mixed. In R2017/33904 the Tribunal ordered the Residential Tenancies Bond Authority to pay the tenant the bond of $2,750 and ordered the landlord to pay the tenant $707.18. In R2017/37267 the Tribunal...
Key principles
A landlord does not unreasonably withhold consent to an assignment where the landlord's concerns about the prospective assignees' ability to pay rent are reasonably based on...
Providing incorrect legal advice that a sub-let is 'not possible' when consent could have been sought is unreasonable; an initial refusal based on such a misunderstanding is...
An 11-day delay in granting consent to a sub-let, where the tenant had repeatedly required the prospective sub-tenants to start by a specific earlier date, can constitute an...
A tenant who elects not to pursue available remedies or to mitigate loss (for example by seeking an alternative sub-tenant or applying to the Tribunal under s 82) cannot recover...
Issues before the court
Whether the landlord unreasonably withheld consent to the assignment of the tenancy under s 81(2) of the Residential Tenancies Act 1997 (RTA).
Plain English Summary
The tenant sought refunds and to avoid lease-break costs after prospective replacements fell through. VCAT found the landlord reasonably refused an assignment because the prospective tenants' finances were unstable, but the agent wrongly advised that a sub-let was impossible and then took 11 days to approve a sub-let, which was unreasonable. The tenant nonetheless failed to mitigate his loss by not seeking alternatives or applying to VCAT, and chose to break the lease. The Tribunal ordered the bond returned and refunded the tenant $707.18 for overpaid rent (14–22 October), denied the tenant's wider refund claim, and dismissed the landlord's claim for lease-break costs because the landlord unreasonably delayed consent.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,012 words · generated 16/06/2026
What happened
David Ward (the tenant) entered a 12-month fixed-term tenancy on 23 February 2017 at $2,390 per month. In August 2017 he notified the landlord, Alice Bray, that he intended to vacate on 1 September 2017 and sought to transfer (assign) the lease or at least sub-let the premises to identified prospective tenants. The prospective tenants supplied applications beginning about 10 August. The landlord, through agents, declined the assignment on the basis the applicants did not present sufficient evidence of their ability to pay the higher rent; after further information and reference checking the landlord again declined on 28 August.
Whether the landlord unreasonably withheld consent to a proposed sub-let, and whether there was an unreasonable delay in considering that sub-let.
Whether the tenant is entitled to a refund of rent from 1 September 2017 to 22 October 2017 as compensation for the landlord's conduct.
Whether the landlord is entitled to recover lease-break costs (reasonable loss) against the tenant.
Cited legislation
No linked legislation citations have been extracted yet.
On 31 August the tenant proposed a sub-let as an alternative. The agent incorrectly advised the tenant by email that a sub-let was "not possible" under legislation. A new agent then raised the sub-let with the landlord, who ultimately approved it on 11 September 2017, 11 days after the tenant's request. By then the prospective tenants had accepted other accommodation. The tenant elected to break the lease rather than continue to pursue the transfer or other sub-let options. A new tenant began a tenancy from 14 October 2017. The tenant had paid rent to 22 October and a $2,750 bond.
The tenant applied to VCAT for return of the bond and refund of rent, claiming the landlord unreasonably withheld consent and delayed, causing loss. The landlord claimed lease-break costs from the bond. VCAT (Member K. Campana) found: refusal of assignment was reasonable on the facts; advising a sub-let was impossible was wrong and unreasonable; the 11-day delay in approving a sub-let was unreasonable; however the tenant failed to mitigate his loss and elected to accept a lease break; accordingly the tenant was only entitled to refund of overpaid rent from 14–22 October ($707.18) and the full bond, and the landlord's claim for lease-break costs was dismissed. These outcomes are set out in the orders (restitution of the bond and payment of $707.18 to the tenant; landlord's claim dismissed).
Key text references in the judgment: opening findings [5(a)-(c)]; sub-let findings [Did the Landlord unreasonably withhold consent to the sub-let?]; delay findings [Did the Landlord unreasonably delay in providing consent?].
