Mazi v Kao (No 3) (Notice to Vacate)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 06285

GRACE MAZI	Applicant
v
SPENSER HSIUNG-PIN KAO & ANOR (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 3) (Notice to Vacate)
MEDIUM NEUTRAL CITATION:	[2025] VSC 630

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ADMINISTRATIVE LAW – Appeal from orders of Victorian Civil and Administrative Tribunal (VCAT) in a proceeding under the Residential Tenancies Act 1997 (Vic) – Application to set aside VCAT decision ordering possession – Where Residential Rental Provider gave Renter a notice to vacate under s 91ZZB (premises to be sold) – Whether it was reasonable and proportionate for VCAT to make an order for possession – Whether Residential Rental Provider had a genuine intention to sell the property – Whether previous attempts to gain possession for the same reason constituted retaliation in response to repeated repair and related applications made by the Renter – Where rent was being paid into a rent special account – Whether Tribunal failed to take into account impact on Renter, as required by s 330(1(f) of the Act – Whether Tribunal actively engaged with Renter’s submissions concerning the impact of a possession order upon her – Whether Tribunal placed greater emphasis upon unsubstantiated evidence provided by the Residential Rental Provider, at the same time discounting evidence provided by the Renter – Whether Renter given a reasonable opportunity to present her evidence and make submissions – Whether Renter afforded procedural fairness – Renter not given fair hearing – Leave to appeal allowed – Order for possession set aside – Appeal dismissed.

Residential Tenancies Act 1997 (Vic), ss 77, 91ZZB, 91ZZO, 91ZZS, 322(1), 330, 330A, 486A(1); Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97–98, 148(1), 148(7)(b).

Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442; Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd (Domestic Building) [2006] VCAT 2120; Tomasevic v Travaglini [2007] VSC 337; Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2008] VCAT 1479; Metricon Homes Pty Ltd v Sawyer [2013] VSC 518; Shrestha v Migration Review Tribunal (2015) 229 FCR 301; Trkulja v Markovic [2015] VSCA 298; SZVCP v Minister for Immigration and Border Protection (2016) 238 FCR 15; LKZ v CGS (Residential Tenancies) [2021] VCAT 1391; Hanson v Director of Housing [2022] VSC 710; Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; Kao v Mazi (Residential Tenancies) [2024] VCAT 1179; Moustra v Elder [2024] VCAT 813.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the 1^st & 2^nd Respondents	Ms M Hardinge	MMR Lawyers

HIS HONOUR:

Introduction

These proceedings have been commenced by Grace Mazi (‘Applicant’ or ‘renter’), who has lived in a residential apartment located at Swanston Street, Carlton (‘the property’) since 23 June 2021.[1] The First and Second respondents, Spenser Hsiung-Pin Kao and Hung-Hsia Kao (collectively, ‘the Respondents’ or ‘rental providers’) are the registered proprietors of the property.
[1]Respondents’ summary of proofs filed in relation to the possession order hearing.

On 20 June 2024, the respondents purported to give the Applicant a notice to vacate the property (‘notice to vacate’ or ‘notice’) under s 91ZZB of the Residential Tenancies Act 1997 (Vic) (‘RTA’ or ‘the Act’). According to the notice, the Applicant had until 28 August 2024 to deliver up vacant possession of the property. The Applicant did not vacate the property within the period specified in the notice.

On 30 August 2024, the Respondents made an application to the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) for a possession order, pursuant to s 322(1) of the RTA (‘VCAT proceeding’ or ‘the Elmes proceeding’).

Where a residential rental provider gives a renter such a notice, and the renter fails to deliver up vacant possession of the property, the rental provider may apply to VCAT for a possession order, pursuant to s 322(1) of the Act. Section 330 provides that the Tribunal must make a possession order requiring the renter to vacate the property, once satisfied that the rental provider was entitled to give the notice and has not withdrawn it; and that, in the circumstances, it is reasonable and proportionate having regard to s 330A to make such an order, taking into account the interests of, and the impact on, the rental provider and the renter in making the possession order.[2]
[2]Residential Tenancies Act 1997 (Vic), s 330(1)(f) (‘RTA’).

Section 330A sets out what the Tribunal must have regard to when determining whether it is reasonable and proportionate to make a possession order, and includes consideration of whether any other order or course of action is reasonably available, the behaviour of the rental provider, and any other matter considered relevant by the Tribunal.[3]
[3]RTA, ss 330A(h)–(j).

On 7 November 2024, the Elmes proceeding was heard by the Tribunal. At the conclusion of the hearing the Tribunal made an order that the Applicant was to vacate the property by 7 December 2024 (‘the possession order’).

On 20 November 2024, the Applicant filed a Notice of Appeal in this Court seeking leave to appeal the possession order (‘the Elmes appeal’). The Elmes appeal was heard by me, together with two other proceedings. The Elmes appeal is the subject of this judgment. The Applicant represented herself in proceeding.

The other proceedings

The hearings of two related matters were conducted alongside this proceeding. The first of these was filed by the Applicant on 3 October 2024 (‘the Bygrave appeal’)[4] which was an application for leave to appeal a decision of the Tribunal constituted by Member Bygrave on 23 July 2024. The Bygrave appeal concerned the Applicant’s challenge to a proposed rent increase notice. That proceeding is dealt with in Mazi v Kao (No. 2) (Notice of Rent Increase).[5] The second related matter arose out of the Bygrave appeal, in which the Applicant filed a summons on 9 December 2024 seeking, inter alia, a declaration that the Respondents and two others were in contempt of this Court (‘the contempt allegation’). The Respondents had filed documents in the Magistrates’ Court and in VCAT for the purposes of the Elmes proceeding (the subject of this appeal) which had been prepared by the Applicant and filed in the Bygrave appeal. It was alleged by the Applicant that in doing so the Respondents were in breach of the rules of this Court, and in breach of the Harman[6] obligation, an implied undertaking arising at common law not to use documents filed in a proceeding for a purpose unconnected with that proceeding.[7]
[4]Proceeding No. S ECI 2024 05284.
[5][2025] VSC 598.
[6]Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[7]See Davey v Silverstein [2019] VSC 724, [20]; Yap v Lee (No 2) [2024] VSC 730, [80].

At the outset of the hearing of these three proceedings[8], the Applicant requested that the contempt allegations be heard and determined first, on the basis that the grounds articulated in the Elmes appeal depended, in part, on findings in relation to the contempt allegation. The three proceedings were heard in the following sequence: 1) the contempt allegation; 2) the Bygrave appeal; and then, finally, the current appeal. At the conclusion of the hearing in respect of the contempt allegation, I reserved my decision, excused the third and fourth respondents in that proceeding from further attendance, and proceeded to hear the Bygrave and Elmes appeals.
[8]The Bygrave appeal, the contempt allegation and the Elmes appeal.

In delivering judgment in each of these matters, I first considered the contempt allegations, and then proceeded to determine the Bygrave and Elmes appeals. I dismissed the contempt allegations and gave reasons in Mazi v Kao (No. 1) (Contempt Ruling)[9] (‘Mazi v Kao (No.1)’).
[9][2025] VSC 575.

Background
Notice to Vacate

The Respondents purported to give the notice under s 91ZZB of the Act, on the basis that the reason for seeking possession was that the property was to be sold. The notice advised the Applicant that she would need to vacate the property by 28 August 2024, as the property would be offered for sale with vacant possession and stated that the rental provider, or their agent, would require access to the property, in order to conduct ‘open for inspections’ as part of the sale process, and to conduct repairs/maintenance.

The form of a notice to vacate is governed by s 91ZZO, which includes requirements for documentary evidence that must accompany the notice. Where a rental provider seeks to regain possession of a property for the reason that the premises are to be sold under s 91ZZB, the notice must be accompanied by documentary evidence of a kind approved for that purpose by the Director of Consumer Affairs Victoria, and published in the Government Gazette. The documentary evidence required for notices given under s 91ZZB includes a contract of sale, signed by the vendor and purchaser and dated; or a contract of engagement/authority to sell with a licensed estate agent; or preparation of a contract of sale prepared by a conveyancer or an Australian legal practitioner.

The notice given to the applicant attached a document described as ‘Exclusive Sale Authority’ (‘sale authority’ or ‘the authority’). The sale authority takes the form of a standard template document, whereby an owner of property grants agrees to pay a commission upon the sale of the property to a real estate agent who agrees to advertise, market and endeavour to sell the property within the period of the authority. The authority indicated that the property was to be sold ‘with vacant possession’.

The authority provided with the notice included redactions. The authority included a clause which could specify the period of the exclusive authority, which could be entered by the parties to the authority. The space within which to specify the ‘exclusive authority period’ was s redacted. The rental provider’s address and mobile number were also redacted, as were the details of commission and advertising. The authority also included a clause which could specify the period of the continuing authority. There was no entry made by the parties for any ‘continuing authority period’.

Item 7 of the sale authority provided that, if no time is stated, an exclusive authority period ends either 30 days after the auction date, or ‘in any other case, 60 days after the date the agreement is signed by, or on behalf of, the seller’.

Application for possession

The Respondents’ application to VCAT was made on 30 August 2024, two days after the expiry of the period for the Applicant to vacate the property.[10] The application was made pursuant to ss 91ZZB and 322(1) of the RTA, on the basis that the renter had failed to vacate the property by 28 August 2024, in accordance with the notice to vacate. The Respondents’ application for possession was supported by the following statement submitted with the application:

Owner wants to sell property. A Notice to Vacate was served with an attached signed exclusive sales authority. Renter did not vacate. Renter refuses to communicate.
Residential Rental Provider has not received any rent from the renter, as funds are held in a special holding account due to dispute over outstanding repairs. As all outstanding repairs have already been successfully repaired, Residential Rental Provider is also seeking the release of special funds account. Residential Rental Provider is experiencing financial hardship and wishes to sell the property.
The required minimum 60 days notice period has already been given to the renter. It has now been more than 110 days since the notice was sent to the renter, which has given ample time for renter to find a new rental premise.
Residential Rental Provider would like the renter to move out immediately to allow the sales agent to determine if any repairs/improvements are needed for the purpose of organising the photography and advertising the property, including having the required compliance completed and selling the property.
Renter has not allowed access to the property despite recent Notice of Entries. Renter refuses to communicate despite several letters sent requesting a reply. Renter refuses to communicate other than via postal letters and therefore making it extremely difficult for the managing agent and selling agent to do their jobs effectively.
Managing Agent also does not have a copy of the property keys in order to access the property and therefore cannot complete any legislative compliance work/routine inspections/sales inspections even with a Notice of Entry in effect.

[10]VCAT Ref. R2024/27767/00.

On 31 October 2024, the Applicant, as renter, responded to the Respondents’ summary of proofs with a defence and attachments totalling 63 pages in length.

In summary, the Applicant:

(a) claimed that the exclusive sale authority did not comply with s 486A(1) of the RTA, and that the evidentiary requirements of s 91ZZO were unmet,[11] citing Griffiths v Parcell[12] and Perri v Bertolusso;[13]
[11]Defence of Grace Mazi dated 31 October 2024, [5].
[12][2022] VCAT 665. Notice to Vacate (premises to be demolished), where the NTV did not attach the documentary evidence required under s 91ZZO, and was therefore not valid.
[13][2022] VCAT 126. Notice to Vacate (premises to be sold), where the NTV did not attach any documentary evidence, and was therefore not valid.

