VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST	
vcat reference No. R2020/11214	
 
CATCHWORDS	
Application for possession under Part 7 of the Residential Tenancies Act 1997 – consideration of payment plan under s.331 – Covid Emergency Measures legislation and associated regulations impact on the issue of a warrant of possession - consideration of entitlement to the issue of a warrant of possession by reference to the termination and possession provisions under Part 16 of the Residential Tenancies Act 1997 – whether the Tribunal is satisfied as to the grounds for seeking the termination order – whether making a termination and/or possession order is reasonable and proportionate – possession order granted, issue of warrant postponed.	
APPLICANt	Marcus Healy	
RESPONDENT	William Mackie	
BEFORE	K. Campana, Member	
HEARING VENUE	Melbourne	
HEARING TYPE	Final Hearing	
DATE OF HEARING	21 August 2020	
DATE OF ORDER	3 September 2020	
CITATION	Healy v Mackie (Residential Tenancies) [2020] VCAT 962	

Order 
For the written reasons provided, the Tribunal finds that:

1	The landlord gave the tenant not less than 14 days’ notice to vacate when the tenant owed at least 14 days’ rent.
2	The landlord has proven the grounds in the notice and is entitled to a possession order.
3	The rent, which is $440 per week, is paid to 31 December 2019 and the rent owed to 21 August 2020 was $14,726.42.
4	The bond has not been paid.
5	The Residential Tenancies Act 1997 (the Act) and the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 provide that the landlord is not entitled to a warrant of possession or the execution of a warrant of possession, unless the possession order could have been made under Part 16 of the Act, had Part 16 been in effect at the time the order was made.
6	In this case, the possession order could have been made under Part 16 of the Act.

7	The landlord is entitled to the issue of a warrant of possession. However, the issue of the warrant of possession will be postponed until after 17 September 2020.
The Tribunal orders that:
8	The tenant must vacate the rented premises by 4 September 2020.
9	The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 3 March 2021). The issue of the warrant of possession is postponed until after 17 September 2020.
Warning to tenant: If you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.

K. Campana
Member			

APPEARANCES:		
For Applicant	Mr Tyler Wolff, Solicitor
In person	
For Respondent
	In person	

