Wei v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 878

1. The landlord gave the tenant not less than 14 days' notice to vacate when the tenant owed at least 14 days' rent.
2. The landlord is entitled to a possession order.
3. The rent, which is $2,672.00 per calendar month is paid to 13 January 2019 and the rent owed to today is $13,353.20.
4. The bond is $2,520.00.

1. The tenant must vacate the rented premises on 14 June 2019.
2. The principal registrar at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 14 December 2019.
3. The tenant shall now pay the landlord rent owed of $13,353.20.

Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

1. This is an application by the landlord of a property in 883 Collins St, Docklands (rented premises) for possession of the property on the basis that the tenant had not paid rent. The matter first came on before me on 17 April 2019, together with a similar application with the same tenant in R2019/11939.
2. The landlord was represented by his agents Ms Louisa Raffaele and Ms Lina D'Ambrosio. The tenant was represented by its director Ms Lulu Xu and an employee Mr David Youl.
3. Having heard the evidence, and allowed the representatives of the tenant some adjournments to obtain advice, just before I was to give my decision Mr Youl applied for reconstitution of the Tribunal. The landlord's application for possession was therefore adjourned pending the hearing and determination of the tenant's application for reconstitution.

1. The tenant's application for reconstitution of the Tribunal as constituted by me on 17 April 2019 was heard on 31 May 2019 by Deputy President Lulham and was dismissed. An Order of 28 May 2019 had notified the parties of how the proceeding would be dealt with depending on the outcome of the tenant's application for reconstitution. That Order had provided that if the tenant's application for reconstitution was unsuccessful on 31 May 2019 the landlord's application for possession would be referred back to me immediately and that the hearing would resume that same day.

1. The landlord's application is for a possession order to be made on the basis that the tenant had not paid rent.

1. Under s330 of the Residential Tenancies Act 1997 (RTA) the Tribunal must make a possession order requiring a tenant to vacate rented premises if the landlord has given the tenant a notice to vacate and the Tribunal is satisfied that the landlord was entitled to give the notice to vacate (s330(1)(a)(i)), that the notice has not been withdrawn (s330(1)(a)(ii)), and that the tenant is still in possession of the rented premises (s330(1)(d)).
2. Under s331 of the RTA the Tribunal may dismiss or adjourn an application for a possession order if the Tribunal considers that satisfactory arrangements have been, or can be, made to avoid financial loss to the landlord (s331(1)(b)).
3. At the hearing on 31 May 2019 the landlord was represented by the same agents, Ms Raffaele and Ms D'Ambrosio. The tenant was represented by Mr Shivesh Kuksal. The hearing immediately followed the hearing in R2019/11939 at which the tenant's director Ms Lulu Xu and an employee Mr David Youl had been present, along with Mr Kuksal. Neither Ms Xu nor Mr Youl was present for the hearing of this application however.
4. The landlord's agents provided a summary of proofs and all supporting documentation to the Tribunal and to the tenant.
5. The summary of proofs says that the landlord served the tenant with a Notice to Vacate on 26 March 2019. The rent was paid to 13 January 2019 and the arrears of rent at that date were $6332.35. The landlord required the tenant to vacate on 16 April 2019. The tenant remains in possession of the rented premises. The landlord seeks a possession order together with an order that the tenant pay rent to the date of the hearing in the sum of $12,130.22.
6. Mr Kuksal said that the arguments in this hearing were the same as the ones he had made in R2019/11939. Mr Kuksal asserted that a possession order should not be made for a number of reasons. He said that the amount of rent arrears in the Notice to Vacate was not correct. He said that the Notice to Vacate had not been validly given. He said that the application for possession had not been validly served. He said that as the tenant did not know what the landlord was claiming it would not be fair to proceed with the hearing until the tenant had had an opportunity to prepare a proper defence. He said that it would be unfair to deprive the tenant of its home.

