Mazi v Kao (No 2) (Notice of Rent Increase)
[2025] VSC 598
•7 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 05284
| GRACE MAZI | Applicant |
| v | |
| SPENSER HSIUNG-PIN KAO & ORS (according to the attached Schedule) | Respondents |
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JUDGE: | Finanzio J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20, 28 March 2025; 2, 15 April 2025 |
DATE OF JUDGMENT: | 7 October 2025 |
CASE MAY BE CITED AS: | Mazi v Kao (No 2) (Notice of Rent Increase) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 598 |
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ADMINISTRATIVE LAW – Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under Residential Tenancies Act 1997 (Vic) – Application for extension of time – Extension of time granted – Where Residential Rental Provider gave Renter a notice of proposed rent increase under s 44(1) – Where Renter believed notice to be invalid and asked VCAT to set it aside – Where Renter’s application included a request for compensation which was not maintained at the hearing – Where VCAT dismissed the application on the basis of having no jurisdiction to make the order sought – Whether VCAT had jurisdiction to hear an application for an ancillary order in the absence of an application for a substantive order – Where no jurisdiction to make such an order – Leave to appeal allowed – Appeal dismissed.
Residential Tenancies Act 1997 (Vic), ss 44, 45, 46, 452, 472; Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 124, 148; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08.
Victoria v Bradto [2006] VCAT 1864; Xiao v Perpetual Trustee Company Ltd [2009] V ConvR 54-756; [2008] VSC 412; Kracke v Mental Health Review Board [2009] VCAT 646; Casa Di Iorio Investments Pty Ltd v Guirguis [2017] VSC 266; Rosewarne v Lim [2022] VCAT 1015.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the 1st & 2nd Respondents | Ms M Hardinge | MMR Lawyers |
| For the 3rd & 4th Respondents | Mr M Thomas | Carter Newell Lawyers |
HIS HONOUR:
Introduction
The Applicant, Grace Mazi, resides at 716/488 Swanston Street, Carlton (‘the property’), and has lived there as a tenant since June 2021. Her lease converted to a periodic tenancy on or about 23 June 2023.
The First and Second Respondents, Spenser Hsiung-Pin Kao and Hung-Hsia Kao (collectively, ‘the Respondents’ or ‘rental providers’),[1] are the registered proprietors of the property.
[1]The third and fourth respondents are parties to the contempt proceeding only.
On 23 November 2023, a Notice of Proposed Rent Increase (‘the notice’ or ‘rent increase notice’) was issued by the Respondents to the Applicant under s 44 of the Residential Tenancies Act 1997 (Vic) (‘RTA’ or ‘the Act’), with the increase to take effect on 31 January 2024.
On 30 December 2023, the Applicant lodged a general application with the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’), pursuant to s 452(1) of the Act, seeking an order that the Tribunal set aside the notice and an order for compensation pursuant to s 210(1)(b) of the Act (‘VCAT application’).[2]
[2]Insofar as the applicant applied for compensation, it appears to have been in anticipation of rent being paid in accordance with the proposed increase. As matters transpired, the applicant did not pay the increase, so the claim for compensation was not pursued.
On 23 July 2024, the Tribunal, constituted by Member Bygrave, dismissed the application (‘Bygrave order’).[3] The Respondents subsequently commenced proceedings in VCAT seeking compensation for rent not paid in accordance with the rent increase.
[3]VCAT Proceeding No. R2024/1652/02.
On 3 October 2024, more than two months after the Bygrave order, the Applicant sought to commence these proceedings now before me by seeking leave to appeal the decision of the Tribunal, in addition to seeking an extension of time in which to do so (‘Bygrave appeal’).
Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) provides that a party to a VCAT proceeding may only seek leave to appeal to this Court on a question of law.[4] The Court may grant leave only if satisfied that the appeal has a real prospect of success.[5]
[4]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1).
[5]VCAT Act, s 148(2A).
For the reasons that follow, the application for an extension of time and the application for leave to appeal are allowed, but the appeal itself is dismissed.
Background
In 2022 and 2023, the Applicant made a number of applications to the Tribunal concerning repairs to the property and compensation, as well as an application for rent to be paid into a rent special account pursuant to s 77 of the RTA.
Before the notice to increase rent was served in November 2023, the Applicant was given two notices to vacate the property, because the Respondents said that they wanted to sell it. The notices to vacate were dated 11 April 2023 and 8 June 2023 respectively. Following the second notice to vacate, the Respondents made an application to VCAT for a possession order. The Tribunal dismissed the application on the basis that the orders sought were not reasonable and proportionate. After the notice to increase rent was served, the Respondents gave the Applicant a third notice to vacate on 20 June 2024. On 7 November 2024, the Respondents sought and obtained an order for possession from the Tribunal (‘Elmes order’).
Two related matters have been conducted in this Court alongside this proceeding. On 20 November 2024, the Applicant sought leave to appeal in relation to the Elmes order (‘Elmes appeal’).[6] On 9 December 2024, the Applicant filed a summons charging that the Respondents and two others were guilty of a contempt of court (‘contempt application’). The summons and supporting affidavit material filed in the contempt application alleged that documents filed to commence the Bygrave appeal had been used in breach of the rules of this Court, or otherwise in breach of the implied undertaking commonly referred to as the Harman obligation. Although the summons was filed in this proceeding, and was also the subject of submissions in the Elmes appeal, I have dealt with the contempt matter in a separate ruling: Grace Mazi v Spenser Hsiung-Pin Kao & Ors (No.1) [2025] VSC 575.
[6]Proceeding No. S ECI 2024 06285.
Procedural history
The rent increase notice was dated 23 November 2023 and sent via email to the Applicant on that date. The notice shows the then current rent as $1,130 per month, and the increased rent as $1,738 per month; the difference being $608 per month, which is an increase of more than 50%. The notice described the method used to calculate the proposed increase as a ‘Comparative Market Analysis’. The notice also stated that a two-bedroom unit of a similar standard in the area (the address of which was unspecified) was (at the time of the notice) being let for $400 per week, ‘based on the attached Comparative Market Analysis’. The attachment was not provided.
The notice was given under s 44(1) of the RTA. Section 44 relevantly provides:
44 Rent increases
(1)A residential rental provider must give a renter at least 60 days notice in the prescribed form of a proposed rent increase.
…
(3)The notice of a proposed rent increase must include—
(a) the amount of the rent increase; and
(b)the method by which the rent increase was calculated;[7] and
(c)a statement informing the renter of the renter’s right under section 45 to apply within 30 days after the notice is given to the Director to investigate and report on the proposed rent.
…
(5) A rent increase in contravention of this section is invalid.
[7]Section 44(3)(b) is a relatively recent addition to the RTA. It was inserted by s 34(3) of the Residential Tenancies Amendment Act 2018 (Vic), and came into effect on 29 March 2021. The reforms included in the 2018 amending Act were based on recommendations made in the Victorian Government’s review of the Residential Tenancies Act 1997. Section 44(3)(c), which refers to renters having the right to ask Consumers Affairs to investigate and report on the proposed rent under s 45, has formed part of the Act (originally as s 44(3)) since its enactment in 1997.
At all relevant times, it was the Applicant’s position that the notice of rent increase was invalid by virtue of s 44(5) because it failed to comply with the requirements of s 44, and as a result the rent increase was unenforceable. She was, in substance, seeking declaratory relief to the effect that the notice was invalid.