(b) rejected the Respondents’ claim that they genuinely intended to sell the property, submitting that there had been successive notices to vacate for sale issued by the Respondents, none of which had resulted in any marketing or listing of the property for sale;

(c) contended that the sale authorities attached to the notices appeared to have been issued for appearances only;

(d) disputed the Respondents’ wish to sell the property with vacant possession for the purposes of preparing the property for sale, stating that they had already accessed the premises for photography and marketing purposes on 15 December 2023;

(e) rejected the Respondents’ assertion that she was refusing to communicate and preventing access to the property. Referring to the notices of entry sent to her by the Respondents, she submitted that she had permitted access on multiple occasions;

(f) submitted that VCAT had previously determined there was no basis for the allegations regarding denial of access and refusing to communicate. In support of this position, the Applicant sought to rely upon earlier orders of the Tribunal made on 3 November 2023, and the notices of entry sent by the respondents on 5 July 2024, 17 July 2024, and 15 August 2024, respectively; and

(g) confirmed that she was still paying rent into a special account established under a VCAT order, in the context of an ongoing repairs dispute;

The Applicant submitted that it would not be reasonable and proportionate for a possession order to be granted, stating that:

(a) the rental provider had not met the factors outlined in ss 330A(a)–(h) of the RTA;

(b) the application for possession was motivated by retaliation for numerous repair-related disputes initiated by her against the Respondents. The Applicant stated that the rental provider’s repeated earlier notices to vacate, which had all been given on the basis that the Respondents wanted to sell the property, lacked a genuine intention to sell. She submitted that these efforts to have her vacate the property were a response to her legitimate efforts to enforce her rights, citing LKZ v CGS[14] as such an example;
[14][2021] VCAT 1391. Application for a possession order, where the Tribunal was not satisfied that the grounds for giving the notice to vacate had been established, nor that it would be reasonable and proportionate to make a possession order.

(c) the rental provider was estopped from pursuing its claim, as a similar application made by the Respondents had been dismissed in November 2023,[15] citing Moustra v Elder;[16]
[15]The order made by Member Crocker on 15 November 2023, states that the Tribunal was not satisfied that it would be reasonable and proportionate to make the possession order.
[16][2024] VCAT 813. Concerned two separate applications (the first, a bond application; the second, a compensation application), both of which were brought by the rental provider, dealt with substantially the same dispute. The Tribunal stated that it was not open to the rental providers to re-open the same controversy (essentially, the same cause of action) in the compensation application, because the orders in the bond application gave rise to a cause of action estoppel.

(d) the rental provider had not demonstrated that any clear financial benefit would be obtained from selling the property with vacant possession; nor had it established that the need to sell would outweigh the Applicant’s hardship;

(e) her personal and financial circumstances outweighed the granting of a possession order. Specifically, that her income had been reduced due to a temporary workplace injury, which had prevented her from working full-time. Although her financial situation would improve as she recovered, the Applicant stated that an eviction would nevertheless impose significant financial and personal hardship, likely impacting her health and making it challenging to secure alternative accommodation; and

(f) she had actively sought alternative rentals, but financial constraints and health-related challenges had limited the options available to her, therefore it would be unreasonable and disproportionate for a possession order to be made at this time.

Historical repair applications

In her material filed in the Elmes proceeding, the Applicant sought to establish that between 2022 and 2023, there had been numerous disputes between the Applicant and the Respondents concerning repairs to the property. The full detail of this history is not contained in the material but it appears clear enough that there were in at least eight applications to VCAT, various orders for repairs to be carried out, and some compensation for the Applicant. At some point an order was made requiring the Applicant to pay rent into a rent special account under s 77 of the Act.

Earlier notices to vacate

In the material filed in the Elmes proceeding , the Applicant sought to establish that earlier notices to vacate the property had been given by the Respondents, as part of her overall case that the Respondents efforts to evict the Applicant were motivated by retaliation rather than by a genuine intention to sell the property.

On 11 April 2023, a notice to vacate was sent to the Applicant, pursuant to s 91ZZB, advising that the property was to be sold with vacant possession. The notice attached an exclusive sale authority dated 25 January 2023, which included provision for the agent to specify whether the property would be sold ‘subject to any tenancy’ or with ‘vacant possession’. The authority did not specify that the property was to be sold with vacant possession, but rather ‘subject to any tenancy’, apparently contradicting the notice to vacate. It provided for a 90-day ‘exclusive authority period’ and a 30-day ‘continuing authority period’. The Applicant did not vacate the property, but the Respondents did not make any application to VCAT for possession in respect of that notice.

On 8 June 2023, a further notice to vacate was given to the Applicant. This was said to be the second such notice advising that the property was to be sold, and was made pursuant to s 91ZZB. It attached an exclusive sale authority dated 22 May 2023, which specified that the land was to be sold ‘with vacant possession’, and provided for a 60-day ‘exclusive authority period’, together with a 30-day ‘continuing authority period’.

On 18 August 2023, an application for possession was made to VCAT on the basis that the Applicant had failed to vacate the property. The Tribunal made two orders in that proceeding.[17]
[17]Order of Member Crocker dated 3 November 2023; Order of Member Crocker dated 15 November 2023.

On 3 November 2023, Member Crocker adjourned the hearing because there was insufficient time to hear and determine the matter in the time available. The adjournment was also ordered to ‘enable the parties to make submissions on the question of whether it [was] reasonable and proportionate to make a possession order having regard to the matters set out in section 330A of the [RTA]’.[18] To that end, the rental provider was ordered to file written submissions and supporting evidence addressing whether it was reasonable and proportionate to make a possession order.[19] Specifically, Member Crocker referred to the following:[20]

In particular, the residential [rental] provider has asserted that it would be reasonable and proportionate to make such order due to a history of [difficulty] gaining access to the rented premises to conduct inspections (both routine and in relation to other matters) giving rise to concerns about the ability to conduct a sales campaign including open for inspections. The Tribunal directs the residential rental provider to include in their submissions all evidence of prior notices of entry served on the renter, and any difficulty in gaining access after service of such notices.

[18]Order of Member Crocker dated 3 November 2023.

[19]Order of Member Crocker dated 3 November 2023, [3(a)].

[20]Order of Member Crocker dated 3 November 2023, [3(a)].

In the same order, Member Crocker directed the Applicant to file any additional documentation that she wished to rely upon in relation to the question of whether it was reasonable and proportionate for a possession order to be made.[21]
[21]Order of Member Crocker dated 3 November 2023, [3(b)].

On 15 November 2023, upon hearing the application and seized of relevant material, Member Crocker dismissed the application on the basis that ‘[h]aving regard to the matters set out in section 330A of the Act, the Tribunal is not satisfied that it would be reasonable and proportionate to make a possession [order]’.[22]
[22]Order of Member Crocker dated 15 November 2023, [2].

Magistrates’ Court proceeding

For completeness it is worth noting that, in addition to commencing the VCAT proceeding to obtain a possession order,[23] the Respondents also commenced proceedings in the Magistrates’ Court under the misapprehension that because the rental provider lived interstate, only the Magistrates’ Court could grant the relief that they sought, namely securing the release of funds held in the rent special account. On 11 October 2024, Senior Member Calabro adjourned the VCAT because the Magistrates’ Court proceeding had been commenced. The VCAT proceeding was adjourned to be heard by teleconference (fixed for 45 minutes) on 7 November 2024, pending the outcome of the Magistrates’ Court proceeding.[24] In his order, Senior Member Calabro expressed doubt that the Magistrates’ Court had jurisdiction to hear the matter raised by the rental provider, but stated that it was appropriate to await the outcome of proceedings in that Court.
[23]Which would become the Elmes proceeding.
[24]Order of Senior Member Calabro dated 11 October 2024.

The hearing before Member Elmes

The hearing of the VCAT proceeding took place before Member Elmes on 7 November 2024 and was conducted by telephone. The Applicant appeared on her own behalf, and the Respondents were represented by their property agent, Ms Hou.

In her affidavit filed in this Court on 28 January 2025, and her further affidavit filed on 10 February 2025, the Applicant exhibited copies of the Elmes proceeding transcript (‘VCAT Transcript’) and the Tribunal’s reasons. She stated that her affidavit had been filed to comply with ‘the Court’s direction to file and serve an affidavit exhibiting and analysing the transcript’.[25] I take this to be a reference to the orders made by Judicial Registrar Lorenz on 15 January 2025.[26] The Applicant also provided what she described as an ‘analysis’ of both the transcript and the Tribunal’s reasons in her affidavit. She said the purpose of her affidavit was to ‘provide evidence demonstrating procedural irregularities, jurisdictional errors, and statutory non-compliance in the Tribunal’s decision-making process’.[27]
[25]Affidavit of Grace Mazi filed 28 January 2025, [2]; supplemental affidavit of Grace Mazi filed 10 February 2025, [2].
[26]Order made by Judicial Registrar Lorenz on 15 January 2025, Order 1.
[27]Affidavit of Grace Mazi filed 28 January 2025, [3].

The analysis included in the Applicant’s affidavits is neither a requirement of the Court, nor is it appropriate for such material to be included in affidavit form. The content of the affidavit was the subject of objection in this Court on that basis. The basis of the objection is sound. The Applicant is not a lawyer and represents herself in these proceedings. In the circumstances, it is appropriate to treat the ‘analysis’ provided on affidavit as submissions, not evidence – and I proceed on that basis.

At the commencement of the hearing before Member Elmes – the Elmes proceeding – the Tribunal sought to understand the status of the Magistrates’ Court proceeding, asking Ms Hou to explain the situation. Ms Hou explained that the proceeding had been struck out.[28]
[28]Ms Hou’s explanation was that the proceeding was struck out ‘because all the repairs and maintenance [had] been completed and therefore now it [was] not under the Federal jurisdiction’. Whether that explanation entirely represents the situation is unclear, but unimportant.

The Tribunal then confirmed that the purpose of the hearing before her was ‘just in relation to the notice to vacate served under s 91ZZB’.[29] She advised Ms Hou of the following:[30]

Today is not going to be dealing with the money – – any money that is being held in the rent special account. That would need to be a special application by you under [section] 77. I understand it was previously – – that was previously dealt with and you were told that that matter couldn’t be pursued in VCAT because of the current Magistrate’s Court proceedings. Now those proceedings have fallen away, you should be free to essentially reinvigorate your previous Section 77 application.
…
[S]o today is just about possession. You are not precluded from, you know, making that additional [section] 77 application because if there is money sitting in the rent special account then that needs to be dealt with one way or the other.
…
… I am not in a position today to deal with the rent special account monies because that is a separate application that needs to be made but by the sounds of it, that will be made at some point on behalf of the rental provider.

[29]VCAT Transcript, 7 November 2024, 2.

[30]VCAT Transcript, 7 November 2024, 2–4.

Having set out the purpose of the hearing, the matter continued. The transcript of the proceeding stands for itself as a record of what transpired before the Tribunal, to which I will return when addressing the grounds of appeal.

