VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential Tenancies Division
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2022/19594
CATCHWORDS	
Application for bond by the residential rental providers; application for an extension of time; goods left behind; rubbish removal; gardening expenses; premises not fit for human habitation; warrant of possession; written agreement; sections 63(2) and 419A of the Residential Tenancies Act 1997 (Vic), section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).	

first APPLICANT	Dedrie Tull	
second applicant	Andrew Martel	
RESPONDENT	Damien Everett	
WHERE HELD	Melbourne	
BEFORE	Member M Ryall	
HEARING TYPE	In Person	
DATE OF HEARING	18 January 2024	
DATE OF ORDER	18 January 2024	
Date of Written Reasons	
1 March 2024	
CITATION	Tull v Everett (Residential Tenancies) [2024] VCAT 193	

Order
Pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal extends the time for the commencement of this proceeding to the date of the application. 

The Tribunal finds that:

The Tenancy ended on 30 June 2022.

The claims on the bond in the application have been proved in the amounts shown on the evidence presented today:-

Gardening allowed at 																		$264.00	

Removal of rubbish allowed at 															$715.00	

Total claim proved																				$979.00

The Tribunal finds that the tenant has paid a bond of 							$1694.00

Direct the Residential Tenancies Bond Authority to pay to the Rental Providers

$979.00

Direct the Residential Tenancies Bond Authority to pay to the Renter 	$715.00	

M Ryall
Member			

APPEARANCES:		
For the applicants	Caterina Italiano, Real Estate Agent 	
For the respondent	In person	