In addition to seeking orders setting aside the notice, the Applicant also sought an order for compensation in relation to any additional rent to be collected as a result of the increase.[8] For reasons that are unnecessary to traverse here, there may be doubt as to whether the rent increase was due to take effect on 31 January 2024 or 1 March 2024. It is clear, however, that at the time the VCAT application was lodged, the rent increase had not yet taken effect; and, ultimately, the Applicant did not pay any of the disputed increase.
[8]VCAT application dated 30 December 2024 (Application No. 15194500), 4.
It is apparent that there was considerable confusion arising from both the way in which the proceeding before VCAT was framed by the Applicant, and the way in which VCAT managed the proceeding through the case management and interlocutory stages.
Where a renter seeks to complain that a proposed rent increase is excessive, the Act sets out a process which ultimately leads to a hearing before VCAT. A threshold step in that process is a complaint to the Director of Consumer Affairs Victoria (‘the Director’). Section 45 provides:
45 Renter may complain to Director about excessive rent
(1)A renter may apply to the Director to investigate and report if the renter—
(a)considers that the rent under a residential rental agreement is excessive having regard to the fact that the residential rental provider has reduced or withdrawn services, facilities or other items provided with the rented premises; or
(b)has received a notice of a rent increase and the renter considers that the proposed rent is excessive.
(2)An application under subsection (1)(b) must be made in writing within 30 days after the notice of the rent increase is given.
(3)As soon as practicable after receiving an application, the Director must—
(a) carry out an investigation; and
(b)give a written report to the renter and a copy of the report to the residential rental provider.
(4)The report of the Director must—
(a)include a statement informing the renter of the renter’s right under section 46 to apply to the Tribunal for an order in respect of the proposed rent; and
(b) take into account the matters referred to in section 47(3).
The pathway to VCAT for a renter who claims that the rent, or proposed rent, is excessive is usually contingent upon the Director having furnished a report, following investigation of the complaint. Section 46 provides:
46 Application to Tribunal about excessive rent
(1)After receiving a report from the Director under section 45, the renter may apply to the Tribunal for an order declaring the rent or proposed rent excessive.
(2) An application under subsection (1) must—
(a)be made within 30 days after the renter receives the Director’s report;
[repealed]
(3)If a renter has received a notice of a rent increase and the renter considers that the proposed rent is excessive, the renter may, with the leave of the Tribunal, apply to the Tribunal for an order declaring the proposed rent excessive without receiving a report from the Director under section 45.
(4)An application under subsection (3) may only be made after the end of 30 days after the notice of the rent increase is given.
(5)The Tribunal may grant leave under subsection (3) if it is satisfied that there are reasonable grounds for the renter’s failure to request the Director to investigate and report under section 45.
The Applicant made no application to the Director and had received no report. Section 46(3) permits a renter, with the leave of VCAT, to apply to the Tribunal for an order that the rent is excessive, without first obtaining a report from the Director.
On 24 January 2024, VCAT advised the Applicant that a hearing had been set down and described her application as seeking ‘leave to apply for [a] declaration of excessive rent without [a] CAV report’, pursuant to s 46(3) of the RTA.[9]
[9]Email from VCAT to the applicant dated 24 January 2024.
Order of Member Ho
The matter first proceeded to hearing before Member Ho on 7 February 2024. The written submissions prepared by the Applicant for that hearing revealed the true nature of her attack on the notice. The Applicant:
(a) advised the Tribunal that her application had been incorrectly entered into VCAT’s system as ‘a challenge to the rent increase’ pursuant to s 46(3);
(b) referred to paragraph 11 of the notice, where the method used to calculate the rent increase was described as a ‘Comparative Market Analysis’, and stated that ‘no comparable properties or any calculation [had been] provided’. The Applicant submitted that without this information she was not able ‘to understand the basis for the rent increase’;
(c) relied upon Boyce v Mariella[10], submitting that there were similarities between the facts of that case and her case, and that the applicants in Boyce v Mariella had also sought an order that the rent increase notice was invalid. In Boyce v Mariella, the proposed rent increase was said to be based upon a ‘Comparative Market Analysis’, but like this case, no documents accompanied the notice. In that case, the Tribunal concluded that a rent increase notice ‘should contain sufficient information’ to, inter alia, enable renters to ‘determine whether the rent being proposed is excessive and should be challenged’;
(d) submitted that, similarly, the rent increase notice in her case did not include the method and details of the calculation required for the notice to be valid; and
(e) requested an order to the effect that the rent increase notice was invalid, because it did not comply with s 44(3)(b) of the RTA; and an order that the Respondent pay the filing fee for her application.
[10]Boyce v Mariella Nominees Pty Ltd (atf Lorusso Family Trust) [2023] VCAT 89 (‘Boyce v Mariella’).
On 7 February 2024, Member Ho made the following findings:
1.The renter seeks to challenge the validity of a proposed notice of rent increase, but is not seeking to challenge the proposed rent as excessive.
2.In effect the renter is seeking a declaration about the validity of the notice as the only order being sought.
3.There is no application pathway to seek a declaratory order as the substantive order in an application under the Residential Tenancies Act 1997. See decision of Rosewarne v Lim (Residential Tenancies) [2022] VCAT 1015. As such this application is misconceived and will be struck out.
4.Pursuant to section 75[11] of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal has formed the view on the material before it, and for the reasons stated above, that the application is misconceived and will be struck out.
5.To afford the applicant natural justice, in accordance with the orders below, unless the applicant within one calendar month of the date of this order advises the Tribunal that they seek to be heard on the issues raised above, the proceeding will stand struck out.
[11]Section 75 provides for the summary dismissal of unjustified proceedings. It enables the Tribunal to make an order on its own initiative striking out a proceeding that, in its opinion, is misconceived: sub-ss (1), (4). The question of whether an application is misconceived is a question of law.
Member Ho’s order stated that a proceeding which is struck out can be subject to an application for reinstatement. On the basis of the findings made, Member Ho ordered that:
1.On or before 20 March 2024 the applicant is to advise the Tribunal if they oppose the making of an order striking out the application. The applicant must provide details of why the strike out order is opposed, including a response to the findings made by the Tribunal above.
2.In the absence of such advice from the applicant, the proceeding will from 20 March 2024 stand struck out.
On 13 March 2024, the Applicant emailed VCAT:
(a) to advise that she was not seeking a declaration of excessive rent pursuant to s 46(3), but rather that she was seeking to have the notice set aside, and an order for compensation under s 210(1)(b) concerning additional rent collected in respect of the notice; and
(b) asking the Tribunal to amend its records to show the correct orders sought and the provisions specified by her under the RTA.[12]
[12]Email from the applicant to VCAT dated 13 March 2024.
The Applicant sent written submissions to the Tribunal in opposition to her proceeding being struck out, and responding to the orders made by Member Ho, in which she stated that:
(a) no reason was provided as to why VCAT had treated her application as having been made under s 46(3), rather than s 44(3)(b);
(b) if the notice was found to be invalid under s 44(3)(b), then the Tribunal would be unable to make an order that the rent was excessive;
(c) the VCAT application, as lodged, also included a request for compensation under s 210(1)(b), in respect of additional rent collected pursuant to the rent increase;
(d) Rosewarne v Lim was not relevant. Sections 452(1)(a) and (b) of the RTA give the Tribunal jurisdiction where a dispute has arisen under the rental agreement, and a specific provision of the Act has been breached. The Applicant contended that the rental provider had breached s 44(3)(b) of the Act by failing to give her a rent increase notice complying with that provision; and
(e) section 472(1)(a) empowers the Tribunal to make any orders that it thinks fit to restrain any action in breach of a rental agreement or the provisions of the Act which, the Applicant states, enabled the Tribunal to determine that the notice was invalid, and then set it aside. She cited Boyce v Mariella as an example.