Why the court decided this way
The Tribunal applied statutory standards in s 81(2) of the Residential Tenancies Act 1997 (RTA): a landlord must not unreasonably withhold consent to assignment or sub-letting. The Tribunal examined reasonableness on the facts.
Assignment: The landlord's refusal to consent to assignment was found reasonable. The Tribunal focused on the prospective assignees' financial instability: they were self-employed, had irregular incomes, were moving interstate, and would have limited funds after paying two months' rent up front; previous rental references related to lower rent properties. The Tribunal held that assessing ability to pay is a legitimate and critical factor for landlords, and in these circumstances it was not illogical or unreasonable for the landlord to decline consent. The judge explicitly noted that seeking an accountant's confirmation would likely not have meaningfully resolved concerns about ongoing liabilities ([Did the Landlord unreasonably withhold consent to the assignment?, paras 3-5]).
Sub-let: The Tribunal distinguished the assignment refusal from the agent's conduct on the sub-let. The agent's assertion that a sub-let was "not possible" under legislation was legally incorrect; a sub-let is possible with the landlord's consent (or Tribunal approval). That misstatement constituted an unreasonable initial rejection. The Tribunal then examined delay: the tenant requested the sub-let on 31 August and was not told of consent until 11 September. The Tribunal considered an 11-day period unreasonable where the tenant had repeatedly stated prospective tenants were to begin on 1 September; the Tribunal characterised the delay as significant in causing the prospective tenants to accept alternate accommodation.
Compensation and mitigation: Even where a landlord's conduct is unreasonable, a claimant must mitigate loss. The Tribunal relied on s 211 RTA and the general mitigation principle; it found the tenant failed to mitigate, he did not attempt to find other sub-tenants or apply to the Tribunal under s 82 to authorise an assignment or sub-let. Instead he immediately alleged the landlord's fault and agreed to a lease break. Because the tenant elected not to pursue the sub-let or Tribunal remedy, the Tribunal held the tenant's losses from 1 September were self-chosen and not recoverable. For the period after the new tenancy commenced on 14 October, the tenant had been overpaid; the landlord accepted that and the Tribunal ordered repayment of $707.18. The landlord's claim for lease-break costs failed because the landlord's unreasonable delay had contributed to the tenant's breach and the landlord had not mitigated loss by timely consent.
The result balanced statutory obligations on landlords with the practical requirement that applicants for compensation must take reasonable steps to mitigate foreseeable loss.
Before and after state of the law
Before this decision, s 81(2) RTA already required landlords not to unreasonably withhold consent to assignment or sub-let. The case applies that statutory standard to a common factual scenario: a tenant seeks replacement occupants mid-term via assignment or sub-let, and the landlord declines on financial grounds.
This decision reinforces the following points in Victorian residential tenancies law:
A landlord's legitimate concerns about a prospective assignee's ability to pay are a proper basis to refuse consent to assignment; such a refusal will not be 'unreasonable' where grounded in instability of income and inadequate verified funds ([assignment rationale]).
Agents' procedural or legal errors (incorrect advice that a sub-let is impossible) can render a refusal unreasonable and may expose the landlord to the consequences of that delay.
Delay in considering consent may itself be unreasonable and causative of loss; an 11-day delay when the tenant sought a 1 September start was found unreasonable on these facts.
Mitigation obligations remain decisive: even where a landlord's conduct is deficient, a tenant must take steps to reduce loss (seek other sub-tenants, apply to Tribunal under s 82); electing to break a lease may preclude recovery of losses caused by that election.
Therefore after Ward v Bray practitioners should note both the legitimacy of economically based refusals and the risks to landlords where agents give incorrect legal advice or unreasonably delay decisions.
Key passages with plain-English translation
"I am not satisfied that the Landlord's consent was unreasonably withheld or there was any delay in considering the assignment of tenancy" (Reasons: initial conclusions, para 5(a)).
