inspection, I observed the mixer tap for the basin and the shower to be missing the pin lever part of the handles. I operated both taps and found them to be functional and did not leak. I observed the water draining from the basin while the plug was in position.

Recommendation: I recommend the Residential Rental Provider engage a qualified tradesperson to repair or replace as required.

1. While the CAV report suggests that the taps are "functional", there is a reference to needing to locate a replacement pin lever for the taps and if one can't be located, then the taps need to be replaced.
2. The absence of the pin lever means that the user is required to operate the tap by manoeuvring the head of the mixer, meaning that adjustment of temperature and water flow is impeded. While the tap can be operated, it is not able to work effectively as intended without the pin levers, which are in effect, akin to a handle.
3. As such, I accept the recommendations of the inspector, and I will make the order for the repair or replacement of the taps in the ensuite.
4. It is reasonable for the works to be carried out in a three-week period.

Mr Smyth reported the extractor fan in the main bathroom is not working. Mr Smyth states as a result the paint is bubbling on the wall, there are water marks on the wall near the washing machine and dryer and the bathroom door is discoloured. Ms Stone advised this was not reported directly to Miles Real Estate following the plumber's visit in November 2023. At the time of inspection, I operated the extractor fan and observed it not working, I observed paint bubbling on the main wall of the bathroom and discolouration on the wall near the washing machine and dryer. I observed the bathroom door to have signs of moisture absorption and discolouration.

Recommendation: I recommend the Residential Rental Provider engage a qualified tradesperson to repair or replace as required.

1. An electrician has attended and has fixed the extractor fan and therefore this item does not need to be repaired.
2. However, the Renter advises that the bubbling paint is now "flaking" off and gets stuck on towels and otherwise on the floor. The agent says that she was not aware that the paint was now flaking off and would have someone attend to it.
3. In the circumstances where the CAV report only refers to bubbling paint which had been there since the start of the rental agreement and not the paint actually falling off, and the Rental Provider only being advised of the issue at the hearing, I decline to make any order. I am satisfied that the agent will have someone attend to the issue and patch and paint as necessary. If they do not, the Renter may renew the proceeding.

1. The CAV report identifies a leak in the shower head in the main bathroom:

Mr Smyth reported the shower hose is leaking at the join of the hose to the shower head. Ms Stone advised this was not reported directly to Miles Real Estate following the plumber's visit in November 2023. Lloyd's Plumbing reported shower was in working order at the completion of their attendance in November 2023. At the time of inspection .. I operated the shower and observed water leaking between the hose and the shower head.

Recommendation: I recommend the Residential Rental Provider engage a qualified tradesperson to repair or replace as required.

1. The Renter advises that the shower has been repaired and so no order is required.

1. The CAV report identifies an issue within the rented premises that appears to have arisen from the issues with leaks on the balcony:

Mr Smyth reported at the end of the hallway there is an area where the carpet and the skirting board is rotten and mouldy and as a result has damaged his furniture. At the time of the inspection, I observed a large patch of rotten and discoloured carpet at the end of the hallway. It is an area that is directly adjoining the balcony, however there is no door in this position. The skirting board in this corner is decomposed. I observed a bookshelf that had marks on its base which correlate to where the bookshelf sat on the damaged carpet.

Recommendation: I recommend the Residential Rental Provider engage the services of a qualified contractor to repair or replace as required.

1. While the balcony is an Owners Corporation issue that is yet to be remedied, there are repairs that need to be conducted to the interior of the rented premises. The Rental Provider has had the carpet removed, but the Renter says that the mould and skirting board has not been attended to.
2. It is appropriate that orders are made for the mould to be treated and that any fixtures or fittings that have been damaged by water are replaced, including the carpet. Orders will be made accordingly.

1. The CAV report identifies issues with the lights on the outside balcony and states:

Mr Smyth reported 2 out of 3 of the outdoor lights are not working. At the time of the inspection, I observed 3 outdoor wall spotlights. 2 lights were not working.

Recommendation: I recommend the Residential Rental Provider engage the services of a qualified contractor to repair or replace as required.