Order of Senior Member Campana
On 8 April 2024, in response to the Applicant’s email and submissions, Senior Member Campana made orders regarding the future conduct of the matter.
As to the Applicant’s reliance on s 452 as a basis for the declaration, Senior Member Campana said:[13]
While an application can be made under section 452 to resolve a dispute that arises under the Act, the orders that the Tribunal can make on such an application are provided for in section 472, and a declaration is not an order in the first instance that can be made. It may be able to be made as an ancillary order, but there has to be a substantive order in the first instance that can be made.
[13]Order of Senior Member Campana dated 8 April 2024, Finding 3.
Senior Member Campana explained that, as the Applicant was also seeking compensation for any rent paid since the notice came into effect, the application could proceed in accordance with ss 452 and 472(1)(f) — the latter section enabling the Tribunal to make an order requiring compensation. In this context, she said that, if appropriate, a declaration could be made as an ancillary order, noting that a finding of invalidity as to the rent increase notice would be relevant to the claim for compensation.
Senior Member Campana ordered that the principal registrar amend the VCAT application to show a claim for compensation under ss 452 and 472(1)(f) of the RTA; and that the Respondents should advise the Tribunal of their position in relation to the claim, and whether they accepted that the Comparative Market Analysis referred to in the notice had not been provided to the Applicant.
Having made those orders, Senior Member Campana then added a ‘note’. ‘Notes’ of this kind are not part of the Tribunal’s order. Rather, they are administrative in nature and operate to inform the next member hearing the matter of relevant background to one or more aspects of the claim. The ‘note’ included by Senior Member Campana at the end of the order stated:
The Tribunal notes that the applicant has provided documents and submissions in support of the application and it appears the basis of the claim that the proposed notice of rent increase is invalid is on the basis that no ‘comparative market analysis’ was provided, despite the notice refering [sic] to the same. If no comparative market analysis was attached, then the matter should take no more than an hour for the parties to be heard on whether the information in the notice is sufficient on its own to meet the requirements of section 44(3)(b) of the Act.
It is apparent from the subsequent conduct of the proceedings that the Applicant took this note to mean that she was entitled to declaratory relief, solely on the basis of the invalidity of the notice. Her reading of the note is that Senior Member Campana’s order confirmed that the ‘key issue’ was the validity of the rent increase notice under s 44(3)(b); specifically, as it related to the Comparative Market Analysis.[14] The Applicant also submits that, by this order, Senior Member Campana was directing that the matter be relisted under ‘the correct section’, being s 44(3)(b).[15] This is a gloss on Senior Member Campana’s orders. Rather, Senior Member Campana reiterated the findings of Member Ho; namely, that VCAT does not have power to make a declaration as to the validity of the notice in its own right, absent substantive proceedings.[16]
[14]Applicant’s reply filed 7 April 2025 to the first and second respondents’ oral arguments, [6] (‘April reply submissions’).
[15]April reply submissions, [22].
[16]Order made by Senior Member Campana, 8 April 2024, Finding 3.
Order of Registrar Beasley
On 23 April 2024, Registrar Beasley made an order with timetabling directions for the parties, in preparation for a hearing within 4–8 weeks. Despite Senior Member Campana’s orders that the principal registrar amend the Applicant’s application to show a claim for compensation under ss 452 and 472(1)(f) of the RTA, Registrar Beasley’s order described the application as one for bond and compensation under ss 419A and 452 of the RTA. On 7 June 2024, the Applicant applied to VCAT for reinstatement of the proceedings, referring to an order made by VCAT on 27 May 2024 striking out the matter. She outlined the procedural history and highlighted the inconsistencies between Registrar Beasley’s orders and those of Senior Member Campana.
On 21 June 2024, VCAT emailed the Applicant to ask if the only compensation claimed was the application lodgement fee. On 24 June 2024, the Applicant confirmed that she was ‘not seeking any other compensation’.
On 27 June 2024, an order was made reinstating the application. The matter was set down for a telephone hearing on 23 July 2024, which was conducted by Member Bygrave.
Order of Member Bygrave
The application for leave to appeal in this Court concerns the order of Member Bygrave made on 23 July 2024. The written orders made by Member Bygrave on that date:
(a) briefly note the procedural history of the matter, and the effect of the orders made by Member Ho and Senior Member Campana;
(b) record the Applicant as stating at the hearing that she was not seeking compensation, because she had not paid the increase in rent set out in the rent increase notice; and
(c) conclude that, in the absence of evidence showing that the Applicant was entitled to compensation, the application should be dismissed.
The Applicant did not seek written reasons from the Tribunal within the period during which such applications should be made. Nonetheless the Applicant made a late request for reasons. Where such a request is made out of time, the Tribunal has a discretion whether or not to provide reasons. In this case, for whatever reason, the Tribunal, in its discretion, declined to provide reasons. The Applicant was able to obtain a transcript of the hearing, which she filed with this Court as an exhibit to her affidavit of 10 February 2025.
Relevantly, the Transcript records the following exchange between Member Bygrave and the Applicant at the outset of the hearing:[17]
MEMBER: … Ms Mazi, I understand your application relates to whether you received a notice of a proposed rent increase and whether that notice was compliant or valid as required by Section 44 of the Residential Tenancies Act. You don’t actually specify an amount that you are seeking as compensation, but are you seeking compensation for the difference between what your original rent was and the additional rent? Is that a correct understanding, Ms Mazi?
THE APPLICANT: Slightly. I am only seeking the reimbursement of the filing fees in this case because the matter was not determined as to whether the increase of notice was valid, so there has been no additional rent paid to the Respondent.
[17]VCAT Transcript, 23 July 2024, 1 (‘VCAT Transcript’).
Following a brief discussion of the procedural history leading up to the hearing, a further exchange occurred between the Tribunal and the Applicant regarding the nature of her application:[18]
MEMBER: Now, this matter has been listed as a compensation application, Ms Mazi, okay? So, that is why I asked you in your application that you submitted or that you filed with the Tribunal on the 30th of December 2023 - - you set out that you are seeking compensation for the fact that you received a notice from the real estate agent about a rent increase and that you said that the notice is not -- or you made submissions that the notice was not valid because you could not - - there was not information to allow you to understand the basis of the rent increase. So, that is why we’re here today, Ms Mazi, is to find out about whether there is any compensation that you are owed, okay?
THE APPLICANT: Yes, Member - - -
MEMBER: This is your application, Ms Mazi, so it’s really important that you understand what you are making an application to the Tribunal for. Is that what you are making an application to the Tribunal for?
THE APPLICANT: Yes, Member Bygrave, but I have to sort of slightly correct you. So, initially I was seeking compensation because I was going to make the rental payment increase but because of the issues that took place on the 7th of February with VCAT I did not - - I did not make the payment increases. So, now there is no sort of compensation that I am seeking except the filing fees, but I am seeking an order to set aside - - the notice of rent increase.
