VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential Tenancies DIVISION
Residential Tenancies LIST	
vcat reference No. R2023/25521	
CATCHWORDS	
Residential Tenancies Act 1997 (Vic) ss 91ZM, 330A, reasonable and proportionate	

APPLICANT	Lorita Nominees Pty Ltd	
RESPONDENT	Misty Lee Chmielewski	
WHERE HELD	Melbourne	
BEFORE	S Webb, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	16 October 2023	
DATE OF ORDER	16 October 2023	
DATE OF REASONS	18 October 2023	
CITATION	Lorita Nominees Pty Ltd v Chmielewski (Residential Tenancies) [2023] VCAT 1171	

Order
VCAT finds:
1	The residential rental provider gave the renter at least 14 days’ notice to vacate when the renter owed at least 14 days’ rent (excluding any amount owed under a previous VCAT ordered payment plan).
2	This is the first, second, third or fourth occasion of non-payment of rent within a twelve month period starting on the date the residential rental agreement commenced or the anniversary of that day.
3	The renter did not pay the full amount of rent owed on or before the termination date on the notice to vacate.
4	Having made an assessment under section 331 of the Residential Tenancies Act 1997, on the basis of the evidence that is available, VCAT is unable to find that satisfactory arrangements can be made to avoid financial loss to the residential rental provider.
5	The rent is $1425.35 per calendar month and is currently paid to 13 September 2022. The rent owed to today is $18650.28.
6	Having regard to the matters in section 330A of the Act, it is reasonable and proportionate to make a possession order.
7	The residential rental provider is entitled to a possession order in the terms set out below.
VCAT orders and directs:
1	The renter must vacate the rented premises by 16 October 2023.
2	The renter must now pay the residential rental provider the rent owed of $18650.28.
3		At the request of the person who obtained the possession order and on payment of the prescribed fee the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue.  This request may be made after 16 October 2023 and no later than 16 April 2024.
Warning to renter: If you fail to vacate the rented premises by 16 October 2023 the residential rental provider can request the principal registrar to issue a warrant of possession. You may then be forcibly vacated from the rented premises by a police officer or an authorised person carrying out a warrant of possession.

S Webb
Member			

APPEARANCES:		
For applicant 	Peter Neil, Director	
For respondent 	No appearance	