Reasons
1	William Mackie (the tenant) lives in a 2-bedroom Mildura unit (the rented premises) with his partner and four children under the age of six. At times he also has two other children, aged 9 and 11 from a previous relationship, staying with him.
2	The tenant moved into the rented premises, owned by Marcus Healy (the landlord), in December 2019. 
3	Within weeks of moving in, the tenant had failed to pay the rent, and in mid-February 2020, the landlord’s mother, Lynn Healy, asked him to leave.
4	The landlord seeks possession of the rented premises, under Part 7 of the Residential Tenancies Act 1997 (the RT Act), based on service of a notice to vacate. Under the temporary amendments to the RT Act introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020 (the COVID-19 Act) and the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 (the COVID-19 Regs), if a possession order is granted, the Tribunal must consider whether or not the landlord is entitled to the issue of a warrant of possession.
5	For the reasons that follow, I have determined that the landlord is entitled to a possession order and warrant of possession, with the issue of the warrant postponed.
Is the landlord entitled to possession of the rented premises?
6	The tenancy commenced on 18 December 2019, and the tenant was required to pay rent of $440 per week and a bond of $440. With no rent or bond paid prior to entering into occupation, Ms Healy contacted the tenant and asked for payment. On 7 January 2020, the tenant paid $400 and on 28 January 2020, the tenant paid a further $400. No other payment has been made.
7	On 17 February 2020, the landlord sent the tenant a notice to vacate under section 246 of the RT Act for non-payment of rent by registered post. The notice stated-
Tenancy Commenced 18th December 2019, Rent Paid up until 31st December 2019. Rent $440pw. Rent owing to today’s date is $3008.64 – Calculated as 48 days @ $62.28 per day. Seeking Possession due to rent arrears.
8	The notice to vacate had a termination date of 10 March 2020. On 17 March 2020, the landlord made application to the Tribunal for possession.
9	I am satisfied that the landlord gave the tenant at least 14 days’ notice to vacate, when the tenant owed at least 14 days’ rent and was entitled to give the notice to vacate. I am also satisfied that the notice to vacate was validly served.
10	The tenant seeks that the Tribunal exercise its discretion and adjourn the possession application by giving the tenant a chance to pay the arrears. 
11	If a possession application is supported by a notice to vacate given under section 246, and the Tribunal considers that satisfactory arrangements can be made to avoid financial loss to the landlord, the Tribunal may adjourn the proceeding on any terms it thinks fit, including requiring a tenant to commit to a schedule to pay the rent and arrears. 
12	The tenant has only made two payments towards the rent since the tenancy commenced, and at the date of the hearing owed $14,726.42 in rent. The tenant says that he cannot make any lump sum payment, but the proceeding should be adjourned, and he should be placed on a payment plan.
13	The tenant claims that any payment of rent ongoing and the payment of arrears, should take into account that he should only be paying $220 a week for rent. He says this is because the agreement was that the rent would also include utilities at the rented premises, and he has been paying for electricity recently. The landlord agrees that electricity was to be included in the rent charge, but says he cancelled the electricity when the tenant failed to pay the rent. The landlord disputes the reduction for electricity should be as much as $220 a week.
14	The tenant has not made a claim for compensation relating to the amount paid for electricity and as such I am not going to make any determination in relation to this argument. Under the tenancy agreement the tenant must make payment of $440 a week, and as such I have considered the request for a payment plan in this context.
15	This matter first came on for hearing on 22 April 2020 at which time the Tribunal made orders adjourning the proceeding with a right of renewal to the landlord. The landlord says the proceeding was adjourned to enable the tenant to make rental payments, after the tenant informed the Tribunal that he had “set aside the money that he owed for rent”. The tenant says the landlord would not take any rent payments offered by him, nor would he provide details of how he should pay the rent. This assertion is rejected by the landlord. The solicitor for the landlord says he contacted the tenant after the hearing and advised that he could make payments into the solicitor’s trust account. After the tenant failed to make the payments, the landlord renewed the proceeding a month later at the end of May. 
16	I prefer the evidence of the landlord on the reason for the adjournment. It is illogical that a landlord who had not received rent for three months, who had asked for an adjournment, would then refuse rent payments, only to have to ask for yet another hearing before the Tribunal for possession. 
17	Additionally, the tenant’s evidence was unpersuasive, being vague and incoherent at times. 
18	The tenant has not satisfied the Tribunal that satisfactory arrangements can be made to avoid financial loss to the landlord and that I should exercise my discretion and put the tenant on a payment plan. The tenant has provided no plausible reason for not paying the rent, no reason as to what he has done with the $14,000 he owes in rent (except for the assertion that he had to pay for some motor vehicle repairs), nor provided any proposal for how much he can pay on an ongoing regular basis.