[18]VCAT Transcript, 23 July 2024, 3–4.
It is clear from this exchange that the Applicant expressly abandoned any claim for compensation in the hearing, thus narrowing her application to one seeking only an order setting aside the rent increase notice on the basis that it was said to be invalid.
Member Bygrave stated: ‘I cannot make an order about that. That’s already been dealt with’.[19] The Applicant disputed this point, and Member Bygrave responded: ‘[T]he issue of whether your notice to increase rent, whether that was valid or not, has been addressed by Member Ho on the 7th of February’.[20]
[19]VCAT Transcript, 23 July 2024, 8.
[20]VCAT Transcript, 23 July 2024, 9.
Member Bygrave referred to Senior Member Campana’s order directing the application to be amended as a claim for compensation under ss 452 and 472 of the RTA, and then said:[21]
I think the basis of this, Ms Mazi, was the understanding that you had paid [rent] in accordance with the notice to increase rent and that there may be compensation paid, to be possibly paid to you, on the basis that you had paid the increased rent. But if you’ve not paid the increased rent, Ms Mazi, then it’s not clear to me what you are seeking compensation for today.
[21]VCAT Transcript, 23 July 2024, 10.
In response, the Applicant referred to her email correspondence with VCAT on 24 June 2024 and stated that VCAT was aware that she was not seeking compensation. Member Bygrave stated: ‘I don’t think I can do what you are seeking but what exactly are you seeking, because this is not set out in any of the documents I’ve got’.[22]
[22]VCAT Transcript, 23 July 2024, 10.
The Applicant stated that her initial application had included compensation for any additional rent paid in connection with the rent increase, but that her email to VCAT on 24 June 2024 had confirmed that she was no longer seeking compensation. She then repeated her request for an order that the notice was invalid and should be set aside. Member Bygrave replied as follows:[23]
We cannot [do] that under the Residential Tenancies Act or under the VCAT act, okay? We do not have legislative power to do that, Ms Mazi. So, everything in terms of that notice --- and that is what Member Ho has set out in his order, that we cannot do that. … What you are seeking is not possible, so I’m sorry, but all that I can deal with today is if there is any compensation to be paid. But if you’re telling me that in fact, you have never paid any rent increase, I cannot --- I do not have the power to set aside that notice of rent increase.
… we can deal with [it] if the rent increase is excessive, as can the director of --- you know, you can seek to ask the Director of Consumer Affairs Victoria to review that so we can deal with that. We cannot deal with what you’re asking for, Ms Mazi.
[23]VCAT Transcript, 23 July 2024, 11.
The Applicant pressed the argument by reference to earlier decisions of the Tribunal which she said supported her position. Member Bygrave said that the issue raised by the Applicant had ‘already been addressed and heard and determined by Member Ho’; and that she could not reopen the matter and hear it again. She referred to having spoken with Senior Member Campana to confirm that the hearing for that day was about compensation only.[24] Further, that having considered the orders made earlier in the proceeding, the application was now solely about compensation.[25]
[24]VCAT Transcript, 23 July 2024, 12–13.
[25]VCAT Transcript, 23 July 2024, 15.
The exchanges became circular in nature, with the Applicant persisting that the validity issue had not been addressed, and the Tribunal member confirming that it had been addressed by Member Ho. The hearing concluded with the Tribunal member stating that the application would be dismissed.
Grounds of appeal
On 3 October 2024, the Applicant filed a Notice of Appeal, sought leave to appeal, and sought an extension of time to bring the application for leave out of time. The application for extension of time was heard together with the appeal and the application for leave to appeal. The Respondents submitted that the application for extension of time should be dismissed, and that leave to appeal should not be granted. It is convenient to deal first with the substantive grounds of appeal.
The Applicant advances the following four grounds of appeal:
1.The Tribunal erred in proceeding under Section 46(3) of the Residential Tenancies Act, despite the Applicant’s claim being based on the invalidity of the notice under Section 44(3)(b).
2.The Tribunal failed to appropriately consider the lack of a valid Comparative Market Analysis (CMA) in accordance with Section 44(3)(b), which requires transparency in the method of calculating rent increases.
3.The Tribunal misapplied its discretion in refusing to address the issue of the invalid rent increase under Section 44(5), which states that a rent increase in contravention of the section is invalid.
4.The Tribunal erred by failing to properly evaluate the legal requirement of Section 44(3)(b), which mandates the provision of a method of calculation with the notice of rent increase, as highlighted in similar cases like Boyce v Mariella.
In turn, the Applicant seeks the following orders:
1.The Appeal be allowed.
2.That the decision of the Victorian Civil and Administrative Tribunal dated 23 July 2024 be set aside.
3.A declaration that the notice of rent increase is invalid under Section 44(5) of the Residential Tenancies Act 1997 (Vic).
4.That the respondent[s], the Residential Rental Provider, pay the [applicant’s] costs of this appeal.[26]
5.Any other orders that the Court deems appropriate in the interest of justice.
[26]In her April reply submissions, the applicant requests that the respondents pay her costs on an indemnity basis: at [87].
The Applicant’s four grounds:
(a) proceed upon the premise that the absence of the attached ‘comparative market analysis’ rendered the rent increase notice invalid by virtue of s 44(3)(b) of the RTA; and
(b) assume that the Tribunal had power to make a declaration or order to the effect that the rent increase notice was invalid by operation of s 44(5) of the RTA.
The premise of the Applicant’s case, and the attendant assumptions are misguided. It is convenient to deal with these two before addressing the individual ground because the answers are dispositive of the matters sought to be raised on the substantive appeal.
Adequacy of the Notice: Comparative Market Analysis (CMA)
The RTA does not require a CMA to be produced as part of a notice to increase rent, rather it requires that the notice disclose the method by which the rent increase was calculated. The production of a CMA is one way in which that requirement may be met, but it is not the only way.[27]
[27]Residential Tenancies Act 1997 (Vic) s 44(3)(b) (‘RTA’).
In this case, the notice described the method of calculation of the rent increase. A literal reading of the notice describes that method as a comparative market analysis where the comparator is another apartment of similar characteristics to the Applicant’s, located in the same area. The notice says that this comparator yielded a comparable rental of $400 per week. The notice goes on to state that there was a CMA attached to the notice. The notice contained no attachment.
The Respondents did not take issue with the proposition that the notice did not contain the attachment. At the same time, the Respondents did not accept that the notice (even without the attachment) failed to comply with s 44(3)(b).
The Applicant relied upon Boyce v Mariella as authority for the proposition that a notice should contain sufficient information for the renter to be able to assess whether or not the proposed increase is excessive. The statement in Boyce is correct as far as it goes; however, it does not extend to saying that all rent increases must be supported by a document described as a CMA, nor does it describe the necessary content of such a document.
The Respondents sought to distinguish the notice considered in Boyce v Mariella from the notice provided to the Applicant. They say that, in this case, even without the attachment, the notice provides information about the property that was used as a comparator, its location (being similar), and its features. This was more information than what was included in the notice considered by the Tribunal in Boyce. It follows, say the Respondents, that assuming the Tribunal had jurisdiction to consider whether the notice contained sufficient information for it to be a proper notice, the sufficiency of the information contained in the notice involved factual matters for the Tribunal to decide.[28] On the face of the notice, the absence of the CMA did not leave the Applicant without information upon which to work out whether the proposed increase was excessive. I agree that the question whether, in all the circumstances, the information was sufficient, would have involved matters of fact (or mixed fact and law) for determination by the Tribunal in proceedings properly constituted for that purpose. The Tribunal did not embark upon a factual inquiry because it formed the view that it did not have jurisdiction to do so.