1. The Rental Provider has had an electrician attend and says that one quote has been provided and another one is being sourced.
2. The Renter says it is the inconsistency with the operation of the lights and believes replacing the same with LED will resolve the issue.
3. As the Rental Provider is attending to this item no repair order is required.

1. Of the items identified by CAV, there are two matters that require orders for attention and rectification. In summary orders will be made for the Rental Provider to (a) repair the taps in the bathrooms by installing any missing pin levers or replace the taps if the pin levers cannot be sourced and (b) treat the mould in the hallway where the carpet has been removed and repair or replace any fixture or fittings that have been damaged by the water leak. All repairs to be completed by 15 July 2024.
2. The Renter seeks orders for compensation related to the repairs. An adjournment period will be provided for the Renter to consider the findings made above, and, after all repairs have been conducted, to particularise the claim.

1. The General Dispute Application provided the following information about the relief being sought by the Renter:

S 472(1)(a) and (b). The residential rental provider served me a Notice to Vacate on 9 November 20223 (under s95N) and another Notice to Vacate on 22 December 2023 (under s 91ZZB(1)). Both Notices to Vacate follow verbal threats made to me by telephone by the residential rental provider in response to requests by me for non-urgent repairs and my request to the residential rental provider to respect my right to quiet enjoyment (s67) and to comply with Division 8 (ss 85-91A) when seeking access to the premises. The residential rental provider failed to comply with VCAT Orders issued on 7 December 2023. The residential rental provider has accepted monthly rent from me since 4 August 2023 but denied me any of the protections of being a 'renter' under the RTA. S 30D. The residential rental provider failed to disclose information that is required to be disclosed prior to entering into a residential rental agreement. S 452(1)(a) and (b). The residential rental provider has breached the residential rental agreement by not respecting my right to quiet enjoyment (s 67) and by calling me directly and seeking entry to the premises not in accordance with Division 8 (ss 85 to 91A). By a pattern of conduct since 4 August 2023, the residential rental provider has sought to deny me recognition as a renter and issued me Notices to Vacate for improper motives. The residential rental provider directly discriminated against me and my partner (by delaying for over 1 month consent for reasonable alterations under s 64(1B) of the RTA and s 55 of the Equal Opportunity Act 2010) when my partner was suffering a disability due to ill health from which he subsequently died on 4 August 2023. S 75 The residential rental provider has failed to carry out specified non-urgent repairs having received written notice under s 74(1)(a) on 8 November 2023. I seek relief from VCAT under s 472(a) to restrain the actions of the residential rental provider (and Miles Real Estate) that are in breach of the residential rental agreement or that are in breach of the provisions of the RTA. I also make a general application to VCAT under s 452(1)(a) and (b) on the basis that a dispute has arisen under the residential rental agreement and there has been a breach of a provision of the RTA relating to the residential rental agreement.

1. Almost all of the matters identified above by the Renter, if he could establish they had occurred, and that the Rental Provider breached a provision of the RT Act, relate to matters that took place prior to a rental agreement being in place between the Renter and the Residential Rental Provider.
2. The Tribunal, sitting in the Residential Tenancies List, can only determine disputes arising between rental providers and renters during the course of the rental agreement that they are parties to. No order or findings will be made in relation to the matters that occurred prior to the rental agreement commencing on 18 December 2023.
3. The Renter asserts in the application that the Rental Provider failed to disclose information to him prior to the rental agreement commencing and otherwise takes issue with being given the notice to vacate on 22 December 2023.
4. The Renter did not identify what information the rental provider failed to disclose to him, other than taking issue with the delay in presenting him with a residential rental agreement in accordance with the orders made by the Tribunal in the creation of a rental agreement proceeding under section 91S of the RT Act. The rental agreement, which referenced an intention to sell the rented premises, was not provided to the Renter until 21 December 2023, three days after the agreement was deemed to have commenced. There is no loss to the Renter from this delay as the Renter has continued in occupation at the premises since 2019 and any delay in a new written rental agreement being provided was inconsequential. The failure to provide the notice of an intention to sell, prior to 21 December 2023 is however relevant to the matters that need to be taken into account in the application for possession for sale and I will address them in that application. No further orders are required in this proceeding.
5. This also applies to the timing of the notice to vacate for sale of the premises which was given on 22 December 2023. This notice will be considered in the context of the Renter's challenge to the notice and the Rental Provider's application for possession.
6. This application for relief relating to events prior to 18 December 2023 is struck out and the application concerning matters after 18 December 2023 is otherwise dismissed. Orders will be made accordingly.