1. The landlord sent the tenant a Notice to Vacate on 26 March 2019. At that date the landlord said the rent was paid up to and including 13 January 2019. Mr Kuksal said the amount of rent arrears on the Notice to Vacate was not correct.
2. The agents provided a copy of the residential tenancies agreement which shows that the 24-month tenancy commenced on 26 October 2017, and that the rent amount of $2,672.00 per calendar month was payable on the 25th day of every month in advance. Mr Kuksal said the agents had changed the payment date to 15th of every month but that the tenant had not agreed to that change.
3. The copy of the ledger provided by the agents shows that payments had been made on many different dates. There were two payments made on 24th of months, other payments were made on 2nd, 4th, 5th, 7th, 8th, 10th, 11th, 18th, 19th, 22nd, 23rd, 26th and 30th of various months. The ledger shows that the last payment was made on 11 January 2019 which took the paid-to date to 14 December 2018 with $2628.00 on account. The agent said this was the same as a paid-to date of 13 January 2019.
4. The agents provided copies of emails they sent to Mr Kuksal on behalf of the tenant on 10 December 2018 listing details of twelve separate properties being managed by the agents for which the tenant, Kornucopia Pty Ltd, was in arrears. Mr Kuksal did not dispute that Kornucopia Pty Ltd was the tenant of those properties. The listing for the rented premises shows that at 10 December 2018 the amount of $2,672.00 was owing.
5. Mr Kuksal's evidence was that a "bulk payment" of $24,000.00 was made on 3 January 2019. The Tribunal was provided with copies of emails between the agents and Mr Kuksal showing that when the bulk payment was made he had promised that "a detailed breakdown will be provided within 2 business days (end of 07.01.19)" and that "this makes all properties for today's hearing paid for the month of January 2019." Mr Kuksal identified himself in the emails as "Director Kornucopia". No details were provided as to which properties might have been involved in any hearings before the Tribunal on 3 January 2019.
6. The agents' evidence was that no breakdown had been provided, despite their persistent requests.
7. The emails show that on 9 January 2019 Mr Kuksal said "At this stage, you do not have my instructions regarding payment." He went on "Also, as the funds have been sitting in your account for too long, I would rather you reimburse those to us and I will make a fresh transfer using separate payments for each property, which will be more appropriate."
8. The last email from the agents dated 10 January 2019 said "If you do not send me the allocations for the rent by tomorrow morning, I will work out which landlords are in arrears the most and send it to them."
9. When asked on a number of separate occasions whether he had advised the agents of allocations to be made, Mr Kuksal finally said he had given details of appropriate allocations to Ms D'Ambrosio by phone. This was strenuously denied by the agent.
10. Mr Kuksal said that the agents had wrongly allocated payments and that it had been an "arbitrary and whimsical distribution." He said the distribution of the bulk payment should have been proportional rather than splitting it equally across all properties, as the agents had done.
11. The tenant is a party to a residential tenancies agreement under which it promised to pay rent of $2,672.00 on the 25th of every month. The ledger shows that payments have been made on many different dates but that none have been made on either the date on the residential tenancies agreement (25th) or the disputed date of 15th.
12. I am not persuaded by the evidence that the terms of the written agreement have been varied. The evidence shows that the written agreement has not been complied with. The tenant made a bulk payment of rent to the agents for 12 different properties and provided no instructions about how that payment was to be allocated. The evidence is that as the rent on all 12 properties was in arrears the payment was allocated evenly. The ledger shows that a payment was made on 11 January 2019 taking the paid-to date to 14 December 2018 with $2,628.00 on account. The agents say this is the same as the paid-to date being 13 January 2019.
13. Mr Kuksal says the ledger is not accurate but has provided no alternative. The evidence shows that Mr Kuksal did not provide details for the allocation of the bulk payment.
14. On the evidence before me I find that the ledger is an accurate reflection of the amount of rent arrears owing at the date the Notice to Vacate was issued, and up to the date of the hearing.
15. As a result, I find that at the date of the Notice to Vacate the tenant owed the landlord $6,332.35 in unpaid rent, and that at the date of the hearing the tenant owed the landlord $12,130.22 in unpaid rent.

1. The agents provided evidence by way of Australia Post receipts that the Notice to Vacate was sent to the tenant by registered mail on 26 March 2019 to three separate addresses. Those addresses were: the rented premises; Unit 8, 331 Ingles St, Port Melbourne; and 78 Australian Wharf, Docklands.
2. The agents provided a copy of an ASIC search showing that on 26 March 2019 the registered office of Kornucopia Pty Ltd was Unit 8, 331 Ingles St, Port Melbourne, and the principal place of business was 78 Australian Wharf, Docklands.
3. Mr Kuksal said that the Notice to Vacate had not been properly given as it had not been sent to the registered office of the company.
4. Section 506(3) of the RTA provides that

"(3) A notice to vacate given under Part 6 must be given -

(a) by delivering it personally to the tenant, resident or site tenant; or

(b) by sending the notice by registered post addressed to the tenant, resident or site tenant at the rented premises, room, site or Part 4A site; or

(ba) by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000; or

1. As noted by Senior Member Vassie in Tse v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 537 which was a similar application against the same tenant also heard on 17 April 2019, where the same arguments were made by Mr Kuksal:

"A notice to vacate sent to a tenant company's registered office, wherever that office was, could not have been effectively given unless, under s 506(3)(c), the Tribunal had ordered that it be given that way."

1. As in that case, in the present case the Tribunal had made no such order.
2. The evidence shows that the Notice to Vacate was sent to the tenant by registered post at the rented premises. I therefore find that the Notice to Vacate has been given in accordance with the requirements of s506(3)(b) of the RTA.
3. As a result, I find that the landlord gave the tenant not less than 14 days' notice to vacate when the tenant owed at least 14 days' rent.