[28]Transcript, 2 April 2025, 298.
The Applicant seeks orders which include this Court making a declaration as to the validity of the notice. The Applicant’s request is premised upon the Tribunal having power to make the declarations she sought, and in turn this Court’s power to make orders the Tribunal could have made which is to be found in s 148(7) of the VCAT Act.
These proceedings are framed as an appeal from a decision of VCAT on a question of law. The mere absence of a CMA per se would not necessarily render a notice invalid. There have been no findings of fact in relation to the adequacy or otherwise of the notice because the Tribunal did not consider that it had jurisdiction to make the declaration.
Even if the Tribunal did have jurisdiction to make the declarations sought, it would be inappropriate for this Court in the circumstances of these proceedings to make any declaration as to the sufficiency of the notice.
Declaratory power under the RTA
Although initially the Applicant claimed compensation pursuant to s 210(1)(b) of the RTA,[29] this claim was expressly abandoned on at least two occasions, such that the Applicant proceeded to the hearing before Member Bygrave seeking only a declaration as to the validity of the rent increase notice.
[29]The applicant’s initial application was made under s 210(1)(b) of the RTA, which states:
(1)A party to a residential rental agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the residential rental agreement of compensation for loss or damage suffered by the applicant because—
…
(b)the applicant has paid to the other party more than the applicant is required to pay in accordance with this Act or the residential rental agreement.
The Applicant submits that ss 452 and 472 ‘grant VCAT the power to restrain actions in breach of the Act’, thereby enabling the Tribunal to determine the validity of the rent increase notice. She also claims that s 124 of the VCAT Act confers ample power upon the Tribunal to make the orders sought.
Rosewarne v Lim
In Rosewarne v Lim,[30] the Tribunal considered a similar argument. There, the renters sought to argue that a notice to vacate issued under s 91ZZI of the RTA was invalid. The Tribunal made the following observations about the renters’ submissions on ss 452 and 472 of the RTA, and s 124 of the VCAT Act:[31]
The application in this case, which seeks an order, determination or declaration as to the validity or effectiveness of a notice to vacate, is not a matter that gives rise to any of the specific types of orders set out in section 472 of the Act, nor is such an order one that is ‘ancillary’ or ‘incidental’ to other orders that could be made as a result of a renters’ application challenging a notice to vacate. Accordingly, the Act does not appear to empower the Tribunal to make a declaratory order in response to an application under section 452 challenging the effectiveness of a notice to vacate on a ground specified in section 91ZZI.
The renters also sought to rely on section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) as the basis for declaratory orders. Part 4, Division 10 of the VCAT Act sets out additional general powers VCAT can exercise in the course of a proceeding. Section 124 of the VCAT Act includes the power to make a declaration concerning any matter in a proceeding, but this power can only be exercised ‘instead of any orders it could make, or in addition to any orders it makes, in a proceeding’. The power does not arise if a declaration is the only order sought in respect of a particular claim and there is no alternative order that could be made.
[30][2022] VCAT 1015 (Member Treble).
[31]Ibid [16]–[17]. The absence of an application pathway under the RTA for declarations sought as the substantive order is confirmed in Maurer v Sia (Residential Tenancies) [2024] VCAT 571, [9]–[12] (Senior Member Campana); Hill v Katnelson (Residential Tenancies) [2025] VCAT 711, [16]–[18] (Member Crocker).
The decision of the Tribunal in Rosewarne v Lim was relied upon by Member Ho, is clearly the basis of Member Bygrave’s decision in this case, and reflects a line of reasoning to be found in other decisions of the Tribunal. The discussion in Rosewarnev Lim proceeds upon the assumption that the RTA carefully curates the form of relief available. The term used in that decision is ‘pathway’ — the Tribunal described the RTA as establishing pathways to relief; and that in circumstances where the Act did not expressly empower the Tribunal to grant declaratory relief, it would not be sufficient to ground the existence of the power in s 452 (power to consider general applications) and s 472 (general remedy power). The Tribunal was correct in Rosewarne v Lim, and a careful examination of the provisions of the RTA reiterates that conclusion. In short, neither the RTA nor the VCAT Act confer a plenary power to grant declaratory relief. The power is conferred by statute, and within defined limits.
Statutory construction
Whilst the power to make declarations lies in the inherent jurisdiction of superior courts, VCAT is a statutory tribunal. It only has the powers conferred on it by the VCAT Act and any enabling legislation. The scope and extent of the statutory power to grant declaratory relief is a matter of statutory construction, and is ascertained having regard to the text, context, and purpose of the legislation.[32]
[32]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
In the present case, the Applicant seeks declaratory relief in relation to the validity of a notice purportedly made and given under s 44 of the RTA. There is no express power to grant relief in relation to the validity of such a notice. The absence of this power is significant, having regard to the structure of the Act as a whole. Where the Act intends that the validity of a notice is the subject of relief in and of itself, the Act expressly permits the making of an application for orders in the nature of a declaration. There are a number of examples where this occurs in the RTA.
One example is s 27 of the Act, which describes terms of a residential rental agreement that are rendered invalid by operation of that provision. The note attaching to that section indicates that the Tribunal can declare such a term invalid under ss 28 and 472 of the RTA. Section 28(1) expressly provides that a renter may apply to the Tribunal for an order declaring a term to be invalid or varying a term of the residential rental agreement. Section 472(1)(fb) empowers the Tribunal to make any orders that it thinks fit to declare a term of a residential rental agreement to be invalid.
Another example is s 91ZZS. Under the RTA, a rental provider may serve a notice to vacate for any number of specified reasons. If the renter fails to deliver up vacant possession of the property, the rental provider can make an application to VCAT for a possession order. Section 91ZZS of the RTA provides that ‘on or before’ the hearing of an application for a possession order, a renter who has received the notice to vacate may apply to the Tribunal for a declaration challenging the validity of the notice to vacate. Importantly, the ability to make such an application applies only where a notice to vacate has been given for a certain specified reason (under ss 91ZX, 91ZY, 91ZZ, 91ZZA, 91ZZB, or 91ZZC). In Rosewarne v Lim, the renter sought a declaration of invalidity under s 91ZZI(4)(a), in relation to a notice to vacate given under s 91ZZDA, and then s 91ZZD of the Act. First, the Tribunal stated that the notice was given under a section which is not specified in s 91ZZS (the section that permits renters to pre-emptively challenge notices). Second, the Tribunal considered the section specified by the renters, being s 91ZZI, and noted that it did not include a specific application pathway for renters to pre-emptively challenge a notice given under s 91ZZD, nor did it set out the particular orders that VCAT could make on such an application. Accordingly, the Tribunal held that it did not have the power to grant the declaration sought.
Where the Tribunal is given power to make declarations as to the validity of a notice or document, it is expressly given in the body of the provision, or in s 472, or in both (eg, ss 28 and 472). The power to make an order in the nature of a declaration is derived from the words ‘may make any order it thinks fit’, as constrained by the subject matter of the enumerated list in s 472(1) of the RTA.