Plain English: On the evidence, the landlord's refusal to let the tenant transfer the lease to the proposed people was reasonable, and the landlord did not take too long to decide that.
"It was unreasonable to tell the Tenant that he could not sub-let when it was based on no more than a misunderstanding of the law." (Sub-let section.)
Plain English: The agent gave incorrect legal advice saying a sub-let was impossible, which was not correct and was unreasonable, the tenant should have been told the landlord could be asked for permission or the Tribunal could be approached.
"In total there was eleven days before the Tenant was advised that the Landlord had provided consent to the sub-let. In my view this time frame was unreasonable..." (Delay findings.)
Plain English: It took eleven days for the landlord to approve the sub-let after the tenant asked; given the tenant's timeline, that delay was too long and caused the prospective tenants to look elsewhere.
"The Tenant did not attempt to find an alternate tenant to sub-let the rented premises ... The Tenant has made an election not to pursue the sub-let arrangement and in those circumstances the loss he incurred has been of his choosing." (Mitigation section.)
Plain English: The tenant chose not to try to limit his own loss or use other legal options; he accepted breaking the lease instead, so losses he suffered from 1 September were his own choice and cannot be recovered.
"The Landlord failed to mitigate her loss by consenting to the sub-let in a reasonable period of time and as such she is not entitled to any loss that arises due to her actions." (Landlord claim.)
Plain English: Because the landlord (through her agents) delayed in allowing a sub-let, she cannot claim the costs that resulted from the tenant breaking the lease.
When reading these passages, note the Tribunal carefully separates the lawfulness of a landlord's decision (assignment refusal) from the procedural/unreasonable conduct that can follow (incorrect legal advice; delay).
What fact patterns trigger this precedent
This decision is most directly triggered in scenarios where:
A tenant seeks to assign or sub-let during a fixed-term tenancy and proposes identifiable replacement tenants; and
The landlord refuses assignment on financial grounds linked to irregular/self-employed income or limited verified funds; and/or
The landlord or agent gives incorrect legal advice about the availability of sub-letting or delays decision-making, causing prospective assignees to lose interest; and
The tenant elects to break the lease rather than pursue alternative mitigatory steps such as seeking other sub-tenants or applying to the Tribunal under s 82.
Practical triggers include: agents not understanding statutory rights around sub-letting, landlords assessing self-employed applicants without taking into account periodic income variance, and short timeframes where the tenant requires a replacement to start immediately. In these situations Ward v Bray provides a template: an economically reasonable refusal to assign can be upheld; however, procedural missteps and delay by landlord/agent can prevent recovery of lease-break losses and give the tenant a narrow window to claim compensation, provided the tenant can show mitigation efforts.
How later courts have treated it
At the time of this decision there are no later reported authorities cited in the judgment. Ward v Bray is a VCAT decision: it is persuasive within the Tribunal and to practitioners but not binding on higher courts. For tribunal practice, the decision is a practical application of s 81(2) and mitigation principles; it is likely to be cited in subsequent VCAT matters where facts are materially similar (tenant seeks assignment/sub-let; landlord cites financial concerns; agent delays or misinforms). Its weight lies in its clear factual balancing, particularly emphasising mitigation obligations and the importance of agents giving correct legal information promptly.
Practitioners should monitor subsequent VCAT decisions for follow-up or distinctions, but Ward v Bray provides a well-reasoned example that may guide outcomes where delays are short but critical.
Still-open questions
Degree of delay that will be 'unreasonable': Ward v Bray found 11 days unreasonable on these facts. However, how courts will treat different lengths of delay, or delay that is partly justified by thorough due diligence, remains fact-dependent. There is no bright-line rule; parties must assess proportionality in context.
Quantifying causation and loss when consent is delayed: In this case the tenant's failure to mitigate curtailed recovery beyond 14 October. But where a tenant does mitigate, or where delay is longer or demonstrably causative, the Tribunal's approach to calculating compensable loss (rent differences, consequential losses) will require further elaboration.
