VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST	vcat reference No. r2019/39359

Catchwords: Residential Tenancies Act 1997 (“the Act”); Sections 263, 452 & 266; notice to vacate give for no specified reason; tenant’s challenge to the notice on the basis of alleged retaliation.	

APPLICANT	Mirren Kruse	
RESPONDENT	Qian Huiwen	
WHERE HELD	Ringwood and by telephone.	
BEFORE	Hugh T. Davies, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	25	February 2020 & 23 March 2020	
DATE OF ORDER	3 April 2020	
CITATION	Kruse v Huiwen (Residential Tenancies) [2020] VCAT 431	

Order

The application is dismissed.

Hugh T. Davies
Member

APPEARANCES:		
For the Applicant 	In person	
For the Respondent	Ms Mazzeo- managing agent	

REASONS FOR DECISION
The hearing and the subject matter of the Application.
1	At the initial hearing on 25 February the Tribunal heard evidence from the applicant (“the tenant”) and Ms Mazzeo, the respondent landlord’s managing agent (“the agent”).
2	It appeared at that hearing that the parties had resolved their difference and so the application was adjourned for a telephone hearing on 23 March last at which the Tribunal anticipated consent Orders would be made; that settlement did not eventuate and further evidence was taken from the tenant and the agent and a decision was reserved for the delivery of written reasons.
3	This application, made as a general application under Section 452 of the Act, is by way of a challenge pursuant to Section 266 (2) of the Act to the validity of a notice to vacate dated 20 September 2019 (“the notice”) given by the landlord to the tenant pursuant to Section 263 (1) of the Act and which the tenant has challenged within the required time by Section 266 (3)(c) of the Act.
The undisputed background to the claim
4	In March 2016, the tenant entered into a tenancy agreement with the respondent (“the landlord”) for a term of two (2) years for premises at 28 Wingate Avenue Mount Waverley (“the premises”).
5	Throughout the tenancy the tenant complained about a number or repair issues; some of those complaints were outstanding as at the date of the notice.

6	The agent’s employer took over management of the premises in October 2018.
7	The notice specified a termination date of 25 January 2020 (“the termination date”).
8	By the time the notice was given the tenancy was periodic.
9	After the notice was given the agent conducted a number of inspections in line with the landlord’s then stated intention to consider a sale of the premises.
10	This application was filed on 17 November 2019 in which the tenant, as repeated at the hearings, claimed that the notice was given in response to her exercise of a right under the Act (“retaliatory”).
11	None of the above was in dispute and constitutes findings as to fact.
The tenant’s assertions.
12	The tenant complained about the state of the premises at the commencement of the tenancy and about the landlord’s approach to repair requests.
13	She stated that, during the tenancy, she had made a number of improvements to the premises at her own expense.
14	Clearly from her evidence, the tenant was disappointed that, without prior warning, she was faced with the notice in circumstances in which she did not know what to do about relocating her family and thought she was being treated unfairly.
15	She gave no evidence to suggest that the agent had been unco-operative or the landlord was unwilling to meet repair requests after the agent was appointed to manage the premises.
16	In her application, the tenant stated that she believed the notice had been given so that “the rent could be increased more than it could be while I am living there” and that “ I feel it is extremely unfair that I now have to move out and can’t really enjoy much of the benefit of the repairs.”
17	Whilst in her evidence the tenant did complain about the history of repair issues during the tenancy, she did not link the giving of the notice to a particular repair request nor state specifically that she believed repair issues led to the notice, albeit that was the basis of and, at law in the circumstances of this tenancy can be the only basis upon which the notice can be challenged. 
The respondent’s reply
18	The agent’s evidence was to the effect that, since her employer had taken over management of the premises on the landlord’s behalf, her agency had used reasonable efforts to have all requests for repairs met within a reasonable time, albeit, from time to time, there had been delay caused by problems involving a third party and suppliers.
19	She conceded that some repairs the tenant had requested had not been completed as at the date of the notice.
20	She further stated that the landlord had never resisted the tenant’s request for repairs or complained about the tenant making those requests and that she saw no evidence to suggest that the landlord was acting in a retaliatory manner in instructing her to give the notice.
21	Her evidence was that the landlord requested she give the notice to the tenant, that the landlord did not state a reason for taking that decision beyond that the landlord wanted to have options as to its ability to deal with the premises on an ongoing basis.
22	She stated that after the notice was served advised her the landlord advised that it was considering selling the premises and, in October 2019, requested that a valuation of the premises be obtained.
23	She further stated that an email she sent to the tenant, after the date of the notice, advising that the landlord was considering reletting the premises, was sent in error. 
Findings as to Fact
24	From the evidence I further conclude that:
as at the date of the notice the agent had taken steps to arrange for all repairs requested by the tenant to be effected;
the only repair outstanding as at the termination date related to faulty window winders;
as at the date of the notice there had been no recent requests by the tenant for repairs although some earlier requests were outstanding; and
neither the landlord nor the agent was showing any reluctance to meet repair requests.
25	There was no persuasive evidence to support the tenant’s claim that the notice was given so that the rent could be increased. 
Conclusions and Orders
26	It is for the tenant to satisfy the Tribunal that is more likely than not that the notice was retaliatory.
27	There is no basis upon which the Tribunal should reject the agent’s evidence which was given in a straightforward and seemingly honest manner.
28	Whilst the Tribunal accepts the tenant’s evidence overall, an issue is whether the tenant had formed a mistaken belief that the landlord’s actions in giving the notice were retaliatory.
29	It is difficult to avoid concluding that the tenant, more than anything, was disappointed that the landlord had decided to give a notice to vacate for whatever reason.
30	On the basis of the above findings, the Tribunal concludes that the notice was not retaliatory.
31	The notice otherwise complies with the requirements of the Act.
32	The landlord has given the tenant not less than 120 days’ notice to vacate without specifying a reason and was entitled to give the notice.
33	This application is dismissed.
34	Consequential Orders will be made in R2020/3224, in which the landlord has sought an order for possession pursuant to Sections 322 (2) and 263 of the Act 

Hugh T Davies
Member

LEGISLATION

Residential Tenancies Act 1997

Section 263(1)
     A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice. 
(b)     in the case of a periodic tenancy agreement referred to in section 230(3A), not less than— 
(i)     the prescribed period; or 
(ii)    if no period is prescribed under subparagraph (i), 120 days after the date on which the notice is given; or 
(c)     for any other tenancy agreement, not less than 120 days after the date on which the notice is given.

Section 266 (2) 
A notice under section 261 or section 263 is of no effect if it was given in response to the exercise, or proposed exercise, by the tenant of a right under this Act.