NTV Challenge Application (R2024/416) and Possession Application (R2024/2904)

1. The Renter's application to challenge the validity of the NTV was made on 22 December 2023, and lodged by the Tribunal as proceeding R2024/416.
2. Many of the matters raised in the application were repeated in the general application and have been dealt with already. For the sake of completeness those matters are struck out.
3. The application provides the following details as the basis of the claim under section 91ZZS of the RT Act:

Residential rental provider directly discriminated against me under Section 91ZZI(2) by:

Conduct toward me and my partner following my partner's terminal brain cancer diagnosis

Conduct towards me since death of my partner on 4 Aug 23

Mr Trovato's use of threatening language against me during telephone calls on 24 Sept 23

Failure to comply with Notice for Non-Urgent Repairs served 8 Nov 23

Bullying and intimidating conduct in serving multiple Notices to Vacate in context of broader conduct.

1. Section 91ZZS of the RT Act provides as follows:

s.91ZZS Renter 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 91ZX, 91ZY, 91ZZ, 91ZZA, 91ZZB or 91ZZC, a renter 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.

2. Section 91ZZI(2) of the RT Act provides the following:

A notice given under section 91ZX, 91ZY, 91ZZ, 91ZZA, 91ZZB, 91ZZC, 91ZZD, 91ZZDA or 91ZZE is of no effect if the giving of the notice would constitute direct discrimination within the meaning of the Equal Opportunity Act 2010.

1. There is a difference between a notice being of no effect and a notice being invalid. The challenge to a notice under section 91ZZS relates to invalidity and not the "effect" of the notice. None the less, the matters raised by the Renter are matters to consider in the context of an application made for possession.
2. I am not satisfied that the matters raised by the Renter support assertions that the Rental Provider has directly discriminated against the Renter by giving him the NTV.
3. "Direct Discrimination" is defined in section 8 of the Equal Opportunity Act 2010 ('EO Act') as occurring if:

A person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

1. The Renter has failed to provide any evidence of any attribute, as the same is defined in section 6 of the EO Act, that has been identified and is the basis on which the claim has been made that the Renter has been directly discriminated against. Further there is no evidence of any "direct" discrimination having occurred.
2. There is no suggestion that the Rental Provider has stated that it does not want this Renter living in the property or that that was the reason why the NTV was given.
3. The challenge to the validity or effect of the NTV is dismissed.

1. On 25 January 2024, the Rental Provider made application to have the rented premises vacant for sale:

The Residential Rental Provider is seeking an order of possession as the Residential Rental Provider has engaged an agent to sell the rented premises with vacant possession at Auction. An auction date has been scheduled for March 2024.

1. The NTV supporting the application was dated 22 December 2023 and was sent to the Renter by email, the Renter having provided express consent in the rental agreement to receive notices by electronic communication.[12]
2. The NTV met all the requirements of section 91ZZO of the RT Act in that it was in the prescribed form, was addressed to the renter, was signed by the agent for the Rental Provider, specified the reasons it was given, was accompanied by an Exclusive Auction Authority and specified a termination date that was the date which the Renter was required to vacate. That date was 21 February 2024.
3. The Exclusive Auction Authority was signed with Nelson Alexander on 21 December 2023 with an auction date set for 23 March 2024 at 10:30am and stated that the property was being sold with vacant possession and upon payment of the full purchase price.
4. The Rental Provider's director, Dr Anthony Trovato, gave evidence the rented premises has been earmarked for sale from early to mid-2023. He says with land tax, maintenance costs and high interest costs, the property no longer meets his needs as an investment as it is running at a loss of about $2,000 to $3,000 a year.
5. A letter dated 2 February 2024 was provided by Formic Advisory in support of the claims that the property needed to be sold. Michael Grapsas, managing partner, stated that he had conducted a summary of the income and expenditure for the property and that on the basis of the financial performance of the property, Dr Trovato considered that the rented premises was "no longer appropriate for his investment needs":

Net Loss $1,615.18

Not a good return on $900,000

Loss will be much greater in 2023-2024 with all the repairs and introduction of Land Tax above land value of $50,000.