At the conclusion of the hearing on 7 November 2024, the Tribunal announced its decision to allow the application for a possession order. When a possession order is made, a renter is required to give vacant possession within 30 days of the date of the order. Here the Tribunal made the following alternative proposal:[31]

I am going to make a possession order but I’m going to do something a little bit different. I’m going to put it into your hands, Ms Mazi, about a date. Now, I am technically bound if I make a possession order today I must not extend it beyond 30 days so that would mean you would need to vacate the property by the 7th of December. I can be a little bit creative with my discretion and I can extend that date by bringing this matter back before me at some point in the future for what we call an administrative mention. … So, that’s a way of providing you with additional time. It’s probably much more time than what the rental provider would agree with, but I am minded to approach it from that point of view because I’m also conscious that there is Christmas coming up, and there is that break that usually occurs.
…
… what we do in these circumstances is, as I said, we adjourn the matter to an administrative mention and I would be thinking about an administrative mention sometime in the first or second week of January, and then, on that date, I make the formal orders for possession with a vacate date a week or two weeks after that date. So, we would be looking at about the middle of January as a vacate date. All right? Now, I’ve heard Ms Hou say to me that they want it straight away.[32] I’m not going to do that. I’m going to exercise my discretion and give you some additional time.
So, what I would be proposing is an administrative mention on the 14^th of January, so that means the file gets referred to me in chambers on the 14^th of January which is itself almost 8 weeks away, so I’m being very liberal here, Ms Mazi, very, very generous for you. If I said the 14^th of January that the file comes back to me and then on that date I make a formal order for the property to be vacated by the 24^th of January. That’s my proposal. But, that gives you a significant amount of time, Ms Mazi. The rental provider won’t be happy, but I’m going to suggest in the meantime the rental provider or the agent makes that application for access to the rent because if the repairs have been completed there’s no reason why that rent can’t flow back now to the renter - - to the rental provider, and that application, if you make it promptly, should hopefully be listed relatively quickly.
…
And that’s got nothing to do with possession. That’s a completely separate issue, but it might relieve some of the financial stress in the interim because it sounds as if there is a fair amount of rent that has been tied up. …

[31]VCAT Transcript, 7 November 2024, 23–25.

[32]In response to the Tribunal’s question regarding a proposed date, if a possession order was made, Ms Hou responded: ‘As soon as possible. So, if Ms Mazi needs more time to have allowed I’m happy to allow her an extra month for her to find a property to move into’ (VCAT Transcript, 20).

The Applicant then requested written reasons for the Tribunal’s decision, upon which the following exchange occurred between the Tribunal and the Applicant:[33]
[33]VCAT Transcript, 7 November 2024, 25–28.

MS MAZI: Member, I would like to request reasons for that decision, please.
MEMBER: No, I’m making my decision, Ms Mazi. The decision will be that possession will be granted. I’m satisfied on the evidence that a possession order can be made, all right, so - -
MS MAZI: Yes, yes, I understand that. I’m asking for reasons for the decision to be made …
MEMBER: … If I give you reasons though, I will need to make an earlier vacate date because the orders have to be final as of today.
MS MAZI: Yes, Member, I am requesting written reasons for the decision.
MEMBER: Yes, but I’m telling you, Ms Mazi, that if I give you written reasons, which I’m happy to do, the effect of that will mean that I need to make an order for possession today with written reasons for that to follow. All right? So, if you are happy with that I will do that but I will make the order the 7^th of December. You will have to vacate the property by the 7^th of December because I have to make - - if you are asking for written reasons, I have to deliver a final order today with written reasons for that order to follow.
MS MAZI: Whatever you have to do, but I’m just requesting written reasons ––
MEMBER: But, I want you - - I want you to understand that you then lose the benefit of the option that I was giving you and if you understand that, that’s fine. You will need to vacate the property by the 7^th of December. My written reasons may not come out by the 7^th of December. They probably will, but you will need to vacate by the 7^th of December. Do you understand that?
MS MAZI: I was not aware that requesting written reasons for a decision was a condition for any of the orders that you intend - - that you initially made - -
MEMBER: I have to make a final order. So what - - my orders today that I was proposing, Ms Mazi, were to be interim orders pending a final order being made in January. I was attempting to give you some extra time. If you’re after written reasons - which is not a problem - I must make final orders today to be able to give effect to those written reasons.
MS MAZI: So, if you make the interim orders does that mean in January you won’t be able to give the written reasons?
MEMBER: No, that’s right or I can give you written reasons - - no, no. I’ve got to make final - - if you want written reasons flowing from the hearing today I need to make a final order today - -
…
MEMBER: No, no, it has to be done today. You’re asking for them today and I have to give written reasons flowing from orders, final orders, made today. So, I’m in your hands. I’m very conscious, Ms Mazi, I do need to conclude this matter because it’s gone well over time and I have other parties with other hearings to be heard.

On 7 November 2024, the following findings and orders were made by the Tribunal:

VCAT finds:
1.The residential rental provider gave the renter not less than 60 days’ notice to vacate under section 91ZZB of the Residential Tenancies Act 1997.
2.The residential rental provider has proven the reasons for giving the notice to vacate.
3.Having regard to the matters in section 330A of the Act, it is reasonable and proportionate to make a possession order.
4.The residential rental provider is entitled to a possession order in the terms set out below.

VCAT orders:
1. The renter must vacate the rented premises by 07 December 2024.
2.At the request of the person who obtained the possession order and on payment of the prescribed fee the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. This request may be made after 07 December 2024 and no later than 07 May 2025.

On 9 December 2024, the Tribunal gave written reasons for its decision (‘Reasons’). The Reasons were accompanied by an order. The order published with the Reasons on 9 December 2024 is not in the same terms as that made on 7 November 2024. Whilst the differences do not affect the substance of the orders made by the Tribunal on 7 November 2024, the findings and orders accompanying the Reasons on 9 December 2024 differ from the earlier version, in that the second finding is augmented by an express statement that the notice to vacate was valid; and the second order extends the date by which the rental provider may request a warrant of possession by one month.

The Tribunal’s decision

In its reasons, the Tribunal accepted that there had been various repair issues associated with the property between 2022 and 2023, resulting in orders for repairs, payment of compensation to the renter, and for rent to be paid into a special account. Together with the earlier attempts to obtain possession of the property, the Tribunal observed that this appeared to have placed significant strain upon the relationship between the rental provider and the renter.[34]
[34]Reasons of Member Elmes dated 9 December 2024, [6].

Notice to Vacate
Redacted material

The Tribunal noted that the Applicant had not disputed the notice’s validity in her written submissions, but had done so during the hearing. The Tribunal characterised the Applicant’s complaint about the notice as a failure to ‘disclose the address of the premises for sale’.[35] In fact, the Applicant never raised this as her concern. The Applicant was at all times concerned with the redaction of the number of days for the ‘exclusive authority period’.[36]
[35]Reasons of Member Elmes dated 9 December 2024, [10].
[36]VCAT Transcript, 7 November 2025, 10–11.

The error was first made by the Tribunal in the hearing. The Applicant attempted to correct the Tribunal’s error but was admonished for interrupting.[37] It is apparent from the transcript of the hearing that the Tribunal’s error was recognised without the assistance of the Applicant. In the hearing the Tribunal seems to have recognised (with the assistance of Ms Hou) that it was mistaken in thinking that the Applicant was concerned about the redaction of the rental providers address. Despite recognising its misunderstanding in the hearing, the Tribunal’s written reasons again proceeded upon the assumption that the Applicant was concerned with the redaction of the rental provider’s address.[38] In its written reasons, the Tribunal makes no reference to the substance of the Applicant’s actual complaint.
[37]VCAT Transcript, 7 November 2025, 13–14.
[38]Reasons of Member Elmes dated 9 December 2024, [15]: ‘I did not accept the renter’s submission that the NTV was invalidated by redaction of the address of the premises. This was incorrect. It was the rental providers’ home address which was redacted: the address of the rented premises was clearly identified. In my view, the masking of the rental providers’ own address in the Sale Authority is not a factor on which the validity of the NTV turned’.

Expiry of the sale authority

The Applicant submitted that, in accordance with clause 7 of the authority, where no time is specified for the period of the exclusive authority, the terms operate to bring an end to the exclusive authority after 60 days from the date the authority is signed..[39] The authority was signed on 20 June 2024 and, on the Applicant’s argument, the authority expired before 28 August 2024, the date by which she was required to provide vacant possession under the notice to vacate.[40] The Tribunal rejected this argument in the following terms:[41]

At the time the NTV was given, it was accompanied by a signed sale authority dated 20 June 2024. (‘Sale Authority’). The Sale Authority was dated the same date as the NTV and had not expired. The documentary evidence requirements do not stipulate that an agent’s authority to sell must be continuing throughout the notice period and as at the termination date. It is only that the notice to vacate be accompanied by an authority to sell with a licensed agent. I was satisfied that at the time the NTV was given, it was supported by the necessary documentary evidence in the form of a valid authority to sell.

[emphasis added]

[39]VCAT Transcript, 7 November 2025, 10–11.

[40]Reasons of Member Elmes dated 9 December 2024, [11].

[41]Reasons of Member Elmes dated 9 December 2024, [14].

There was no evidence before the Tribunal supporting a finding that the sale authority had not expired, as the period of the authority was redacted. This was the point sought to be made by the Applicant, which the Tribunal initially confused, and then did not address.

Genuine intention to sell

The Tribunal rejected the Applicant’s argument that the Respondents did not have a genuine intention to sell the property, stating:[42]

I did not accept the renter’s submission that the lack of a marketing campaign was evidence of the rental providers not truly wishing to sell. I explained to the renter at the hearing that it is a common experience of the Tribunal that rental providers wait for the property to be vacated before preparing the property for sale. There are obvious practical reasons for this. In my view the absence of any active marketing by the rental providers did not undermine the reasons for serving the NTV.

[42]Defence of Grace Mazi dated 31 October 2024, [5]; Reasons of Member Elmes dated 9 December 2024, [12]; Reasons of Member Elmes dated 9 December 2024, [17].

The Tribunal referred to the notice of entry served by the rental provider on 15 August 2024 for the purpose of enabling, amongst other things, a valuation of the property. This was considered in conjunction with the engagement of a sales agent as persuasive evidence of the rental provider’s genuine intention to sell with vacant possession.[43] The Tribunal concluded: ‘I was satisfied also that the rental providers’ intentions had not changed over the passage of time, and the need to do so had not been ameliorated. If anything, their desire to sell the premises had increased’.[44]
[43]Reasons of Member Elmes dated 9 December 2024, [18]–[19].
[44]Reasons of Member Elmes dated 9 December 2024, [19].

The Tribunal also rejected the Applicant’s argument that the Respondents’ true motivation was retaliation for her past repair applications, as evidenced by their earlier attempts to obtain possession.[45] The Tribunal said:[46]

On the contrary, I considered that the rental providers’ evidence of having engaged a sales agent on no fewer than three occasions over a period of approximately 15 months showed clear intention to sell the property as soon as they were able to secure it back.

[45]Reasons of Member Elmes dated 9 December 2024, [16].

[46]Reasons of Member Elmes dated 9 December 2024, [16].

