VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST	
vcat reference No. R2019/39655	
CATCHWORDS	
Residential Tenancies Act 1997 – ss 537, 538, 549 & 613 – whether landlord entitled to a warrant of possession under Part 16 in light of COVID-19 Omnibus (Emergency Measures) Act 2020 – s 71(6) Victorian Civil and Administrative Tribunal Act 1998	

APPLICANT	Director of Housing	
RESPONDENT	Josephine Nguyen	
WHERE HELD	Melbourne	
BEFORE	C. Powles, Member	
HEARING TYPE	Hearing via teleconference	
DATE OF HEARINGS	29 June 2020 & 14 July 2020	
DATE OF ORDER	28 July 2020	
DATE OF WRITTEN REASONS	14 September 2020	
CITATION	Director of Housing v Nguyen (Residential Tenancies) [2020] VCAT 1018	

ORDERS
VCAT finds:
1	On 16 December 2019 the Tribunal made a possession order requiring the tenant to vacate by 16 December 2019.
2	On 12 June 2020 the landlord requested the Principal Registrar to issue a warrant of possession.
3	The Residential Tenancies Act 1997 (the Act) and the Residential Tenancies (COVID-19 Emergency measures) Regulations 2020 which remain in effect until 26 September 2020 provide that, in the above circumstances, the landlord is not entitled to 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.
4	In this case, the possession order dated 16 December 2019 could have been made under Part 16 of the Act, had Part 16 been in effect of the time the order was made. 
5	The landlord is entitled to the issue of a warrant of possession.
The Tribunal orders that:
1	The landlord’s request for the issue of a warrant of possession is granted. 
2	The Principal Registrar is directed to issue a warrant of possession upon the request of the landlord and upon payment of the appropriate fee. 

C. Powles
Member			

APPEARANCES:		
For applicant 	Garry Waddell, Team Manager	
For respondent	No appearance	

REASONS
Background
1	The tenant and a previous tenant, Ba Do (the previous tenant), commenced a joint tenancy at the rented premises on 24 January 2016.
2	The last rental payment was in the sum of $138.80 and was made by the previous tenant on 29 July 2019 through the Centrelink Centrepay facility.
3	On 14 December 2019, the landlord sent a notice to vacate under s 246 of the Residential Tenancies Act 1997 (the Act) addressed to the tenant and the previous tenant, requiring the tenant and the previous tenant to vacate the rented premises by 7 December 2019 because the rent under the tenancy agreement was paid only until 30 July 2019.
4	On 19 November 2019, the landlord applied to the Tribunal for a possession order based on the notice to vacate and that application was heard by the Tribunal, differently constituted, on 16 December 2019 (the Possession hearing).
5	The previous tenant attended the Possession hearing. The tenant did not. 
6	At the Possession hearing, the previous tenant gave evidence that she no longer resided at the rented premises and sought to be removed from the tenancy agreement. This evidence was accepted by the Tribunal and not disputed by the landlord. The landlord agreed that the tenancy was solely with the tenant, and had been since August 2019, subject to a transfer of the joint tenancy into the sole name of the tenant in accordance with the landlord’s usual procedures.
7	At the Possession hearing, the Tribunal found that: 
(a)	the landlord was entitled to a possession order under s 322(1); 
(b)	the rent which was $546.70 per week was paid to 30 July 2019 with $37.61 on account; and 
(c)	the rent owed by the tenant at the day of the hearing was $10,818.29.
8	The Tribunal ordered that the tenant must vacate the rented premises by 16 December 2019 and that a warrant of possession could be issued at the request of the landlord and on payment of the prescribed fee, with any request to be made no later than 16 June 2020 (the Possession order).
9	The tenant did not vacate the rented premises on or after 16 December 2019 and has made no payments of rent.
10	On 8 January 2020, the landlord referred the tenant to the support agency Launch Housing (Launch). On 15 January 2020, the tenant communicated with Launch that she was receiving the Newstart Allowance through Centrelink and wanted to arrange an agreed plan to repay the rental arrears so that she could maintain the tenancy. Launch provided the tenant with information about how to apply for a rebate under the landlord’s policy to charge rent at a rate proportionate to 25% of a tenant’s income.
11	The tenant did not subsequently apply for a rebate or contact Launch or the landlord. Launch made further attempts to contact the tenant but was unsuccessful.
