The Law Handbook 2024

524 Section 6: Houses, communities and the road but rather a loss similar to losses set out in the ‘travel holiday cases’ (for example, Jarvis v Swans Tours Ltd [1972] EWCA 8). The court recognises two forms of distress and disappointment that may be compensated; that which comes as a consequence of physical inconvenience, and that which comes from a breach where the contract was objectively concerned with the renter’s state of mind. In Young, the court agreed that the renting of a home is a contract that is fundamentally concerned with safety and security of the renter and this has a direct bearing on the mind. Accordingly, this overcomes the common law presumption against claims for distress and disappointment in transactions such as business or commercial contracts. This decision emphasises that the duty to provide ‘quiet enjoyment’ is a duty fundamentally concerned with the renter’s state of mind and that rental provider’s or agents should be cautious about ignoring or mistreating renters. The types of evidence to substantiate and quantify claims for distress and disappointment remains to be seen. Distinguishing between a claim for a breach of quiet enjoyment and distress and disappointment of mind will need to be drafted carefully to avoid ‘double recovery’ (see para 24 of Young) and to show the claim is reasonable. It is anticipated that the test regarding the amount of compensation will be objectively determined. That is to say, the distress and disappointment will likely be referenced to what the ‘reasonable person’ would have experienced because of the breach rather than taking into consideration an applicant’s specific disposition or susceptibility to distress or disappointment. Young also makes it clear that the enabling enactment (in this case, the RT Act) does not operate in isolation or to the exclusion of the common law when being interpreted by the tribunal. Rather, the interpretation of an enabling Act must rely and draw upon common law principles available to clarify and ensure a harmonious and consistent application of the law across jurisdictions to the extent possible (Young at para 35). Ultimately, VCAT may reduce any claim. Generally, VCAT will not increase the amount claimed for a renter. Therefore, parties should be reasonable, and err on the side of making a larger claim, but expect that they will likely be reduced to a more reasonable amount. Parties should also pay particular attention to factors outlines in section 211, 211A and 211B of the RT Act regarding what VCAT considers when determining fault and amounts of compensation payable. Section 211 allows VCAT to consider a wide range of factors including the parties’ conduct and reasonable offers, actions and inactions leading up to the point of VCAT’s determination. It is important, however, that the obligation to mitigate loss specifically is not overstated or misconstrued (see Portbury Development Co Pty Ltd v Ottedin Investments Pty Ltd & Ors [2014] VSC 57 (28 February 2014) at 157). One of the factors considered under section 211(h) of the RT Act relevant to compensation related to repairs is whether the renter gave the rental provider written notice of the damage or disrepair as soon as practicable, as required under section 72AA of the RT Act. Therefore, it is important that renters always give this written notice as soon as practicable when repairs are required, so that they do not jeopardise any potential future compensation claims. When determining a compensation claim, VCAT is required to consider certain guidelines issued by CAV. These guidelines cover maintenance, cleanliness, damage, fair wear and tear, and urgent repairs (s 211B RT Act). Refer to the Director Guidelines on the CAV website (www.consumer.vic. gov.au) . Jurisdiction VCAT has jurisdiction to hear claims of up to $40 000, or a higher amount if the parties agree (s 447(1) RT Act). VCAT cannot hear claims for compensation for death, personal injury, or pain and suffering (s 447(2)). Interstate parties In the Supreme Court decision of Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30 (25 February 2020), the court confirmed that VCAT lacks the jurisdiction to determine matters where one party lives in another state. This does not apply to companies, territories, or parties who live overseas. Parties may still apply to VCAT and make submissions about whether a party who is in an excluded jurisdiction is in fact a resident (as distinct from being domiciled) (see Howe (1922) 31 CLR 290 at 329; Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621). However, if it is clear that one