The interplay between assignment and sub-let choices: The Tribunal accepted that a sub-let would have left the tenant liable for rent and therefore the tenant's loss claim was limited; future cases may explore the extent to which a tenant can recover costs when the economic effect of sub-letting varies (for example, where the sub-tenant would pay different rent).
Agent liability and landlord responsibility: This decision attributes unreasonable conduct to the landlord via its agent. The precise boundaries of landlord liability for incorrect agent advice (and potential remedies) may require further development, particularly where agents' mistakes are systemic.
Tactical use of s 82 Tribunal applications: The Tribunal noted tenants may apply under s 82 to have assignment/sub-let allowed. The procedural consequences of making (or failing to make) such an application in tight timelines remain a practical question for tenants seeking to preserve remedies.
For practitioners: ensure agents communicate promptly and accurately about statutory rights, document due diligence reasons for refusals, advise tenants of Tribunal remedies (s 82) where consent is refused, and both landlords and tenants should take active steps to mitigate loss once potential replacements fail to materialise.
Judgment (64 paragraphs)
[1]
For the reasons provided in writing, the Tribunal orders and directs that:
[2]
The Residential Tenancies Bond Authority pay to the tenant the bond of $2,750.
The landlord pay the tenant the sum of $707.18.
[3]
For the reasons provided in writing, the Tribunal orders that Landlord's claim is dismissed. Orders have been made in proceeding R2017/33904 dealing with the bond.
[4]
Tenant, David Ward ("the Tenant") left his apartment in the heart of the city halfway through a 12 month fixed term tenancy and wants a refund of rent and to be spared the claim by the landlord, Alice Bray ("the Landlord") for break lease costs.
The Tenant claims that the Landlord unreasonably withheld consent to him assigning the tenancy. He says a delay then in approving a sublet proposal meant that the tenants he put forward found alternate accommodation and he was forced into breaking his lease. He says he should not have to pay rent past the date the new tenants would have moved in and wants a refund of $4,086.
The Landlord has made a claim against the Bond for the costs of the pro-rata letting fee and advertising costs in the amount of $365.01. She acknowledges that the Tenant has overpaid rent for the period after the new tenancy commenced on 14 October 2017 in the amount of $707.18. The Landlord says her claim should be deducted from this amount, and the balance repaid to the Tenant.
The Tenant and Landlord's claims were heard together. Due to the large volume of email correspondence and associated documents presented, I reserved my decision to consider the material.
For the reasons that follow:
[5]
(a) I am not satisfied that the Landlord's consent was unreasonably withheld or there was any delay in considering the assignment of tenancy,
[6]
(b) I am satisfied that the initial rejection of the sub-let consent was unreasonable and as such the Landlord is not entitled to lease break fees, and
[7]
(c) the Tenant is entitled to a refund of rent for the period after the new tenancy, but has otherwise not established a right to a refund prior to that date.
[8]
On 23 February 2017 the Tenant signed a 12 month fixed term tenancy agreement, with rent payable of $2,390 per calendar month. The Tenant had asked for a six month lease, but the Landlord would only agree to twelve months and so the Tenant signed up for this period.
On 2 August 2017, the Tenant told the Landlord that he was going to be vacating the rented premises on 1 September 2017 and asked about the process for a tenancy transfer.[1]
On 4 August 2017, the agent for the Landlord sent the Tenant the relevant application forms.[2]
On 8 August 2017, the Tenant advised the agent that they had found suitable tenants to take over the lease ("the Prospective Tenants"), and asked for further information about the process.[3]
The following day the agent replied that she hadn't received any paperwork from the Prospective Tenants and gave some further advice about the process for a transfer.[4] The Tenant immediately advised the agent that the Prospective Tenants were still getting the paperwork together and that he would be heading overseas shortly.[5]
On 10 August 2017, the Tenant says all paperwork was submitted by the Prospective Tenants to the agency.