1. Mr Kuksal says the application has not been served properly as it was not sent to the company's registered office, and as a result the tenant does not know the details of what the landlord is claiming.
2. The agents provided evidence by way of Australia Post receipts that the application was sent to the tenant by registered mail on 2 April 2019 to three separate addresses. Those addresses were: the rented premises; Unit 8, 331 Ingles St, Port Melbourne; and 78 Australian Wharf, Docklands.
3. The agents provided a copy of an ASIC search showing that on 2 April 2019 the registered office of Kornucopia Pty Ltd was Unit 8, 331 Ingles St, Port Melbourne, and the principal place of business was 78 Australian Wharf, Docklands.
4. Mr Kuksal said that at a Directors meeting on 14 March 2019 it was resolved to change the registered address of Kornucopia Pty Ltd from Unit 8, 331 Ingles St, Port Melbourne to 1/95 Coventry St, Southbank. He provided a copy of a Directors Meeting Minute which showed that Dennis John Clark and Lulu Xu were present at the meeting and that Dennis John Clark was elected chairperson of the meeting. The Minute was however signed by Lulu Xu as chairperson. It was dated 14 March 2019.
5. Mr Kuksal provided a copy of an ASIC Change to Company Details Form 484 signed by Lulu Xu and dated 10 April 2019 advising ASIC that the company's address had changed on 14 March 2019. Mr Kuksal said that the Form 484 had been lodged within the 28 days required by s 142 of the Corporations Act 2001 (Corporations Act).
6. A VCAT application may be served or given to a respondent company by posting it to the registered office of the company (s 140 (1)(b)(ii) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) and s109X(1)(a) of the Corporations Act).
7. Section 1274(B)(2) of the Corporations Act provides that in a proceeding in a court, a writing that purports to have been prepared by ASIC is admissible as prima facie evidence of the information obtained from ASIC's national database, in the absence of evidence to the contrary.
8. There is no evidence to the contrary. The ASIC search dated 2 April 2019 shows that the registered office of the tenant at that date was Unit 8, 331 Ingles St, Port Melbourne. The Form 484 was dated 10 April 2019. There is therefore no evidence to the contrary that the ASIC search of 2 April 2019 could not be relied upon as to the registered address of the company at that date. As a result, I find that as at 2 April 2019 the registered office of the tenant was Unit 8, 331 Ingles St, Port Melbourne and accordingly I find that the application has been effectively served.
9. The agents have in addition also sent the application to both the rented premises and the principal place of business of the tenant company.

1. Mr Kuksal said that as the tenant did not know the details of the landlord's claim, and as it had therefore not had the opportunity to obtain legal advice, it would be unfair to proceed without giving the tenant an adjournment to prepare its defence.
2. The Notice of Hearing for the hearing on 17 April 2019 was sent to the rented premises by the Tribunal. Ms Xu and Mr Youl attended that hearing. At the hearing the agents provided them with a summary of proofs, containing all details of the claim at that date. The reconstitution hearing was heard over a month later.
3. On the evidence before me I do not accept that the tenant was unaware of the details of the landlord's claim almost two months after the application was issued and sent to the tenant at three separate addresses, and over a month after the first hearing at which the tenant's representatives had been given hard copies of the application and supporting materials.
4. Mr Kuksal said that the tenant was unaware of the details of the landlord's claim and therefore has not had time to obtain legal advice. He said it was against fairness and natural justice for the tenant to be stopped from arguing its case. He sought an adjournment as a result.
5. On the evidence before me I do not accept that the tenant was unaware of the landlord's claim and I find that the tenant had ample opportunity to avail itself of legal advice. In all the circumstances, based on the evidence, I do not consider that it would be unfair to proceed with deciding the application and as a result I decline to adjourn the proceedings.

1. Mr Kuksal said that even if it was prejudicial to the landlord not to make a possession order, that prejudice would be "inconsiderable compared to the prejudice to the tenant and all other people negatively affected by an improper order made today." This is essentially an argument that it would be unfair to deprive this tenant of its home, which is the same argument made in R2019/11939.
2. The tenant is a company, and as such it cannot have a 'home'.
3. As admitted by Mr Kuksal this particular tenant is also the tenant of 11 other properties managed by these agents. Even if it could have a 'home' the tenant would have to demonstrate that the rented premises was its 'home', and it has not done so.
4. In addition, even if it were possible for the tenant to have a 'home', and the tenant had shown that the rented premises was its 'home', which it has not done, I do not accept that it is fair to the landlord for a tenant to be in possession of rented premises for five months without paying any rent.
5. I therefore find that proceeding to make a possession order would not be depriving the tenant of its home.

1. There is a valid application and notice to vacate has been given under s 246 (s330(1)(a)).
2. The landlord was entitled to give the notice to vacate (S330(1)(a)(i)).
3. The notice to vacate has not been withdrawn (S330(1)(a)(ii)).
4. The tenant is still in possession of the rented premises after the termination date specified in the notice to vacate (s330(1)(d)).
5. I have found that the Notice to Vacate has been given in accordance with the RTA.
6. I have found that the application has been served in accordance with both the VCAT Act and the Corporations Act.
7. As a result, the landlord is entitled to a possession order, and for an order of payment of outstanding rent, and an order will be made accordingly.