12	The transfer of the tenancy to the tenant was confirmed by the landlord on 20 February 2020. 
13	The landlord referred the tenant to its Support for High Risk Tenancy program, through which it attempted to engage with Ms Nguyen without success. Three home visits were made on 2 January 2020, 28 February 2020, and 22 June 2020 and cards were left at the property for the tenant to contact the landlord. 
14	The landlord attempted to contact the tenant by telephone on 13 & 18 February 2020, 6 March 2020, 21 April 2020, 7 & 19 May 2020, and 18 June 2020. On each occasion a message was left for the tenant to contact the landlord. 
15	The tenant has not contacted the landlord in response to any of these attempts to contact her, or at any other time.
16	It is the landlord’s standard policy that if a tenant engages its Support for High Risk Tenancy program and with an external support provider such as Launch, the landlord will enter into an agreement with the tenant to pay rental arrears over a period of six months, with repayment amount again being based on the tenant’s current income at that time. I am familiar with the operation of this policy through the making of orders confirming repayment agreements of this sort in other cases brought by the landlord to the Tribunal.
17	Despite the tenant not having applied for a rebate of the rent, on 8 May 2020 the landlord assessed the rent owed by the tenant as being rebated based on her receiving the Newstart allowance from Centrelink and her being the sole tenant from August 2019. Accordingly, the landlord no longer sought rental arrears at the market rent of $545 per week and assessed the rebated rent accruing from August 2019 at $70.20 per week. As a result, the rental arrears owing at 8 May 2020 was reduced from $22,142 to $9,277.
18	On 12 June 2020, the landlord submitted a request to the principal registrar for a warrant of possession (the warrant request).
19	On 16 June 2020, the Tribunal found that, due to the passage of the COVID-19 Omnibus (Emergency Measures) Act 2020, and the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 which amends the Act for a temporary period, the landlord was not entitled to a warrant of possession unless the possession order could have been made under Part 16 of the Act, had that Part been in operation at the time the Possession order was made. 
20	The Tribunal ordered that the warrant request be referred under s 71(6) of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) for hearing so that the Tribunal could determine whether the possession order could have been made under Part 16 of the Act.
21	The hearing was listed before me on 29 June 2020. The hearing was conducted by telephone in accordance with the Tribunal’s hearing protocols in light of the COVID-19 pandemic. The Tribunal attempted to contact the tenant by telephone twice at the time of the hearing. The tenant did not answer either call, despite the Tribunal leaving a message on a voice message bank when the first call was not answered, advising that a hearing was being conducted about the tenancy at the rented premises.
22	At that hearing, I raised with the landlord’s representative the issues the Tribunal would need to consider for the purposes of an assessment of whether the Possession order could have been made under Part 16 of the Act, in particular in relation to the operation of s 549(2)(i) in light of the recent Tribunal decision of Done v Graham (Done). I adjourned the hearing to allow the landlord time to consider the issues I raised and to give the tenant a further opportunity to participate in the hearing of this matter.
23	On 14 July 2020, the landlord provided written submissions to the Tribunal in response to the issues raised at the previous hearing.
24	On 16 July 2020, I resumed hearing this matter. The Tribunal again attempted to contact the tenant by telephone twice at the time of the resumed hearing. The tenant again did not answer either call, despite the Tribunal again leaving a message on a voice message bank when the first call was not answered, advising that a hearing was being conducted about the tenancy at the rented premises.
25	At the hearing, the landlord requested that written reasons be provided for the decision I make in this matter. I reserved my decision and made the orders set out above on 28 July 2020. These are the written reasons for the orders I have made.
Relevant law
26	Under s 613, the landlord, having obtained a possession order before 29 March 2020, is not entitled to a warrant of possession at any time after that date unless the possession order could have been made under Part 16 had Part 16 been in operation at the time the possession order was made. The following sets out the law in relation to the making of a possession order under Part 16.
27	By operation of ss 549(4) & 550(1), unless the tenant has given notice of intention to vacate, the Tribunal must make a termination order before a possession order can be made.
28	For a termination order to be granted, the Tribunal must be satisfied:
(a)	that at least one of the matters set out in s 549(2) is made out; 
(b)	that any failure to comply with an obligation or duty under the Act or a tenancy agreement is not due to a COVID-19 reason as defined in s 537; and
(c)	in the circumstances it is reasonable and proportionate to make the termination order, having regard to the matters set out in s 538. 
