Unison Housing v Bognar (Residential Tenancies) [2025] VCAT 968

For the written reasons provided, the Tribunal orders that:

1. This is an application by Unison Housing (the 'rental provider') for possession of the rented premises pursuant to a Notice to Vacate served under s 91ZL of the Residential Tenancies Act 1997 (Vic) ('RT Act'). The basis for the notice is that the rented premises has become unfit for human habitation.

1. The respondent (the 'renter') has resided at the premises pursuant to a tenancy agreement since 14 April 2023.
2. On 24 June 2025 a backflow of waste outlets occurred, flooding the renter's unit with sewage and what is described in reports as 'Category 3' debris. Category 3 is described as grossly contaminated water that may contain pathogens, toxigenic or other harmful agents.
3. On 1 July 2025 a Notice of Entry was provided to the renter so that a water damage report could be completed. The rental provider requested a Water Damage Report to be prepared by an external adviser EHS Assess, the assessment was conducted on 3 July 2025[1] and a report provided dated 16 July 2025. A second report was provided on 28 July 2025 and a third report was provided on 16 September 2025.
4. The Notice to Vacate ('NTV') was issued to the renter on 23 July 2025 requiring the renter to vacate by 31 July 2025. It relied on the 16 July 2025 EHS Assess report to support the assertion that the rented premises were unfit for habitation. The renter did not vacate the rented premises.
5. The application for possession was lodged at VCAT on 6 August 2025. Hearings relating to the application were held in person on 26 August 2025 and 25 September 2025.
6. It is also relevant for the matter that the rental provider had issued the renter with two breach of duty notices, in July 2024 and in February 2025. The breach notices were provided on the basis that the renter had not kept the rented premises reasonably clean. No application to VCAT was ever made arising from the breach notices. They are relevant as the statements and photos in the reports as provided demonstrate that the rented premises were already in a significantly untidy state prior to the backflow event, and the reports confirm the difficulty in determining the level of damage caused by the backflow given the already present debris in the rented premises.
7. Despite the state of uncleanliness at the rented premises, the rental provider has not alleged that the renter is responsible for the backflow event at the unit. It was stated that a similar event had previously occurred in a neighbouring property.

1. The notice to vacate was issued on 23 July 2025 and sent by registered post to the renter. The NTV required the renter to vacate the premises by 31 July 2025.
2. For a NTV pursuant to s 91ZL of the RT Act, the notice must specify a termination date that is immediately after the date on which the notice is given.
3. The NTV identified the relevant section of the RT Act. It then stated that:

The premises are unfit for human habitation or have been destroyed totally, or to such an extent to be rendered unsafe.

Unison engaged EHS Access (sic) to provide a Report for water damage in the premises, this report dated 16 July 2025 shows level of contamination which are unsafe for human habitation. We note that point 4 of the Report states that: based on the assessment, EHS Assess can conclude that the following areas either contain actual mould growth (Condition 3), have fungal cross contamination relating to mould growth (Condition 2), have been directly affected by Category 3 water or a combination of all 3. Furthermore point 5.1 of this report states that residents should be vacated as soon as possible as the remaining waste presents a strong risk to occupancy. Unison is concerned for your safety, and we request you to vacate immediately.

1. A copy of the 16 July 2025 report was provided with the notice.
2. It was submitted by the renter's representative that the notice provided insufficient information for the purpose of the renter understanding the reasons for the notice, referring to the well-known decision of Smith v Director of Housing [2005] VSC 46 ('Smith').
3. I noted that the position as stated by Justice Buongiorno of the Supreme Court of Victoria in Smith_,_ which involved a NTV being issued for danger. Justice Buongiorno stated that:

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 facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no formal verbal formula and no legal knowledge to answer the question "Why is this notice being given?" A basic facility for communication in plain English is enough.[2]

