Tidd v Jeffcott

Case •

[2020] VSC 861

•

17 December 2020
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02998

MICHAEL TIDD Appellant
v 
DESIREE JEFFCOTT Respondent

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JUDGE:

Richards J

WHERE HELD:

Melbourne

DATE OF HEARING:

28 October 2020

DATE OF JUDGMENT:

17 December 2020

CASE MAY BE CITED AS:

Tidd v Jeffcott

MEDIUM NEUTRAL CITATION:

[2020] VSC 861

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ADMINISTRATIVE LAW – Appeal from orders of Victorian Civil and Administrative Tribunal in proceeding under Residential Tenancies Act 1997 (Vic) – Landlord gave tenant notice to vacate under s 249 for successive breaches of duty to permit entry under s 89 – Tribunal made possession order and later granted landlord’s request to issue a warrant of possession – Whether notice to vacate valid – Whether notice to vacate premature – Construction of s 249 – Whether possession order legally unreasonable – Residential Tenancies Act 1997 (Vic), ss 89, 208, 249, 319, 330.

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APPEARANCES:

 Counsel Solicitors
For the Appellant Mr E Nekvapil with
Ms J Moir 		Victoria Legal Aid
For the Respondent Mr PW Lithgow KCL Law

HER HONOUR:

  1. Since December 2017, Michael Tidd has rented a house in Healesville from Desiree Jeffcott.  He lives there with Margaret McCarthy who, like Mr Tidd, is a disability pensioner.  Mr Tidd suffers from epilepsy, which causes him to have seizures.  His illness is affected by stress.  In the last two years, these seizures have increased in frequency and severity, and now occur two to three times a week.

  1. In early November 2019, Ms Jeffcott engaged an estate agent to manage the property. She had not inspected it since early that year, and was concerned about rubbish on the property and the state of the garden. The agent arranged an inspection for 20 November 2019, which was rescheduled after Mr Tidd had a seizure. The agent tried to inspect the house on two more occasions in November, without success. On 28 November 2019, the agent sent Mr Tidd a notice to vacate under s 249 of the Residential Tenancies Act 1997 (Vic) (RT Act).

  1. In December 2019, Ms Jeffcott applied to the Victorian Civil and Administrative Tribunal for a possession order, under s 322 of the RT Act. The Tribunal made a possession order on 20 February 2020, requiring Mr Tidd to vacate the house that day.  On 29 April 2020, Ms Jeffcott requested the Tribunal to issue a warrant of possession, and the Tribunal granted that request by an order made on 22 June 2020 (warrant order).  Due to a series of stay orders, no warrant of possession has been issued, and Mr Tidd and Ms McCarthy are still living at the property.

  1. In this proceeding, Mr Tidd seeks leave to appeal from both the possession order and the warrant order, under s 148(1) of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (VCAT Act). He also seeks an extension of time within which to appeal the possession order, under s 148(5) of the VCAT Act. Mr Tidd seeks orders setting aside the possession order and the warrant order, and remitting the matter to a differently constituted Tribunal to be heard and determined again in accordance with law.

  1. Ms Jeffcott did not oppose an order extending time to appeal from the possession order, and did not claim to have suffered any prejudice by reason of the delay.  That was a sensible position to take, in circumstances where Mr Tidd was contesting both the possession order and the warrant order.  I am satisfied that it is appropriate to grant the extension of time sought. 

  1. For the reasons that follow, I have concluded that the notice to vacate given on 28 November 2019 was premature, because s 249 of the RT Act does not permit a notice to vacate to be given before the ‘required time’ for compliance with previous breach of duty notices has expired. The required time for compliance was 14 days, which expired on 4 December 2019 for the first breach notice, and on 9 December 2019 for the second breach notice. Ms Jeffcott was therefore not entitled to give a notice to vacate under s 249 on 28 November 2019, and was not entitled to a possession order. Further, on the evidence before the Tribunal, there was no logical or rational basis to find that Mr Tidd was in breach of his duty to permit entry on 20 November 2019, when the agent merely rescheduled the inspection after being told that Mr Tidd had been taken to hospital. Leave to appeal will be granted, and the appeal will be allowed.

Notice to vacate

  1. Mark Gunther First National Real Estate took over management of the property on 6 November 2019.  Yasmin Cassar, the property manager of First National, tried without success to contact Mr Tidd by telephone and text message to arrange an inspection.  On 11 November 2019, Ms Cassar and Mr Gunther visited the property and left a business card in the door at the property.

  1. On 12 November 2019, Ms Cassar and Mr Tidd agreed that an inspection would take place at 11:00 am on 20 November 2019.  On the same day, Ms Cassar sent a notice of the inspection to Mr Tidd by registered mail (entry notice).  The ‘Reason for Notice’ stated in the entry notice was:

Section 86

I wish to enter the premises on 20 November 2019 at 11:00 AM

to carry out my legal duty as landlord to: To inspect the property for the first time as property managers, and to deem the state of the property and sort out any maintenance issues.

  1. The entry notice was accompanied by a letter addressed to Mr Tidd, dated 11 November 2019, which read:

Dear Michael and Margaret,

RE:     Routine inspection for [address], Healesville Victoria 3777

We write to advise that our office will be conducting an initial Inspection of the above property on 20/11/2019 at 11:00am.

You are more than welcome to be in attendance during the inspection, however if you are unable to attend the inspection we shall gain access using the office set of keys.

This inspection is purely for the purpose of providing the Landlord with a report on the current condition of the property and should take no longer than 15 minutes.  A card will be left as proof of the inspection, should you not be home.

Please note photos will be taken of most rooms and of items such as sinks, showers, oven etc. These are for the purpose of the agency’s and landlord’s records only and will be covered under the Privacy Act. If you have any personal, confidential or valuable items in the home you do not wish to be included in photos, we recommend you remove them for the inspection.

If any maintenance is required, please complete the attached Maintenance Form and leave on kitchen table or bench top.

