VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential Tenancies DIVISION
Residential Tennancies LIST	
vcat reference No. R2024/28321	
CATCHWORDS	
Application for possession for illegal use of premises – section 91ZQ and section 330A of the Residential Tenancies Act 1997 (Vic) – validity of notice to vacate – Director of Housing v Smith [2005] VSC 46 – Director of Housing v Bucci [2017] VCAT 1392 – Homes Victoria v Huynh (Residential Tenancies) [2024] VCAT 653 – Community Impact Statement – not reasonable and proportionate to make a possession order.	

APPLICANT	Homes Victoria	
RESPONDENT	Jim Mantzalas	
WHERE HELD	Melbourne	
BEFORE	Member F Gelev	
HEARING TYPE	Hearing	
DATE OF HEARING	27 February 2025	
DATE OF ORDER	3 April 2025	
CITATION	Homes Victoria v Mantzalas (Residential Tenancies) [2025] VCAT 293	

Order
1.	The residential rental provider gave the renter notice to vacate under section 91ZQ of the Residential Tenancies Act 1997.
2.	The residential rental provider has proven the reasons for giving the notice to vacate.
3.	Having regard to the matters in section 330A of the Act, it is not reasonable and proportionate to make a possession order.

Member F. Gelev			

APPEARANCES:		
For the Applicant	Ms M Wilson of counsel	
For the Respondent	Mr J Teng of counsel	

Reasons
Background
1.	The renter has been residing in the premises, owned by Homes Victoria, since 2017.
2.	On 31 January 2023, Victoria police executed a search warrant on the premises and the renter was charged with a number of offences. He later pleaded guilty to some of them. The notice to vacate on which this application to the Tribunal is based was not issued until 5 August 2024 (‘the 2024 notice’).
3.	It is a notice under section 91ZQ of the Residential Tenancies Act 1997 (‘the Act’) which provides:
Use of premises for illegal purpose
(1)	A residential rental provider may give a renter a notice to vacate rented premises if the renter has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.
(2)	The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.
4.	The issues for determination and my answers are as follows:
(a)	Is Homes Victoria estopped from applying for a possession order based on the current notice to vacate? No.
(b)	Is the notice to vacate sufficiently particularised? Yes.
(c)	Are the facts alleged in the notice to vacate proven on the balance of probabilities, to establish the grounds in section 91ZQ of the Act? Yes.
(d)	Is it reasonable and proportionate, under section 330A of the Act to make a possession order? No.
5.	Both parties were legally represented. Three witnesses from Homes Victoria gave evidence: Ms S Lucas, Ms A Hopkins and Ms A Anketell-Kemel, but the applicant did not call any other witnesses. The renter chose not to give evidence, a point I would return to later in these reasons, and did not call any witnesses.
6.	As the renter did not vacate the property by the termination date, Homes Victoria lodged an application on 3 September 2024. The proceeding was adjourned in October 2024; the hearing took place on 27 February 2025 and I reserved my decision. The applicant requested written reasons.
Notices to vacate and applications
7.	A notice to vacate was first issued on 23 August 2023 (‘the 2023 notice’). The 2023 notice stated:
Section 91ZQ Use of premises for illegal purpose
You have used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.
You, Mr Jim Mantzalas, have used the rented premises at [address of premises] for a purpose that is illegal at common law or under an Act in contravention of section 91ZQ of the Residential Tenancies Act 1997 (Vic).
Particulars:
On 31 January 2023, Victoria Police executed a search warrant at the rented premises and located and seized various quantities of Heroin (sic), Metyl (sic) Amphetamine, cannabis, cash and weapons.
You were subsequently charges (sic) with offences relation to drug trafficking and possession of drugs and prohibited weapons.
Please see attached list of full particulars and charges.
8.	The 2023 notice to vacate did state what the police found at premises and what charges the renter faced, but not what the illegal purpose was said to be under the relevant section of the Act. The 2023 application was dismissed in December 2023 because it did not state what act or actions on the part of the renter are relied on by the residential rental provider as the basis for giving the notice to vacate.
9.	A second notice to vacate was issued in June 2024, but Homes Victoria did not lodge an application to the Tribunal based on this notice.
10.	The notice to vacate which forms the basis of this application was issued on 5 August 2024. The following were the reasons for giving the notice:
You, Mr Jim Mantzalas of [address of rented premises] have been issued a Notice to Vacate (Notice) under section 91ZQ of the Residential Tenancies Act 1997 (RTA) as on 31 January 2023 you have used the rented premises for a purpose that is illegal at common law or under an Act in contravention of section 91ZQ in that you have:
1. illegally trafficked or attempted to traffick a drug of dependence, namely methyl amphetamine, heroin and cannabis; and
2. possessed a drug of dependence, namely methyl amphetamine, heroin, cannabis, 1, 4 - Butanediol and Alprazolam; and 
3. stored prohibited weapons namely swords, hunting knives and guns, and an electrical bicycle known to be a stolen good.