Reasons
1	The renter did not attend the hearing. On 12 October 2023 the renter sent an email that she was seeking her own application for compensation arising out of the state of the property. She stated that she knew the hearing was at 9am on 16 October 2023. She stated that she was intending on lodging an application for an adjournment, though it was not clear on the material as to why this was being sought. At the commencement of the hearing the Tribunal checked its record and no adjournment request had been received. The renter did not attend the hearing to request an adjournment or participate in the hearing. The Tribunal proceeded with the hearing in the renter’s absence.
2	This was the hearing of an application for possession filed by the residential rental provider pursuant to s 91ZM of the Residential Tenancies Act 1997 (Vic) (‘the Act’).
3	The application was dated 2 October 2023. The notice to vacate is found on the file R2023/3059. 
4	This matter had been before the Tribunal previously. Two applications for possession were lodged with the Tribunal by the rental provider. This included an application for possession based on the failure of the renter to pay a bond (R2022/33231), and an application for possession based on rent arrears (R2023/3059).
5	On 1 March 2023 the Tribunal heard both matters and made a finding that the parties had reached an agreement and the applications were struck out.
6	Mr Neil, director of the rental provider, stated that the agreement, struck with the assistance of legal advice for the renter, included the renter paying her rent and additional monies towards the arrears that existed at the time.
7	Mr Neil provided a copy of the rental ledger. The tenancy commenced on 28 July 2022 with a rent of $1,425.35 per month.
8	The ledger demonstrates that during her tenancy the renter has paid a total of $2,306 for the property. The Tribunal calculated at a daily rent of $46.86, this meant the renter was paid to 13 September 2022. Rent owed to the date of the hearing is $18,650.28.
9	The renter did not attend to dispute the validity of the notice to vacate, the application for possession or the methods of service on the renter.
10	From examination of the documents filed with the Tribunal I am satisfied that the residential rental provider gave the renter a valid notice to vacate and was entitled to make this application for possession.
11	Pursuant to s 91ZM, where there has been a first, second, third or fourth occurrence of non-payment of rent, the Tribunal can consider, pursuant to s 331 of the Act, whether to place the renter on a payment plan and adjourn the application for the possession order, or make a possession order. 
12	In the absence of the renter, the Tribunal is not in a position to create a payment plan without their consent or agreement.
13	Accordingly, the Tribunal turned its mind as to whether it was reasonable and proportionate for the Tribunal to make an order of possession or to dismiss the application.
14	VCAT is satisfied that the notice to vacate and application are correctly served and valid. VCAT must make a possession order if satisfied under section 330(1)(f) of the Act: 
that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order—
(i) 	the residential rental provider, rooming house operator, caravan park owner, site owner or mortgagee, as the case requires; 
(ii) 	the renter, resident or site tenant; 
(iii) 	any co-tenants or co-site tenants or other residents; 
(iv) 	any neighbours or any other person who may be, or who has been affected by, the acts or behaviour of the renter, resident or site tenant to whom the notice to vacate was given. 
15	Section 330A of the Act states:
For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the following—
(a)	the nature, frequency and duration of the conduct of the renter, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement, residency right or site agreement;
(b)	whether the breach is trivial;
(c)	whether the breach was caused by the conduct of any person other than the renter, resident or site tenant;
(d)	whether the renter, resident or site tenant has made an application for a family violence safety notice, family violence intervention order, non-local DVO or personal safety intervention order and—
(i)	if an application has been made, whether a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order has been made and whether the notice or order is still in force; and
(ii)	if a notice or order was made, whether it included an exclusion condition; and
(iii)	any other matter in relation to family violence or personal violence the Tribunal considers relevant;
(e)	whether the breach has been remedied as far as is practicable;
(f)	whether the renter, resident or site tenant has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement, residency right or site agreement, as the case requires;
(g)	the effect of the conduct of the renter, resident or site tenant on others as a renter, resident or site tenant;
(ga)	in the case of an application referred to in section 322A, any community impact statement provided by Homes Victoria;
(h)	whether any other order or course of action is reasonably available instead of making a possession order;
(i)	as the case requires, the behaviour of the residential rental provider, the provider's agent, the rooming house operator, the caravan park owner, the caravan owner or the site owner;
(j)	any other matter the Tribunal considers relevant.
16	The Tribunal considered these provisions in determining whether it was reasonable and proportionate to make a possession order or dismiss the application.
17	With respect to ‘the nature, frequency and duration of the conduct of the renter … including whether the conduct is a recurring breach of obligations under a residential rental agreement’, the Tribunal noted that the renter had been in frequent breach of the obligation to pay rent on the property. Over the life of the tenancy agreement the renter has paid rent four times and is in significant arrears.