Ultimately, the Tribunal found that the rental provider had given the renter a valid notice to vacate, and was therefore entitled to make an application for possession.[47]
[47]Reasons of Member Elmes dated 9 December 2024, [20].

Reasonable and proportionate

The Respondents’ application for possession was not founded on any breach or misconduct of the Applicant, as such ss 330A(a)–(g) were properly regarded as irrelevant by the Tribunal. The focus of the Tribunal’s consideration turned to the following provisions of s 330A:[48]
[48]Reasons of Member Elmes dated 9 December 2024, [23]–[25].

(a) Section 330A(h): whether any other order or course of action was reasonably available instead of making a possession order.

(b) Section 330A(i): the behaviour of the residential rental provider or the provider’s agent.

(c) Section 330A(j): any other matter the Tribunal considers relevant.

The Tribunal’s analysis of these factors included, ‘consideration of the reasons for selling, why the premises are being sold with vacant possession, the renter’s conduct in assisting with any marketing of the premises, the efforts made by the renter to find alternative accommodation and the current economic climate’.[49]
[49]Reasons of Member Elmes dated 9 December 2024, [26].

The rental provider’s evidence

The Tribunal accepted, as evidence, the agent’s submission that the rental provider’s financial difficulties were ‘severe’, necessitating sale of the property, and that this had been so for at least 12 months.[50] It is of note that the rental provider was not present at the hearing, that the agent had been relatively recently appointed, and that there was no evidence substantiating the agent’s submission regarding the rental provider’s financial position. The Tribunal noted the agent’s submission that the rent was being paid into a special account, pursuant to a VCAT order relating to repairs; and that neither the rental provider nor the agent had oversight of that account, including how much had been paid into it at the time of the hearing. The Tribunal noted in its summary of the rental provider’s evidence that, although the repairs had been completed some time ago, rent monies remained in the account. The Tribunal stated that it understood the current balance of the rent special account exceeded $20,000. There was no evidence before the Tribunal as to the current balance of the rent special account. No explanation was provided to the Tribunal as to why the rental provider had not sought to obtain access to the funds in the rent special account to alleviate what was said to be the rental provider’s financial hardship.
[50]Reasons of Member Elmes dated 9 December 2024, [27].

The Tribunal also noted the agent’s submissions that there had been a lengthy dispute over repairs; that the Applicant had refused or made it difficult for tradespeople to attend the property to address those issues; and that the Applicant had made it difficult for the Respondents to market the property for sale.[51]
[51]Reasons of Member Elmes dated 9 December 2024, [31].

The renter’s evidence

The Tribunal noted the Applicant’s denial of the claim that she had made it difficult for people to enter the property for the purposes of repairs or marketing; and her submissions that the rental provider was retaliating against her.[52] The renter confirmed that she was still paying rent into the special account.[53]
[52]Reasons of Member Elmes dated 9 December 2024, [33]–[34].
[53]Reasons of Member Elmes dated 9 December 2024, [35].

The renter’s evidence at the hearing, as recorded in the reasons, included a letter from a general practitioner dated 31 October 2024, which advocated for the renter to remain in the property, and referred to a workplace incident that the renter was managing, but which had reduced her income since September 2024. The letter further advised that the situation was temporary and looked to be improving.[54] The Tribunal commented that the renter had not given any oral evidence regarding the workplace injury or her finances;[55] that she had not provided further details or medical evidence of the ‘health related challenges’ referred to in her written submissions, or oral evidence of those challenges, all of which had been made in the context of hardship associated with eviction.[56]
[54]Reasons of Member Elmes dated 9 December 2024, [36].
[55]Reasons of Member Elmes dated 9 December 2024, [37].
[56]Reasons of Member Elmes dated 9 December 2024, [37].

The Tribunal referred to the renter’s evidence that she had made a number of applications for alternative rental accommodation which were unsuccessful, but had been unable to say how many or when they were made, or why she might not have been successful. Further, that the renter had included images of rental properties without dates in her written submissions on this point.[57] The Tribunal noted the renter’s evidence that she would be ‘financially impacted’ if required to move.[58]
[57]Reasons of Member Elmes dated 9 December 2024, [38].
[58]Reasons of Member Elmes dated 9 December 2024, [39].

The Tribunal noted the Applicant’s submission that the rental provider was estopped from bringing its application, because an application of the same type had been dismissed in November 2023,[59] citing Moustra v Elder[60] as authority for the contention that VCAT decisions are capable of giving rise to cause of action estoppel or res judicata.

Section 330A(h): Was there any other order or course of action reasonably available instead of making a possession order?

[59]Reasons of Member Elmes dated 9 December 2024, [40]–[41].

[60][2024] VCAT 813.

As to whether the property could be sold with a tenant in occupation, the Tribunal noted that this was an alternative course of action, and that it was aware of the rental provider having unsuccessfully tried to pursue this option previously. The Tribunal accepted that ‘this was because of difficulties in engaging with the renter including for the purposes of marketing and/or sales inspections’ and, in the circumstances, ‘did not consider this was a feasible alternative’.[61] It is evident that this finding is based solely on the submission of the rental provider’s agent who, whilst appearing in the Tribunal under oath, could give no direct evidence of this matter, and furnished no detail to the Tribunal as to these matters. It is also clear that these matters were disputed by the Applicant. The transcript of the hearing reveals that this factual dispute was not explored by the Tribunal.
[61]Reasons of Member Elmes dated 9 December 2024, [42].

Section 330A(i): The behaviour of the rental provider

The Tribunal accepted that there was a background of repair and compensation applications made by the Applicant from which various orders had been made, including one directing rent to be paid into a special account, and that this would have been ‘a significant distraction from the selling of the property’.[62] The Tribunal said that there was no evidence of repairs being outstanding when the application for possession was made. It inferred that the absence of outstanding repairs ‘undermined the suggestion of retaliation’ and, in the Tribunal’s words, led it to be satisfied on the totality of the evidence’ that the rental provider’s motivation was to sell the property.[63]
[62]Reasons of Member Elmes dated 9 December 2024, [43].
[63]Reasons of Member Elmes dated 9 December 2024, [44].

The Tribunal said that the rental providers’ desire to sell the property with vacant possession was ‘not unreasonable’ given the history between the parties. It added that: ‘Sale with vacant possession typically attracts a wider range of buyers (not just limited to investors), there is no intrusion on renters due to inspections, and no need to negotiate entry times which, as was the case here, can be challenging for all involved.’[64]
[64]Reasons of Member Elmes dated 9 December 2024, [45].

The Tribunal noted that the rental provider had not previously attempted to terminate the tenancy for another reason, such as the fixed-term agreement coming to an end, or that the rental provider wished to move into the property. The Tribunal said that this confirmed her view of the rental provider’s intentions as having only been to sell the property, in order to ‘realise an asset’ and ‘extract themselves from a relationship which has potentially irretrievably broken down’.[65]
[65]Reasons of Member Elmes dated 9 December 2024, [46].

Section 330A(j): Any other matter the Tribunal considers relevant

The Tribunal considered the lack of rent going to the rental provider as a relevant factor, and accepted that they had unsuccessfully tried to access the rent being held in the special account. There was no evidence before the Tribunal of any application having been made to the Tribunal to obtain access to funds in the rent special account. The Tribunal considered that not having access to the rent would have added to the rental provider’s financial stress and reinforced the need to sell the property. As the rent special account was established well before the notice to vacate and the possession application, the Tribunal did not accept that the possession application was retaliatory conduct on the part of the rental provider.[66]
[66]Reasons of Member Elmes dated 9 December 2024, [47].

The Tribunal found that, in light of the renter having provided limited evidence as to her medical and financial circumstances and how those would impact her ability to move, it ‘did not consider there was a sufficient explanation from the renter as to why she could not or had not moved by the termination date’. The Tribunal was not satisfied that the renter’s ‘purported change of circumstances for health reasons would materially prevent her relocating to alternative accommodation’.[67]
[67]Reasons of Member Elmes dated 9 December 2024, [48].

The Tribunal also found that the Applicant had provided limited evidence of her efforts to find alternative accommodation, and was unable to explain why she had not been successful. It said that, in her oral evidence, the Applicant had been unable to confirm how many, or on what dates, she had submitted applications, nor had she provided documentary evidence of them. The Tribunal stated that this was evidence often put before the Tribunal by renters,[68] and also referred to the absence of evidence by the renter of her risk of homelessness should possession be ordered against her.[69]
[68]Reasons of Member Elmes dated 9 December 2024, [49].
[69]Reasons of Member Elmes dated 9 December 2024, [50].

The Tribunal accepted that earlier decisions of VCAT (such as Moustra v Elder) are capable of giving rise to an estoppel, but concluded that those cases were distinguishable from the present case, ‘both on the facts and the law’.[70] The Tribunal went on to observe that there is ‘no prohibition’ on the number of notices to vacate that can be issued; that it was not uncommon for the same type of possession application to be made by a rental provider more than once; and that each application would be decided on its own facts. The Tribunal did not accept the Applicant’s submissions that it should dismiss the application, as the previous decision of the Tribunal was concerned with an ‘entirely different’ notice to vacate’.[71]
[70]Reasons of Member Elmes dated 9 December 2024, [51].
[71]Reasons of Member Elmes dated 9 December 2024, [52].

Conclusion

The Tribunal concluded that it was reasonable and proportionate to make the possession order, having taken the ‘interests of, and impact upon, both parties’ into account. Whilst sympathetic to the renter’s situation, the Tribunal observed that her obligation was to balance the renter’s rights and preferences with those of the rental provider who wished to realise an investment, and had ‘tried to do so now for some time’.[72] Ultimately, the Tribunal was satisfied that the rental provider was entitled to give the renter a notice to vacate, and that it was reasonable and proportionate for the Tribunal to make an order for possession.
[72]Reasons of Member Elmes dated 9 December 2024, [53]–[54].

Notice of Appeal
Grounds of appeal

The Applicant’s Notice of Appeal raised the following grounds of appeal:

1.The Tribunal erred in not considering the renter’s submission regarding the applicant’s failure to meet statutory requirements under Section 91ZZO, particularly the exclusive sale authority and compliance with evidentiary standards required by the Act and case law.
2.The Tribunal erred in failing to adequately apply the proportionality test factors (a) to (h and (i-j) pursuant to the rental provider’s behaviour, resulting in an assessment that was neither balanced nor thorough. This includes disregarding relevant considerations of the respondent’s hardship, potential retaliatory intent, and the applicant’s lack of financial benefit.
3.The Tribunal erred in law by disregarding precedents, including LKZ v CGS, which require a landlord to show genuine intent to sell through concrete actions, such as active marketing. The Tribunal failed to demand this evidence, resulting in a possession order based on an unsubstantiated intent to sell and failing to consider whether repeated Notices to Vacate indicated misuse of the sale ground.
4.The Tribunal erred by failing to assess evidence supporting possible retaliatory action by the landlord in response to multiple repair disputes, contrary to tenant protections against retaliatory eviction.
5.The Tribunal erred by disregarding estoppel principles, which may bar the applicant from pursuing the same claim based on prior dismissed proceedings, resulting in the improper continuation of a potentially barred claim.
6.The Arbitrator erred in law by failing to consider relevant evidence, compromising procedural fairness and impartiality. Specifically, the Arbitrator disregarded key evidence from the renter challenging the rental provider’s claims for possession, allowed irrelevant issues to be raised, questioned the renter on these unrelated matters, and provided procedural advice to the rental provider.
7.The Rental Provider’s unsubstantiated arrears claim, and coercive offer violate protections under the Residential Tenancies Act against misleading conduct, while the Tribunal’s focus on unrelated rent account funds contravenes the principles of procedural fairness and relevance mandated under the VCAT Act. Such actions have compromised the fairness and impartiality of the proceedings.
8.The Tribunal erred in not conducting a balanced and fair assessment, failing to weigh the respondent’s hardship against the lack of demonstrable financial benefit or need for vacant possession by the applicant.

