The Residential Tenancies Act 1997 (Vic) sets out the rights and duties of landlords and tenants, including the residents of caravan parks and rooming houses. Strict limits are set on bonds. Landlords’ rights of entry are limited by law. Tenants can be evicted only by legal process, but being in arrears on rent can result in a 14-day Notice to Vacate.

When a property is sold, a 60-day notice must be given. Tenants must give 28 days notice to vacate. VCAT can rule on all tenancy disputes, but appeals to VCAT rulings are complex and may be uneconomic.


Ben Cording

Principal Solicitor, Tenants Victoria

Hearings, appeals and offences under the Residential Tenancies Act

Last updated

30 October 2020

Proper forum

Transfer from court to VCAT

Sometimes parties may commence proceedings in a court rather than at VCAT. It is possible to request the matter be stayed and enable to parties to apply at VCAT (s 188 ACL&FTA). In exercising this discretion, the court must have regard to the costs, duration and advantage and disadvantage to the parties. This cannot be done if the matter has been transferred from VCAT to the court.

Transfer from VCAT to court

Similarly, sometimes parties may commence proceedings in at VCAT rather than a court. It is possible, pursuant to section 77 of the VCAT Act, for VCAT to strike out a matter if it thinks it more appropriately dealt with by another body or court. VCAT may do this upon request or at its own initiative.

Appeals under the Residential Tenancies Act

Appeals are highly complex and may not necessarily provide a practical long term or economic resolve in a tenancy matter. Comprehensive advice should always be sought before undertaking to appeal a VCAT decision.

Appeals from an order by VCAT are made pursuant to section 148 of the VCAT Act. The appeal itself is regulated (Supreme Court (General Civil Procedure) Rules 2015; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018).

For more information about appeals, see Pizer’s Annotated VCAT Act (6th edn) or contact a lawyer. See also the Supreme Court’s website (

Appealing a possession order

If a possession order is based on an error in law and the warrant has not yet been executed, there may be grounds for an appeal to the Supreme Court. If the warrant has been validly executed, it appears unlikely that the Supreme Court can reinstate the tenancy (see Re Cokyavuz [2016] VSC 370 (28 June 2016)).

Time limits

If a party is seeking to appeal a decision from VCAT, they must file an appeal within 28 days from the date of the order, or the provision of reasons for the decision, whichever is later. It may be possible to apply outside of the 28 days, with leave of the court.

Until the order in question is stayed by VCAT (s 149 VCAT Act), or interim orders are made by the Supreme Court, parties are expected to comply with orders and warrants may be executed. This means, for example, while a possession order may be appealed against, the warrant may still be executed according to the terms of the order until a stay in granted suspending the warrant. Therefore, generally, the filing of an appeal with the Supreme Court must be done before the warrant is executed. This may be earlier than 28 days as a time limit to file the originating motion.

Grounds for appeal

Appeals may only be lodged on an error of law. They cannot be lodged simply because VCAT made a finding of fact that the parties disagree with. Whether a decision contains an error of law is a complex question, and legal advice should be sought as soon as practicable.

Generally, in order for a lawyer to be able to review the grounds for appeal, written reasons for a decision should be requested at the time of the hearing (s 117 VCAT Act). Alternatively, if this has not been done, parties may request a copy of the audio recording from their hearing.

Further, when filing an appeal, while not strictly required, it is generally necessary to obtain a transcript of the proceeding. Currently there is no fee waiver available for this service. Costs are estimated at around $200–$300 per hour of transcription. Refer to VCAT for approved services and quotes.


Supreme Court appeals are subject to the costs of the jurisdiction. That is, where at VCAT, parties generally bear their own costs of the proceedings (s 109 VCAT Act), in the Supreme Court costs ‘follow the event’. Costs in appeals can range immensely and again legal advice should be sought to give a reasonable estimate.

If a party is successful, they may recover their costs from the other side. If they are not successful, they may need to pay their own lawyers (subject to any conditional costs agreements). Unsuccessful parties may also have to pay the other side’s costs (which can be substantial), subject to the orders and discretion of the court. 

Indemnity certificate

In some cases, where a party is the respondent to an appeal, they may choose to defend VCAT’s decision. If the defence of the decision is unsuccessful, they may be entitled to be indemnified for their costs (s 4 Appeal Costs Act 1998 (Vic) (‘AC Act’)). Indemnity certificates are capped at $50 000 for each respondent.

However, it should be strongly noted that there is no guarantee that a party will be entitled to such a certificate, and that it should not be expected to protect them from the costs of the proceeding. 