Refer to Attachment 1 for further details and reasons for giving the Notice.
Issue estoppel
11.	Another validity argument made on behalf of the renter was that because the 2023 notice and the 2024 notice were “in substantially the same form”, therefore the applicant was barred from seeking a possession order because of issue estoppel.
12.	The principle of issue estoppel prevents parties from trying to argue again – or revisit or reagitate as the respondent’s written submissions put it – something that has already been decided.
13.	The argument in my view is misconceived. The only issue decided in 2023 was whether the 2023 notice was sufficiently particularised. The Tribunal did not consider anything else.
14.	Issue estoppel would bar Homes Victoria from lodging a new application based on the 2023 notice; it does not bar the applicant from lodging an application based on a new notice. The validity of the 2024 notice is to be determined solely by reference to its contents, not by reference to the contents of the 2023 notice. There is, therefore, no issue estoppel bar.
Is the notice to vacate sufficiently particularised? 
15.	A valid notice to vacate must explain to a renter why the residential rental provider wants to evict them.
16.	In December 2023, the renter was found guilty, with conviction, of a number of the January 2023 charges. The convictions included traffick cannabis and heroin, possession of drug of dependence 1, 4 – Butanediol, possession of prohibited weapon without an exemption (probably relating to a hunting knife), and handle/receive/retention of stolen goods (probably relating to the electric bicycle found at the premises).
17.	As Bongiorno J explained in Smith v Director of Housing:
… [F]or the notice to comply with [the Act] requires the setting out of the facts … with a sufficient degree of particularity to enable the tenant to understand why the landlord wishes to evict her and to contest those facts if she wishes.
18.	The 2024 notice has already been reproduced above. Unlike the 2023 notice, it made it clear what the rental provider claimed to be conduct in contravention of section 91ZQ:
1. illegally trafficked or attempted to traffick a drug of dependence, namely methyl amphetamine, heroin and cannabis; and 
2. possessed a drug of dependence, namely methyl amphetamine, heroin, cannabis, 1, 4 - Butanediol and Alprazolam; and 
3. stored prohibited weapons namely swords, hunting knives and guns, and an electrical bicycle known to be a stolen good. 
Refer to Attachment 1 for further details and reasons for giving the Notice. 
19.	According to the respondent, the notice to vacate is invalid as it should have been more specific. For example, it should have specified, with reference to section 70 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic),
what actions by Mr Mantzalas constitutes (sic) preparing a drug of dependence for trafficking; manufacturing a drug of dependence; or selling, exchanging, agreeing to sell, offering for sale or having in possession for sale, a drug of dependence.
20.	I do not accept the submission. Requiring such level of specificity would make it virtually impossible for anyone who is not a criminal lawyer to issue a valid notice to vacate under section 91ZQ of the Act for at least two reasons.
21.	First, a lay person would not possess the requisite knowledge of the law to set out all the elements of the alleged conduct. In the case of Homes Victoria v Bucci where the renter had also been charged with drug trafficking and, similarly to Mr Mantzalas, Ms Bucci had pleaded guilty to a number of charges. I entirely agree with the analysis of Member Lulham, as he then was, rejecting the invalidity argument raised by the renter:
The Notices to Vacate advised Ms Bucci of the reasons the Notices were served with a sufficient degree of detail to enable her to understand the facts being alleged as a basis for terminating the tenancy. They explained why the Notices were given. They enabled Ms Bucci to understand why the Director wished to evict her, and put her in a position to contest those facts if she wished – although how she could possibly do so having pleaded guilty to the charges is quite obscure.
I reject without hesitation Ms Bucci’s submissions which focus on the meaning of “traffick”. Again, given that she pleaded guilty to charges of trafficking drugs of dependence, when represented by a legal practitioner, and was convicted of trafficking; and the significant quantities of drugs seized at the rented premises which, as I have stated above, were traffickable quantities within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, these submissions are unsustainable on her part.
22.	There would be a second problem for residential rental providers. Even if they were somehow proficient in the intricacies of the Drugs, Poisons and Controlled Substances Act 1981 and other criminal legislation, a notice to vacate would ordinarily be based on the initial charge sheet which has limited detail. In the present case the trafficking charges contained in the charge sheets from 31 January 2023 were as follows:
The accused at Doveton on 31/1/2023 did traffick a drug of dependence namely Heroin.
The accused at Doveton on 31/1/2023 did traffick a drug of dependence namely Methyl Amphetamine.