The Applicant seeks the following orders:

1. The Appeal be allowed.
2.That the decision of the Victorian Civil and Administrative Tribunal dated 7 July 2024 be set aside[.]

3. That the respondents, pay the appellant’s costs of this appeal.

Leave to appeal

Under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), a party may only seek leave to appeal to this Court on a question of law.[73] The Court is not concerned with the merits of the case,[74] and may grant leave only if satisfied that the appeal has a real prospect of success.[75]
[73]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) (VCAT Act).
[74]McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [4].
[75]VCAT Act, s 148(2A).

The Applicant’s grounds are drafted in a way which no doubt seeks to describe the essence of the Applicant’s complaint, but in many respects fails to engage with the legal framework within which an appeal may be brought to this Court against a decision of VCAT. For an appeal to succeed, it is necessary for an applicant to demonstrate legal error on the part of the Tribunal.

The Respondents submit that the weight attributed to relevant factors by the Tribunal when reaching a conclusion is not a question of law;[76] just as ‘whether a decision was contrary to the evidence, or the weight of the evidence, is not a question of law’.[77] The Respondents submit that a question of law ‘must be one which was “involved in the Tribunal’s decision”’;[78] and that the Tribunal ‘will not err by failing to address a question extraneous to those it was required to address’.[79] Similarly, the Respondents submit that it cannot be an error of law for the Tribunal to fail to do something that it was not lawfully permitted to do.[80] Further, they say that the Tribunal’s failure to take a particular matter into account will only be an error of law where the Tribunal was bound to take it into account, either by the express terms of the statute conferring decision-making power, or by implication.[81] If the statute ‘neither obliges nor forbids’ the Tribunal from taking a matter into account, the Respondents submit that no error of law can arise from the fact that it was or was not considered.[82]
[76]Respondents’ reply submissions filed 14 March 2025, [15], citing Psychology Board of Australia v Mair [2010] VSC 628, [61].
[77]Respondents’ reply submissions filed 14 March 2025, [15], citing Crick v Bunnings Group Ltd [2011] VSC 298, [48].
[78]Respondents’ reply submissions filed 14 March 2025, [13], quoting Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [44].
[79]Respondents’ reply submissions filed 14 March 2025, [13], citing Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [44].
[80]Respondents’ reply submissions filed 14 March 2025, [14], citing Auslong v Morey [2021] VSC 250, [201] (Croucher J).
[81]Respondents’ reply submissions filed 14 March 2025, [16], citing Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 222, [18].
[82]Respondents’ reply submissions filed 14 March 2025, [16], citing Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 222, [21].

The Respondents submit that most of the grounds fail to articulate legal error, as ‘they amount to no more than complaints about the weight given to certain factors or evidence by the Tribunal’.[83] The Respondents address each ground, in summary, as follows:[84]
[83]Respondents’ reply submissions filed 14 March 2025, [43].
[84]Respondents’ reply submissions filed 14 March 2025, [43]–[45].

(a) Ground 1: The validity of the Notice to Vacate and the required documentary evidence is considered by the Tribunal at paragraphs 14 and 15 of her reasons.

(b) Ground 2: The question of whether a possession order would be reasonable and proportionate is considered by the Tribunal from paragraph 21 of the reasons. The Applicant’s submissions concerning retaliation by the Respondents are considered at paragraphs 16, 34, 40–41, 44, and 47 of the reasons. Her submissions on hardship are considered at paragraph 48.

(c) Ground 3: VCAT is not bound by other decisions of the Tribunal, therefore a failure to do so cannot constitute an error of law.[85]
[85]Citing Charnley Glen Pty Ltd v Boroondara City Council [2000] VSC 340; (2000) 110 LGERA 52 (Balmford J).

(d) Ground 4: The Applicant’s submissions on retaliation are also considered by Member Elmes at paragraphs 16, 34, 40–41, 44, and 47 of the reasons.

(e) Ground 5: The question of estoppel is considered by Member Elmes at paragraphs 51–52 of the reasons.

(f) Ground 6: The Applicant has not identified specific evidence that Member Elmes failed to consider, and otherwise claims that evidence was ‘disregarded’ or ‘irrelevant’.

(g) Ground 7: The Applicant provides no evidence to suggest that any material going to the rent arrears claim or an offer by the rental provider was relied upon by Member Elmes in her decision. In any event, the Tribunal is not prevented from considering matters of that nature or in respect of the rent special account, in determining whether a possession order is reasonable and proportionate. As such, no error of law is raised.

(h) Ground 8: Member Elmes considered the Applicant’s hardship at paragraph 48, and the Respondents’ need for vacant possession at paragraph 45 of the reasons.

Question of law arising on the Applicant’s grounds

I am conscious that the Applicant is a self-represented litigant and have therefore endeavoured to consider the questions and grounds raised by her to the extent that they are capable of giving rise to a question of law. Where they have not reached this threshold, I have indicated why this is so. I have been guided in this respect by the observations of the Court of Appeal in Trkulja v Markovic:[86]

Some cases have described the judge’s duty in terms that suggest that it is owed to the self-represented litigant while others have more accurately described it as a general duty which is inherent in the discharge of the judicial function.
Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial. It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.

[86][2015] VSCA 298, [36]–[37] (Kyrou and Kaye JJA, Ginnane AJA).

It is unproductive to critique the drafting of grounds prepared by a self-represented litigant, some of which overlap. Rather, it is in the interests of justice to deal with the substance of the complaints, where discernible, from the totality of the Applicant’s case, to assess whether the complaints disclose legal error. The Applicant’s submissions make clearer the legal issues that she seeks to agitate on this appeal. Her initial submissions were filed in advance of the hearing and, where produced later, the Respondents were given the opportunity to respond to them; and indeed, did respond to them in a comprehensive way.

At the outset, it should be observed that whilst it is true (as the Respondents submit) that a mere failure to address, to consider, or have regard to a certain matter may not necessarily disclose legal error, it is clear enough that the grounds, when taken together with the Applicant’s submissions, cite specific instances of a broader complaint.

Before this Court, the Applicant explained in detail the nature of the case which she had sought to advance before the Tribunal. Her response to the application for possession was focused on three key propositions, aspects of which are reflected in the complaints made in her grounds of appeal. The three central planks to the Applicant’s case in the Tribunal were that:

(a) the notice to vacate was not valid, because the documentary evidence supporting the reason for seeking a possession order had either expired by the date upon which the application for possession was made, or failed to disclose important information (‘validity of the notice’);

(b) even if it can be said that the deficiencies in the documentary evidence supporting the notice to vacate did not render the notice invalid, the rental provider’s reason for seeking possession was not genuine. The lack of genuineness could be inferred from: the absence of evidence showing marketing activity; and the true motivation for seeking possession being retaliation for the renter’s multiple requests for repairs (‘genuineness of intention to sell’); and

(c) eviction was not reasonable or proportionate in all the circumstances. The hardship inflicted on the renter was significant and outweighed the evidence of the rental provider’s need to sell the property (‘reasonable and proportionate’).

Clearly enough, ground 1 of the notice of appeal is directed to the validity of the notice as it relates to the requirement to produce documentary evidence supporting the reason for giving the notice, and gives rise to a question of law. Elements of the Applicant’s submissions on grounds 3, 4, 5 and, to some extent, part of ground 1, dispute the genuineness of the rental provider’s reason for seeking possession, which goes both to the validity of the notice, and to the behaviour of the rental provider as a factor relevant to the reasonableness and proportionality of the application for possession. Finally, grounds 2, 7, and 8, in different ways, attack the Tribunal’s finding that eviction was reasonable and proportionate in all the circumstances — either by directly attacking that conclusion (ground 2), or by attacking findings said to have a bearing on the assessment of reasonableness and proportionality, such as relative hardship or surrounding circumstances.

Each plank of the Applicant’s case was directed either to the jurisdiction of the Tribunal (the validity of the notice) or mandatory considerations relevant to the Tribunal’s exercise of discretion (i.e., whether the grant of the application for possession was reasonable and proportionate).

There can be little doubt that the Tribunal was required to actively engage with mandatory considerations. As Walker JA observed in Hanson v Director of Housing:[87]

[I]t will not be sufficient for the Tribunal, in assessing whether a possession order is reasonable and proportionate, to make a cursory, dismissive or passing reference to the impact of the order on the renter. Rather, the Tribunal is required to give active intellectual consideration to that matter. Thus, in Gautham v Panwar, when considering a submission that the Tribunal had not taken into account a relevant consideration, Ginnane J observed that the Tribunal ‘must actively engage with the mandatory considerations, and that engagement must be evident in his or her reasoning’.[88]

[87][2022] VSC 710, [45] (‘Hanson’).

[88][2021] VSC 157, [18]. See also DZ (a pseudonym) v Union Housing Ltd [2022] VSC 249, [26] (Moore J).

In Hanson, Walker JA referred to the decision in Plaintiff M1/2021 v Minister for Home Affairs,[89] where Kiefel CJ, Keane, Gordon and Steward JJ stated that:[90]

[L]anguage such as “active intellectual consideration” must be understood in its proper context and that a phrase of that kind must not be allowed to create “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. But, as their Honours observed, that remark does not detract from the established principle that if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument, that may give rise to legal error.

[89](2022) 275 CLR 582, 599–600 [26]–[27].

[90]Hanson [2022] VSC 710, [46].

Where the resolution of disputed questions of fact is required before discretion can be exercised, the Tribunal’s task is guided by the terms of the VCAT Act. The statutory framework established by the VCAT Act makes clear that whilst the Tribunal is not bound by the rules of evidence, it is bound by the rules of natural justice,[91] and the obligation to act fairly and according to the substantial merits of the case.[92] What is required to discharge the obligation to act fairly in any given case might vary depending upon the circumstances: the complexity of the case; the nature of the issues; and/ or whether the litigant is represented.
[91]VCAT Act, s 98(1)(a).
[92]VCAT Act, s 97.