1. I advised that my preliminary view was that there was sufficient information included in the NTV, noting the guidance of Smith. The NTV provided some information about the contamination that was unfit for human habitation, including reference to water and mould contamination and that a professional report had a recommendation that the premises should be vacated as the remaining waste presents a strong risk to occupancy.
2. Having considered the detail provided in the NTV for the purpose of these written reasons, I continue to form the view that sufficient detail was provided for the renter to understand why the notice was being provided. The reason for the unfit for human habitation was identified, being the contamination of water and mould, leading to a conclusion that it was unsafe for occupation. That the renter may not agree with the details that are provided in the notice is not a reason for it to fall into invalidity as per the guidance of Smith, the disagreement with the assertion is a matter to be determined if the notice is used to found an application for possession, and the more detailed argument as to whether the particulars of the claim are made out.
3. The Tribunal finds that:

(a) The NTV was valid and met the requirements of a notice to vacate in accordance with s 91ZZO of the RT Act.

(b) The NTV was sent by registered post to the rented premises and provided the renter with appropriate notice of the termination date after the notice was deemed to have been given to the renter.

(c) The NTV contained sufficient detail for the purpose of the renter understanding why the notice had been issued.

1. The renter did not vacate the rented premises by the termination date in the NTV. The rental provider applied for possession of the property pursuant to s 322 of the RT Act.

1. The Tribunal first heard the matter on 26 August 2025. The renter was represented by a Victoria Legal Aid ('VLA') duty lawyer who had only just met the renter and been given instructions. At that hearing I expressed my concern about the time that had passed since the incident and that the reports were over a month old, given that it was now around three months after the backflow event and the renter had remained resident in the rented premises the entire time. It raised the issue as to the extent that the rented premises were unfit for human habitation. I was also concerned that if a possession order was made the prospect of homelessness was high for the renter, a vulnerable woman, and requested that steps be taken to investigate alternative accommodation options should the order of possession be made.
2. The rental provider submitted the updated 16 September 2025 report at the 25 September hearing, which provided a short addition to the previous report, and provided argument as to why the order should be made, including addressing the provisions of s 330A of the RT Act. The renter, represented by VLA, made submissions as to why the grounds of the possession application were not made out and argued that the application should be dismissed.
3. Prior to the hearing the representatives of the renter requested in writing that:

Our most recent instructions from Ms Bognar are that she seeks to contest the grounds of the notice to vacate. To this end, we request that if Unison intend to rely on the EHS reports dated 16 July 2025 and 28 July 2025 or any other reports regarding the condition of the rented premises, that Unison will arrange for the attendance of the authors of any such reports at the hearing on 25 September 2025 so that they are available for cross examination.

With regard to the upcoming VCAT hearing, please be advised that if you require the attendance of our contractor, it is your responsibility to make the necessary arrangements. As the contractor is not a direct party to the proceedings, our organisation does not have the authority to compel their attendance on your behalf.

1. The expert report writer for the applicant did not attend the hearing to give evidence. As noted at the hearing, it is for the applicant to prove their application, and the centrality of the reports are critical to the application. The strength of the application relies on the information in the reports themselves, not augmented by further evidence from the author of the report.