Section 472 of the Act sets out the general power of the Tribunal to make determinations. Section 472(1) enables the Tribunal to make any orders it thinks fit to achieve the specified outcomes or purposes listed in the sub-paragraphs that follow. Section 472(2) states that the power to make those orders is in addition to all other powers of the Tribunal under the Act. Section 472 cannot be read as amplifying the powers of declaratory relief beyond what the Act expressly contemplates.
Unlike ss 28 or 91ZZS of the RTA, there is no specific power given to the Tribunal to make a substantive order declaring the validity or otherwise of a notice under s 44.
Relevant breaches under ss 452 and 472 of the RTA
Relevantly, s 472 of the RTA provides:
472 General power of Tribunal to make determinations
(1)The Tribunal, on an application to or in proceedings before it, may make any orders it thinks fit—
(a)to restrain any action in breach of a residential rental agreement or the provisions of this Act relating to a residential rental agreement;
(b)to require any action in the performance of a residential rental agreement or of duties under this Act relating to the residential rental agreement;
...
(f)to require the payment of compensation to any person;
...
(g)that are ancillary or incidental to any other orders that it makes.
In the present case, the Applicant effectively seeks no orders other than a declaration that the notice is invalid, and makes no claim for compensation. The declaration that she seeks as to the validity of the notice could not be described as ancillary or incidental to any other orders to be, or that could be, made by the Tribunal because none are sought. Equally, the giving of a notice of proposed rent increase is not an action in the performance of a residential rental agreement, nor is the giving of a notice of that kind subject to any duty under the Act. Accordingly, in this case, declaratory relief is clearly not available under ss 472(1)(b), (f), or (g).
The Applicant’s case, at best, is that the application for declaratory relief falls within the ambit of s 472(1)(a); that is, it must be directed to a breach of the rental agreement, or the provisions in the Act relating to such an agreement. The giving of a defective notice to increase rent does not amount to a breach of the rental agreement. The notice of increase is a proposal to increase the rent. The process of increasing rent is governed by the terms of the Act and not the rental agreement, and accordingly cannot not fall within the first limb of 472(1)(a). The Applicant submits that her application is founded on s 452(1) of the Act, in that the giving of a defective notice amounts to a breach of the RTA, and thus enlivens s 472(1)(a).
Section 452 of the RTA permits the making of general applications that might not neatly fall within the various specific types of proceedings contemplated by the Act. Section 452(1) relevantly provides:
452 General applications to the Tribunal
(1)A residential rental provider or a renter under a residential rental agreement may apply to the Tribunal if—
(a)a dispute has arisen under the residential rental agreement; or
(b)there has been a breach of the residential rental agreement or of the provisions of this Act relating to the residential rental agreement.
...
(8)The provisions of this section are in addition to all other rights and powers under this Act.
...
[emphasis added]
The Applicant contends that, because s 44(5) renders a rent increase invalid if it fails to comply with s 44(3)(b), the invalidity amounts to either a ‘dispute’ or ‘breach’ of the RTA which could be the subject of a general application under s 452 of the Act, and thereby enliven relief under s 472.
The Applicant’s contention that the notice is defective is not a dispute contemplated by the RTA.
To come within s 452(1)(a), the dispute in question must arise under the residential rental agreement. The RTA permits a rental provider to serve a rent increase notice. The permissibility of the rent increase is governed by the RTA, and not the residential rental agreement. In substance, the rent increase notice amounts to a proposal to vary the existing residential rental agreement. To the extent that there is any debate about whether the rent should be increased, it is not a debate that arises under the agreement, but rather one that arises under the RTA.
The distinction between invalidity and breach
The Applicant characterises an invalid notice as a ‘breach’ of the Act and, on this basis, contends that s 452(1)(b) is engaged. She says that the relief sought by her falls within s 472(1)(a), which is concerned with restraining any breach of the Act relating to a residential rental agreement.
The Applicant’s argument equates a failure to comply with s 44(3)(b), which requires the method by which the rent increase is calculated to be included in the notice to increase rent, with a breach of the RTA for the purposes of s 452(1)(b). Such a failure would render the notice ‘invalid’ by operation of s 44(5). A failure to comply and a breach are not the same thing, and the Act does not treat them as the same.
Section 472(1)(a) of the RTA is engaged when a ‘breach’ or an impending ‘breach’ arises. It is an important canon of construction that where the same term appears in the same legislation, it should be given the same meaning.[33] Use of the term ‘breach’ in s 472 is to be construed as having the same meaning throughout the Act unless the contrary intention is apparent. It follows that where the RTA describes conduct as a breach, s 472(1)(a) is to be read as being directed to arresting and restraining that breach.
[33]Tabcorp Holdings Ltd v Victoria [2016] HCA 4; (2016) 90 ALJR 376, 387 [65] (The Court).
The RTA uses the word ‘invalid’ or ‘invalidity’ to describe the legal effect of a document purportedly made, created, or issued, which does not conform with the requirements prescribed by the Act, and is therefore non-compliant. A similar meaning is ascribed to a term of a residential rental agreement that is found to be invalid. The act of creating a non-conforming document is not described by the RTA as a ‘breach’ of the Act. Section 44(3)(b) provides that a notice ‘must’ include ‘the method by which the rent increase was calculated’. It is one of three elements that must be satisfied for a notice to comply with s 44(3). In turn, s 44(3) is one of several provisions that must be satisfied for a rent increase to be valid. Section 44(5) provides that a rent increase in contravention of this section will be invalid — ie, of no effect. This is supported by s 3(1) of the Act, which defines ‘invalid’ — in relation to ‘an agreement or guarantee’ — to mean ‘void’. A rent increase is thus rendered invalid by operation of the provision itself. Importantly, the RTA does not describe the act of issuing a notice in contravention of s 44(3)(b) as a breach. It is a contravention amounting to or resulting in invalidity. There is significance in the distinction.
The term ‘breach’ is used throughout the RTA in describing conduct which contravenes duties or obligations imposed by the provisions of the Act. It is commonplace that the RTA imposes penalties or other sanctions for breaches of the Act. Such breaches are actionable under the provisions of the RTA, founding a basis for bringing substantive relief in the way discussed in Rosewarne v Lim. The relief available under ss 452 and 472 in respect of a ‘breach’ of the Act should be understood in that context, and on the basis that the words ‘breach’ and ‘invalidity’ are used deliberately and with specific consequences in mind.
The RTA describes non-compliance with s 44 as invalidity, not as a breach. This is significant in the context of a complex statutory framework which uses the language of legal effect carefully. The RTA should be construed consistently as linking the pathway to relief through the language used in the provisions. In short, a non-compliant rent increase notice does not lead directly to s 472 of the RTA, or indirectly via s 452(1)(a).
Declaratory relief and the legislative framework underpinning the Tribunal’s role
The result of this construction is that there is no remedy available to a renter who complains solely about the validity of a notice given under s 44. Such an outcome is harmonious with the overarching objectives of the Act.
The role of examining the legal effect of every notice given or purportedly given under the Act in isolation from other proceedings seeking substantive relief is not conferred upon the Tribunal by the RTA. It confers the power to make declarations in isolation only, in specific and expressly stated circumstances. There is wisdom and purpose in the distinction made by the Act.