Late Sunday, 13 August 2017, the Tenant sent a follow up email to the agent asking about progress on the tenant transfer and advising he was leaving the country the following day and would leave his keys with a neighbour until the transfer was approved.[6]
On 14 August 2017, the agent for the Landlord advised the Tenant that she still hadn't received the paperwork from the Prospective Tenants and asking whether the Tenant wanted to consider a lease break rather than a transfer.[7] The Tenant said he would follow up the paperwork and that he wanted to proceed with the transfer as "it's less hassle for everyone, and would end up costing us less too."[8]
On 16 August 2017 the Tenant was advised that the transfer had been declined.[9] The Tenant followed it up the next day asking why the Prospective Tenants had been declined. The Tenant also claimed that he would have difficulty finding another suitable tenant as he was now overseas. The agent advised that the Prospective Tenants "."
[9]
A couple have sent through an application for the property, they are both free-lance graphic designers who earn around $35,000-$40,000 each per annum. Due to both of them being freelance designers they do not have a person for me to contact for a reference for work.
[10]
They have advised me that they don't always have regular income but they are happy to pay 2 months up front if this helps them to get the apartment. They have provided me with bank statements and I can see that they would have just enough to pay 2 months up front.
[11]
They do have previous rental history, one was through an agent and one was through a private landlord, both have come up good and their rent was always paid on time but it is less than the rental amount for your apartment.[16]
[12]
On 31 August 2017, the agent wrote to the Tenant explaining the reason behind the Prospective Tenants being declined -
[13]
Please be aware that this application will not be going ahead due to the application not having enough evidence of them being able to afford the rental payments. They have exhausted all of their revenues (sic) in order to show this but unfortunately the owner feels as though this would be at a stretch.[17]
[14]
The Tenant offered an alternative to the transfer, asking for the Landlord's consent to a sublet -
[15]
While the landlord doesn't feel they have enough evidence to support their ability to afford the place, I have full confidence given the evidence I've seen. I'd like to propose an alternative solution; if I were to sublet to these applicants instead of transferring the lease, the onus would still be on myself to pay rent, which I have proven to pay in a timely manner in my 6 months of tenancy.[18]
[16]
Thereafter there was some confusion about the ability of the Tenant to sublet the rented premises, which was sparked by the claim by the agent that "Unfortunately under legislation that (the sublet) is not possible to do." The Tenant says he spoke to the agent on the phone who said she would check with her director at the agency.
The Tenant made contact again on 7 September 2017, in an email to the agent, asking if the proposal to sublet had been presented to the Landlord.[19]
A new agent for the Landlord responded that she was following up the request and hoped to have a response back by Monday (11 September 2017).[20]
On 11 September 2017 the agent advised the Tenant the Landlord had approved the sublet.[21]
The next day the Tenant sent an email informing the Landlord that the Prospective Tenants had taken an alternate property and blaming the agent for the Tenant having to now accept a lease break -
[17]
Unfortunately, this update has come too late, as over the weekend the tenants who applied over 3 weeks ago found it necessary to sign a lease with a different property due to the unreasonable delays. Because of this, I'm now left with no option but to break the lease. After seeking legal advice, I am currently in the process of opening a file with VCAT due to the gross mishandling of this case.
[18]
Ultimately this would not have happened had your office done its due diligence in a timely manner. My request for subletting was delayed by a full week given the fact that I was misled in an email by Rebecca Leahy stating that "under legislation [a sublet] is not possible to do". Had I received confirmation of a sublet approval even one business day earlier, I would not have lost these suitable applicants.[22]
[19]
The Tenant also confirmed he would only accept a lease break if it was without penalty and no rent was payable from 1 September 2017.
There was no further communication between the parties until 20 September 2017, when the agent asked the Tenant to confirm that he was happy for advertising of the rented premises to commence with the first open for inspection the following week.[23] The Tenant gave permission for the advertising to start and for the agents to access the rented premises.
In early October 2017 a new tenant was approved for the rented premises, with their lease to commence on 14 October 2017.