19	As such, the Tribunal refuses to exercise its discretion and adjourn the proceeding. The landlord is entitled to possession of the rented premises.
20	As rent has been calculated only to the date of the hearing, and the tenant has remained in occupation past that date, there will be no order in relation to rent arrears. The landlord can make any appropriate claim for compensation when the tenancy has ended.
Is the landlord entitled to obtain a warrant of possession?
21	Under the temporary amendments to the RT Act effected by the COVID-19 Act and the COVID-19 Regs, a landlord who obtains a possession order under Part 7 of the RT Act, is not entitled to obtain (have issued or executed) a warrant of possession, unless the possession order could have been made under Part 16 of the RT Act.
22	Regulation 57(3) applies to this proceeding and states-
A landlord of rented premises or mortgagee in respect of rented premises is not entitled to obtain a warrant of possession in respect of rented premises on or after the day on which this regulation comes into operation if-
(a) 	the landlord or mortgagee made an application for a possession order for the rented premises under Part 7 before 25 April 2020; and
(b) 	a possession order for the rented premises was made under Part 7 on or after 29 March 2020; and
(c) 	the possession order could not have been made under Part 16 had Part 16 been in operation at the time.
23	As the application for a possession order was made before 25 April 2020 (on 17 March 2020), and for the reasons provided above I have determined that the landlord is entitled to a possession order under Part 7 of the RT Act, I need to consider whether the landlord is entitled to obtain a warrant of possession under the possession order by reference to Part 16 of the RT Act. In particular, the landlord is not entitled to obtain the warrant (or have one issued by the principal registrar), if the possession order could not have been made under Part 16 had Part 16 been in operation at the time.
Has the ground for seeking termination and possession been established?
24	In assessing the application of Part 16, the advocate for the landlord submits that I can take into account not only the grounds on which this possession order is being made (being rent arrears), but the additional grounds of the landlord wanting to move in.
25	I disagree. Regulation 57(3)(c) requires a consideration of whether the possession order that has been made, could have been made under Part 16.  It is not a consideration of whether a or any possession order could have been made. It is specific to the possession order that has been made. As such I have considered the rent arrears as the only ground relevant to determining whether the landlord could have been entitled to a termination and possession order under Part 16.
26	Section 246 of the RT Act, the basis for this notice to vacate and possession order, is premised on the failure to pay rent. The like provision in Part 16 is s.549(2)(i), that - 
the tenant has failed to comply with the tenant’s obligations under the tenancy agreement or the Act, including by not paying rent, in circumstances where the tenant could comply with the obligations without suffering severe hardship. 
27	In considering the ground at the time of making the possession order, I am satisfied that the applicant could have established the grounds for seeking termination and possession, being that the tenant had failed to pay rent, in circumstances where he could have paid without suffering severe hardship. The tenant was in receipt of Centrelink benefits, had made two payments towards rent in January 2020, and had given promises, but otherwise no explanation to the landlord as to why he had not been able to make further payments for an eight month period. 
28	I am satisfied that the landlord could have been entitled to termination and possession on the basis of ground 549(2)(i) under Part 16 of the RT Act.
Is there a COVID-19 reason for the tenant not paying rent?
29	Section 540 of the RT Act establishes that a tenant is not in breach of the tenancy agreement or a duty provision of the RT Act, if their inability to comply with the obligation is because of a COVID-19 reason.
30	COVID-19 reason is defined in section 537 as including (a) illness, (b) state emergency restrictions, (c) severe hardship or (d) any exceptional circumstances in relation to the COVID-19 pandemic.
31	The tenant says that in late December 2019, he had a dispute with his mother in law, which resulted in his children being kept in her care, and his former partner denying him access to his two older children. He says as a result he and his partner's Centrelink payments were impacted. 
32	The tenant says court action was required to have the children returned in January 2020, but his payments did not recommence until early February, and his partners did not recommence until late March. No documentary evidence was provided by the tenant to substantiate the absence of Centrelink payments during January, February and March.
33	A tenant has the burden of proving that they were unable to comply, or it was not reasonably practical for them to comply with their obligation to pay the rent because of a COVID-19 reason. The tenant in this case has failed to do so.