The VCAT Act and the RTA set up the Tribunal as a forum for the speedy and inexpensive resolution of specific kinds of disputes. The Tribunal’s work in this area is high volume. The RTA expressly confers jurisdiction on VCAT to hear applications under the Act. In doing so, the RTA implements its purpose of providing for the inexpensive and quick resolution of disputes under the Act.[34]
[34]Director of Housing v Sudi (2011) 33 VR 559, 567 [34] (Warren CJ) (comments made in obiter).
The legislature has made a decision about the matters in which the Tribunal may give declaratory relief arising from the validity or legal effect of certain notices. The structure of the RTA reinforces the assumption that these choices have been made deliberately in the interests of giving effect to the purposes of the RTA. The necessary corollary is that it has also chosen those areas where declaratory intervention is not invited, other than as an alternative to or in addition to orders which could be made in some other substantive proceeding. Put simply, the legislature has decided how the resources of the Tribunal should be deployed to deal with the myriad disputes which arise under the RTA. It has made a decision that those resources will not be deployed in making declarations as to the legal effect of notices or documents in isolation from other substantive proceedings, other than in specified circumstances. In situations where declaratory relief is only available in combination with proceedings seeking other substantive relief, it is clear that the legislature has been motivated to do so by the purpose of the legislation. This must extend to ensuring that the Tribunal’s resources are not distracted from the important work of providing an inexpensive and quick resolution of disputes, by having to determine abstract, premature, or pyrrhic questions of law which otherwise do not result in meaningful consequential relief.
None of this is to say that the validity of a notice is of no consequence, or not actionable. There are various scenarios in which the validity of the notice may arise, including (i) where a renter brings a pre-emptive application for an excessive rent declaration, without knowing the basis upon which the increase was calculated; (ii) paying the increased rent contained in the notice, and then making a compensation claim for the rent said to be in excess; or (iii) not paying the increase, and then disputing the validity of the rent increase notice in a claim brought by the rental provider for rent arrears.[35] Indeed, if the Applicant here had not appealed the Bygrave decision, but rather defended the application made by the rental provider for payment of the unpaid rent increase, the Applicant could have sought a declaration in those proceedings as to the validity of the notice. In all of these cases, the Tribunal could be required to consider the validity of the notice, because the validity of the notice counts towards substantive relief. As the Respondents pointed out, the alternative construction advanced by the Applicant may involve VCAT hearing a significant number of applications for declaration, where no relief is sought except for an assessment of the notice’s validity.[36]
[35]Transcript, 28 March 2025, 263. See also, discussion at Transcript, 2 April 2025, 280–3.
[36]Transcript, 28 March 2025, 264.
The RTA prescribes the way in which a complaint may be made by a renter in relation to proposed rent increases: namely, the procedure outlined in ss 44, 45, and 46. The RTA requires first, that a notice be given, setting out the basis of the increase. Where a person wishes to challenge an increase because they believe it to be excessive, they may apply to the Director to investigate and report. When that application is made, the Director must carry out an investigation as soon as practicable and then provide a report to the renter and the rental provider. On receipt of that report, a renter may apply to VCAT for an order declaring the proposed rent to be excessive. Where a renter has not followed this process, the Act provides for the renter to apply for an order without a report from the Director, with the leave of the Tribunal.
The clear legislative purpose of this framework is to avoid the need for litigation by referring complaints to the Director, in the hope that many of them will be resolved by the Director’s report. In this way, the text of the RTA reveals the underlying legislative purpose: namely, that the resources of the Tribunal should not be deployed to decide the validity of notices to increase rent before, or independently of, a dispute arising from the proposed increase in the manner prescribed by the RTA.
Another important principle of statutory construction is the maxim expressum facit cessare tacitum (that which is expressed puts an end to that which is unspoken). The principle was stated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia:[37]
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
[37](1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J).
The construction of s 452(1)(a) advanced by the Applicant would have the necessary consequence of treating the general powers of the Tribunal under the RTA as a means of seeking relief not made available through the powers specifically conferred to address the issue of rent increases prescribed in ss 44 to 46 of the Act.
For the reasons already given, the Applicant’s construction is not supported by the text and structure of the RTA and effectively amounts to an attempt to use generally stated powers as a means to circumvent the specific pathway for relief prescribed by the Act in the case of rent increase disputes.
Availability of declaratory relief under the VCAT Act
Division 10 of the VCAT Act outlines the Act’s general powers, which include declarations under s 124. This section relevantly provides:
124 Declarations
(1)The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.
...
(3)The Tribunal’s power under this section is in addition to, and does not limit, any power of the Tribunal under an enabling enactment to make a declaration.
[emphasis added]
The Applicant submits that s 124(1) ‘allows VCAT to make declaratory orders in addition to other remedies’.[38] The Respondents submit that a declaration must be connected to compensation or another form of relief. The Applicant says that the Respondents’ position is a ‘narrow and restrictive reading of s 124(1) that contradicts its plain wording’.[39]
[38]March reply submissions, [32].
[39]April reply submissions, [45].
One thing is plain, the power to make a declaration under s 124 of the VCAT Act depends upon the existence of a proceeding, other than the application for declaration itself.
In Kracke v Mental Health Review Board (‘Kracke’),[40] Bell J referred to the power conferred on the Tribunal by s 124 of the VCAT Act, as follows:[41]
Section 124(1) confers a general power to make a declaration concerning ’any matter in a proceeding’ and ’instead of ... or in addition to’ any order it could make in the proceeding. The purpose of the power is to confer jurisdiction on the tribunal to make declarations and it should be interpreted consistently with that purpose.
The expression ‘matter in a proceeding’ in s 124(1) encompasses a question or issue of law, or of mixed fact and law, that is in issue in the proceeding. It must be genuinely in issue in the sense that it must properly arise in the proceeding. Further, the proceeding must be one that is otherwise within the jurisdiction of that tribunal. Section 124(1) specifies the power of the tribunal to make declarations in matters within its jurisdiction; it does not expand the jurisdiction which the tribunal otherwise has. Within those boundaries, however, the authority of the tribunal to make declarations is limited only by the due exercise of the discretion.
It follows that s 124(1) confers a convenient jurisdiction to make declarations about matters in any proceeding before it where it could or will make any orders in those proceedings. It is not necessary for the tribunal to make any other orders. It is enough that it could. It is not disqualifying that the tribunal does make such orders. A declaration can be made in addition.
[40][2009] VCAT 646 (‘Kracke’).
[41]Kracke [2009] VCAT 646, [803]–[805] (footnote omitted).
Section 124(1) of the VCAT Act empowers the Tribunal to make declarations in a proceeding ‘instead of any orders it could make’ or ‘in addition to any orders it makes’. That language necessarily implies that the power to make declarations depends upon the jurisdiction of the Tribunal being invoked in a proceeding which is not the application for the declaration. The obvious exception is the situation where the enabling legislation confers power on the Tribunal to make a declaration as to a matter or thing. The power to make declarations is discretionary, and the nature of the discretion is broad. When the discretion is properly enlivened by the existence of a proceeding, the factors relevant to whether a declaration should be made in the exercise of the Tribunal’s discretion are equivalent, if not the same, as those which might be relevant in this Court. [42]
[42]Victoria v Bradto Pty Ltd [2006] VCAT 1864, [55]–[56].
The scope of the declaratory power given to the Tribunal is subject to the statutory parameters established under the VCAT Act. This position is consistent with the comments of Bell J in Kracke referred to above, and with the authorities referred to by the learned authors of Pizer’s Annotated VCAT Act.[43] The authorities which describe the breadth of the discretion to make declarations do so in the context of the power having been enlivened in proceedings otherwise under the enabling Act and properly before the Tribunal.