The Tenant has paid rent to 23 October 2017 and paid a Bond of $2,750.
[20]
Did the Landlord unreasonably withhold consent?
[21]
The Tenant claims that the Landlord's rejection of the transfer of tenancy (assignment) and the sub-let to the Prospective Tenants was unreasonable and in breach of the Residential Tenancies Act1997 ("the RTAct").
(2) A landlord must not unreasonably withhold consent to the assignment or sub-letting of the whole or any part of the rented premises.
[24]
(3) An assignment or sub-letting of the whole or any part of the rentedpremises without the landlord's consent is invalid unless the Tribunal has determined that consent is not required.
[25]
A tenant may apply to the Tribunal to assign or sub-let if a landlord withholds consent and the tenant believes that the withholding of that consent is unreasonable.[24] The purpose of such an application is to enable the assignment or sub-letting to proceed without the landlord's consent. The Tenant made no such application to the Tribunal.
"Unreasonable" is defined by the Oxford Dictionary as being where someone acts "not guided by or based on good sense" or does something "beyond the limits of acceptability or fairness".
Whether something is unreasonable is a question of fact based on the circumstances.
[26]
Did the Landlord unreasonably withhold consent to the assignment?
[27]
The Landlord says she did not consent to the assignment because she was not confident with the Prospective Tenants' ability to sustain payment of the rent given the amount of income they earned being self-employed and how much they would have in the bank after paying the first two month's rent.
The Tenant submits that the Landlord's denial was unreasonable because the Prospective Tenants offered to pay two month's rent in advance and the rent was around a third of their combined income. He says the agent also didn't carry out due diligence as she didn't contact the accountant for the Prospective Tenants as a reference.
The ability to pay the rent is a critical factor to be considered by any landlord in considering whether a tenant is suitable. It can hardly be said to be illogical or unreasonable for a landlord to reject an application by a tenant because of concerns about their ability to pay the rent. However, what must be taken into account, is based on the facts presented to the Landlord; was that concern reasonably based.
In my view, the Landlord's refusal to consent was reasonable, based on the instability of the Prospective Tenants' financial circumstances. The Prospective Tenants were self-employed and so did not have a regular source of income. While two previous references indicated they had paid their rent, the rent paid for those tenancies was less than the rent for the Rented Premises. The Prospective Tenants were also residing in the Northern Territory and were commuting back and forth between there and Victoria. There was little evidence that there would be any ongoing regular work in Victoria.
The Tenant suggests the Landlord did not follow due diligence and speak to the Prospective Tenants' accountant. It is unclear how such a conversation with the accountant would provide any comfort to the Landlord about the ability of the Prospective Tenants to pay rent. The accountant could only provide information about the income received, not what other bills the Prospective Tenants had or whether they were able to meet their financial commitments. In any event, this was information the Prospective Tenants had already given to the Landlord.
In my view given the financial circumstances of the Prospective Tenants, their source of income, the irregularity of that income and that they were moving from interstate, the withholding of consent by the Landlord was not unreasonable.
[28]
Did the Landlord unreasonably withhold consent to the sub-let?
[29]
When the Tenant initially asked for a sub-let he was told by the Landlord's agent that such an arrangement was not possible. This information was wrong. A sub-let is possible under the RTAct, it just has to be with the Landlord's consent or the approval of the Tribunal.
It was unreasonable to tell the Tenant that he could not sub-let when it was based on no more than a misunderstanding of the law. The fact that the Landlord subsequently approved the sub-let to the Prospective Tenants shows that the initial rejection was both unfounded and unreasonable.
[30]
Did the Landlord unreasonably delay in providing consent?
[31]
The Tenant complains that the Landlord delayed in considering both the assignment and sub-let resulting in the Prospective Tenants finding another property.
[32]
Was there any delay in considering the assignment?
[33]
The Prospective Tenants first provided their paperwork to the agency around 10 August 2017. By 16 August 2017, the agent advised that the Landlord had declined the assignment. Over the next week, the Prospective Tenants provided further information and over the course of another week, the Landlord had carried out reference checks, considered the additional information, and advised the Tenant that consent would not be provided.
