The Law Handbook 2024

526 Section 6: Houses, communities and the road unsuccessful party may be directed to reimburse the successful party their application fee. An applicant should include in their application a request to have their application fee reimbursed. This is at the discretion of VCAT (s 115A–D VCAT Act). Refer to the fee schedule and the fee waiver grounds on VCAT’s website (www.vcat.vic.gov.au) . Australian Consumer Law Parties may concurrently invoke the ACL&FTA). Since the reforms made to the RT Act on 29 March 2021, these provisionsmay be less relevant. However, they may still be of benefit, in particular for rental agreements that commenced before 29 March 2021. Invoking the ACL&FTA can be done by referring to section 184 of the ACL&FTA and checking the correct box on the general application form. This means applications may be made for amounts greater than $40 000. Such applications may attract higher application fees. However, it is necessary to show the relationship was in trader dispute (s 182 ACL&FTA). Under the ACL&FTA, VCAT may also consider the Australian Consumer Law ( ACL ), which is contained in schedule 2 of the Competition and Consumer Act 2010 (Cth). If cited as part of the application, VCAT may consider issues such as: • ‘misrepresentation’ (ss 29–30 ACL) (see also s 30E, 30G RT Act); • ‘unconscionable conduct’ (ss 21–22 ACL) (see also s 27B RT Act); • ‘unfair contract terms’ (ss 23–28 ACL; s 185 ACL&FTA) (see also s 28 RT Act); • ‘bait advertising’ (s 35 ACL) (see also s 30F RT Act); • guarantees as to ‘fitness for purpose’ (s 61 ACL) (see also s 68 RT Act); and • whether goods or services have been rendered with due skill and diligence (s 60 ACL) (see also ss 6, 12 Estate Agents (Professional Conduct) Regulations 2018 (Vic)). Previously, the RT Act did not clearly set out a renter’s right to cancel a rental agreement where the renter had been misled about the rental agreement. However, the RT Act now has clear mechanisms that allow renters to claim for compensation or (potentially) to obtain an order to end the rental agreement without incurring lease-breaking costs. These mechanisms only apply if the renter can show they were induced to enter the rental agreement by misleading and deceptive conduct (s 30E). Whether misleading conduct extends to and includes a failure to make statutorily required disclosures (s 30D) remains to be seen. Renters who believe they have been misled in this way cannot cancel the rental agreement themselves, but they can apply to VCAT for compensation or for an order to end the agreement (s 472(1A)). The ACL&FTA also provides VCAT with a wide range of remedies to resolve disputes (ss 184–185; pt 8.2 ACL&FTA). Personal injury claims It may be possible to make personal injury claims under the ACL&FTA for claims less than $10000 (s 182(3) ACL&FTA). However, there is some doubt as to whether an injury that is ‘significant’ would appropriately be brought to VCAT (see Allan v McLennan (Residential Tenancies) [2018] VCAT 1283 (22 August 2018)). It is strongly advisable to consult a personal injuries expert before proceeding with any such claim at VCAT. Given the complexity, gravity, unique time limits and other issues arising out of such claims, parties should seek legal advice. Limitation of action period Legal actions for a tort or breach of contract (such as a rental agreement) must be brought within six years of the alleged loss or damage occurring (s 5 Limitation of Actions Act 1958 (Vic)). After such time, an application may be statute barred. Note that the Limitation of Action Act was amended in 2023 to extend the meaning of ‘action’ to include actions at both court and VCAT (cf. Lanigan v Circus Oz [2022] VSC 35 (9 February 2022)). Evidence The success of a claim depends on what the renter can prove at VCAT. If the renter makes a claim, the renter has the onus of producing evidence that establishes on the balance of probabilities that: • the rental provider breached the tenancy agreement or the RT Act; • the breach caused loss or damage (or, occasionally, substantial quantifiable inconvenience); and • the amount the renter is claiming as compensation is reasonable.