It is also important to note that if the respondent does anything that causes the discontinuance of the appeal, this may be grounds to be refused an indemnity certificate to protect the respondent against the other parties’ costs of the appeal (s 10 AC Act). Accordingly, parties who are the subject of an appeal should seek legal advice immediately (see Chapter 2.4: Legal services that can help) and consider other mechanisms to protect themselves against adverse cost orders.

Protective cost orders

In the decision of Bare v Small [2013] VSCA 204 (9 August 2013), the court considered protective costs orders (PCO). A PCO is made pursuant to section 24 of the Supreme Court Act 1986 (Vic). A PCO caps the costs associated with a proceeding, on terms seen fit by the court. A PCO may be granted where the court determines that the matter is important, in the public interest, the applicant is not seeking compensation or damages, the applicant lacks resources, the likely costs of the dispute, and that the applicant will likely discontinue with the proceeding because of the issue of costs (despite merit, though the latter is not clearly attended to by the decision).

A PCO can be sought at any time during a decision once an originating motion and summons have been filed. A PCO requires an interlocutory hearing. Generally, if a party is seeking a PCO, it is beneficial to make the application at the earliest stage possible. 

For more information, seek legal advice (see Chapter 2.4: Legal services that can help) or contact the Supreme Court Self-litigant Coordinator (see ‘Contacts’ at the end of this chapter).

Effect of the appeal

The effect of the appeal will depend upon the orders sought by the parties in their application. It is possible, if an appeal is successful, that the court could effectively substitute its own decision. However, most commonly given the appeal is based on the grounds of questions of law, the court will give reasons for its decision and order that the matter be reheard at VCAT.

VCAT may make a decision that is still not favourable. However, VCAT is bound by the decision and reasoning of the Supreme Court. Generally, the matter should resolve according to the principles set out by the Supreme Court decision. Often matters settle before being reheard formally at VCAT.

Practical considerations

Before lodging an appeal, parties should consider:

  • the length of an appeal as appeals can take a number of months;
  • the costs of appeal (while there are application fee waivers) – lawyer costs at the Supreme Court can be substantial;
  • the fact that other tenancy rights remain intact may undermine the purpose of the appeal;
  • that if the appeal is successful, the matter may be reheard and have the same or similar outcome.

Supreme Court Self-litigant Coordinator

The Supreme Court offers excellent procedural advice about how to file an appeal. Self-help information kits and forms about filing a Supreme Court appeal are available on the Supreme Court’s website (

However, the coordinator cannot provide legal advice (e.g. identifying the merit of an appeal). For the coordinator’s contact details, see ‘Contacts’ at the end of this chapter.

Offences under the Residential Tenancies Act

There are numerous offences in the RT Act. Offences are reportable to CAV. Upon receiving a complaint, CAV may caution a party, issue an infringement notice (s 510C) or prosecute (pt 13). 

The most notable of the offences in the RT Act are:

  • It is an offence for a person to make false or fraudulent representations about a RT Act provision, or a term included/to be included in a tenancy agreement, or a matter affecting a person’s rights or duties under the RT Act, or a tenancy agreement or a proposed tenancy agreement (s 501).
  • It is an offence for a person, by threat or intimidation, to persuade/attempt to persuade a personn to not exercise their rights to take or continue proceedings under RT Act (s 502).
  • A landlord/a landlord’s representative must not, except in accordance with the RT Act, require, compel or attempt to compel a tenant to vacate the rented premises(s 229).
  • A landlord/landlord’s representative who obtains possession of rented premises in respect of which a Notice to Vacate has been given under sections 256–259, must not let the premises to a person for use primarily as a residence before the end of six months after the date on which the notice was given (s 264), with the exception of the named family member in a section 258 notice.
  • A person to whom a determination of the tribunal under this Act applies must comply with that determination (s 480).

CAV also oversees licencing and regulation of the Estate Agents Act 1980 (Vic), and may elect to investigate and take action in relation to misconduct by a real estate agent

If parties are seeking to give CAV the best opportunity to ensure compliance with the RT Act, parties should write an affidavit and exhibit any relevant documents. In the example of a non-lodgment of bond, an affidavit may simply include the lease, a copy of the receipt to evidence bond receipt, and an email from the RTBA to say they have no bond on record for the premises.

Affidavits are not required, and complaints can be made on the phone. CAV will not always prosecute, but in severe cases of non-compliance, CAV will take action accordingly.

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