29	To make a possession order following the making of a termination order, by operation of ss 549(4)(b) & 550(1), the Tribunal must be satisfied that the making of a possession order is also reasonable and proportionate, again having regard to the matters set out in s 538.
30	The matters set out in s 549(2) are not identical to the grounds for giving a notice to vacate under the Act. The matter relevant for a termination order for non-payment of rent is at s 549(2)(i), which is:
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 … 
31	Section 537 defines a COVID-19 reason to be if a person is unable to comply with, or it is not reasonably practicable for the person to comply with, a term, provision or obligation:
(a)	as a result of the person being ill;
(b)	as a result of the person’s compliance with the exercise of emergency powers, the giving of directions or public recommendations by the Chief Health Officer or the State; 
(c)	without suffering severe hardship; or 
(d)	as a result of any exceptional circumstances in relation to the COVID-19 pandemic. 
32	Section 538 requires the Tribunal to have regard to the following in determining whether it is reasonable and proportionate to make an order:
(a)	the nature, frequency and duration of the conduct of the tenant, including whether the conduct is a recurring breach obligation under a tenancy agreement;
(a)	whether a breach is trivial, caused by the conduct of any person other than the tenant or has been remedied as far as is practicable;
(b)	whether the tenant has or will soon have capacity to remedy a breach and comply with any obligations under the tenancy agreement;
(c)	the effect of the conduct of the tenant on others and, as the case requires, the behaviour of the landlord;
(d)	any relevant matters relating to family violence or personal violence; 
(e)	whether any other order or course of action is reasonably available instead of making the orders sought; and
(f)	any other matter the Tribunal considers relevant. 
33	In Done, Member Campbell, applying correct principles of statutory interpretation, concluded that:
(a)	s 549(2)(i) requires a separate assessment of whether the tenant could comply with the obligation to pay rent without suffering severe hardship from the assessment of severe hardship as a COVID-19 reason under s 537;
(a)	where the tenant has not engaged with or provided information or evidence in relation to an application to the Tribunal for a termination order under s 549(2)(i), the landlord is required to satisfy the Tribunal that the tenant could comply with the obligation to pay rent without suffering severe hardship;
(b)	while the Tribunal is not bound by the rules of evidence, the Tribunal is required to make findings of fact based on rational probative evidence and any findings of fact must form a reasonable basis for a definite conclusion of the truth of which the tribunal of fact may be reasonably satisfied; and
(c)	the Tribunal cannot draw an adverse inference from a tenant’s failure to attend the hearing and give evidence, or to otherwise give evidence in relation to a Tribunal proceeding, without putting the tenant on notice of the potential of such an inference being drawn.
34	While I am not bound by previous decisions of Tribunal members, I should consider them in determining whether I should make findings that are inconsistent with those decisions. 
Findings
35	To be satisfied that 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, I had to assess the following matters as at 16 December 2019: 
(a)	Had the tenant failed to comply with her obligations under the tenancy agreement by not paying rent?
(b)	If so, could she have paid rent without suffering severe hardship?
(c)	If so, was she unable to comply, or was it not reasonably practicable for her to comply, with her obligation to pay rent because of a COVID-19 reason? 
(d)	If not, was it reasonable and proportionate to make a termination order? 
(e)	If so, was it also reasonable and proportionate to make a possession order? 
36	Having assessed each of these matters, I was satisfied the Possession order could have been made under Part 16 if Part 16 had been in effect as at 16 December 2019 for the following reasons.
Had the tenant failed to comply with her obligations under the tenancy agreement by not paying rent?
37	In light of the findings by the member who made the Possession order, I was satisfied that the tenant was at least 14 days in arrears when she was given a notice to vacate by the landlord in November 2019 and that the rent owed at 16 December 2019 was $10,818.29.
38	I was also satisfied that the last payment of rent before the Possession order was made was in late July 2019.
39	Accordingly, I was satisfied the tenant failed to comply with her obligations under the tenancy agreement by not paying rent. 
Could the tenant have paid rent without suffering severe hardship? 