The accused at Doveton on 31/1/2023 did traffick a drug of dependence namely Cannabis.
23.	The charge sheets do not contain further particulars by reference to the definition of “traffick” in section 70 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). If the respondent’s submission were correct and a valid notice to vacate under section 91ZQ must contain all the constitutive elements of the criminal offences, the residential rental provider could not rely on the charge sheets because they would be considered too vague by VCAT. The rental provider would need to wait for months or potentially years and seek all the relevant information about the charges, about any plea deals, whether some charges have been dropped by the prosecution or dismissed by the relevant court – information that for privacy reasons a rental provider might have considerable difficulty obtaining – before the rental provider could issue a valid notice to vacate. Forcing a residential rental provider to engage in this exercise would be impractical, costly and will cause extreme delays.
24.	As submitted by the applicant, the second reading speech stated the following in relation to the introduction of this provision (emphasis added):
Public housing is in high demand. At all times, the director must balance the needs of existing tenants with those who are waiting to be housed. Therefore, it is crucial that the director has effective means of managing the public housing program. This includes mechanism to end a tenancy agreement, in a timely manner, where that tenant is engaged in certain illegal activity, particularly drug trafficking
25.	In some circumstances, for example, applications for possession is based on damage to the property or on “danger”, the Tribunal would dismiss or strike out an application where the notice to vacate is based on events that took place many months prior to the date of issue of the notice, because there is no sufficient “temporal connection”. Even where the “temporal connection” is not a validity issue, the Tribunal approaches notices to vacate based on old events with a degree of scepticism.
26.	I find the sentence “illegally trafficked or attempted to traffick a drug of dependence, namely methyl amphetamine, heroin and cannabis” contains sufficient particulars to make this notice to vacate valid.
27.	The respondent raised an additional invalidity argument:
Additionally, while the NTV only refers to the charges laid on Mr Mantzalas, the Applicant’s Submissions refer to the findings of guilt against Mr Mantzalas for a number of those charges, which it now attempts to rely on. The Applicant has not, in the NTV or in the summary of proofs, set out the findings of guilt against Mr Mantzalas or provided a certificate pursuant to s 178 of the Evidence Act 2008. Bongiorno J, in Smith v Director of Housing, held that an applicant can only lead evidence of matters which were the subject of the Notices to Vacate. This has been applied in the Tribunal, such that notices to vacate must refer to the renter’s pleas of guilty and/or convictions for the alleged offences, for such facts to be led and relied on by an applicant.
28.	I do not accept that the “width” of the respondent’s submissions, filed in October 2024, can make invalid a notice to vacate given to the renter months earlier. Director of Housing v Smith stands for the proposition that a residential rental provider cannot retroactively fix an invalid notice to vacate by adding more information (particulars) in the application to the Tribunal. The Supreme Court found that the Tribunal had impermissibly amended the application to the Tribunal by adding some alleged conduct which had not been mentioned in the notice to vacate. The applicant in this case is not seeking to add new grounds to the application. I agree with the respondent’s submission that Homes Victoria can “only lead evidence of matters which were the subject of the Notices to Vacate”.
29.	However, Smith does not stand for the proposition that either a valid notice to vacate or a valid application to VCAT can retroactively become invalid by submissions which refer to irrelevant matters. The width of the submissions only renders the submissions and related evidence inadmissible, irrelevant or unpersuasive.
30.	The respondent’s submissions do not refer to any cases in support of the assertion that “notices to vacate must refer to the renter’s pleas of guilty and/or convictions for the alleged offences, for such facts to be led and relied on by an applicant.” It is a difficult validity argument to sustain in circumstances where a notice to vacate may be issued prior to the determination of the respondent’s guilt in any criminal proceedings.
31.	I find that the 2024 notice to vacate was sufficiently particularised and valid.
Are the facts alleged in the notice to vacate proven to establish the grounds in section 91ZQ of the Act
32.	The respondent conceded that “his guilty pleas in relation to the January 2023 charges are essentially findings that those acts occurred at the Rented Premises.”
33.	I find that the grounds set out in the notice are established.
34.	The respondent did not raise any issues in relation to service or other defects’ in the notice to vacate or the application. I am still required to turn my mind to the question whether it is reasonable and proportionate to make a possession order. 
Is it reasonable and proportionate to make a possession order under section 330A of the Act?
35.	I have omitted subsections of 330A which are not relevant to this proceeding. Section 330A provides:
330A What is reasonable and proportionate? 
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… which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement…
(b) 	whether the breach is trivial;
(c) 	whether the breach was caused by the conduct of any person other than the renter…;
…
(e) 	whether the breach has been remedied as far as is practicable;
(f) 	whether the renter,.. has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement, …;
(g) 	the effect of the conduct of the renter,… on others as a renter…;
(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) 	the behaviour of the residential rental provider; and 
(j) 	any other matter the Tribunal considers relevant.