In the circumstances I do not consider the time taken by the Landlord to review the documentation and carry out due diligence was unreasonable or excessive, given that it was less than a week on each occasion and that there was work involved in considering the information. I find that there was no unreasonable delay in considering the assignment.
[34]
I am satisfied that there was unreasonable delay in considering a sub-let of the tenancy.
It was on 31 August 2017 that the Tenant asked the Landlord to consider a sub-let. The agent gave the wrong advice to the Tenant that a sub-let was illegal. It is true that a tenant cannot sub-let rented premises under the RTAct, but that is only if they don't have the permission of the landlord. The Tenant was doing the right thing by asking for consent.
It was then a week before a new agent referred the option of a sub-let to the Landlord. At this point the agent advised the Tenant that the Landlord would have an answer to him by the Monday.
In total there was eleven days before the Tenant was advised that the Landlord had provided consent to the sub-let. In my view this time frame was unreasonable in circumstances where the Tenant had always advised that he wanted the Prospective Tenants to take over from 1 September 2017. While the expectation of a one day turnaround from being asked by the Tenant to consider the sub-let to giving approval would have been unreasonable, taking eleven days to finally give consent is also just as unreasonable.
[35]
Is the Tenant or Landlord entitled to compensation?
[36]
Is the Tenant entitled to a refund of rent from 1 September 2017?
[37]
The Tenant has paid rent to 22 October 2017. The Landlord acknowledges that the Tenant should receive a refund of rent for the period from 14 October 2017 (the date of the new tenancy) to 22 October 2017 in the amount of $707.18.
The Tenant wants a refund of rent paid from 1 September 2017 to 22 October 2017. He submits that had the Landlord approved the assignment and/or the sub-let, the Prospective Tenants would not have found an alternate property and he would not have paid rent past 1 September 2017.
For the reasons that follow the Tenant's claim for a refund of rent from 1 September 2017 cannot be established. He is however entitled to an order for $707.18.
Firstly, the withholding of consent to the assignment of tenancy was not unreasonable for the reasons provided above. As such there is no entitlement to be compensated where a landlord does not breach the RTAct.
Secondly, while I am satisfied that there was a delay in the Landlord approving the sub-let because of unreasonably withholding consent, the Tenant would still have been liable to the Landlord for rent under a sub-let arrangement.
The Tenant may well argue that had the Prospective Tenants moved into the Rented Premises the rent he was paid by them would have been equivalent to the rent he would pay the Landlord, and therefore he suffered a loss by not being able to secure the Prospective Tenants.
However, in any claim for compensation, the applicant seeking compensation must mitigate their loss.[25] The Tenant did not attempt to find an alternate tenant to sub-let the rented premises, or make any effort in that regard. Instead, he immediately advised the Landlord that the delay was her fault, and agreed to a lease break. The Tenant has made an election not to pursue the sub-let arrangement and in those circumstances the loss he incurred has been of his choosing.
[38]
As a result of the findings above, the Landlord is not entitled to the reasonable loss associated with the Tenant breaching a fixed term tenancy.
Had the Landlord not unreasonably withheld consent to the sub-let, there may have been no breach of the fixed term tenancy by the Tenant.
The Landlord failed to mitigate her loss by consenting to the sub-let in a reasonable period of time and as such she is not entitled to any loss that arises due to her actions.
[39]
The Tenant has paid rent to 22 October 2017 and the Landlord acknowledges that he is in credit for the period from 14 October 2017 to 22 October 2017 and should be repaid the amount of $707.18.
With the Tenant's claim for a refund of rent from 1 September 2017 dismissed and the Landlord's claim for lease break dismissed, I shall make orders that the Tenant is refunded the amount of $707.18 by the Landlord and direct that he be refunded the full amount of the Bond.
