The Law Handbook 2024

Chapter 6.1: Tenancy 513 possession supported by a notice must also specify the acts, facts, matters and circumstances, including the relevant dates being relied on in support of the application (r 8.08(1) VCAT Rules). Serving Notices to Vacate A Notice to Vacate must be given to the renter personally, or sent by registered post to the rented premises, or sent electronically in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic) (where the renter has consented to electronic service), unless VCAT orders otherwise (s 506(3) RT Act). In the prescribed rental agreement, clause 9 states that consent to be served a notice electronically cannot be inferred from the party’s use of electronic communications. Clause 9 also asks the renter and rental provider if they agree to receive notices and other documents electronically (e.g. by email or SMS). Renters should think about whether it suits them to receive notices by email or in person; they should consider factors such as whether they regularly check their emails, whether they always have enough phone or data credit, and whether they will be able to read and download notices on their phone. Parties can withdraw their consent to electronic service at any time, but it must be in writing. Parties should keep a record of their withdrawal of consent. It is not possible to avoid being served a notice by not picking it up. If the rental provider can produce evidence that the notice was properly sent, then the notice is regarded as having been served. By failing to pick up a notice or delaying doing so, a renter can deprive themselves of the benefit of a notice period. It is difficult to disprove service or obtain evidence that is sufficient to override the deeming of service. A renter may attempt to prove that the notice was not delivered at all or not delivered within time. For information about postal times, see www.vcat. vic.gov.au/case-types/residential-tenancies/when- to-send-notices. Where notices are sent via registered post, it is good practice to look up and check the tracking times. The issue of service was considered by the High Court in Fancourt v Mercantile Credits Ltd [1983] HCA 25. Either proof of total non-delivery or proof of non-delivery in time is required to disprove service. Showing non-receipt was held to be insufficient. (See also ss 140–141 VCAT Act; s 49 Interpretation of Legislation Act 1984 (Vic).) Possession application Once a Notice to Vacate has been served, the rental provider may apply for a possession order to allow them to take back possession of the property. VCAT does not have jurisdiction to order possession unless the rental provider has made an application for a possession order. Validity of applications Where an application for a possession order is purported to be supported by a Notice to Vacate (other than for overdue rent), it cannot be made until after the Notice to Vacate has been given to the renter (ss 322, 326 RT Act). However, if the Notice to Vacate was given for overdue rent, there are special rules about when or if a rental provider can apply for a possession order (see ‘Overdue rent’, above). An application for a possession order should not be made before a Notice to Vacate has been deemed to be served. Therefore, if an application to VCAT is made at the same time as a Notice to Vacate is sent to the renter, it should be considered to be invalid. (See Bundy v Alberts [2007] VSC 90 (2 April 2007.) It is important to compare the date of service of the Notice to Vacate with the date the application was filed with VCAT. If a rental provider or mortgagee applies to VCAT for a possession order, they must give the renter a copy of their application within seven days of applying to VCAT (r 4.09 VCAT Rules). Failure to comply with a VCAT rule is not necessarily fatal to a VCAT application in the same way as a defective or invalid Notice to Vacate. This is because the Notice to Vacate is a prerequisite to VCAT having power to hear the matter; VCAT cannot reach back in time to amend the notice to give itself power to hear the matter. In contrast, VCAT can allow parties to amend their application without the application being dismissed (s 127 VCAT Act). Procedural fairness and natural justice remain requirements of VCAT (ss 97–98 VCAT Act). Time to apply for a possession order A rental provider has 30 days after the termination date specified in the Notice to Vacate or the Notice of Intention to Vacate to apply to VCAT for a possession order (s 326 RT Act). Note, there