Reasons
1	This was an application by Dedrie Tull and Andrew Martel, the residential rental providers (‘RRPs’), for the bond under s 419A of the Residential Tenancies Act 1997 (Vic) (‘the RT Act’), in relation to the state of the rented premises after the renter vacated; and an extension/abridgement of time/waiver of compliance under s 126 of the Victorian Civil and Administrative Tribunal Act (Vic) (‘the VCAT Act’).
2	The RRPs claimed in their application that the ‘Renter has left a large list of items at the premises (couches, fridge, bed frame ect [sic]) as well as the gardens being quite over grown [sic]’.
3	A bond in the amount of $1,694 was paid by the renter, Damien Everett, at the start of the rental agreement. 
4	In mid-2022, possession of the rented premises was returned to the RRPs following the execution of a warrant of possession for the premises being unfit for human habitation associated with “substantial structural issues due to foundation failure”.
5	The Tribunal heard the matter on 18 January 2024. Both the renter and the RRPs’ agent, Ms Italiano, attended the hearing and gave evidence. 
6	At the hearing, the Tribunal determined that the RRPs were entitled to a portion of the bond for gardening and rubbish removal. The RRPs’ agent asked for written reasons so that she could explain it to the RRPs. The following are the Tribunal’s written reasons, which explain and clarify the oral reasons to the extent necessary.
ISSUES FOR DETERMINATION
7	The following issues were required to be determined:
(a)	The date the rental agreement/tenancy terminated;
(b)	Whether the Tribunal should extend the time for the RRPs to commence the proceedings to more than 14 days after the rental agreement ended;
(c)	The condition of the premises at the end of the rental agreement; and
(d)	Whether the RRPs are entitled to claim against the bond.
The date the rental agreement/tenancy terminated
8	The renter’s oral evidence was that he was unsure of the date he left the premises, which did not assist the Tribunal to determine when the rental agreement terminated and possession was returned to the RRPs.
9	Ms Italiano gave oral evidence about when the rental agreement ended, summarised as follows:
(a)	The RRPs regained possession of the premises when a warrant of possession was executed by police on 30 June 2022; and
(b)	A notice of goods left behind was issued by the RRPs on the day possession was returned, giving the renter 14 days to collect the items or for the renter to communicate about the goods. 
10	The Tribunal noted that the notice of goods left behind is dated 23 June 2022, indicating that if the goods were not collected by 8 July 2022, they would be sold or disposed of.
11	Ms Italiano’s oral evidence about when the notice was issued was inconsistent with the date printed on the notice. Consequently, the Tribunal preferred her evidence about when the warrant of possession was executed by police. The Tribunal then concluded that possession was returned to the RRPs on 30 June 2022 and that the rental agreement ended on that date.
Whether the Tribunal should extend the time for the RRPs to commence the proceedings to more than 14 days after the rental agreement ended
The Law
12	Section 419A of the RTA states:
419A Person with interest in claim for bond may apply to Tribunal for bond repayment order
(1) 	A residential rental provider, renter or any other person who has an interest in a claim for a bond (including a previous co-renter under the residential rental agreement) may apply to the Tribunal for an order requiring the Authority to repay the bond.  
(2) 	An application under subsection (1) must be made within 14 days after the residential rental agreement has terminated.  
(3) 	On an application under subsection (1), the Tribunal may make an order requiring the repayment of the bond by the Authority to any party for an amount that does not exceed the amount of bond held by the Authority.
13	Section 126(1) of the VCAT Act states:
(1) 	The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.
14	The application for the bond was made on 14 July 2022, which was the 14th day after the rental agreement ended. It was appropriate to allow the RRPs’ request to extend the time for commencement of the proceeding beyond 14 days because:
(a)	The application was made prior to the Tribunal’s determination that the rental agreement ended on 30 June 2022 and allowing the extension avoids any doubt about the Tribunal’s view on the request for the extension;
(b)	there was no prejudice by granting the extension; and
(c)	it is better to have the matters in dispute between the parties resolved by the Tribunal.
The condition of the premises at the end of the rental agreement
15	Ms Italiano gave oral evidence and submissions relevant to the condition of the premises, which are summarised as follows:
(a)	The premises were declared unsafe by an engineer and as a result, the renter lived at the premises rent free from 12 October 2021 to the end of the agreement to compensate him for inconvenience;
(b)	The photos taken on the day possession was returned indicated lots of rubbish and not too much furniture left behind;
(c)	The gardens were overgrown and not cared for, for at least 3-6 months;
(d)	The RRPs had to get remedial works done;
(e)	The garden clean up and removal of green waste was undertaken on 21 July 2022; and
(f)	The rented premises have been sold and she was unaware if the proposed extensive repairs were undertaken before being sold.
16	Ms Italiano also referred to:
(a)	the Notice of goods left behind dated 23 June 2022, which listed ‘a bed head, bed base, 2 draws [sic], 2 fans, a shelving unit, dishes, utensils, pots and pans, a fridge, a table with matching chairs, a rug, swivel chair, 2 bike helmets, electronics and an abundance of clothes, 1 portable heater, 1 small fan, speakers, 2 couches, pillows, books, possible mattress tooth brush, shavers, shampoo, toothpaste, an esky, bags of paper and possible documents, a clothes hoist, many boxes, a back pack, a laundry basket, washing machine and associated items’;