If you have recently changed locks to the property, please advise us as soon as possible and provide us with a set of keys in accordance with your Lease.

  1. On the morning of 20 November 2019, Mr Tidd had a serious seizure and injured himself.  Ms McCarthy called First National to let them know that Mr Tidd was unwell and that the inspection could not go ahead.  They agreed to reschedule the inspection to 25 November 2019 at 2:00 pm, and Ms Cassar confirmed this in a text to Mr Tidd that afternoon.  Nobody from First National attended the property to conduct an inspection on 20 November 2019.

  1. That evening, Mr Tidd found a breach of duty notice in his mailbox (first breach notice).  Under the heading ‘Reason for Breach of Duty Notice’ the following appeared:

10. I believe you have breached your duty as a tenant because

Section 89

You did not permit a person exercising a right of entry to enter the premises to enable the landlord to carry out a duty as a landlord.

Section 86(1)(c)

An entry notice was given to you for the purpose set out in this section.

11. The loss or damage caused is

The property manager could not attend scheduled inspection as originally organised through notice number 3365508

12. Compensation or compliance required

I require you to remedy the breach within 14 days after receiving this notice by Allow access on Monday November 25th 2019 at 2 pm as discussed or pay me $200.00 compensation.

13. You must not commit a similar breach again.  If you do not comply with this notice:

- The landlord may apply to the Victorian Civil and Administrative Tribunal for a compensation order; or

- If S249 applies, may give notice to vacate.

  1. Mr Tidd went to the office of First National just before noon on 25 November 2019, and cancelled the inspection that had been scheduled for that afternoon.  He gave no reason for the cancellation.

  1. Nobody from First National attended the property on 25 November 2019, and Ms Cassar issued another breach of duty notice on 25 November 2019 (second breach notice).  The second breach notice was sent to Mr Tidd by registered mail.  It stated, under the heading ‘Reason for Breach of Duty Notice’:

10. I believe you have breached your duty as a tenant because

Section 89

You did not permit a person exercising a right of entry to enter the premises to enable the landlord to carry out a duty as a landlord.

Section 86(1)(c)

An entry notice was given to you for the purpose set out in this section.

11. The loss or damage caused is

The property manager wasn’t granted access to inspect the property on 20/11/19 as per notice of entry number 3365508.  Then wasn’t granted access again on 25/11/19 as per remedy on breach notice 3372575.

12. Compensation or compliance required

I require you to remedy the breach within 14 days after receiving this notice by Allowing access on Thursday 28th November 2019 at 2 pm as discussed or pay me $200.00 compensation.

13. You must not commit a similar breach again.  If you do not comply with this notice:

- The landlord may apply to the Victorian Civil and Administrative Tribunal for a compensation order; or

- If S249 applies, may give notice to vacate.

  1. On 28 November 2019, Mr Tidd texted Mr Gunther cancelling the inspection.  Again, he gave no reason for the cancellation.

  1. Also on 28 November 2019, Mr Tidd’s general practitioner provided a medical certificate stating that Mr Tidd ‘has epilepsy and has had recurrent and uncontrolled seizures’.  There is no evidence that this certificate was provided to First National, or that Mr Tidd’s epilepsy was the reason why he cancelled the inspections on 25 or 28 November.

  1. It appears that nobody from First National went to the property on 28 November 2019 to attempt an inspection, or contacted Mr Tidd to reschedule the inspection.  Instead, Ms Cassar sent a notice to vacate to Mr Tidd, by registered mail.  The notice to vacate required Mr Tidd to vacate the property on 19 December 2019.  The stated reason for the notice to vacate was:

Section 249(1)

You have breached a duty owed under a duty provision within part 5 of the Act for the third time. You have been given notice twice before to remedy the breach or pay compensation.

You have denied access for entry as per original notice number 3365508, for the 3rd time now.  First access was scheduled for 20/11/19 and this was cancelled by you via phone call that morning.  Rescheduled for 25/11/19.  Breach no 3372575.  Second time was cancelled by you on the morning of the 25/11/19 via meeting in the office.  Breach no 3375698.  Rescheduled for 28/11/19.  This 3rd appointment has been cancelled via text message at 12.15pm on 28/11/19.

Possession order

  1. On 20 December 2019, Ms Jeffcott applied to the Tribunal for a possession order, under s 322 of the RT Act, based on ‘successive breaches’. The details provided about the application were:

Landlord is seeking possession based on 3 consecutive breaches for the tenant refusing to allow entry.  Rent has also not been paid.  Overall the tenant is refusing to cooperate with the managing agent.

  1. After some delays, the application was listed for hearing on 20 February 2020 at 9:30 am.  Mr Tidd applied for a further adjournment, which was refused.  The hearing proceeded as listed on 20 February 2020.  Ms Cassar and Mr Gunther attended on behalf of Ms Jeffcott; Mr Tidd did not attend, and did not participate by telephone. 

  1. The hearing was recorded and subsequently transcribed.  It is apparent from the transcript that the Tribunal had before it copies of the entry notice, the first breach notice, the second breach notice, and the notice to vacate.  It also had a summary of proofs form completed by Ms Cassar on 20 February 2020, which referred to the following outline of issues and timeline of events:

    ISSUES:

    1.   Michael continued to refuse an inspection, as he had done so many times with the landlord

    2.   Landlord very worried about state of the property - as front lawn is always over grown, front gate is secured shut by cable ties, car full of rubbish being kept in drive way, carport full of rubbish and belongings, all front windows are covered, cameras are set up

    3.   Michael refused to pay rent to us as the managing agents, instead carried on paying to landlord

    4.   Michael refused to sign his bond form. This has been lodged without his details. RTBA are holding it.

    Timeline of events:

    6th Nov 2019 - took over management

    11th Nov 2019 - after a week of trying to get a hold of Michael, via text and phone calls, Mark and I popped round and left our card in the door

    12th Nov 2019 - Michael came in for a meeting. I explained the rental payments and gave him bank details, also explained that he needed to sign his bond form.  Also confirmed initial inspection time for 20th November at 11 am.