[43]Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 7th ed, 2022), esp. [124.60], on the scope of declarations made under s 124.
In Casa Di Iorio Investments Pty Ltd v Guirguis,[44] Croft J accepted that s 124 contains a ‘very broad discretionary power’. Relying upon both Victoria v Bradto Pty Ltd[45] and Xiao v Perpetual Trustee Company Ltd (‘Xiao’),[46] his Honour stated that ‘the declaration making power does not enliven a power to make declaratory orders in the absence of a real controversy between the parties’.[47] In Casa Di Iorio the Applicant had commenced proceedings in relation to a retail leasing agreement, alleging a failure to repair damage caused to the property. The Respondent disputed the allegations but for different reasons asserted a right to terminate the lease. In the context of those proceedings the Tribunal made a declaration to that effect.
[44][2017] VSC 266, [25] (‘Casa Di Iorio’).
[45][2006] VCAT 1864.
[46][2009] V ConvR 54-756; [2008] VSC 412 (iXiao’).
[47]Casa Di Iorio [2017] VSC 266, [28].
The declaration sought by the Applicant is not captured by s 124(1) of the VCAT Act. Where the only order sought is a declaration — and an application for a declaration is not (for the reasons already given) a proceeding which could be commenced in VCAT in its own right, nor one which VCAT has jurisdiction to entertain — then it cannot be said that the declaration sought is either an alternative to an order that could be made in the proceeding, or in addition to any other orders in the proceeding.[48]
[48]See eg, Rein v Nurses Board of Victoria (2004) 21 VAR 132; [2004] VCAT 979, [22] (Judge Bowman); Xiao [2009] V ConvR 54-756; [2008] VSC 412, [21] (Vickery J); Kracke [2009] VCAT 646, [805] (Bell J).
The Applicant relies upon decisions of the Tribunal in Boyce v Mariella,[49] Kennedy v Pan,[50] and NSV v Zang[51] as a foundation for her assertion that the Tribunal has power to make the declarations sought. Those cases are not examples of the Tribunal assuming jurisdiction under s 124(1) to make a declaration in the absence of jurisdiction expressly conferred upon it in proceedings otherwise properly commenced. A proper reading of those decisions reveals that, in each case, the Tribunal’s jurisdiction to make a declaration was invoked in a proceeding — commenced under s 46(1) of the RTA, in respect of Boyce and Kennedy, where the renters sought relief on the basis that the proposed increases were excessive; and under ss 452 and 472(1)(f) of the RTA, in NSV v Zang, where the renter sought compensation for overpaid rent in relation to a disputed rent increase. In each case, the renters also argued that the notice given under s 44 was invalid.
[49][2023] VCAT 89.
[50][2023] VCAT 529.
[51][2024] VCAT 766.
Disposition
The Applicant filed a considerable amount of material in this proceeding, much of which is repetitive and/or not relevant to the grounds of appeal articulated in her Notice of Appeal. This task was not assisted by the overlap and repetition between grounds of appeal.
Grounds one to four all work from the flawed premise that the Tribunal had power to make the declarations sought by the Applicant. For the reasons already given, it follows that none of the grounds succeed.
As to Ground one, it would appear that, in an attempt to assist the Applicant to bring her claim within VCAT’s jurisdiction, the Tribunal and registry staff at different times characterised the Applicant’s claim as one falling within s 46(3) of the RTA (excessive rent claim). It is also apparent that the Applicant did not seek relief under that provision. Even if what the Tribunal did can be treated as an error of law, it is not a material or vitiating error. In Laming v Racing Victoria Ltd,[52] Cavanough J considered the question of materiality, and stated that ‘an error of law made by an administrative tribunal will be material if, in the absence of the error, the decision of the tribunal might have been different’. I am not satisfied that the Tribunal’s decision would have been any different in this case. The error of the Tribunal was to assume that the Applicant was trying to bring an application within its jurisdiction, when in truth the Applicant was trying to invoke a jurisdiction which does not exist.
[52][2022] VSC 813, [146], citing Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123; and generally, Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) [3.100].
What appeared as ‘errors’ to the Applicant were, more likely than not, efforts by VCAT to align her application for compensation with the powers of the Tribunal as prescribed by statute. This is apparent when considering the various orders made in response to the Applicant’s application. It may be that the administrative changes made to the Applicant’s application could have been communicated more effectively; however, there is no appealable error that can be attributed to the Tribunal in this respect.
The ultimate conclusion that the Tribunal lacked jurisdiction to do what the Applicant sought, thus dispenses with any error as to the characterisation of the Applicant’s case.
As to Ground two, and for the reasons already stated, the sufficiency of the notice — including whether, in all the circumstances, the absence of the CMA was fatal to the validity of the notice — at least, in part, involve questions of fact which were not explored by the Tribunal because it correctly found that it did not have jurisdiction to make a declaration as to validity. If the issue were to re-emerge in future proceedings — say, as a defence to a compensation application brought by the rental provider, then the Applicant may again contend, as part of her defence to the claim, that the notice is invalid. It would be inappropriate for this Court, in the context of the appeal as framed before it, to enter upon that question.
Grounds three and four are directed to the central question, which is whether the Tribunal had jurisdiction to consider the validity of the notice, and for the reasons already stated must fail.
Accordingly, any appeal on the grounds advanced by the Applicant must fail.
Extension of time and leave to appeal
The Applicant sought to commence these proceedings after the period prescribed by the VCAT Act for the bringing of an appeal against a decision of the Tribunal. The Applicant applied for an extension of time within which to bring an application for leave to appeal under s 148(1) of the VCAT Act.
An appeal against a decision of the Tribunal can only be brought with the leave of this Court.
The Respondents opposed any extension of time, and the grant of leave to appeal.
I accept that the Applicant took steps to submit her application for leave to appeal at the earliest opportunity. The Respondents say that an extension of time should not be granted because the Applicant has no arguable case on appeal, or any real prospects of success. They also say that no injustice would be done if an extension was not granted.
I am mindful that, while there is a statutory pathway for renters to pursue if they form the view that a proposed rent increase is excessive, the options available to renters who receive a notice that is not entirely transparent about the methods used to calculate the increase — and which may therefore by invalid — are not clear.
Although the construction advanced by the Applicant has not been upheld, it would be unfair to describe the matter as unarguable, or not worthy of debate and definitive resolution, in the interests of the administration of justice.
It is clear enough from my consideration of the substantive issues that the proposed appeal raised an important question as to the jurisdiction of the Tribunal. For that reason alone, I would grant leave.
Accordingly, subject to hearing from the parties as to the final form of the order, I propose to order that:
(a) Time to commence an application for leave to appeal be extended to 3 October 2025;
(b) Leave to appeal is granted.
(c) The appeal is dismissed.
(d) The Applicant pay the costs of the Respondents on the standard basis, to be taxed in default of agreement.
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SCHEDULE OF PARTIES
| S ECI 2024 05284 | |
BETWEEN: | |
GRACE MAZI | Applicant |
v | |
SPENSER HSIUNG-PIN KAO | First Respondent |
HUNG-HSIA KAO | Second Respondent |
ARG PROPERTY MANAGEMENT PTY LTD | Third Respondent |
LUCIA SEC HOU | Fourth Respondent |
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