1. Three reports by EHS Assess were provided to me, dated 16 July 2025, 28 July 2025, and 16 September 2025. The 16 July 2025 report identified a strong malodour associated with Category 3[3] water was present in the hallway and ensuite of the unit and 'throughout'. Photos taken showed an amount of debris in the unit, with the comment that '(a) large amount of the residents contents including debris, empty food and drink containers and cigarette butts where present across the floor throughout the entire unit, making it very difficult to determine between residents' items and any residual debris from the event'. It also observed 'visible debris that back flowed via the waste pipe was observed within the shower and also around the base of the toilet'.[4]
2. The reports stated that the methodology used in preparing the assessment 'included a review of the event history including any physical evidence provided (e.g. reports, photographs etc.), subjective observations (e.g. visual inspection, odour detection etc.) only'. The reports were completed by an 'indoor environmental professional' who may have skills in a variety of relevant areas.
3. With respect to analytical results, it was stated that 'as visible Category 3 debris remains, no analytical sampling was completed as a part of this assessment.' It then went into discussion stating that 'based on the assessment, EHS Assess can conclude that the following areas either contain actual mould growth (Condition 3), have fungal cross contamination relating to mould growth (Condition 2), have been directly affected by Category 3 water or a combination of all three'.
4. The report had recommendations, including make safe works; identify and rectify source of water ingress; contain if required; remove all contaminated contents restore if necessary; undertake demolition/removal of affected materials; undertake decontamination; and mould remediation and drying.
5. The report stated that 'residents should be vacated as soon as possible as remaining waste presents a strong risk to occupancy.'[5]
6. The report stated that the architraves and door jambs at ensuite entrance had to be removed, and for the remainder of the unit, skirting boards, floor coverings, the base of all wall linings up to 300 mm high, any cabinetry components in contact with the ground and wardrobe doors and tracks had to be removed. It further stated that 'removal is for visibly, or strongly assumed water damaged materials only, no consideration has been made for future reconstruction works which may require further demolition.'[6]
7. Recommendations regarding mould included containment and disposal of all porous and semi-porous materials with visible mould growth.
8. The 28 July 2025 report was provided without any further onsite inspection. The only identified difference in the report was at 5.1 where the following words in bold were added.

residents should be vacated as soon as possible and the unit remain isolated until all works are completed as remaining waste presents a strong risk to occupancy and is uninhabitable.

1. The 16 September 2025 report stated that there was a secondary attendance and up to date inspection on 12 September 2025 to reassess if the conditions on site had changed since the original assessment.
2. Further photographs were provided that demonstrated significant debris remained in the rented premises, and the following observations were made additional to the 28 July 2025 report.

Comments from the secondary follow up assessment completed on the 12 September 2025:

• A strong malodour remains throughout the apartment
• Flooding debris is still present within the ensuite and around the entrance to the ensuite
• Conditions and recommendations area consistent with the initial assessment, the situation remains largely unchanged[7]

1. This was the substance of EHS Assess reports. Mr Teskey stated that the reports demonstrated that the rented premises were unfit for human habitation and that the ground for the application was made out. He advised that the Unison Housing facilities team had advised that budget for repairing the rented premises was limited, as there were multiple properties requiring works and limited funds to do so. It was likely that the floors would need to be ripped up because of the water damage and it was unclear when it would commence or how long this would take, given the repair priorities. The rental provider was concerned about the health and safety of the renter, living in the property in that state.
2. Ms Mckinley on behalf of the renter conceded that the rented premises was in a significantly unclean state due to the actions of the renter. She advised that Launch Housing had recently been engaged to provide support to the renter, including assisting in cleaning the premises. A council permit had recently been issued for a skip to be located outside the rented premises, this had taken time as it is a main thoroughfare. It was hoped that the work to remove rubbish and damaged items would take place imminently.
3. The renter had continued to reside in the rented premises during the application process. No health issues were reported in this time.
4. It was acknowledged that some repairs may be required, potentially requiring the renter to be rehoused for a short period, but that the state of the premises was not to the extent that they were unfit for habitation.

1. The applicable part of the RT Act is as follows. The notice to vacate was issued under s 91ZL of the RT Act.

(1) A residential rental provider may give a renter a notice to vacate rented premises if the premises -

(b) have been destroyed totally or to such an extent as to be rendered unsafe

1. There is no statutory definition of 'unfit for human habitation'. With respect to caselaw on s 91ZL, or previous versions of this provision,[8] there is a common thread leading back to English jurisprudence on this issue. Cases that discuss this point fall into either negligence claims by an occupant against an owner, or an application by the owner to gain possession from the occupant.
2. The most recent relevant judicial consideration is the decision by Justice Cameron of the Supreme Court of Victoria in Handler v Casey [2019] VSC 599. The unfit for human habitation aspect in that proceeding revolved around methamphetamine residue contamination. In considering whether a property was unfit for human habitation, Justice Cameron referenced the VCAT decision of Price v Johnson (Residential Tenancies) [2014] VCAT 581 and Senior Member Steele's consideration of decisions from other jurisdictions, including the decisions of the House of Lords in Summers v Salford Corporation,[9] of the Supreme Court of Queensland in Gray v Queensland Housing Commission[10] and of the High Court in Jones v Bartlett.[11]
3. Senior Member Steele identified by reference to those cases that the question of whether premises were unfit for human habitation turned upon consideration of whether they are dangerous when in ordinary use.[12]
4. Chesterman J in Gray and Queensland Housing Commission was cited paraphrasing the House of Lords decision:

If the state of repair of a house is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation.[13]

1. Justice Cameron also reflected on Chesterman J's decision that that:

His Honour also considered the duty owed at common law by a landlord to take care of the safety of the tenant, discussed in Jones v Bartlett. In that case, Gummow and Hayne JJ of the High Court summed up the authorities as follows:[14]

The thread running through these cases is that a dangerous defect will, or may, cause injury to persons using the premises in an ordinary way. They are defects in the sense that they are more than dangerous; they are dangerous in a way not expected by their normal use. Many domestic items might be said to be dangerous: gas ovens, caged fans, hard floors, electrical circuits and panes of glass may cause serious or even fatal injuries ... However, they are ordinarily only dangerous if misused. They will only be defective if they are dangerous when being used in a regular fashion and ordinarily would not be dangerous when so used.[15]

1. The standard of proof in this matter is the balance of probabilities. Where are serious allegations made, then it is accepted that the principles of Briginshaw v Briginshaw[16] apply.
2. Justice Garde in the case of GLS v PLP[17] stated that

While the standard of proof in a civil case remains the balance of probabilities, the matters to be considered by the tribunal of fact may be of such seriousness that clear and cogent evidence may be required before there is reasonable satisfaction that the allegations have been made out on the balance of probabilities[18]

strong evidence is required - clear and cogent - assessed with care and caution_._[19]