    20th Nov 2019 - Michaels girlfriend Margaret called and claimed she had to take Michael to hospital.  Did not provide proof (as apparently, they have used this excuse many times before with the landlord) Breached Michael and rescheduled for 25th Nov at 2pm.

    23rd Nov 2019 - Michael called the office, refused to speak to me as he said he only wanted to speak to a man. Was told Mark wasn't in and he would call him back on Monday

    25th Nov 2019 - Michael came in to meet with me at 11:45am. Apparently did not want to speak to Mark anymore??  Refused to sign his bond form.  Refused to pay rent to us.  Cancelled inspection time and admitted he was just making things difficult for both of us.  Breached him.  Rescheduled for Thursday 28th Nov 2pm.

    28th Nov 2019 - Michael text Mark to say he does not agree to the inspection at 2pm.  Sent NTV as 3rd breach.

  1. Ms Cassar provided the Tribunal with a number of other supporting documents, including a log of the text messages she had exchanged with Mr Tidd, as follows:

(a)        Ms Cassar to Mr Tidd, 7 November 2019 at 3:08 pm:

Hi Michael, have tried calling and it went straight to voicemail.  My name is Yasmin Cassar from First National Real Estate and I have recently been appointed as the managing agent of [address].  Could you please give me a call at the office [telephone number], as soon as possible so I can introduce myself and let you know new banking details for your rental payments.  Speak soon.  Thanks, Yasmin.

(b)       Ms Cassar to Mr Tidd, 11 November 2019, 4:11 pm:

Hi Michael, Mark and I attempted to pop in and introduce ourselves but you didn’t seem to be home.  I have also tried calling with no luck.  Could you please call me back at the office to discuss your future rental payments and some details to lodge your bond with the RTBA.  Thanks, Yasmin Cassar – Mark Gunther First National [telephone number]

(c)        Ms Cassar to Mr Tidd, 12 November 2019, 4:31 pm:

Hi Michael, I have prepared your bond lodgement form for signing so pop in when you can.  Mark will be in the office until 5pm today if you would like to meet him also.  Thanks, Yasmin – MGFN

(d)       Ms Cassar to Mr Tidd, 17 November 2019, 4:31 pm:

Hi Michael, have tried calling just checking in as you have not popped into the office to sign your bond form.  I also wanted to make sure you have picked up your registered post with our notice of entry for your inspection on Wednesday.  Could you please get back to me or pop into the office before then.  Thanks, Yasmin Cassar – MGFN

(e)        Ms Cassar to Mr Tidd, 20 November 2019, 12:50 pm:

Hi Michael, as discussed with Margaret earlier, we have rescheduled your inspection for Monday 25th Nov at 2pm.  I will pop an official notice for the inspection in your letterbox this afternoon.  Thanks, Yasmin Cassar – MGFN

(f)        Ms Cassar to Mr Tidd, 25 November 2019, 9:34 am:

Hi Michael, Mark is unable to get back to your call this morning, however he will be attending the inspection this afternoon and is happy to discuss then.  Thanks, Yasmin – MGFN

(g)       Mr Tidd to Ms Cassar, 25 November 2019, 10:13 am:

Hello Yasmin, I have only just received your message.  I just phoned your office requesting contact.  I would like to speak to either yourself or Mark Gunther about some legal issues concerning the issues we have.  Thanks, Michael

(h)       Ms Cassar to Mr Tidd, 25 November 2019, 4:55 pm:

Hi Michael, just sending confirmation that as per discussion in the office today, we have rescheduled your inspection to Thursday 28/11/19 at 2pm.  See you then.  Thanks, Yasmin – MGFN

(i)         In addition, there was a screen shot of a text exchange between Mr Gunther and Mr Tidd, presumably on 28 November 2019:

G’day Michael.  Haven’t heard from you.  See you at 2pm.  Thanks Mark Gunther

Hello Mark, i was just about to ring.  I only just noticed your mess just now when I was going to ring you.  Im not going to agree on the time.  Im sorry I did say I would get back to you this morning.  I hope you enjoy your day.  I’m sure you’ve got plenty to do.  Sorry if I’ve put you out.  Thank you Michael.

Thanks for letting us know.

  1. Ms Cassar also gave sworn evidence to the effect that:

(a)        The landlord had been managing the property herself, and had continual issues with the tenant not allowing access for inspections.  The landlord had agreed to maintain the garden for Mr Tidd, but he had refused to let the gardener come.  The landlord went to First National seeking help.

(b)       Mr Tidd had similar issues with First National, and ‘is not wanting to cooperate with anything’.  They had served two breach notices and then he refused entry again, which was when they sent the notice to vacate.

(c)        Nobody had been onto the property, and Ms Cassar could ‘only imagine’ what it was like.  Mr Tidd ‘doesn’t really get back to us’, although they knew he had a working phone.

(d)       She was not aware of any issue about rent.  Mr Tidd refused to pay rent to First National, and was still directing it to the landlord.  He had been ‘a bit difficult’.

  1. The Tribunal made the possession order at the conclusion of the hearing on 20 February 2020, in the following terms:

The Tribunal finds that:

1. The landlord gave the tenant not less than 14 days' notice to vacate on the grounds that the tenant has breached a duty provision namely s86 and

2. On 2 previous occasions the tenant has been in breach of the same provision and

3. The landlord has on each occasion given a breach of duty notice to the tenant under section 208 of the Residential Tenancies Act 1997

The Tribunal orders and directs that:

1. The landlord is entitled to a possession order

2. The tenant must vacate the rented premises by 20/02/20.

3. The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 20/08/20).

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

  1. An application by Mr Tidd under s 120 of the VCAT Act, to reopen the possession order, was dismissed on 27 March 2020. The Tribunal member who dealt with that application directed the Principal Registrar not to issue any warrant of possession at the request of the landlord before 13 April 2020.