34	There is no evidence about what payments were being received during the first quarter of 2020, or why the tenant has not paid rent since he says his Centrelink payments have returned, including a rent assistance payment of $138 a fortnight. The tenant’s income has increased as a result of Federal Government assistance packages, and yet the tenant has not paid any rent since January 2020, with no explanation of where that money has gone. Despite claims to the Tribunal in April 2020, under oath, that he had the rent set-aside, the tenant now claims that he has no money set-aside for the payment of rent, including the rent assistance payments made by the Federal Government.
35	Taking the available evidence into account, I am not satisfied that the tenant has a COVID-19 reason for not paying the rent.
Is it reasonable and proportionate to make a (termination and) possession order?
36	The final consideration as to whether the possession order could have been made under Part 16 of the RT Act, is whether it would be reasonable and proportionate to make such an order, having regard to the matters in ss. 538 and 549(1)(b) that are relevant to this case.
37	The tenant’s non-payment of rent has been prolonged and extensive. As at the date of hearing, the cumulative effect on the landlord is that he has been without rental payments for some eight and a half months.
38	The breach cannot be considered trivial. The tenant has been in receipt of rental assistance payments, and even these have not been passed on to the landlord as a contribution towards the rent.
39	No other person but the tenant is responsible for the payment of the rent.The tenant claims that Centrelink payments were stopped as a result of the actions of his mother in law in withholding the children. This does not explain the non-payment of rent after the Centrelink payments were reinstated, or when there was an increase in the amount being received under Newstart/Job Seeker.
40	For the same reasons that I took into account when considering whether or not to exercise the discretion to place the tenant on a payment plan, I have no faith that the tenant will pay the arrears of rent or comply with his obligation to pay rent moving forward. In any event, under Part 16 of the RT Act there is no ability to force a payment plan on the parties and as such there is no alternative available course of conduct to ensure payment of the rent. The Tribunal also notes that the tenant was previously given such an opportunity on 22 April 2020 when the proceeding was adjourned, and failed to make any payments at all.
41	Finally, the Tribunal is required to take into account the interests of and the impact on the landlord, the tenant and all other occupants in the rented premises, in considering whether a termination or possession order could have been made.
42	The landlord says he has been living in his car for the past three months. He says he has been laid off work as a farm hand for several months, has been looking for work as an electrician without success and is about to default on his mortgage and lose the unit. The landlord submits it is unfair that the tenant continues to stay in his unit without paying rent, and he is living in his car and facing the prospect of losing the asset to the bank.
43	The tenant submits that the impact on him, his partner and his children will be significant if he is evicted from the rented premises. He says the children may be removed from his care and previous experiences in private rental accommodation has left the family destroyed, moving into this property with only a “couple of clothes”.
44	The landlord submits that the children have other parties who will care for them and there is insufficient evidence that they will be rendered homeless. He submits that while the children will not necessarily be in the care of a parent, they will have a roof over their heads, just not the roof that the tenant wishes they had.
45	There is no doubt that it is in the best interests of the children for their family relationship to be maintained. However, it cannot be ignored that the children are in this position because of the failure by the tenant to give priority to paying the rent. The tenant has no-one else to blame, but his own choices and inaction. The tenant has had months to pay the rent or at least a part payment of the arrears. Instead he has made an election to sit on his hands.
46	The number of people affected by the tenant’s failure to pay rent is significant - the landlord, the tenant’s partner and the tenant’s children. The cause of any distress or breakdown in the family relationship between the tenant and the children falls squarely at the feet of the tenant and his inaction in paying the rent. A termination and possession order is an unfortunate consequence of the tenant’s actions.
47	I am satisfied that it would be reasonable and proportionate for a termination and possession order to be made.
Conclusion 
48	Taking into account all of the relevant matters in Part 16 of the RT Act, I consider that a possession order could have been made under Part 16, and as such the landlord is entitled to obtain a warrant of possession. Orders will be made accordingly.
Should there be any postponement on the issue of the warrant of possession?
49	Under s. 352 of the RT Act, the Tribunal may postpone the issue of the warrant of possession, taking into account the relative hardships of the tenant and the landlord.
50	For the sake of the children, it is appropriate that I exercise my discretion and postpone the issue of the warrant, so that the tenant can take affirmative action towards securing alternate accommodation for he, his partner and his children. 
51	The issue of the warrant will be postponed until after 17 September 2020.

K.Campana
Member