[40]
[1] Email from the Tenant to Michelle Skerritt at Hayden Real Estate dated 2 August 2017 @ 4.17pm.
[41]
[2] Email from Rebecca Leahy to the Tenant dated 4 August 2017 @1.23pm.
[42]
[3] Email from the Tenant to Rebecca Leahy dated 8 August 2017 @3.51pm.
[43]
[4] Email from Rebecca Leahy to the Tenant dated 9 August 2017 @ 11.36am.
[44]
[5] Email from the Tenant to Rebecca Leahy dated 9 August 2017 @11.55am.
[45]
[6] Email from the Tenant to Rebecca Leahy dated 13 August 2017 @ 10.55pm.
[46]
[7] Email from Rebecca Leahy to the Tenant dated 14 August 2017 @ 4.21pm.
[47]
[8] Email from the Tenant to Rebecca Leahy dated 14 August @ 4.19pm (time stamp as reflected on email provided to the Tribunal. It is unclear if this is the date at the time sent from Canada).
[48]
[9] Email from Rebecca Leahy to the Tenant dated 16 August 2017 @ 11.28pm.
[49]
[10] Email from the Tenant to Rebecca Leahy dated 17 August 2017 @ 9.31pm.
[50]
[11] Email from Rebecca Leahy to the Tenant dated 17 August 2017 @ 8.55pm.
[51]
[12] Email from the Tenant to Rebecca Leahy dated 23 August 2017 @ 12.15pm.
[52]
[13] Email from Rebecca Leahy to the Tenant dated 23 August 2017 @ 9.30pm.
[53]
[14] Email from Rebecca Leahy to the Tenant dated 28 August 2017 @ 8.50pm.
[54]
[15] Email from the Tenant to Rebecca Leahy dated 29 August 2017 @ 1.32pm.
[55]
[16] Email from Rebecca Leahy to the Landlord dated 30 August 2017 at 10.49am.
[56]
[17] Email from Rebecca Leahy to the Tenant dated 31 August 2017 at 12.02am.
[57]
[18] Email from the Tenant to Rebecca Leahy dated 31 August 2017 @ 2.13pm.
[58]
[19] Email from the Tenant to Rebecca Leahy dated 7 September 2017 @ 2.56pm.
[59]
[20] Email from Phoebe Johnson to the Tenant dated 7 September 2017 @ 11.18pm.
[60]
[21] Email from Phoebe Johnson to the Tenant dated 11 September 2017 @ 12.14am.
[61]
[22] Email from the Tenant to Phoebe Johnson dated 12 September 2017 @ 12.57pm.
[62]
[23] Email from Phoebe Johnson to the Tenant dated 20 September 2017 @ 6.54pm.
Ward v Bray (Residential Tenancies) [2017] VCAT 1935 (14 November 2017)
AI Analysis
Outcomemixed
Disposition:
In R2017/33904 the Tribunal ordered the Residential Tenancies Bond Authority to pay the tenant the bond of $2,750 and ordered the landlord to pay the tenant $707.18. In R2017/37267 the Tribunal dismissed the landlord's claim; orders in R2017/33904 deal with the bond.
At some stage over the next week, the Prospective Tenants provided further information to the agent for the Landlord. The Tenant then sent an email asking if things had progressed and if the lease transfer was close.[12] The agent advised that there was one more reference to check and the information would then be put to the Landlord.[13]
On 28 August 2017, the Tenant was informed that the Landlord had again declined the transfer to the Prospective Tenants.[14]
The Tenant was upset by the response and expressed his concerns in an email the following day. He claimed that the Landlord was unreasonably withholding consent to the transfer and advised that he would not do a lease break unless the Landlord was willing to release him from rent from 1 September 2017 onwards and "I would also not be paying a re-listing fee, nor any lease-break fees, as I have been backed into a corner without a reasonable option to transfer my lease despite my right to do so."[15]
On 30 August 2017, the agent sent the Landlord an email containing the information about the Prospective Tenants that had been provided in a telephone conversation earlier -