Warrant order

  1. In the meantime, the COVID-19 pandemic had reached Australia, and the Victorian Government had taken a number of emergency measures to limit the spread of the virus and to alleviate hardship caused by those measures.  The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), among many other things, amended the RT Act to include a new Part 16 – COVID-19 temporary measures. Part 16 has effect from 29 March 2020.

  1. Part 16, Division 10 contains transitional provisions, of which s 613 is relevant here. It provides:

A person who obtained a possession order under Part 7 before 29 March 2020 is not entitled to a warrant of possession at any time on or after that date, unless the possession order could have been made under this Part had this Part been in operation at the time.

Note

A possession order may only be made under this Part if the Tribunal makes a termination order under this Part.

Section 613 applied in this case, because Ms Jeffcott obtained the possession order before 29 March 2020, but had not obtained a warrant of possession by that date. 

  1. On 29 April 2020, Ms Jeffcott requested the issue of a warrant of possession.  The Tribunal made the following order in relation to that request:

VCAT finds:

1.The applicant obtained a possession order on 20 February 2020 and has requested the issue of a warrant of possession.

2.Due to the passage of the COVID-19 Omnibus (Emergency Measures) Act 2020, and the Residential Tenancies (Covid-19 Emergency Measures) Regulations 2020 which amended the Residential Tenancies Act 1997 (the Act) for a temporary period, the applicant is not entitled to a warrant of possession unless the possession order could have been made under Part 16 of the Act, had that Part been in operation at the time the possession order was made.

3.The application for a warrant of possession has been referred by the Principal Registrar to the Tribunal under section 71(6) of the Victorian Civil and Administrative Tribunal Act 1998.

4.A further hearing is required so that VCAT can determine whether the possession order could have been made under Part 16 of the Act.

5.The parties are on notice that the Tribunal must consider whether that order could have been made under Part 16, by reference to matters under sections 549 and 551 of the Act (see parties should provide any and all documents that support any arguments relevant to “reasonable and proportionate” and the “Covid-19 reason” as defined under the Act, including (if relevant) any financial information relevant to the issue of payment of rent.

VCAT orders and directs that:

1.This matter be listed for a further hearing on a date and time to be fixed, to determine the application for the issue of a warrant under s.351 of the Act.

2.Despite paragraph 3 of the Tribunal’s order dated 20 February 2020, a warrant of possession must not be issued by the Principal Registrar, unless and until further orders are made by VCAT.

3.No later than 48 hours before the hearing, the parties MUST send an email to each other, and to the Tribunal ([email protected]), that contains all the documents they are seeking to rely on.  The email must have the VCAT case number and hearing date and time in the subject line.

  1. The hearing of Ms Jeffcott’s request took place on 22 June 2020, by telephone.  Mr Tidd and Ms Cassar participated in the hearing, which unfortunately was not recorded or transcribed.  As a result of the hearing the Tribunal made the warrant order, in the following terms:

VCAT finds:

1. On 20 February 2020 the Tribunal made a possession order requiring the tenant to vacate by 20 February 2020.

2. On 29 April 2020 the landlord requested the Principal Registrar to issue a warrant of possession.

3. The Residential Tenancies Act 1997 (the Act) and the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 which remain in effect until 26 September 2020 provide that, in the above circumstances, the landlord is not entitled to a warrant of possession, unless the possession order could have been made under Part 16 of the Act, had Part 16 been in effect at the time the order was made.

4. In this case, the possession order dated 20 February 2020 could have been made under Part 16 of the Act, had Part 16 been in effect of the time the order was made. The order for possession was made under section 249 of the Act due to the refusal of the tenant to permit entry in accordance with the Act which refusal continues and is not based on any reason resulting from the COVID-19 emergency.

5. The landlord is entitled to the issue of a warrant of possession.

The Tribunal orders that:

1. The landlord's request for the issue of a warrant of possession is granted.

2. The Principal Registrar is directed to issue a warrant of possession upon the request of the landlord and upon payment of the appropriate fee.

  1. As mentioned, a warrant of possession has not yet issued, due to a series of stay orders.  Most recently, on 4 August 2020, Keith JR stayed both the possession order and the warrant order until the hearing and determination of this proceeding.

Grounds of appeal

  1. Mr Tidd seeks leave to appeal against both the possession order and the warrant order. It was common ground that the Tribunal could only have made the warrant order if the possession order was validly made on 20 February 2020, and if it could have been made under Part 16 had it been in operation at the time. The logical starting point is therefore the grounds of appeal against the possession order.

  1. The amended notice of appeal raised the following questions of law in relation to the possession order:

1. Can a single notice of entry under s 88 of the Residential Tenancies Act 1997 (Vic) (the RTA) (an entry notice) give rise to more than one breach of a tenant’s duty under s 89 of the RTA (a s 89 breach)?

2. Can a notice given under s 208(1) of the RTA (a breach notice), that contains a requirement under s 208(2)(c)(i) that the tenant remedy a s 89 breach by allowing entry at a specified time, simultaneously constitute a new entry notice?

3. If (a) an entry notice has been given; and (b) a breach notice has then been given for a s 89 breach in respect of that entry notice; and (c) the “required time” (within the meaning of s 207 and 208(2)(c) of the RTA) has not passed — can a new entry notice be given for the same purpose as the first entry notice?

4. If (a) an entry notice has been given; and (b) a breach notice has then been given for a s 89 breach in respect of that entry notice; and (c) a new entry notice has then been given before the “required time” in the first breach notice has passed; and (d) a further breach notice has then been given for a s 89 breach in respect of the second entry notice — is the condition in s 249(1)(b) satisfied?

5. Is the condition in s 249(1) satisfied if the “required time” for any breach notice referred to in s 249(1)(c) has not yet passed?