(b)	Photos at the end of rental agreement, which showed lawns overgrown, goods such as a couch, clothing and other miscellaneous items littered throughout the premises and an otherwise dirty and unkept property.
(c)	two invoices from Oz Maid Cleaners– 
i.	a non-itemised invoice dated 19 July 2022 for $1,430 for services described as ‘Removal of hard waste for entire house internally as per discussion and work order… Job completed’; 
ii.	and a non-itemised invoice dated 21 July 2022 for $264 for services described as ‘Garden clean up and remove all green waste’.
17	The renter’s oral evidence and submissions relevant to the condition of the premises are summarised as follows:
(a)	The premises were in an unsafe state;
(b)	When asked by the Tribunal about whether he performed any gardening tasks, he did not confirm that he had;
(c)	He was in financial difficulty and had no means of transporting all his stuff from the premises but transported what he could.
18	In response to a question from the Tribunal on whether he received the notice of goods left behind, the renter responded by saying that his phone was not functional and he was avoiding reading his emails.
19	Based on the evidence presented at the hearing, the Tribunal found that at the end of the rental agreement:
(a)	The premises were unsafe and required extensive structural repair;
(b)	The renter did not perform gardening tasks for at least three months;
(c)	The renter left behind goods at the premises;
(d)	The renter was sent a notice of goods left behind dated 23 June 2022 and did not remove the goods subsequently;
(e)	The RRPs engaged Oz Maid Cleaners, which removed items from the premises and performed gardening tasks; and
(f)	The premises were sold and there was no evidence to make a finding as to whether the extensive repair works were undertaken.
Whether the RRPs are entitled to claim against the bond
The Law
20	Section 63(2) of the RT Act states:
(2) 	At the end of a residential rental agreement, the renter must leave the rented premises, as far as practicable—  
(a) 	reasonably clean; and
(b) 	in the same condition as when the renter entered into possession of the premises, taking into account fair wear and tear to the premises.
21	Section 411AB of the RT Act states:
411AB Matters that may be subject of bond claim  
(1) 	Without limiting the matters for which a residential rental provider may claim from a bond, a residential rental provider is entitled to claim an amount of bond for the following—  
(a) 	the reasonable cost of repairs to, or the restoration of, the rented premises or goods leased with the premises, as a result of damage caused by the renter or a renter's visitor, taking into account fair wear and tear;  
…
(c) 	the reasonable cost of cleaning any part of the premises, if the premises were not left reasonably clean by the renter, having regard to the condition of the premises at the commencement of the residential rental agreement; …
22	Part of the renter’s oral evidence and submissions about the RRPs’ claim on the bond related to whether he was bound by any rental agreement (and by inference, the RT Act). The Tribunal summarises his evidence and submissions as follows:
(a)	There was no valid rental agreement;
(b)	He was not aware of his rights and responsibilities under his rental arrangement;
(c)	He was not obliged to follow a non-existent rental agreement; and
(d)	A rental agreement was not produced by the RRP’s former agent when he requested it.
23	The Tribunal did not accept the renter’s argument that because a rental agreement was not produced by the RRPs’ agents that there was no rental agreement or that he had no obligations as a renter. Instead, the Tribunal found that the parties were bound by a rental agreement and the RT Act, noting the uncontested evidence that there was a prior application heard by the Tribunal regarding the premises and substantive orders made.
24	In response to the RRPs’ application, the renter also gave oral evidence and submissions to the effect that:
(a)	He had mental health issues towards the end of the tenancy; and
(b)	If the RRPs had restumped the premises as the notice to vacate had said, everything would have been torn down and re-landscaped so all those expenses were unnecessary because the premises were actually sold in that state.
25	Having regard to the photos taken at the end of the rental agreement and the oral evidence, the Tribunal found that the renter breached his obligation under s 63(2) of the RT Act, because at the end of the residential rental agreement he did not leave the rented premises, as far as practicable, in the same condition as when he entered into possession of the premises, taking into account fair wear and tear to the premises.
26	The renter’s evidence about his mental health issues were not considered by the Tribunal to be relevant to whether there had been a breach of the obligations under s 63(2) of the RT Act.  Such personal circumstances are not included in the matters the Tribunal is able to take into account in determining such claims, as provided for in sections 211, 211A and 411AB of the RT Act.
27	The Tribunal accepted that the RRPs suffered a loss as a result of the renter’s breach, taking into account the two non-itemised invoices from Oz Maid Cleaners.
28	The invoice for $264 in relation to gardening services was considered to be a reasonable amount, having regard to the photographs of the garden and the amount of work that needed to be undertaken.
29	The Tribunal considered it was reasonable to allow $715 for rubbish removal, being half the amount claimed in the invoice of $1,430, taking into account:
(a)	the absence of evidence that the premises underwent any of the proposed extensive repairs prior to being sold and that if the premises had been sold as is, then the cost of rubbish removal for the renter’s items only would have been largely unnecessary, as only a small tidy up would have been needed; and
(b)	the costs of removal could have been lessened had the RRPs waited to incur the costs when they undertook the substantial repairs, which would have necessitated extensive demolition and rubbish removal.

M Ryall
Member