In Metricon Homes Pty Ltd v Sawyer,[93] Garde J described the operation of VCAT’s obligation to act fairly in a different context, stating that if the Tribunal ‘is to act in accordance with the “substantial merits” of the case, it must facilitate the production of documents and the calling of evidence when sought by a party that will contribute towards the resolution of the substantial merits of the individual case’.[94] In this respect, his Honour referred to the Tribunal being ‘bound by the rules of natural justice’, and the need for it to give proper consideration to the matters before it.[95] In the course of considering the authorities, his Honour referred to Osborn J’s observations in Gombac Group Pty Ltd v Vero Insurance Ltd[96] that:

It is a fundamental duty of a tribunal to address the question of a particular fact in issue in proceedings before it by reference to the whole of the evidence relevant to that issue and not some part of that evidence alone. It must not deny itself “the full benefit of the evidentiary impact of the combined weight of all the intermediary facts”. Where a case turns on circumstantial evidence it will be open to the Tribunal to use some facts as tending to support conclusions with respect to other facts although they may not in themselves be directly probative of the matter in issue. In a civil case the Tribunal must ultimately conclude whether relevant inferences are more probable than not on the basis of all the circumstantial evidence before it.

[93][2013] VSC 518 (Metricon).

[94]Metricon [2013] VSC 518, [48].

[95]Metricon [2013] VSC 518, [48], citing VCAT Act, ss 98(1)(a), 98(1)(d).

[96][2005] VSC 442, [20] (footnotes omitted), cited in Metricon [2013] VSC 518, [48].

Garde J’s attention was also drawn by counsel to the decision of Brooking, Tadgell and Buchanan JJA in Palmer Tube Mills (Aust) Pty Ltd v Semi,[97] in which their Honours stated:[98]

For everyone is entitled to a fair trial at which the litigant’s case can be put properly before the judge: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. This applies as much to the trial of an issue as to the trial of an action. Every court must ensure that trials before it are conducted in accordance with the principles of natural justice, and these principles require the giving of a reasonable opportunity to dispute your opponent’s case and to present your own: Taylor v Taylor (1979) 143 CLR 1.

[97][1998] 4 VR 439 (Palmer Tube Mills).

[98]Palmer Tube Mills [1998] 4 VR 439, 452, cited in Metricon [2013] VSC 518, [51].

In applying these principles to the issues raised in Metricon, Garde J stated that:[99]

Information as to the amount of the owners’ legal costs and disbursements as at the date of the second offer lay with the owners. The builder had knowledge of the steps taken and documents filed in the proceeding, but it had little or no knowledge of the costs that the owners had actually incurred, or of the work done on their behalf to bring their claim. It was not a case where knowledge was slight or documents did not exist. They did exist but they were with the owners. While it was not for the owners to assist the builder’s case, nevertheless it was for the Tribunal to ensure, as the builder sought, that procedures and processes were put in train by which the true situation could be known, and the interests of justice attained.

[99]Metricon [2013] VSC 518, [66].

In Dura (Australia) Constructions Pty Ltd v SC Land Richmond Pty Ltd,[100] a domestic building matter, Senior Member Cremean referred to s 97 of the VCAT Act, which requires the Tribunal to act fairly, as a provision usually seen as relating to procedural fairness.[101] In Shrestha v Migration Review Tribunal,[102] the Full Court of the Federal Court considered procedural fairness in the context of the opportunity given to the appellant to adduce evidence and present argument. It was considered axiomatic that ‘the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence and to make submissions’.[103] Similarly, in SZVCP v Minister for Immigration and Border Protection,[104] the Full Court of the Federal Court described the principle as it applied to the primary judge, as follows:[105]

There can be no doubt that the primary judge was obliged to exercise his powers reasonably and to accord the applicant procedural fairness. His Honour was required to give the applicant a reasonable opportunity to present evidence and to make submissions in support of his applications. His Honour was also obliged to address and consider each of the applications that the applicant made to the Court. He could not act unreasonably by dismissing them without in substance addressing them.

[100][2006] VCAT 2120 (Dura).

[101]Dura [2006] VCAT 2120, [33].

[102](2015) 229 FCR 301 (Mansfield, Tracey and Mortimer JJ). See generally, 308–9 [36]–[46].

[103]Ibid 308–9 [38], citing Cameron v Cole (1944) 68 CLR 571, 589 (Rich J); Commissioner of Police (NSW) v Tanos (1958) 98 CLR 383, 395–6 (Dixon and Webb JJ).

[104](2016) 238 FCR 15 (Kenny, Robertson and Griffiths JJ).

[105]Ibid 24 [36].

In Nathanson v Minister for Home Affairs,[106] Kiefel CJ, Keane and Gleeson JJ considered the issue of whether procedural unfairness by the Administrative Appeals Tribunal involved jurisdictional error. Their Honours framed the issue as follows:[107]

As the Courts below recognised, the Tribunal’s error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal’s decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome.[108] The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense.[109]

[106](2022) 276 CLR 80 (‘Nathanson’).

[107]Nathanson (2022) 276 CLR 80, 92 [1].

[108]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [45]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 514 [2], 538 [85] (MZAPC); see also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 134–5 [30]–[31].

[109]SZMTA (2019) 264 CLR 421, 433 [4]; MZAPC (2021) 273 CLR 506, 514 [2].

Their Honours concluded that the appellant had ‘discharged his onus of demonstrating that the Tribunal’s denial of procedural fairness [had] deprived him of a realistic possibility of a different outcome’, the realistic possibility being ‘demonstrable from the record of the Tribunal’s decision’. Their Honours held that the appellant ‘was not required to articulate a specific course of action which could realistically have changed the result’.[110] Referring to MZAPC v Minister for Immigration and Border Protection (‘MZAPC’),[111] their Honours expanded upon the notion of materiality, as follows:[112]

As explained in MZAPC, the materiality of a breach requires consideration of ‘the basal factual question of how the decision that was in fact made was in fact made.[113] This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with ‘as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined’.[114] The burden falls on the plaintiff to prove ‘on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition’.[115]
There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.[116] The standard of ‘reasonable conjecture’ is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive ‘story’ of the opposing party.[117] Where a Tribunal errs by denying a party a reasonable opportunity to present their case, ‘reasonable conjecture’ does not require demonstration of how that party might have taken advantage of that lost opportunity.[118] Nothing said in MZAPC denies this. To the contrary, the standard of ‘reasonable conjecture’, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

[110]Nathanson (2022) 276 CLR 80, 92 [2] (footnote omitted).

[111](2021) 273 CLR 506.

[112]Nathanson (2022) 276 CLR 80, 103 [32]–[33].

[113]MZAPC (2021) 273 CLR 506, 524 [38].

[114]Ibid.

[115]Ibid 524 [39] (emphasis in original).

[116]Cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13–14 [36]–[38].

[117]Kioa v West (1985) 159 CLR 550, 633; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 380 [143]; Condon v Pompano Pty Ltd (2013) 252 CLR 38, 107 [186].

[118]Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 342–3 [60].

This is a case where the Applicant was entirely unrepresented before the Tribunal, and where although professionally represented, the Respondents were not represented by a lawyer, whose duties to the court supersede those owed to a client. In such a situation the Tribunal has an important and special role in ensuring that a party has a reasonable opportunity to present their case.

In Tomasevic v Travaglini,[119] Bell J stated that, whilst maintaining judicial neutrality ‘at all times and to all parties’, the ‘matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance’.[120] His Honour extended the application of the duty to assist self-represented litigants to ‘masters, magistrates, commissions and tribunals’, stating that ‘of course the application of the duty would have to take into account the particular demands of those jurisdictions’, and that it applied ‘even when all the parties are litigants in person’.[121]
[119][2007] VSC 337 (Tomasevic).
[120]Tomasevic (2007) 17 VR 100, 130 [141]–[142], cited in Seachange [2008] VCAT 1479, [55].
[121]Tomasevic (2007) 17 VR 100, 119 [89] (footnotes omitted). See also, Comaz (Aust) Pty Ltd v Commissioner of State Revenue (2015) 101 ATR 339, in which Croft J applies the principles identified in Tomasevic and Seachange; and more generally, Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 7^th ed, 2022) [97.60], on the effect of s 97 as it relates to self-represented litigants.

[168]Reasons of Member Elmes dated 9 December 2024, [41]-[42].

The Tribunal ultimately rejected her argument, saying:[169]

In respect of the decision of Moustra v Elder as relied upon by the renter, whilst it confirms that prior decisions of VCAT are capable of giving rise to an estoppel or res judicata where there are causes of action which are substantially the same, that decision was in the context of a bond and compensation dispute between a renter and their rental provider. The decision was distinguishable from the present case both on the facts and the law.
There is no prohibition on the number of notices to vacate which may be issued by a rental provider during the course of a rental agreement. [footnote omitted] Each possession application will be decided on its own facts. It is not uncommon for the same type of possession application to be made by a rental provider against a renter more than once. For these reasons, I did not accept the renter’s submissions that I was bound to dismiss the application because the Tribunal had dismissed a previous application based on an entirely different notice to vacate.

[169]Reasons of Member Elmes dated 9 December 2024, [51]-[52].

In substance, the Applicant argued that the Respondents were estopped from bringing the current possession application because it was the same ‘type’ as the one that had been dismissed in 2023.[170] Her argument on appeal is that the Tribunal erred by disregarding estoppel principles.[171]
[170]Transcript, 15 April 2025, 454–5.
[171]Transcript, 15 April 2025, 495.

As the Respondents observed before me, it is clear from the passages of the Tribunal’s reasons that it did not ‘disregard’ the estoppel principles. As framed by the Applicant, this ground cannot be made out.

In her submissions, the Applicant’s complaint shifted to alleging that the Tribunal had failed to address the estoppel argument.[172] As I understand it, the Applicant complains that the reasoning of the Tribunal was generalised, and when it said that Moustra v Elder[173] was distinguishable on the facts and the law, the Tribunal failed to articulate how it came to this conclusion.[174]
[172]Applicant’s written submissions filed 28 January 2025, [29].
[173][2024] VCAT 813.
[174]Supplemental affidavit of Grace Mazi filed 10 February 2025, [56].

Consideration of the Tribunal’s reasons for rejecting the estoppel argument

It is correct that the Tribunal does not explain how the present case is distinguishable from the decision in Moustra v Elder, either on the facts or the law. It is unclear how the Tribunal reached that conclusion, given the limited way in which the matter was advanced in submissions by the Applicant, and the Tribunal’s lack of engagement with the argument. The transcript of the hearing reveals that the issue received very little attention at the hearing.

The Tribunal’s observation that there is no prohibition on the number of notices to vacate that may be issued by a rental provider is theoretically correct, but requires qualification. First, the notice must comply with the requirements of s 91ZZO of the RTA and it must be supported by a valid reason, otherwise it will fail to meet the validity threshold and will fall at the first hurdle. Provided that there is a valid reason for issuing a notice to vacate, which is supported by documentary evidence where applicable, and the notice otherwise complies with the statutory requirements, I agree with the Tribunal that there is no limit on the number of notices that can be given.

Second, the Tribunal’s statement about notices to vacate should not be conflated with applications to VCAT for possession orders. In the hearing, the Tribunal responded to the Applicant’s estoppel argument by stating that ‘there is nothing to stop any party making multiple applications in this Tribunal’, with the proviso that each application would be considered ‘on their own facts’.[175] Whilst a properly formulated notice to vacate is a necessary prerequisite to an application for possession, it does not follow that there is no constraint on the number of applications for possession that a rental provider can make. As Moustra v Elder correctly observes, the application of res judicata principles to possession applications in VCAT operates to prevent successive applications for possession where the circumstances of an application enliven those principles. Irrespective of whether it is common or not for a rental provider to give a successive notices to vacate on the same basis, or make successive applications for possession on the same basis, each application for possession will be decided on its own facts[176] —provided that those facts have not been the subject of an earlier order of the Tribunal. To permit persistent applications concerning the same facts would invite an abuse of process.
[175]VCAT transcript, 7 November 2024, 23.
[176]Transcript, 15 April 2025, 495, quoting Reasons of Member Elmes dated 9 December 2024, [52].