1. The repairs being referenced relate to extensive works to the balcony and retiling the area. The Rental Provider claims that the works are estimated to take between 10 and 15 days to complete and claims that the Renter did not want them done while he was living there as the continual attendance of trades would be disruptive.
2. The Renter says he was never advised by the agent or Rental Provider that the rented premises was going to be sold, before he received a copy of the rental agreement with the disclosure referencing an intention to sell on 20 December 2023 and then subsequently the NTV itself on 22 December 2023.
3. Prior to hearing, I listened to the audio of the 7 December 2023 hearing when the Tribunal directed a rental agreement be created. The planned sale of the rented premises would have been a matter that would have been relevant to the creation of a rental agreement and may have gone to the hardship of the Rental Provider. Nothing was said about any plans to sell, with a different agent stating there would be no prejudice to the Rental Provider if a rental agreement was created:

I suppose because the rent is being paid there is no loss at the present stage mam. The loss would actually be greater for the occupant of the property even though not formalised on the rental agreement.

1. The Rental Provider could not be certain as to when it advised the agents that it wanted to sell the property, but says Nelson Alexander was first contacted around 12 December 2023.[13]
2. I accept the evidence of the Rental Provider that it intends to sell the rented premises and therefore had grounds to give the NTV. It is not unusual for a rental agent to not be informed about an owner's intentions for a property until the very last minute, or until steps have been taken to engage a selling agent. I also find that the repairs that need to be carried out, or the date of the auction some five weeks after the termination date in the notice, do not impinge or undermine the intention or requirement that the rented premises is offered for sale immediately after the termination date. The marketing campaign for the sale was expected to take some time, and certainly some 3-4 weeks prior to the auction would be a reasonable commencement date.
3. I therefore find that the Rental Provider has proven the grounds for giving the NTV.
4. In any application for possession, a possession order must be made if the Tribunal is satisfied that it is reasonable and proportionate to do so, taking into account the interests and impact on the Rental Provider and Renter by reference to the relevant matters in section 330A of the RT Act.
5. The matters referenced in subsections (a) to (ga) of section 330A are not relevant to this application as they relate to a notice to vacate given for breaches by a renter. The matters relevant to consider in this application are subsections:

(h) whether any other order or course of action is reasonably available instead of making a possession order,

(i) as the case requires, the behaviour of the residential rental provider or the provider's agent, and

(j) any other matter the Tribunal considers relevant.

1. While the Rental Provider, and Owners Corporation, may want to carry out works to the rented premises when the property is vacant to avoid disruption to the Renter, there is no reason why the works can't be carried out with the Renter living in the property. If notices of entry are served, access is required to be provided. The balcony requires works to be done to rectify associated leaks and should be carried out without delay.
2. No other reason has been provided by the Rental Provider as to why the premises needs to be sold with vacant possession. The Renter has enabled attendances to date by trades to attend to other repairs and there is nothing to suggest that he will not be just as accommodating with any open inspections.
3. Rather than a possession order being made at this point in time, it is open to the Rental Provider to have repairs carried out and for the premises to be placed on the market while the Renter is in occupation.
4. If the rented premises is then sold with vacant possession, the Rental Provider can still seek possession, after serving a notice to vacate under subsections (2) and (3) of section 91ZZB of the RT Act.
5. I am not satisfied that the interests of the Rental Provider in selling the premises with vacant possession are impeded by the renter remaining in occupation and a possession order not being granted at this time.

1. While the Renter has taken issue with the actions of the Rental Provider and the Agent following the death of the Former Renter and prior to the Renter having a rental agreement created in his name on 18 December 2023, these are not matters that I consider are relevant to this consideration under section 330A(i) of the RT Act. The actions, or behaviour of a rental provider or agent under this subsection have to be considered in the context of the rental agreement and not conduct prior to that agreement. There is no matter under this mandatory consideration which would support a finding that a possession order is not reasonable and proportionate.