6. Must a notice to vacate given under s 249(1) of the RTA, for successive s 89 breaches, particularise the grounds or reasons for seeking entry or the right of entry relied upon, in order to comply with s 319 of the RTA?

7. Did the Tribunal reach an irrational view as to whether the elements in s 249 of the RTA were satisfied, such that a precondition of the exercise of the power to make the possession order had not been met?

8. Does the Tribunal have power to make the possession order on the basis of a notice to vacate issued under s 249(1) of the RTA, in circumstances where the elements of s 249 of the RTA were not met?

9. In making a possession order, must the Tribunal allow the tenant a reasonable time within which to vacate the premises?

  1. The grounds relied upon in relation to these questions of law were:[1]

    [1]Ground 1 was not pressed.

2. The Tribunal erred by making a possession order under s 330(1) of the RTA as it had no jurisdiction to determine the defendant’s application for a possession order under s 322(1) of the RTA, because the Notice to Vacate did not comply with s 319(d) of the RTA in that it did not adequately particularise the basis for the Notice to Vacate.

3. The Tribunal erred by making a possession order under s 330(1) of the RTA because it had no jurisdiction to determine the matter in circumstances where the threshold requirements for the issuing of the Notice to Vacate under s 249 of the RTA did not exist or were not met.

4. The Tribunal erred by failing to perform its statutory task under ss 330 and 249 of the RTA in that it did not consider whether the landlord was entitled to give the notice to vacate.

5. In the alternative to the grounds stated at paragraph 4, the Tribunal erred by failing to take into account relevant considerations, namely:

a.   Whether Mr Tidd had breached the same duty provision three times; and

b. Whether the respondent had given Mr Tidd two breach of duty notices in respect of the first two alleged instances of breach in accordance with ss 249(1)(c) and 208 of the RTA.

6. It was irrational for the Tribunal to find that the elements in s 249 of the RTA were satisfied, which meant that a precondition of the exercise of the power to make the Possession order was not met.

7. It was manifestly unreasonable for the Tribunal to order that Mr Tidd vacate the premises on the date that the Possession order was made.

  1. There were hence two broad issues to be determined in relation to the possession order:

(a)        Did the Tribunal have jurisdiction to make the possession order?

(b)       If so, was it legally reasonable for the Tribunal to make the possession order?

Relevant provisions

  1. As noted, the notice to vacate was given under s 249 of the RT Act. That section provides:

Successive breaches by tenant

(1) A landlord may give a tenant a notice to vacate rented premises without first serving a breach of duty notice under section 208 if—

(a) the tenant has breached a duty provision within the meaning of Part 5; and

(b) on 2 previous occasions the tenant has been in breach of the same provision; and

(c) the landlord or the landlord's agent has on each occasion referred to in paragraph (b) given a breach of duty notice to the tenant under section 208.

(1A) If the landlord gives a breach of duty notice to the tenant under section 208 in respect of the breach referred to in subsection (1)(a), the landlord must not give the tenant a notice to vacate under this section unless the tenant has not complied with the breach of duty notice within the required time.

(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

  1. Section 208 provides for the giving of a breach of duty notice, in the following terms:

(1) A person to whom a duty is owed under a duty provision or that person's agent, may give a breach of duty notice to a person in breach of that duty.

(2) A notice under subsection (1) must—

(a) specify the breach; and

(b) give details of the loss or damage caused by the breach; and

(c) require the person, within the required time after receiving the notice—

(i) to remedy the breach if possible; or

(ii)to compensate the person to whom the duty is owed; and

(d) state that the person in breach must not commit a similar breach again; and

(e) state that if the notice is not complied with—

(i) an application for compensation or a compliance order may be made to the Tribunal; or

(ii) …

(iii) if section 249, 283, 308 or 317ZB (as the case requires) applies, a notice to vacate may be given; and

(f)be in writing; and

(g) be addressed to the person allegedly in breach of the duty or his or her agent; and

(h) be signed by the person to whom the duty is owed or by that person's agent.

  1. The relevant duty provision in this case is s 89:

Tenant has duty to permit entry

A tenant has a duty to permit a person exercising a right of entry in accordance with this Division to enter the rented premises.

  1. The Division in which s 89 appears is Part 2, Division 8 – Rights of entry. Section 85 gives a landlord a right to enter rented premises:

A landlord or the landlord's agent has a right to enter rented premises together with any persons who are necessary to achieve the purpose of the entry—

(a) at any time agreed with the tenant if the tenant has consented not more than 7 days before the entry; or

(b) for a purpose set out in section 86, at any time between 8 a.m. and 6 p.m. on any day (except a public holiday) if at least 24 hours notice has been given to the tenant in accordance with section 88.

  1. The grounds for entry set out in s 86(1) include, relevantly:

(c)entry is required to enable the landlord to carry out a duty under this Act, the tenancy agreement or any other Act; or

…

(f)entry is required to enable inspection of the premises and entry for that purpose has not been made within the last 6 months; or

…

  1. A notice of entry for the purposes of s 85(b) must be in accordance with s 88, which provides:

A notice requiring entry must—

(a) be in writing; and

(b) state why the landlord or landlord's agent wishes to enter; and

(c) be given—

(i) by post; or

(ii) by delivering it personally to the tenant between the hours of 8 a.m. and 6 p.m.; and

(d) if entry is pursuant to section 86(1)(g), and the landlord has been given the name and contact details required under that paragraph, state the name of the excluded tenant's representative (if any).

  1. Section 87 provides for the manner of entry:

A person exercising a right of entry under this Division—

(a) must do so in a reasonable manner; and

(b) must not stay or permit others to stay on the rented premises longer than is necessary to achieve the purpose of the entry without the tenant's consent.

  1. It is an offence for a landlord or a landlord’s agent, without reasonable excuse, to enter rented premises otherwise than in accordance with Pt 2, Div 8.[2]

    [2]Residential Tenancies Act 1997 (Vic) (RT Act), s 91A.