In the hearing below, the Tribunal found that he rental provider’s application for possession was based upon an ‘entirely different notice to vacate’, and that this was significant in defeating the alleged estoppel.

While there is no prohibition on the rental provider giving multiple, successive notices to vacate, either for the same reason or for different reasons, merely giving a new notice does not by itself defeat any claim in estoppel. Rather it is the Tribunal’s adjudication in earlier proceedings, on the same facts as between the same parties, which has the potential to enliven the estoppel.

Similarly, there is no prohibition on a rental provider making multiple, successive applications for possession for the same reason (e.g., to sell the property). Each application for possession will fall to be determined on its own facts. However, where such an application proceeds upon the same facts as between the same parties as an application for possession previously adjudicated by the Tribunal, estoppel may arise, notwithstanding that the claim is initiated by a new notice to vacate and application for possession. In this case, the Tribunal rejected the Applicant’s estoppel argument by saying that the application for possession determined by Member Crocker in November 2023 was ‘based on an entirely different notice to vacate’.

The Applicant bears the onus of demonstrating the factual basis upon which the estoppel is said to arise, in respect of both the material before Member Crocker, and the material alleged to be the same before Member Elmes.[177] Member Crocker’s order contained a finding that the application for possession was dismissed on the basis that it was not reasonable and proportionate to make a possession order at that time, but did not record any findings as to particular matters upon which the decision was made.[178] There was no evidence before the Tribunal in the Elmes proceeding (such as the transcript from the hearing before Member Crocker) that substantiated the Applicant’s submissions as to the findings made by Member Crocker.[179] On their face, the documents the Applicant relied upon in the hearing before Member Elmes do not contain a basis upon which the alleged estoppel could be made out.
[177]Transcript, 15 April 2025, 499, 501.
[178]Transcript, 15 April 2025, 497.
[179]Transcript, 15 April 2025, 500.

Nevertheless, the Applicant’s submissions, particularly as a self-represented litigant, ought to have prompted the Tribunal to enquire as to the precise basis upon which the estoppel was raised. This was not done. The transcript and the written reasons disclose that at a relatively early stage in the proceeding, the Tribunal dismissed the relevance of the rental provider’s earlier attempts to evict the Applicant. The hearing was largely directed by the Tribunal’s inquiries and meant that the Applicant addressed the estoppel ground for the first time in her concluding remarks. The Tribunal’s error does not lie in its rejection of the asserted estoppel because, on the evidence before it, there was no basis to conclude one way or the other whether an estoppel arose.

Grounds 2 and 8: Application of the proportionality test under s 330A

By ground 2, the Applicant attacks the Tribunal’s conclusion that it was reasonable and proportionate to make a possession order as ‘unbalanced and legally unsound’.[180] The ground is framed as follows:

The Tribunal erred in failing to adequately apply the proportionality test factors (a) to (h and (i-j) pursuant to the rental provider’s behaviour, resulting in an assessment that was neither balanced nor thorough. This includes disregarding relevant considerations of the respondent’s hardship, potential retaliatory intent, and the applicant’s lack of financial benefit.

[180]Applicant’s written submissions filed 28 January 2025, [10].

By ground 8, the Applicant alleges that the Tribunal failed to assess whether the Respondents had ‘demonstrated financial need or benefit’ for the purposes of obtaining vacant possession, which should have been weighed against her hardship.[181] She frames the ground as follows:

The Tribunal erred in not conducting a balanced and fair assessment, failing to weigh the respondent’s hardship against the lack of demonstrable financial benefit or need for vacant possession by the applicant.

[181]Applicant’s written submissions filed 28 January 2025, [40].

In truth, ground 8 is a subset of the matters raised by ground 2. It is convenient to consider and deal with both grounds together. Like the Applicant’s other grounds, when construed narrowly, grounds 2 and 8 disguise the true nature of her complaint, which was drawn out in written and oral submissions.

Assessing reasonableness and proportionality
Relevant legal principles

Section 330 of the RTA outlines the circumstances in which the Tribunal must make a possession order, and relevantly provides:

330 Order of Tribunal
(1)The Tribunal must make a possession order requiring a renter … to vacate rented premises … on the day specified in the order if the Tribunal is satisfied—
(a)in the case of an application where notice to vacate has been given, that—
(i)the residential rental provider … was entitled to give the notice; and
(ii)the notice has not been withdrawn; and

…
(d)that the renter … is still in possession of the rented premises … after the termination date specified in the notice to vacate …; and
…
(f)that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order—
(i) the residential rental provider …;
(ii) the renter …;
…

Section 330A outlines the factors that the Tribunal must have regard to, when determining whether it is reasonable and proportionate to make a possession order, and relevantly provides:

330A What is reasonable and proportionate?
For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the following—
(a)the nature, frequency and duration of the conduct of the renter, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement …;
(b)whether the breach is trivial;
(c)whether the breach was caused by the conduct of any person other than the renter …;
(d)whether the renter … has made an application for a family violence safety notice, family violence intervention order, non-local DVO or personal safety intervention order …;
(e)whether the breach has been remedied as far as is practicable;
(f)whether the renter … has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement …;
(g)the effect of the conduct of the renter … on others …;
…
(h)whether any other order or course of action is reasonably available instead of making a possession order;
(i)as the case requires, the behaviour of the residential rental provider, the provider’s agent …;
(j)any other matter the Tribunal considers relevant.

The Tribunal directed its attention to s 330A and in its written reasons correctly identified those parts of s 330A which were relevant to the application before it. The Applicant’s complaint in this appeal concerns how the Tribunal addressed the material, before reaching its conclusions.

The process of determining whether a possession order is reasonable and proportionate requires the decision-maker to establish the facts directed to the relevant aspects of s 330A. Having established the facts, the Tribunal is then engaged in an evaluative process, attributing weight to the various matters it has identified as relevant to its determination. This often involve the consideration, and balancing, of countervailing factors to arrive at a finding of whether the possession orders sought are reasonable and proportionate. Fact finding and the attribution of weight is the province of the primary decision-maker, and appellate courts are properly slow to disturb findings of a factual or evaluative nature. That said, the process by which a decision-maker reaches findings or makes evaluative judgements must be fair.

The Applicant’s complaint on this appeal is that the approach taken by the Tribunal in its assessment of the relevant evidence was unbalanced and unfair.

In its written reasons, the Tribunal properly identifies the matters relevant to consideration of an application for possession based on a notice to vacate for sale:[182]

In the context of an application for possession where the rental provider wishes to sell the premises, consideration of the reasons for selling, why the premises are being sold with vacant possession, the renter’s conduct in assisting with any marketing of the premises, the efforts made by the renter to find alternative accommodation and the current economic climate, I deemed relevant in this case in determining whether it was reasonable and proportionate to make a possession order.

Consideration of the rental provider’s behaviour

[182]Reasons of Member Elmes dated 9 December 2024, [26].

In prematurely dismissing the Applicant’s attempt to argue that the rental provider’s motivation for seeking possession was not genuine, the Tribunal removed an important factor in the Applicant’s case from the balancing exercise required by s 330A; one that spoke directly to whether granting the application was reasonable and proportionate — specifically, that the Tribunal was required to consider the behaviour of the residential rental provider under s 330A(i). For the reasons already stated, the Tribunal’s approach to this matter was infected by error. It follows that the Tribunal’s evaluative assessment of the reasonableness and proportionality of the possession orders sought by the rental provider was skewed against the Applicant at the outset.

In assessing the rental provider’s reasons for selling the property, the Tribunal regarded the ‘lack of rent’ going directly to the rental provider as a relevant factor.[183] The Tribunal was satisfied that the rental provider had tried to access the rent being held in the special account, but for various reasons had not been successful. The Tribunal considered that this ‘would have added’ to the financial stress, and reinforced the need to sell. In its summary of evidence relating to the rental provider,[184] the Tribunal noted that the rental provider and its agent were said to have no oversight over how much rent had been paid into the special account, but had understood that the current balance exceeded $20,000. It is clear enough that the Tribunal relied upon this ‘understanding’ as to the relevant figure — although it is unclear how it obtained that information — as a basis for reaching the conclusions that it did regarding the rental provider’s financial position.
[183]Reasons of Member Elmes dated 9 December 2024, [47].
[184]Reasons of Member Elmes dated 9 December 2024, [28].

The Tribunal’s findings in this respect are troubling. There was no evidence before the Tribunal as to the current balance of the rent special account. The Tribunal appears to have accepted the submissions made by the rental provider’s agent that the financial position of the rental provider was ‘severe’ and had been so for 12 months.[185] There was no independent evidence before the Tribunal upon which those submissions could be founded. There was no way in which the Applicant could have interrogated those assertions. In the hearing before me, the Respondents agreed that this was accurate, and that the only option open to the Applicant was for her to assert that the assertions were incorrect. The Respondents consigned the difficulty confronted by the Applicant to a feature of litigation in the Tribunal, which was not bound by the rules of evidence. It is true that the Tribunal is not bound by the rules of evidence or procedure, and that hearings (particularly in the Residential Tenancies List) adopt a greater degree of informality, but it remains the case that a litigant is entitled to understand and address the case against them, and to interrogate the basis upon which factual assertions are advanced.

Interrogation of the evidence

[185]Reasons of Member Elmes dated 9 December 2024, [27].

In the hearing before the Tribunal, the rental provider was represented by a real estate agent who had only been relatively recently appointed to manage the property. The agent admitted to the Tribunal that she was not familiar with all of the background. The rental provider was not present at the hearing. The only ‘evidence’ as to the rental provider’s financial position was the agent’s oral submissions. The Applicant had no opportunity to challenge the basis of the case advanced by the rental provider as to their current financial position, or their need to sell the property. The Applicant disagreed that the rental provider’s reason for seeking possession was genuine. She was entitled to contest any evidence said to support the rental provider’s reason for selling, and for selling with vacant possession. She was also entitled to interrogate the rental provider’s assertion of financial hardship, which was at the core of their reason for selling the property.

The rental provider’s agent also made submissions to the effect that the Applicant had denied access to the property and had over a long period of time been a difficult tenant, refusing to communicate with the rental provider or their agent.

The Tribunal’s approach, and its findings in relation to the balance of the rent special account, the past repairs, and the relationship between the rental provider and the Applicant are not easily reconciled with the statements made at the commencement of the hearing, where the Tribunal made it clear at the outset that the hearing would not be concerned with the rent special account, or with money held in the rent special account.

The Tribunal’s positive treatment of the unsubstantiated assertions regarding the rental provider’s financial position stands in stark contrast to the Tribunal’s treatment of the Applicant, and the matters that the Applicant advanced in support of her claim that eviction, at that time, would cause her hardship.