18	The Tribunal notes that an agreement to make regular payments appears to have been made in March 2023, as reflected in the order of 1 March 2023. The ledger demonstrates that a payment of $670.35 was made on 1 March 2023. No subsequent payments were made to today’s date. It would appear that whatever agreement was in place has failed, given the ongoing failure to make rental payments.
19	The Tribunal further notes that the renter is in breach of the obligation to pay a bond. The application R2022/33231 stated that this was part of an agreement. It is unclear as to what occurred with this agreement about the payment of the bond, other than the bond was not provided. 
20	A failure to pay rent is not a trivial breach of the Act. It is a fundamental aspect of the tenancy agreement that a residence is provided by the rental provider for some form of consideration by the renter. 
21	The residential rental provider stated that the impact of the failure to pay rent for such an extended period has had a significant financial impact upon the rental provider. Payments from the renter for the property had been assigned to make payment for monies owed on the property, to maintain the property, and to pay utility bills, rates and taxes that are relevant to the property. The very minimal payment that had been made over the life of the tenancy has led the rental provider to use limited funds from other sources to cover the outgoing expenses on the property. The state of the property had suffered due to the lack of funds available to maintain the property. 
22	Further, Mr Neil, representing the rental provider, stated that the stress of this situation had led to him having an adverse health event, a stroke that he has recovered from but causes him significant concern. He stated that if the situation remains as it is, he believes that he will have another adverse health event. No medical evidence regarding this was tendered by Mr Neil. The Tribunal does accept that the situation is stress inducing. 
23	The breach has not been remedied. A significant amount of rental arrears is owed on the property and has increased over the time of the tenancy. This includes after the stated agreement of 1 March 2023.
24	With respect to whether the renter has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement, the Tribunal has very limited information before it regarding the renter’s financial position. The failure to pay rent may demonstrate a limited ability to pay the rent for this property. The renter did not provide a bond at the outset of the rental agreement which may again demonstrate some financial constraint. However the Tribunal places limited weight on this as the information before the Tribunal regarding this is very limited.
25	More relevant in this regard is the accumulation of significant arrears and limited knowledge of the renter’s capacity to pay this rent owed on the property. The renter has not demonstrated a capacity to date that they have the capacity to pay the existing rent, let alone the arrears. In the absence of the renter, the Tribunal was unable to consider a rental payment plan with a right to renew if the renter failed to maintain the agreed payment. It appears a previous payment plan failed, for reasons that are not before the Tribunal. It is not evident as to what other options are available to the Tribunal other than making a possession order or dismissing the application.
26	The Tribunal notes that correspondence between the director of the rental provider and the renter has been heated and accusatory in nature. There have been allegations of criminal conduct that do not appear to be founded, particularly as it appears to be a rental dispute and not a matter that has the higher standards pursuant to a criminal proceeding. This correspondence demonstrates that the relationship between the parties is very difficult.
27	With respect to any other matters, in the correspondence before the Tribunal the renter has raised concerns with the state of the property and the maintenance of the property. The renter has indicated that they may lodge a compensation application arising from the state of the property. There is information before the Tribunal that there is a longstanding dispute arising from mould in the property. The renter has stated in correspondence before the Tribunal that she has had adverse health impacts because of the state of the property. 
28	This is relevant information for the Tribunal to take into account. It is untested, and at today’s date the Tribunal is not aware of any application before the Tribunal for this purpose.
29	There is no information before the Tribunal to determine that s 330A(c), (d), (g) or (ga) are relevant to the present circumstances. 
30	Reflecting on the information before the Tribunal, there is a significant and ongoing dispute between the parties. The Tribunal notes that the state of the property is a concern to the renter, and they are entitled to pursue a legal remedy regarding this. They have not done so so far, and the seeking of compensation for the state of amenity of a property is not reliant on an ongoing tenancy agreement.
31	The renter has repeatedly failed to pay the rent on this property, including after an agreement to do so. The rent owed on the property amounts to over a year’s worth of payments. Ceasing rental payments is not an appropriate response to a failure to maintain a premises, the Tribunal in fact has powers to have rent paid into a special account while repairs are undertaken by the rental provider. 
32	In considering whether it is reasonable and proportionate to make a possession order in the present circumstances, the Tribunal considers that the repeated and ongoing failure to pay rent, including after a purported agreement to make payments; and the accumulation of arrears in the amount of $18,650.28 as at the date of the hearing, with no explanation as to how the arrears will be paid, outweigh the issues that arise from the state of the property. 
33	Accordingly, the Tribunal finds that it is reasonable and proportionate to terminate the residential rental agreement and provide possession to the rental provider.

S Webb
Member