  1. One of the requirements for a breach of duty notice under s 208, is that the notice specify the ‘required time’ within which the person served with the notice must remedy the breach or compensate the person to whom the duty is owed.[3] Section 207 includes a definition of ‘required time’ in various circumstances. Paragraph (a)(i) of that definition provides that the ‘required time’ in relation to ‘rented premises’ is:

for a duty under section 89 in relation to a right of entry for a purpose set out in section 86(1)(a), (c) or (f), 14 days;

[3]RT Act, s 208(2)(c).

  1. Ms Jeffcott’s application for a possession order was made under s 322(1) of the RT Act, which provides:

A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises …

  1. Section 330 provides that the Tribunal must make a possession order requiring a tenant to vacate rented premises on the day specified in the order if the Tribunal is satisfied, in the case of an application where notice to vacate has been given, that the landlord was entitled to give the notice.

  1. A notice to vacate is not valid unless it meets the formal requirements set out in s 319. These requirements have been described as ‘conditions precedent to the validity of the notice’.[4]  Relevantly here, a notice to vacate must specify the reason or reasons for giving the notice.[5]  This requires the relevant facts to be set out ‘with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict [him] and to contest those facts if [he] wishes’.[6]

    [4]Smith v Director of Housing (2005) 22 VAR 323, [14].

    [5]RT Act, s 319(d).

    [6]Smith, [18]; Jafarpourasr v Tancevski [2018] VSC 497, [46], [48].

Did the Tribunal have jurisdiction to make the possession order?

  1. The Tribunal’s jurisdiction to make the possession order was dependent upon the validity of the notice to vacate.[7]  Mr Tidd contended that the notice to vacate was invalid for a number of reasons:

    [7]Smith, [21], [23].

(a) It did not meet the requirement in s 319(d) to specify the reason for giving the notice, in that it did not specify, for any of the three alleged breaches, the ground or purpose of entry, the time at which entry was sought, or that notice of entry was given in accordance with s 88. As a result, neither Mr Tidd nor the Tribunal was informed of the essential facts on which First National asserted a right to entry on each occasion, or how Mr Tidd was said to have breached his duty to permit entry.

(b) The threshold requirements for giving a notice to vacate under s 249 were not met, because:

(i)         Mr Tidd did not breach a duty to permit entry on any occasion; and

(ii)       the required time for compliance with the breach notices had not expired when the notice to vacate was given.

Compliance with s 319(d)

  1. The reason specified in the notice to vacate was:

You have denied access for entry as per original notice number 3365508, for the 3rd time now.  First access was scheduled for 20/11/19 and this was cancelled by you via phone call that morning.  Rescheduled for 25/11/19.  Breach no 3372575.  Second time was cancelled by you on the morning of the 25/11/19 via meeting in the office.  Breach no 3375698.  Rescheduled for 28/11/19.  This 3rd appointment has been cancelled via text message at 12:15pm on 28/11/19.

  1. Mr Tidd submitted that this was insufficient to comply with s 319(d), because it did not set out the basis on which Ms Jeffcott said that her agent was entitled to enter the property. He argued that, without that information, he was unable to determine whether he owed a duty to permit entry on each occasion, or whether he might have breached that duty. Section 319(d) did not permit incorporation of other documents by reference; the notice to vacate had to disclose on its face how it was alleged that he owed a duty to permit entry, as well as the claimed breach of that duty.

  1. Ms Jeffcott argued that the notice to vacate provided enough information about the breaches relied on to comply with s 319(d). She pointed out that one of the purposes of the RT Act is to provide for inexpensive and quick resolution of disputes, and that the notice to vacate procedure was ‘blunt and speedy’.[8]  She relied on the observations of Bongiorno J in Smith v Director of Housing:[9]

The requirement laid down in s 319(d) is designed to require advice to be given to the tenant as to the reason the landlord demands possession with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. It requires no technical expression, no particular formal verbal formula and no particular legal knowledge to answer the question: “Why is this notice being given?” A basic facility for communication in plain English is enough.

[8]Smith, [13], citing Director of Housing v Pavletic (2002) 19 VAR 391.

[9]Smith, [17].

  1. I accept Ms Jeffcott’s submission on this issue. It is clear on the face of the notice to vacate that it was given on the basis that Mr Tidd had denied entry on three occasions, on 20 November 2019, 25 November 2019, and 28 November 2019. References were provided to each of the entry notice, the first breach notice, and the second breach notice. Mr Tidd was given all of the information necessary to understand why he was being told to vacate, and to assess whether there was a proper basis for the notice. It follows that the notice to vacate met the requirement in s 319(d).

Compliance with s 249

  1. While s 319 is concerned with the formal requirements of a valid notice to vacate, s 249 provides one basis on which a landlord can give a notice to vacate. It sits in Pt 6, Div 1, Subdiv 4 of the RT Act, with a number of other provisions that allow a landlord to give a notice to vacate. In each case, the notice to vacate can be given based on some state of affairs that must exist as a matter of objective fact. The Tribunal cannot make a possession order under s 330(1) unless it is satisfied that the landlord was entitled to give the notice to vacate, which requires it to determine whether the claimed basis for giving the notice to vacate existed in fact.

  1. It is for the Tribunal to make the necessary findings of fact, on the evidence before it. It is not for this Court, on an appeal under s 148 of the VCAT Act, to find those facts. Mr Tidd’s contention that the threshold requirements of s 249 did not exist do not really relate to the Tribunal’s jurisdiction to make the possession order. They are arguments that the Tribunal’s finding that Ms Jeffcott was entitled to a possession order involved an error of law. I therefore consider the submission that Mr Tidd was not, in fact, in breach of s 89 below, in relation to whether it was legally unreasonable for the Tribunal to make the possession order.

  1. Mr Tidd’s argument that the notice to vacate was premature, because it was given before the required time for compliance with the breach notices had expired, is best considered as an argument that the Tribunal misconstrued s 249 of the RT Act in making the possession order.

