The Law Handbook 2024

Chapter 6.1: Tenancy 515 Parties who are considering asking VCAT for written reasons for its decision should consider the implications of the decision being published in the public domain. The decision may contain personal details, unless VCAT determines that the privacy of the information ought to be protected (ss 17–19 Open Courts Act 2013 (Vic)). See Tucceri v Sokolov (Residential Tenancies) [2022] VCAT 653 (14 June 2022). Reasonable and proportionate test If VCAT decides the rental provider has proved they had grounds to give the renter a Notice to Vacate, it must then decide whether it is ‘reasonable and proportionate’ to end the rental agreement. VCAT must consider the impact a possession order would have on: • the renter; • any co-renters who live with the renter; • the rental provider; and • neighbours or other people who may be, or were, affected by the renter’s acts or behaviour (s 330 RT Act). VCAT must then consider these interests in relation to a range of factors (s 330A RT Act) including: • the hardship the renter and their household may suffer if a possession order is made; • the hardship of other parties (e.g. the rental provider) if a possession order is not made; • the nature, frequency and duration of any conduct that led to the Notice to Vacate; • whether the breach is trivial or minor; • whether the breach was caused by someone else who is not a renter; • whether the breach has been fixed, as much as it practically could be, or soon will be; • any family violence or personal violence intervention orders or related matters; • the effect of the renter’s conduct on other renters; • whether any other VCAT order or other course of action is more suitable than ending the rental agreement; • any community impact statement from Homes Victoria; • the behaviour of the rental provider; and • anything else VCAT thinks is relevant. Therefore, it is important for renters to consider the range of information that may be relevant and assist VCAT in reaching its conclusions. For example, evidence in relation to the renter’s physical and mental health, and the impact a decision to evict may have on the renter’s health, may be relevant. It is up to the parties to choose what information they wish to share with VCAT (noting the Open Courts Act 2013 (Vic)). Much of the reasonable and proportionate test is based on ‘fault-based Notices to Vacate’ and offers limited assistance or protection against ‘no- fault Notices to Vacate’ (see Silver Winds Pty Ltd v Smith (Residential Tenancies) [2022] VCAT 773 (12 July 2022)). This is a new legal test and will need to develop according to consistent principles of law and interpretation. Decisions should be consistent, and the reasonable and proportionate test should not be mistaken for unfettered discretion (see Stanford v Stanford [2012] HCA 52 (15 November 2012) [38]). Much of the test is focused on the past conduct of the renter in the case of fault-based notices. Clinical interventions and therapeutic supports are often used to demonstrate that the conduct giving rise to the Notice to Vacate will not continue. This should be considered both important and relevant to submissions to prevent eviction (see Lodden Mallee Housing Services Ltd v OBG (Residential Tenancies) [2021] VCAT 1388 (17 November 2021)). Notably, in DZ (a pseudonym) v Unison Housing Ltd [2022] VSC 249 (19 May 2022), the Supreme Court held that VCAT had erred in considering the likelihood of changes in relation to section 330A(a), rather than section 330(j), of the RT Act and had failed to make necessary factual findings in relation to the frequency and duration of relevant breaches as required by section 330A(a) . Accordingly , careful reading of the reasonable and proportionate test and the reasoning behind decisions is necessary to determine if the test has been applied correctly and not arbitrarily. The Human Rights Charter may also be of some benefit in light of section 32 of the Act and the purposes of the RT Act (see s 3A(b)). There is a range of decisions from the void period that continue to be relevant to the consistent application of the reasonable and proportionate test. Note the introduction of ‘community impact statements’ when Homes Victoria is seeking possession (s 322A RT Act). These statements may be used in relation to most fault-based notices to