36.	Section 330A must be read together with section 330 of the Act. Under section 330(1)(f) of the Act, the Tribunal must make a possession order if satisfied, among other things:
(f) 	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.
37.	Below, I will address each of the criteria of the reasonable and proportionate test.
Section 330A of the Act (a) the nature, frequency and duration of the conduct of the renter which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a residential rental agreement; and section 330A(b) whether the breach is trivial
38.	I was provided with the renter’s criminal record from the LEAP (police) database. It is not in dispute that the renter has a number of prior convictions, but not all of them are relevant.
39.	“The conduct” in subsection 330A(a) is not the renter’s general conduct. Section 91ZQ is not a character test similar to the “character test” in section 501 of the Migration Act 1958 (Cth).
40.	The purpose of section 91ZQ is not to deny housing to renters based solely on their criminal history. The legislation could – but does not at present – bar someone, who has been convicted of certain types of serious offences or who has more than a set a number of criminal convictions, from being eligible to become a Homes Victoria renter. 
41.	The scope of section 91ZQ, and consequently section 330A(a) and (b), is much narrower: to be able to evict a renter who uses the rented premises for illegal purpose. The conduct must have taken place at the premises and not elsewhere; additionally, the rented premises must have been used for an illegal purpose. I respectfully adopt the helpful analysis of Member G. Nihill, as she then was, in Director of Housing v TP (Residential Tenancies):
[Counsel for the renter] … described [the case law] as offering support for this proposition - that the purpose of the covenant a tenant makes to not use the premises for an illegal purpose is to protect the landlord from liability, not to punish. He said the cases were contradictory, but did establish that the premises had to be used for the illegal activity, and not merely be the scene of its commission. He described the same continuum, and placed this fact situation well short of illegal use. He said the offence did not arise out of the use of the premises. The relationship was between DG and his plants, not the premises and the plants. The presence of the plants, and DG, at the premises was transitory, and the premises did not aid the commission of the offence.
I have found it helpful to think about the continuum. It is clear from the cases that the question of whether or not it can be said that premises have been used for an illegal purpose depends on the circumstances of the illegal activity or action, not just on whether illegal activity occurred. If the rented premises are central and essential to the illegal activity, they are being used for an illegal purpose, and the grounds for a section 250 [now section 91ZQ] notice to vacate would be clearly made out. A clear example would be if premises were set up for the manufacturing of drugs, or for the storage of weapons or stolen goods. This Tribunal has dealt with claims for compensation where the premises have been substantially restructured for the purpose of hydroponic cultivation of cannabis, where the electricity supply has been diverted, ceilings or flooring have been altered, and large areas of the house have been given over to the activity. This would be highly likely to constitute illegal use of the rented premises under section 250. At the far end of the continuum, the presence of a visitor on the premises who happened to have a flick knife or an ecstasy tablet in his or her pocket does not constitute illegal use.
42.	Since moving into the property in 2017, the respondent has been found guilty of offences in March, June and July 2018 and 2022.
43.	The 2022 offences are not related in any way to the premises.
44.	The convictions from March, June and July 2018, may or may not relate to conduct at the premises (convictions). The renter was already living at the premises at the time of the court hearings, but may have been living somewhere else at the time of the commission of the offences; or he may have been living at the premises, but may have committed the offences away from home. In the absence of further information in respect of these convictions, I am not satisfied that the 2018 convictions can be taken into consideration in looking at the “conduct of the renter which led to the notice to vacate being given”.
45.	Even if there was sufficient evidence for me to find that some of the 2018 convictions amounted to using the premises for an illegal purpose, given the gap of more than four a half years until the 2023 charges, I would not have placed much weight on them.
46.	The other convictions from the LEAP database predate the tenancy and are therefore also not part of the relevant course of conduct.
47.	This is not to minimise or downplay the seriousness of the 2023 offences. I accept the general proposition that drug trafficking from a Homes Victoria property is abhorrent, particularly in circumstances where the entire block of units is allocated to renters over the age of 55 and the other renters are vulnerable, most are single women (out of a total of five other renters only one is male), some are survivors of family violence and most come from culturally and racially marginalised communities.
48.	There were other – not drug related – offences included in the 2024 notice to vacate: storing prohibited weapons, namely swords, hunting knives and guns, and an electrical bicycle known to be a stolen good. I am satisfied the conduct in early 2023 was “serious”. I accept Homes Victoria’s submissions that:
The Respondent’s possession of weapons, including firearms and knives, was inherently dangerous and capable of terrorising any person confronted with them.
Furthermore, the Respondent’s possession of suspected stolen goods and proceeds of crime encourages dishonest conduct.