Did the Tribunal misconstrue s 249?

  1. Section 249(1) allows a notice to vacate to be given in respect of successive breaches by a tenant without first serving a breach of duty notice under s 208 in the following circumstances:[10]

    [10]Section 249 is set out in full at [33] above.

(a)        the tenant has breached a ‘duty provision’;[11] and

(b)       on two previous occasions, the tenant has been in breach of the same provision; and

(c) on each of the two previous occasions, the landlord or the landlord’s agent has given a breach of duty notice to the tenant under s 208.

[11]RT Act, s 207 defines ‘duty provision’ for the purposes of Pt 5. It includes, in relation to rented premises, s 89.

  1. Section s 249(1A) provides that, if the landlord gives a breach of duty notice in relation to the third breach, the landlord cannot give a notice to vacate under s 249 unless the tenant has not complied with the notice within the required time. However, the section is silent on the question of whether the ‘required time’ in relation to the first breach of duty notice must have elapsed before the second notice can be served. It is also silent on whether the required time for compliance with both breach of duty notices must have elapsed before a notice to vacate can be given.

  1. First National gave the first breach notice on 20 November 2019, and the second breach notice on 25 November 2019.  In each case, the ‘required time’ for remedying the breach or paying compensation was 14 days.  That period had not elapsed when the notice to vacate was given on 28 November 2019, eight days after the first breach notice, and only five days after the second breach notice. 

  1. Mr Tidd argued that First National was not entitled to give a notice to vacate under s 249 until the required time for compliance with both breach notices had expired. He submitted that construing s 249 in that way was inconsistent with the language of the RT Act, as well as ‘the overarching objective of the RTA … to protect the rights of tenants’,[12] and would deny tenants the benefit of the 14 day period allowed for compliance with a breach of duty notice.

    [12]Citing Jafarpourasr, [49].

  1. Ms Jeffcott submitted that both breach notices provided Mr Tidd with a mechanism to remedy the breach within the required time, by specifying an agreed inspection time within 14 days of the breach. She argued that, when Mr Tidd declined to allow the agreed inspections on 25 and 28 November 2019, he failed to remedy the breaches. This was a sufficient basis, in Ms Jeffcott’s submission, for a notice to vacate under s 249. Requiring the landlord to wait the full 14 days would not be consistent with the purpose of the RT Act of providing inexpensive and quick resolution of disputes.

  1. I consider that, properly construed, s 249 does not permit a notice to vacate to be given until after the required time for compliance with the two previous breach of duty notices has elapsed. While the text of s 249 is silent on this issue, there are a number of indications in the context and purpose of the RT Act that favour this construction of s 249:

(a) First, s 249 engages the breach of duty notice mechanism in s 208 of the RT Act. As well as specifying the breach, a notice under s 208 must give the person the required time to remedy the breach or provide compensation, and must state the consequences of not complying with the notice.[13] The consequences include that a notice to vacate may be given under s 249.[14] The scheme of s 208 is that the required time for compliance with a breach of duty notice must expire before the tenant is exposed to the consequences of non-compliance. Section 249 should be interpreted to operate consistently with that scheme.

[13]Section 208 is set out at [34] above.

[14]RT Act, s 208(2)(e)(iii).

(b) Second, s 249(1A) prevents a notice to vacate being given during the required time for compliance with a third breach of duty notice, if one is given. This further supports reading s 249(1) to require a landlord to give a tenant the required time to comply with the previous notices under s 208 before resorting to the sanction of a notice to vacate.

(c) Third, the immediate context in which s 249 appears is in Pt 6, Div 1, Subdiv 4 of the RT Act, in a series of provisions that allow a landlord to give a notice to vacate due to some serious matter. None of them is a trivial or technical cause for terminating a tenancy. For example, a notice to vacate may be given to a tenant under s 243 for malicious damage to the premises or common areas, under s 244 for endangering the safety of neighbours, under s 245(1)(a) if the premises are unfit for human habitation, under s 248 for failure to comply with a Tribunal order, and under s 250 for using the premises for an illegal purpose. This context does not support interpreting s 249 as a fast track notice to vacate mechanism. Rather, it supports limiting the application of the provision to circumstances where the tenant has been given the required time to remedy each of the previous breaches.

(d) Fourth, s 249(1) originally contained an additional requirement, in paragraph (d), that ‘the tenant has on each occasion remedied the breach or paid compensation for the breach within the period required under s 208’. This paragraph was repealed by the Residential Tenancies Amendment Act 2002 (Vic). The purpose of the amendment was to give a landlord the ability to give a notice to vacate to a tenant for a third successive breach of the same duty, ‘whether or not the breach has been remedied or compensation has been paid for the breach on each occasion’.[15]  This amendment contemplated that the breach of duty notices given on the previous occasions would either result in compliance, or expire without the breach having been remedied.

(e) Fifth, given that the notice to vacate procedure is ‘blunt and speedy’, ‘justice requires that any interpretation of the timing requirements … of the Act ought to favour the tenant, who is otherwise completely vulnerable’.[16] Insisting that a landlord give a tenant the required time to comply with previous breach of duty notices before giving notice to vacate under s 249 does not undermine the statutory purpose of providing for inexpensive and quick resolution of disputes. Rather, it prevents a landlord from pre-emptively escalating a dispute before the tenant has had the time prescribed by the RT Act to remedy the breach.

[15]Explanatory Memorandum for the Residential Tenancies (Amendment) Bill 2002 (Vic), cl 90(2).

[16]Bundy v Alberts (2007) 26 VAR 283, 13; see also Veitch v Director of Housing (2008) 30 VAR 72, [22].