1. For a finding that the grounds are made out, I am required to be satisfied that the if the state of repair of a premises will lead to an expected or naturally occurring injury through the ordinary use of the premises, then it will be unfit for habitation. And to reach such a conclusion I need to be satisfied on the balance of probabilities having been provided clear and cogent evidence to support that finding.
2. In this matter, the applicant has produced reports, two of which are essentially identical and the third which provides some additional information. As noted, the assessment was done from reports, photos and subjective observations, no separate testing of the site was completed in the assessment. The author of the report has not attended the hearing to provide further evidence regarding the state of the property and elaborate on the observations as produced in the reports.
3. There appears to be two reasons why the conclusion is reached that the 'residents should be vacated as soon as possible and the unit remain isolated until all works are completed as the remaining waste presents a strong risk to occupancy and is uninhabitable.' These are the presence of solid waste contamination and the presence of mould. Both of these items may lead to the malodorous state of the rented premises.
4. It is not unreasonable to accept the broad proposition that the presence of contaminated waste could cause an injury, and that this that would support a conclusion that the premises are unfit for human habitation. The report clearly makes a recommendation regarding the property being vacated because of the stated belief that the remaining waste presents a strong risk. However, on reading the reports, it is less clear as to what the strong risk is that arises from the remaining waste on the rented premises.
5. In these circumstances, the EHS Assess reports show a premises that is filthy, the photographs providing ample evidence of the state of the property. The reports identify that flooding debris is still present in the ensuite area of the premises, which is contaminated by what may be seen as backflow, and remaining debris items as spread by the renter. It is noted in the reports that it is 'very difficult to determine between residents' items and any residual debris from the event.' From the photographic evidence the renter's debris is more prolific than that of the residual debris from the backflow event.
6. The reports provide a summation of the event and provide an opinion as to the level of contamination, which if accepted on face value, may lead to the unfit for human habitation ground being made out. However, while the report states that the contamination is at the highest state, there is little to no evidence as to how this conclusion is reached included in the reports, or why, in the circumstances of this particular contamination, it is unfit. The report appears to assume the reader will accept that the presence of a stated Category 3 contamination from subjective observation equals unfit for human habitation. On the evidence presented, that is a challenging proposition.
7. With respect to the issue of solid waste contamination arising from the overflow event, there is limited evidence of this presented in the report. There is one photograph where something is identified in the ensuite that may be a remainder of the backflow event. The rest of the items in the photographs appear to be debris, it being unclear what is rubbish or what are personal items, disposed of by the renter in the rented premises. It may be that this debris of the renter is contaminated by the backflow water but this is not clear on the information that has been presented. There has been no formal testing of this debris as to what its state is and whether its presence would lead to an injury through ordinary use, in this case, the renter being in proximity to the debris.
8. I accept that there is debris in the rented premises that is of concern but I have not been provided with reasons as to why it may lead to some form of injury to the renter. The renter has been living in the rented premises for around four months and I have no information that she has experienced adverse health effects during this time The renter has stated that the debris will be removed through a concerted effort from the rented premises by her and support workers. This may ameliorate the effect of the standing waste and the risk of injury that it presents to the renter.
9. The second ground presented by the report as to why the rented premises is unfit for human habitation is the presence of mould. I note that the reports provided no evidence of mould aside from the broad assertions that it existed. There were no tests completed for mould levels either in the air or on porous or semi-porous surfaces. The photographs provided did not provide evidence of mould. There was no supporting evidence as to the existence of mould in the rented premises.
10. The Tribunal has some experience of claims of mould in rented premises, and the professional reports that assess the level and type of mould in properties. There is an ambient level of fungal spores in every environment, and the Tribunal regularly receives reports regarding the level of spore growth and the variety of fungal types, including the level of potentially harmful growths.
11. I agreed with Mr Teskey that the water ingress could mean that mould was present behind walls or under the floor, as this is also a common concern brought to the Tribunal. However there was nothing of this nature before me substantiating this aspect of the claim, no testing of any kind occurred and no actual observation of the state of the rented premises behind walls or under floors.
12. I accept the property is malodorous, but again, it is hard to distinguish this issue from the backflow event that has led to this application from what would have been a malodorous premises prior to the event occurring. The state of the rented premises prior to the event was such that without formal testing it would not be clear what difference has occurred arising from the backflow event and what evidence it demonstrates relevant to the present consideration. I accept the property is malodorous, I do not accept that this is a reason to find the rented premises unfit for human habitation.
13. There has clearly been a significant event that has occurred and the rental provider has taken steps to assess the damage that has occurred in the rented premises. We have three reports, two that have any real substance, which declare the property unfit for human habitation, but are otherwise deficient for the present purpose of founding a claim for possession. Had the report author attended to provide evidence there may have been material that added to the information before me that may have assisted in a finding that the ground was made out. This did not occur, and the application suffers for it.
14. In the absence of strong evidence, clear and cogent as described, that the ordinary use of the rented premises will lead to an injury to the renter, I am unable to agree with the rental provider's assertion that the rented premises are unfit for human habitation.
15. The application accordingly is dismissed.

[1] The report states 3 June 2025 but this is clearly an error given the timeline of notices.

[2] Smith v Director of Housing [2005] VSC 46 at [17].

[3] The preface to all reports reference industry standards regarding water damage. The report identifies 4 classes of wetting events, with Class 1 being the lowest level of absorption and Class 4 being deeply held or bound water. It references 3 categories of water contamination, with Category 1 being water from a sanitary source and Category 3 being the highest level of contamination, and 3 conditions of mould contamination, with condition 1 being normal fungal ecology and condition 3 being the actual growth in an indoor environment .

[8] Previously found at s 238 and s 245 of the RT Act in exact or substantially similar terms.

[9] [1943] AC 283.

[10] [2004] QSC 276.

[11] [2000] HCA 56; (2000) 205 CLR 166.

[12] [2014] VCAT 581, [18].

[13] [2004] QSC 276, [11].

[14] Handler v Casey [2019] VSC 599 [84].

[15] [2000] HCA 56; (2000) 205 CLR 166, 217 [178] (Gummow and Hayne JJ).

[16] [1938] HCA 34.

[17] [2013] VCAT 221.