49.	In relation to this subsection, the applicant referred to the renter’s criminal history in the following manner:
The Respondent has a lengthy and relevant criminal history. As of January 2023, the Respondent had received 390 charges for offences such as trafficking heroin, trafficking cannabis, cultivating a narcotic plant, theft of a motor vehicle, burglary and handling stolen goods.
50.	In other words, the applicant contends all 390 charges over the renter’s lifetime are relevant. This submission cannot be sustained. Many, perhaps most, of the charges may have been dropped or not proven in court. Similarly, out of the convictions mentioned in this paragraph, the Tribunal can only consider offences committed (1) since the renter moved into the premises (not earlier) and (2) at the premises.
51.	The rental provider not only referred to the renter’s past charges. It was asserted that the conduct was continuing. The renter maintains he has ceased the conduct in respect of which the notice was given.
52.	In the absence of any new criminal charges against the renter since early 2025 and in the absence of any direct evidence to the Tribunal from neighbours, counsel for the applicant invited me to draw a negative inference – a Jones v Dunkel inference – from the renter’s decision not to give evidence at the hearing. 
53.	A Jones v Dunkel inference is an inference that the uncalled evidence in a proceeding, in this case from the renter himself, would not have assisted the defendant or respondent’s case.
54.	The contentions by the applicant were that I ought to draw the following inferences: while the other properties in the same block may have been rented out since January 2023, this was not thanks to any improvement in the renter’s conduct; there was uncontradicted evidence before the Tribunal the renter has continued to engage in illegal conduct and made no attempt to “ameliorate those matters”; the respondent had not shown any contrition for the criminal conduct; and he has been engaging in “nuisance behaviour”.
55.	In response, counsel for the respondent referred me to the decision of Jenkins J in Dyke v IPM Operation & Maintenance Loy Yang Pty Ltd:
The rule in Jones v Dunkel relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. However, an unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called, there must be a basis elsewhere in evidence to support that inference. 
56.	I found the renter’s decision not to give evidence surprising. It does not follow that I accept the applicant’s submissions. The renter pleaded guilty to the charges that were laid after police executed the warrant on 31 January 2023. Therefore, the January 2023 conduct is not in dispute. Conversely, however, the renter has expressly denied engaging in such conduct (the conduct for which he was served with a notice to vacate) since January 2023. Therefore, it is not open to me to draw an inference from the renter’s silence that the conduct – use of premises for illegal purpose – is continuing.
57.	In relation to contrition, I accept the submission that the renter has not expressed any. This is not equivalent to an admission that the illegal conduct is continuing at present.
58.	The reference to the alleged failure by the renter to “ameliorate those matters” is an assertion based on the limited evidence from Homes Victoria that the renter must still be dealing drugs. I am not prepared to draw an inference from the renter’s silence that if he had given evidence to the Tribunal, he would have admitted to continuing to use the premises for an illegal purpose.
59.	The “nuisance behaviour” is analysed further below under subsection 330A(f).
60.	Putting aside the inferences I was invited to draw from the renter’s silence, the evidence of continuing use of the rented premises for an illegal purpose was scant. No neighbour attended the Tribunal hearing. No neighbour provided a written statement, sworn or not, or even an email to Homes Victoria for the purposes of the hearing or simply because they were concerned about the renter. I was expressly asked to infer that this was out of fear of repercussions from the renter, but there was no reasonable basis for me to make such an inference. Neighbours could, for example, make anonymous complaints. Further, Homes Victoria did not contend that any of the neighbours had approached them to make an informal oral complaint, but were not prepared to take this further for fear of repercussions.
61.	The last two visits by Homes Victoria to the premises were in September 2024 and February 2025. The 2024 visit was for something unrelated to the renter; the 2025 visit was initiated by Homes Victoria in preparation for the Tribunal hearing. In other words, neither visit was the result of a complaint by one or more neighbours.
62.	When I asked Homes Victoria whether the neighbours had contacted the police in relation to any issues, the response was “no”, but not out of fear; rather, I was told this was because English was not the neighbours’ first language. I accept that for someone not fluent in English, giving evidence to the police for the preparation of a report can be daunting. But I am not satisfied on the evidence that if the renter engaged in criminal conduct that was concerning the neighbours, none of them would have made a quick, potentially anonymous, call to the police, to get the police to attend the premises and investigate.
63.	The Homes Victoria witnesses – all employed by Homes Victoria – when visiting the block of units in September 2024, observed three people coming to the renter’s unit and leaving in a very short space of time, consistent with visiting for the purpose of purchasing drugs. Two more people were seen approaching the renter’s unit as Homes Victoria staff were departing. However, as counsel for the respondent noted in oral submissions, what Homes Victoria staff observed could be described simply as five guests visiting the renter in a short period of time.