  1. The first breach notice and the second breach notice in this case required Mr Tidd to remedy the breach within 14 days after receiving the notice, by allowing access on, first, 25 November and, second, 28 November, or by paying $200 compensation. I do not accept Ms Jeffcott’s submission that the requirements of s 208(2)(c) could be satisfied by specifying an occasion within the required time of 14 days on which access could be allowed. It was one way, but not the only way, in which Mr Tidd could remedy the breach. He could have rescheduled the inspection to a later time within the 14 day period for compliance, or alternatively could have paid $200 compensation during that period.

  1. It follows that the Tribunal’s conclusion that Ms Jeffcott was entitled to a possession order was based on a misunderstanding of s 249. Ms Jeffcott was not entitled to give a notice to vacate under s 249 until after the expiry of the required time for compliance with both the first breach notice and the second breach notice – that is, not before 9 December 2019. The notice to vacate given on 28 November 2019 was premature.

  1. It is therefore not necessary to determine Mr Tidd’s alternative argument, that the landlord could not give the second breach notice until the time for compliance with the first breach notice had elapsed.

Was it legally unreasonable for the Tribunal to make the possession order?

  1. Mr Tidd contended that, on the evidence before the Tribunal, no rational or logical decision-maker could have concluded that Mr Tidd had breached s 89 three times.[17] He argued that it was manifestly unreasonable to conclude that he breached the duty to permit entry on 20 November 2019, when he was unable to do so because of illness. He further submitted that the first breach notice and the second breach notice were not valid notices of entry for the purposes of s 88, because they did not state the reason why entry was sought on 25 and 28 November 2019. In addition, the first breach notice was not delivered by post or personally to the tenant, as required by s 88(c).

    [17]Relying on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [130] (Bell and Crennan JJ).

  1. Ms Jeffcott submitted that Mr Tidd breached s 89 on 20 November 2019 because he did not permit the inspection to go ahead on that day, as had previously been arranged. She pointed out that there is no ‘reasonable excuse’ exception to the duty to permit entry in s 89. She accepted that it would have been possible for Ms Cassar to attend the property at the appointed time and insist on entering, but submitted that the Court would not want to encourage such an approach. I understood that to be a submission that the Court should not interpret the right of entry provisions in the RT Act in a way that encourages landlords or their agents to enforce a right of entry against the wishes of a tenant.

  1. The difficulty with this submission was that it ignored the right of entry scheme in Pt 2, Div 8 of the RT Act, which gives a landlord or landlord’s agent a right to enter rented premises without the tenant’s consent. The right may be exercised only for the purposes set out in s 86(1), and only if notice has been given strictly in accordance with s 88. The tenant’s duty in s 89 is to permit a person exercising a right of entry to enter the rented premises. Significantly, a person exercising a right of entry under Div 8 must do so in a reasonable manner.[18]  The submission also overlooked the advice given in the entry notice, that if Mr Tidd was unable to attend the inspection ‘we shall gain access using the office set of keys’.[19]

    [18]RT Act, s 87(a).

    [19]The entry notice is set out in full at [9] above.

  1. The evidence before the Tribunal was that, before the time appointed for the inspection on 20 November 2019, ‘Michael’s girlfriend Margaret called and claimed she had to take Michael to hospital’.[20]  Ms Cassar did not attend the property and attempt to exercise the right of entry that afternoon.  Instead, she rescheduled the inspection for 25 November 2019, as advised in her text message to Mr Tidd.[21]  This was a reasonable response in the circumstances.  Indeed, it probably would not have been reasonable for Ms Cassar to exercise the right entry, when she had been told that Mr Tidd had been taken to hospital.  In circumstances where Ms Cassar did not attempt to exercise the right of entry on 20 November 2019, but simply rescheduled the inspection to a later date, there was no rational or logical basis for the Tribunal to conclude that Mr Tidd had breached his duty to permit her to enter the property.

    [20]Outline of issues and timeline of events provided by Ms Cassar to the Tribunal at the hearing on 20 February 2020, set out in full at [21] above.

    [21]See [20](e) above.

  1. It follows that it was not open to the Tribunal to conclude that Mr Tidd had been in breach of his duty to permit entry on two previous occasions, that Ms Jeffcott was entitled to give a notice to vacate under s 249, or that she was entitled to a possession order. As a result, it is not necessary to determine the other grounds on which Mr Tidd contends that the possession order was legally unreasonable. Nor is it necessary to deal with his grounds of appeal against the warrant order, including the questions raised about the application of Pt 16 of the RT Act.

Disposition

  1. Mr Tidd has established two errors of law that were material to the possession order made by the Tribunal on 20 February 2020. First, Ms Jeffcott was not entitled to give the notice to vacate under s 249 on 28 November 2019, because the time for compliance with the first breach notice and the second breach notice had not expired. Mr Tidd had until 9 December 2019 to remedy the claimed breaches by permitting First National to inspect the property. Second, there was no logical or rational basis on which the Tribunal could have found that Mr Tidd breached his duty under s 89 on 20 November 2019, the first previous ‘breach’ relied on in the notice to vacate. Leave to appeal will be granted, and the appeal will be allowed. Both the possession order and the warrant order must be set aside.

  1. I have considered whether the proceeding should be remitted to the Tribunal for further hearing and determination, under s 148(7)(c) of the VCAT Act. I am conscious that it is for the Tribunal, not this Court, to make the factual and evaluative judgments given to it by the legislature in the RT Act.[22] However, the effect of the notice to vacate being given prematurely is that it was never open to the Tribunal to make the possession order. In those circumstances, there is no point in remitting the proceeding to the Tribunal. Instead, I will make an order under s 148(7)(b) of the VCAT Act, dismissing Ms Jeffcott’s application for a possession order.

    [22]Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320, [19]-[20] (French CJ, Gummow and Bell JJ; Chief Commissioner of Police v McIntosh (2010) 33 VAR 355, [36].

  1. I will hear the parties on the question of the costs of the proceeding.


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Cases Citing This Decision

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Jafarpourasr v Tancevski [2018] VSC 497
Smith v Director of Housing [2005] VSC 46
W64/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 970