The Applicant appeared in person. Unlike the real estate agent appearing for the Respondent, who had no personal knowledge of the history of the matter, the Applicant’s submissions could be treated as direct evidence of her position. She relied upon a written statement from a medical professional as to her situation and provided some details of her efforts to find alternative accommodation. The Applicant explained to the Tribunal that she had evidence upon which she could rely to support her submission that the claims made against her by the rental provider’s agent (that she had been difficult, had denied the rental provider access, and the like) were false. In truth, the Applicant was the only person in the hearing with direct knowledge of the complete history of the rental relationship between her and the rental provider.

The transcript records that the Tribunal was critical of the extent of evidence provided by the Applicant regarding her efforts to find alternative accommodation. In its written reasons, the Tribunal said:[186]

The renter’s written submissions included a number of coloured images of rental properties. None of the images were date stamped. The renter’s evidence was that she had applied for some properties, but had not been successful with her applications. She did not say how many applications she had made or when the applications had been made, nor the reasons why she had been unsuccessful. She said she did not know why she had not been successful.

[186]Reasons of Member Elmes dated 9 December 2024, [38].

The transcript reveals that the Tribunal’s questions concerning the Applicant’s efforts to find alternative accommodation were raised immediately after the Tribunal had advised that it had a time limit within which to complete the hearing and that there were other hearings which would need to start soon. The Tribunal commenced the discussion by asking the Applicant if she had sought alternative accommodation and stating that she had not provided details of how many properties had been applied for and the status of any current applications. It was apparent that the Tribunal was rushed, and that it had not reviewed all of the material provided by the Applicant, or if it had, had not understood that material. The Applicant directed the Tribunal to the part of her materials where she had included photographs of properties that she had visited. The Tribunal then observed that the material did not include evidence of applications. In response, the Applicant said:[187]

Currently most real estate agencies, they have their own on line applications, applications where you apply for properties on their applications. They don’t necessarily give feedback that you have not been approved for the property or you have been approved for the property. They don’t really usually relay that feedback that yes, I have been approved, unless you have been successful.

[187]VCAT Transcript, 7 November 2024, 18.

The Applicant advised that she had not only inspected and applied for the properties in the photos, but also other properties. The Applicant’s answers were not queried or challenged by the Tribunal. In the hearing, the Tribunal did not query the absence of date stamping on the images, but nonetheless counted the absence of date stamping against the Applicant in the written reasons.

In light of the answers given by the Applicant, and the tenor of the exchange between the Tribunal and the Applicant recorded in the transcript, the Tribunal’s criticism of the Applicant’s evidence in the written reasons was unfair.

In relation to the Applicant’s claims of financial hardship based on her medical condition, the Tribunal said:[188]

The renter provided a letter from a general practitioner dated 31 October 2024 advocating for her to remain in the rented premises. The doctor stated in the letter that the renter has been managing a workplace incident and so had reduced income because of this (since September 2024). The letter further advised that ‘this situation is temporary and now looks to be improving’. [emphasis in original]
The renter did not give any oral evidence about the workplace injury or her current (or future) finances. In her written submissions she simply referred to her ‘health related challenges’ in the context of the hardship of an eviction but she gave no details (including any specific medical evidence) of these health challenges, nor did she speak about them in the hearing.

[188]Reasons of Member Elmes dated 9 December 2024, [36]-[37].

At the hearing before the Tribunal, there was barely any discussion of the letter from the Applicant’s treating doctor. It was mentioned first by the Applicant, in the course of the Tribunal querying her attempts to obtain alternative accommodation. In that discussion, it was the Applicant who advised the Tribunal that there was an issue with her health, which she said had resulted in reduced income. The matter is not raised or otherwise discussed in the hearing.

The letter from the doctor is dated 31 October 2024, and advocates against her eviction, stating:[189]

I have been caring for Grace in relation to injury she sustained in the workplace and as a result she has had reduced income since September. This situation is temporary and now looks to be improving so I request this be taken into account and would request consideration be given to the fact that she would be at high risk of struggling to find accommodation [sic] if evicted which would be significantly detrimental to her health ongoing.

[189]Affidavit of Grace Mazi filed 26 November 2025, [13], citing Letter from Dr Alessandra Briglia dated 31 October 2024.

The Tribunal’s observation that the Applicant did not give oral evidence about the workplace injury or details of her medical condition/health challenges is concerning. If these were deficiencies in the Applicant’s evidence which could have counted against the Applicant, they are matters which the Tribunal should have raised with her. In this respect, the Applicant was not provided with an opportunity to respond to matters considered adverse to her case.

More troubling though is the Tribunal’s criticism of the Applicant’s failure to adduce evidence as to her current (or future finances) which stands in stark contrast to its unquestioning acceptance of the assertions by the real estate agent as to the financial hardship said to have been experienced by the rental provider.

The Applicant complains that no interrogation was made of the rental provider’s unsubstantiated assertions of financial hardship, their purported difficulties in dealing with the Applicant, or any other feature of the rental provider’s case — yet, the Tribunal accepted the substance of all of them. By comparison, the Tribunal interrogated aspects of the claims made by the Applicant, but treated them all with suspicion or outright criticism, in some instances without providing the Applicant with an opportunity to explain what the Tribunal ultimately treated as a deficiency or failing. In her submissions to this Court, the Applicant contends that the Tribunal ‘disproportionately favoured’ the Respondents.

A fair reading of the hearing transcript against the findings made by the Tribunal in its written reasons reveals that the Applicant’s complaints are well-founded.

Ground 6: Failure to consider relevant evidence

By ground 6, the Applicant claims that:

The Arbitrator erred in law by failing to consider relevant evidence, compromising procedural fairness and impartiality. Specifically, the Arbitrator disregarded key evidence from the renter challenging the rental provider’s claims for possession, allowed irrelevant issues to be raised, questioned the renter on these unrelated matters, and provided procedural advice to the rental provider.

The Respondents correctly describe the material covered by this ground as, in substance, embracing the matters addressed by all other grounds. Given the conclusions that I have reached on those other grounds, it is unnecessary for me to separately address ground 6.

Ground 7: Abuse of process

The Applicant frames ground 7 as follows:

The Rental Provider’s unsubstantiated arrears claim, and coercive offer violate protections under the Residential Tenancies Act against misleading conduct, while the Tribunal’s focus on unrelated rent account funds contravenes the principles of procedural fairness and relevance mandated under the VCAT Act. Such actions have compromised the fairness and impartiality of the proceedings.

By itself, this ground, as framed, ranges widely across different aspects of the procedural history and the Tribunal’s reasons. The Applicant’s submissions illuminate the substance of the Applicant’s complaint more manageably.

A central element to the Applicant’s argument on this ground is her allegation that the Respondents misused the existence of unrelated legal proceedings,[190] and disclosed confidential documents in breach of r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 and the Harman obligation.[191] It was alleged that documents filed in this Court, in the Bygrave appeal, were emailed to VCAT before the hearing of the application for possession had commenced, and that this disclosure was impermissible. These allegations formed the basis upon which the Applicant sought relief by summons charging the Respondents (and two others) with contempt of this Court in Mazi v Kao (No. 1).
[190]Applicant’s written submissions filed 28 January 2025, [33].
[191]Applicant’s written submissions filed 28 January 2025, [34], citing Hearne v Street (2008) 235 CLR 125.

In that case, I dismissed the Applicant’s summons, concluding in substance that there had been no breach of the rules of court, or the implied undertaking. The documents disclosed to the Tribunal were not documents to which the implied undertaking applied, because they had been filed voluntarily to initiate proceedings in this Court; and in the hands of the Respondents, as parties to that separate proceeding, they were not documents to which r 28.05 applied. It follows that, to the extent that the Applicant’s case depends upon a finding of contempt on the part of the Respondents, it must fail.

The content of the email sent to VCAT, and its relevance to the matters raised in this appeal, have otherwise been addressed in these reasons.

It is apparent from the Applicant’s submissions that she conflates what she alleges to be the disclosure of confidential information (arising from a breach of the implied undertaking) with the rental provider’s assertion (made by the agent in the email attaching the documents) that the Applicant was in rental arrears for an amount exceeding $20,000. The two are not the same. Even if the disclosure of the court documents amounted to an impermissible breach of the implied undertaking, the Respondents’ assertion that the Applicant was in rental arrears would not have been subject to the Harman obligation, or the rules of court.

The only question for the Tribunal was whether or not the assertion of rental arrears was relevant to the application for possession and, if so, whether the Tribunal conducted the hearing fairly in reaching a conclusion as to whether the allegations were proved, and if so, the weight to be attributed to them.

The Tribunal asked the Applicant directly if she was continuing to pay rent. The Applicant advised the Tribunal that rent was being paid into the rent special account. The Tribunal did not proceed upon the basis that the Applicant was not paying rent when reaching its conclusions. It must follow then, that an appeal on this ground is not made out.

Conclusion

Having found that the notice to vacate was invalid, the appeal must succeed.

The appeal would be allowed in any event, and independently of the validity of the notice to vacate. Whilst her grounds of appeal were inexpertly drawn, in combination with her written and oral submissions, the Applicant has, in summary, established that the Tribunal’s exercise of discretion miscarried because the Applicant was not afforded a fair hearing.

A finding that the notice to vacate was invalid would have been a sufficient basis to dismiss the rental provider’s application for a possession order before VCAT. Section 148(7)(b) of the VCAT Act permits this Court to make any order that the Tribunal could have made in the proceeding, including an order dismissing the Elmes proceeding. Subject to anything the parties might say, it is my preliminary view that the such an order would be appropriate in this case. I will provide the parties with an opportunity to make submissions before making final orders.

Order granting the stay

On 27 November 2024, Judicial Registrar McCann made an order granting the Applicant’s request for a stay on enforcement of the possession order, and noting that the Respondents had not consented to the stay application. The stay was to remain in effect until 5pm on 20 March 2025, on the condition that the Applicant continued to pay rent.[192] The stay was extended by this Court in orders made on 20 March 2025 and 15 April 2025.
[192]Order made by Judicial Registrar McCann on 27 November 2024, para D and [1].

The Respondents submitted that a stay should not be granted and invited me to discharge the stay, in part, on the basis that, according to the Respondents, the grounds of appeal advanced by the applicant could not be made out. As I have ultimately allowed the appeal, it is unnecessary to deal with these matters.

Orders

The judgment in this matter will be delivered electronically. Given the nature of this matter and the related matters, it is appropriate to give the parties the opportunity to consider the final form of orders, including the appropriate orders as to costs. Upon the delivery of the judgment I will make orders requiring the exchange of brief written submissions as to the final form of orders and as to costs. Having not yet heard the parties, and subject to anything they might say, my preliminary view is that the orders in this matter would be to the effect that:

(a) Leave is granted.

(b) The appeal is allowed.

(c) The decision of the Tribunal is set aside.

(d) Pursuant to s 148(7)(b), the rental provider’s application to VCAT for possession orders is dismissed.

(e) No order as to costs.

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SCHEDULE OF PARTIES

S ECI 2024 06285
BETWEEN:
GRACE MAZI	Applicant
and
SPENSER HSIUNG-PIN KAO	First Respondent
HUNG-HSIA KAO	Second Respondent

[2025] VSC 630

7 October 2025