64.	There was another occasion when Ms Lucas was near the premises and saw an unknown person knock on the renter’s door. At first the door remained closed. Then the person called out “it’s not the police”, and someone – presumably the renter – opened the door and let the unknown person in. I accept that is evidence, but not particularly cogent evidence, that the renter may be using the premises for illegal purpose.
65.	A third incident was recounted by a neighbour to Homes Victoria where an unknown person knocked on the door of one of the neighbours and told them they were looking for Jim (the renter’s first name) and wanted to get marijuana.
66.	In February 2025, Homes Victoria attended the block in preparation for the Tribunal hearing, rather than in response to a complaint. They were advised that there were less frequent visitors, although the visits were allegedly continuing up to 3am.
67.	Counsel for the respondent in reply to the Jones v Dunkel submissions by Homes Victoria sought to make a mirror submission – I was invited to draw an inference from Homes Victoria’s failure to call any of the neighbours as witnesses that the neighbours’ evidence would not have helped Homes Victoria’s case.
68.	I do not accept the submission. In light of the history of the block of units prior to 2023 where Homes Victoria could not find renters to move into most of the units (as discussed below), despite the acute shortage of public housing in Victoria, it is entirely possible that neighbours would be apprehensive and reluctant to give evidence at a Tribunal hearing, as opposed to making complaints to Homes Victoria or to the police. Therefore, I am not drawing such an inference. 
69.	Nevertheless, it is for the applicant to make out their case on the balance of probabilities. The evidence is not sufficient to reach that threshold.
70.	There was hearsay evidence relayed by a neighbour to Homes Victoria during the February 2025 visit that just before Christmas in 2024 an unknown male had driven to the block of units, sped their car up the common driveway and called out the renter’s name. When there was no response, the driver reversed in a “very reckless manner”, rammed a car that belonged to the respondent and drove off.
71.	I accept this episode understandably made the neighbours feel unsafe because they would not have been able to avoid the car if they had been in the common area at the time. However, I am not prepared to draw an inference that this person was a “visitor” in light of the fact that he never went into the renter’s unit and he may have been angry at the renter (he may have rammed the renter’s car deliberately). In any event, no aspect of this unpleasant episode can be said to relate to the renter using the premises for an illegal purpose.
72.	In summary, I accept the nature of the criminal conduct in January 2023 was quite serious and not trivial, although it was not as serious as, for example, in Homes Victoria v Huynh where the renter had 230 grams of heroin in his possession and was almost charged with trafficking a commercial quantity (the threshold is 250 grams) whereas in the present case the renter had four grams of heroin, fifteen grams of methyl amphetamine and nine grams of cannabis.
73.	In relation to the frequency and duration of the conduct, I am satisfied the conduct occurred on 31 January 2023 and for some time prior to that date, but the evidence is not sufficient to conclude the conduct has continued or resumed since. In other words, in the absence of direct evidence from the neighbours or further charges or convictions since 2023, I am satisfied that the conduct has ceased.
Section 330A(c) Whether the breach was caused by the conduct of any other person
74.	I find the breach was entirely caused by the renter, although some of the conduct that made the other units in the block uninhabitable was caused by others: associates of the renter, or people known by him, were squatting in one of the units and engaged in criminal and anti-social behaviour.
Section 330A(e) Whether the breach has been remedied as far as is practicable
75.	The evidence before me does not support a finding on the balance of probabilities that the conduct is continuing and therefore that it needs to be remedied.
Section 330A(f) whether the renter has, or will soon have capacity to remedy the breach and comply with any obligations under the residential rental agreement
76.	In relation to the “nuisance behaviour”, I find that by having frequent visitors, including late at night, the renter may be in breach of section 60(1) and (2) of the Act. Subsection (1) imposes a duty on renters not to cause a nuisance and subsection (2) not to interfere, or permit a visitor to interfere, with the reasonable peace, comfort and privacy of any occupier of neighbouring premises. In addition, there are various items in the common areas near his unit that should be removed, such as car bodies and car parts. 
Section 330A(g) the effect of the Renter’s conduct on others as a renter 
77.	I acknowledge the situation at the block of units was untenable prior to 2023 and units in the block remained vacant for long periods of time. The rental provider’s submissions take a broad brush approach and fail to recognise the material changes in the situation since 2023. The submissions assert:
Since March 2019, the Applicant has received five tenancy terminations from residents in the Block who cited feeling unsafe, the illegal activity occurring at the Block and the behaviour of drug affected visitors to the rented premises as reasons for these terminations. For example, the former renter of Unit 1 terminated the rental agreement in early February 2023 stating they were afraid to reside at the Block given the threatening behaviour of visitors to the rented premises, and that it was affecting their health. Further, on 19 May 2023, Unit 2 was offered to a new renter who immediately vacated prior to the commencement of the tenancy. The reason provided was that the unit had been broken into twice, and that faeces has been smeared on the floor.