1. There are several matters which I consider do not support a finding that a possession order is reasonable and proportionate in this case.
2. The first is the absence of any other information about the need of the Rental Provider to dispose of this particular property. Formic Advisory says that it is an "external adviser and tax agent to Dr Trovato and related entities."
3. According to the exclusive authority that has been signed, Trovato Investments Pty Ltd is the "bare trustee for Ayrestein Nominees Pty Ltd ATF Chekun Nominees Superannuation Fund". The Rental Provider, and/or its related entities has a number of properties and assets that it has at its disposal. The report and analysis of Formic Advisory also fails to report on the long term gains to be made from the investment, particularly related to increased property prices.
4. It is not for the Tribunal to advise or even purport to know how a rental provider's property should be invested or when a property should be sold. It is the Rental Provider's property and they can do with it as they please. However, in any assessment of whether or not possession should be returned, the Tribunal has to consider the need to not only sell the premises but whether such a course of action requires the premises to be vacant. It is also open to the Tribunal to consider that there may be other courses of action open to a rental provider, such as increasing the rent, to avoid financial loss associated with the rented premises.
5. The impact on the Rental Provider of not making a possession order appears to be a modest loss of $1,615. However, that loss is within a portfolio of undisclosed investments and no information provided to the Tribunal as to the tax treatment of that loss which may ultimately provide a benefit or gain to the overall investment pool.
6. Another matter is the creation of this rental agreement days before the NTV was given to the Renter.
7. Within days of the Tribunal making a determination that required the Rental Provider, against its wishes, to enter into a rental agreement with the Renter, the Rental Provider was making the first approach to a selling agent to place the property on the market.
8. The Renter had only just given evidence of their hardship in being compelled to leave the rented premises and the Tribunal had found that the Renter's hardship outweighed any hardship to the Rental Provider.
9. Within 2 weeks of that determination and just days of a rental agreement being signed as required, an NTV is given to the Renter requiring him to vacate within 60 days.
10. While the agreement was periodic, and there were no guarantees as to security of tenure of any fixed term period for the Renter to stay in the rented premises, making a possession order on the basis of this NTV cannot be reasonable and proportionate given the limited change in circumstances of either party since the creation hearing.

1. For the reasons provided above, I am not satisfied that it is reasonable and proportionate at this time to make a possession order. The Rental Provider has other options available to change the balance sheet for the rented premises by increasing the rent or it can sell the premises while the Renter remains in possession. It can then elect to serve alternative notices to the Renter if in fact the purchaser requires the premises with vacant possession.
2. The impact on the Renter of being compelled to leave the rented premises is significant. It is the home he has shared with the Former Renter for a significant number of years' and he has formed connections with the local community. The Renter is entitled to some stability, at least for now, with a rental agreement being created in his favour after establishing that he would suffer severe hardship if compelled to leave the premises.
3. The application for a possession order is dismissed.

[1] Proceeding R2023/33826 commenced as an application to challenge a notice to vacate given under section 91N(3) and was converted into an application for the creation of a rental agreement under section 91S of the Residential Tenancies Act 1997 (Vic). The order of the Tribunal required the residential rental provider to enter into a rental agreement with Michael Smyth, on the same terms and conditions as the rental agreement with the former renter.

[2] Proceeding R2024/3304 was an application for non-urgent repairs by the order which was struck out on 5 February 2024, with the Member making the following findings: Under section 75(1), a renter may apply to the Tribunal for an order requiring the rental provider to carry out non-urgent repairs if (i) the renter has given the residential rental provider written notice under section 74(1)(a); and (ii) the residential rental provider has not carried out the repairs within 14 days after receiving the notice. The renter's application of 30 January 2024 issued prior to the expiration of 14 clear days from the date of the notice.

[3] Prescribed under the Residential Tenancies Regulations 2021.

[9] Shields v Deliopoulos [2016] VSC 500.

[10] Rental Minimum Standards, Schedule 4 of the Residential Tenancies Regulations 2021 (Vic).

[11] Clause 10 of the Rental Minimum Standards in Schedule 4 of the Residential Tenancies Regulations 2021 (Vic.).

[12] Electronic Transactions (Victoria) Act 2000.

[13] The Rental Provider has purported to send in evidence to the Tribunal after the hearing had closed. I have not considered the same.