78.	In the above paragraph no date later than 19 May 2023 is mentioned. The 2024 notice to vacate was issued in August 2024. 
79.	I am prepared to accept that as an indirect result of the renter’s conduct, up until January 2023 and even as late as January 2024, Homes Victoria had not rented out all the units in the block.
80.	As discussed above in this decision, the Tribunal was provided with some limited information about the renters in the block (age, background, gender), but no direct evidence whatsoever of the impact of the renter’s conduct in 2023 on the current renters.
81.	Homes Victoria’s evidence at the hearing was that a majority of the resident of the neighbouring units in the block would like the Tribunal to make a possession order. I note that a majority of five could be as few as three people.
82.	There was an assertion by Homes Victoria, but no evidence before me, that the neighbours want the renter to move out – or be evicted – because they feel unsafe as a result of the renter using the premises for an illegal purpose. There has to be a causal connection between the conduct by the renter (which in this case I am satisfied continued until January 2023) and the impact on the neighbours. If none of the neighbours who were in the block in early 2023 are there any longer, it is hard to see how the relevant conduct can be said to be affecting the neighbours living in the block more than two years later.
83.	The rental provider’s evidence was persuasive in relation to events that took place up until the end of 2023 and particularly up until the police charged the renter in January 2023.
84.	On balance, I find the renter’s conduct from 2023 is not having an impact on the current neighbours.
Section 330A(ga) in the case of an application referred to in section 322A, any community impact statement provided by Homes Victoria
85.	As part of the 2023 application for possession, an impact statement, dated 25 August 2023, was provided by Homes Victoria. It stated that since 2017 Homes Victoria have “struggled immensely” to fill the other units in the block. As of August 2023 six of the renters had been relocated and one was waiting to be relocated. One unit had been vacant for 185 weeks, one for 120 weeks and one for 25 weeks.
86.	The 2023 impact statement included an extensive list of the maintenance jobs raised due to issues at the block of units. The earliest entry on the list was 28 July 2017 (smashed windows), and the most recent entries were from May 2023 (including “replace carpet with vinyl due to damage by squatters” and “clean property due to mess made by squatters”). The amount of money spent by Homes Victoria was staggering – $123,575 from 2017 to August 2023.
87.	At present all five units in the block are occupied. The 2024 community impact statement, submitted in relation to this proceeding, states that unit 3 was vacant until January 2024, unit 1 until October 2023 and unit 4 until May 2023. The total amount spent according to the 2024 community impact statement was about $5,000 higher than the amount spent as of August 2023. The 2024 community impact statement does not say when the most recent repairs were.
88.	The Tribunal was not provided with evidence that any expensive maintenance has had to be done to the blocks since 2023.
89.	The 2024 community impact statement does not refer to any significant events since January 2024 when the last of the vacant units was rented out.
Section 330A(h) whether any other order or course of action is reasonably available instead of making a possession order
90.	There is no duty under the Act not to use the premises for illegal purpose. Neither party sought a compliance order. While I can make a general compliance order that the renter must comply with his obligations, I find it would be of little utility.
Section 330A(i) the behaviour of the residential rental provider 
91.	There are a number of reasons why this application only came to a hearing in February 2025. Homes Victoria issued the first notice to vacate relatively quickly, but it was many months before it was found to be invalid by VCAT. Homes Victoria then took no further action until June 2024. It issued a second notice in June 2024, but it did not lodge an application. Thus, out of the total period of more than two years since the respondent was charged, a delay of some eight months is directly attributable to the rental provider.
92.	Ultimately, the rental provider’s failure to pursue a possession order application earlier in 2024 in itself is not a factor that weighs against the making of an order.
Section 330A(j) Any other matter the Tribunal considers relevant, read together with section 330(1)(f)(iii) – impact of a possession order on the renter
93.	I accept the renter’s submissions that he is quite vulnerable. He is 67 years’ old with a history of polysubstance use. He has numerous physical and psychological ailments, including complete loss of articular cartilage of a joint in one knee, and left ankle fracture in 2023, requiring surgery to insert plates and screws; abnormal liver functioning, memory loss and anxiety.
94.	The Applicant accepts that a possession order “may risk [the renter] becoming homeless”.
95.	The applicant submitted that it will “do what it can to assist the Respondent and support him in the event a possession order is granted”. However, in oral argument the rental provider suggested the renter move in with his partner who also lives in a Homes Victoria property. There are two difficulties with this submission. 
96.	First, it is paradoxical that Homes Victoria seek a possession order on the basis that the renter’s criminal conduct is continuing yet their proposed alternative to homelessness is that he move into another Homes Victoria property. Secondly, while the renter may be able to move in with his partner, the rental provider’s own evidence was that he and the partner argue often and the partner may not want him to live with her.
97.	On balance, there is not sufficient evidence before me to be satisfied that the renter can move in with his partner beyond the very short term, that is, beyond a few days.
98.	I have no difficulty accepting that the renter is likely to become homeless and this will have a severe impact on him. Due to the ongoing rental crisis, the renter is extremely unlikely that he would be able to find other accommodation quickly. He is on the Aged Pension and not in a position to pay for accommodation (Airbnb, hotel, etc) for a few weeks until he finds a longer term solution.
99.	The rental provider argued that referrals to Launch Housing and the Salvation Army would ameliorate those risks. There is no evidence before me that either of these organisations, nor any other, would be able to prevent the renter from becoming homeless.
100.	The nature of the offending and relevant breach in this proceeding resembles in many respects to the case of Homes Victoria v Huynh (Huynh).
101.	In Huynh Member Webb observed: 
A ‘bush telegraph’ exists which spreads the word as to the implications of illegal acts and Homes Victoria’s response, among those involved in illegal acts, and those residents impacted by it in their neighbourhood. A failure to evict in the present circumstances would mean that the deterrent effect on other would be traffickers should be inhibited.
A further issue raised by the rental provider included the impact that the drug culture on the Estate has on prospective renters. [The rental provider] stated that despite the housing shortages and waiting lists that exists in Victoria, currently around 85,000, the Estate has vacant residences as prospective renters choose not to take up offers of accommodation because of the drug related offending that is ongoing at the Estate. This is a serious issue when the present housing shortage is taken into account and reflects the impact that activities that the renter has engaged in is taken into account.
102.	The difference is that the situation in the immediate vicinity of the renter’s premises in Huynh at the time of the Tribunal’s hearing and decision was more similar to the situation near Mr Mantzalas’ premises in early 2023, that is, two years ago.
103.	In the present case, to grant an order based on Homes Victoria’s vigorous pursuit of a possession order is not necessarily going to send a reassuring message to other renters. The reasonable and proportionate test is the same whether the renter, for example, owes at least 14 days’ rent or they have used the premises for an illegal purpose. Thus, there will be nothing stopping Homes Victoria and other rental providers from adopting a zero tolerance approach in respect of other types of possession order applications. I have already found that there is no issue estoppel in the present case, but the Tribunal should be cautious to make a possession order based on a third notice to vacate, issued in relation to the same facts, 26 months after the renter engaged in the relevant breach of the Act. 
104.	The Tribunal is not bound by the rules of evidence. It does not follow that I can place as much weight on the evidence of witnesses who work for Homes Victoria as I would on the sworn evidence of neighbours. Prospective renters may indeed have been too fearful to move into the block of units in 2023, although even at that time the most serious problems may not have been directly caused by the renter, but by squatters.
105.	If current renters are said to be afraid for their safety, that evidence should have been put forward and the renter given a chance to test the evidence. In the absence of evidence before me from the neighbours, many questions remain unanswered. While a majority of the neighbours – and as already observed a majority may be as few as three people – might want him out, this may be for myriad reasons: he is known to have a criminal history, he has car bodies and various items in the common areas, or the neighbours may not have anything against him personally, but may prefer to have a quieter female in his stead.
106.	In the present case, as I have already concluded, the relevant conduct in 2023 did not affect many – or any – of the current renters in the block. There are no vacancies in the renter’s block of flats. There is no evidence that other Homes Victoria renters, who live near the premises, are engaged in illegal activities and ought to be deterred. 
107.	This is a finely balanced case. I acknowledge the rental provider must be frustrated that the legislation does not provide for a more “holistic” or “cumulative” approach, whereby a rental provider could serve a composite notice to vacate under several sections of the Act, for example, using the premises for an illegal purpose, breach of the obligation to keep the premises reasonably clean and breach of the obligation not to interfere with the reasonable peace, comfort and privacy of neighbours. In addition, the rental provider advised the Tribunal that the renter owes more than 14 days’ rent.
108.	Taking into account the totality of the available evidence and the interests of, and impacts on, the parties and neighbours of a possession order, for the reasons set out above, I find it is not reasonable and proportionate to make a possession order.
Conclusion
109.	The notice to vacate and the application to the Tribunal are both valid.
110.	The grounds of the application are made out, that is, the residential rental provider has proven the reasons for giving the notice to vacate.
111.	Having regard to the matters in section 330A of the Act, it is not reasonable and proportionate to make a possession order.
112.	The application is dismissed.

Member F. Gelev