40	On the evidence provided by the landlord, I am satisfied that:
(a)	by 15 January 2020, the tenant was, as she told Launch at that time, receiving Centrelink Newstart Allowance payments;
(b)	as confirmed by the landlord’s assessment made in May 2020, the tenant would have been eligible for a rental rebate that would mean she only had to pay rent at a rate of 25% of her Centrelink income; and
(c)	the tenant would not suffer severe hardship if required to pay rent at the rate of 25% of her Centrelink income, given that she would have the remaining 75% of her Centrelink income to pay for other living expenses.
41	The Possession order was made on 16 December 2019, just under a month before the tenant was in contact with Launch. I am satisfied that it is reasonable to infer that the tenant was receiving, or was eligible to receive, Centrelink payments during the time leading up to when the Possession order was made given that she advised Launch she was receiving them less than a month later. 
42	I am satisfied that the tenant’s obligation to pay rent arises in the context of the landlord’s current rental policy, including its policies about rental rebates and repayment agreements. That is, the way the tenant could comply with obligation to pay rent was not only by paying the market rate of rent charged by the landlord, being $546.70 per week, and any arrears owed at that rate by 16 December 2019. Instead, the tenant could have taken steps in accordance with the landlord’s rental policies so that the amount of rent and any rental arrears owed would be less than the market rate and likely to be an amount that could be paid proportionate to her income.
43	As a result, I am satisfied the tenant could have complied with the obligation to pay rent at or by the time the Possession order was made by:
(a)	advising the landlord she was receiving Centrelink payments (having, if necessary, arranged for Centrelink payments to be started);
(b)	applying for a rebate of rent; and
(c)	entering into a repayment of rent, if necessary, for the repayment of any rental arrears owed at the rebated rental rate (together, the rental rebate steps).
44	I accept that taking the rental rebate steps would require some level of organisational and communication skills and effort by the tenant. However, I am not willing to assume that the tenant would be challenged by taking the rental rebate steps in a way that would amount to severe hardship. 
45	Further, I am satisfied that, if at least some of the rental rebate steps had been taken by the tenant by early December 2019, the landlord would, following its policies, have provided the tenant with assistance through its Support for High Risk Tenancy program and an external provider such as Launch. I find that having this assistance would further reduce any difficulties the tenant may have had in taking the rental rebate steps, making it even less likely that the tenant would suffer severe hardship in complying with her obligation to pay rent.
46	In light of the above, I consider that there is sufficient rational, probative evidence before me to find that the tenant could have complied with her obligation to pay rent without suffering severe hardship. 
47	In doing so, I note that in this case I give particular weight to the certainty I have about the regular operation and implementation of the landlord’s publicly stated policies in relation to rent rebates and support programs. I consider it unlikely that the more informal rent negotiation processes undertaken by private landlords could lead to the same level of certainty about the consequences of a tenant taking steps seeking rent reduction or a repayment plan and how that may affect the obligation to pay rent in other cases.
Was the tenant unable to comply, or was it not reasonably practicable for her to comply, with her obligation to pay rent because of a COVID-19 reason? 
48	The tenant has the burden of proving she was unable to comply, or it was not reasonably practicable for her to comply, with the obligation to pay rent because of a COVID-19 reason. 
49	For the reasons set out above, I find that the tenant was able to comply with her obligation to pay rent without suffering severe hardship. 
50	In considering whether the tenant did not comply with her obligation to pay rent for any other COVID-19 reason, I am also satisfied that:
(a)	the tenant would not have been prevented from taking the rental rebate steps by operation of any of the directions or public recommendations by the Chief Health Officer or the State;
(b)	if the tenant had been unable to take the rental rebate steps because of illness or for some exceptional circumstance related to the COVID-19 pandemic, it is more likely than not that the tenant would have advised Launch of this when communicating with Launch in early January 2020; and
(c)	as the tenant did not advise Launch of any illness or exceptional circumstance, it is more likely than not the tenant was not prevented for complying with her obligation to pay rent by illness or any exceptional circumstance related to the COVID-19 pandemic.  
51	In light of the above, I am not satisfied the tenant had a COVID-19 reason for being unable, or for it not being reasonably practicable, for her to comply with her obligation to pay rent.
Was it reasonable and proportionate to make a termination order?
52	In assessing the relevant factors under s 538, I find that:
(a)	as at December 2019, the tenant was approximately four and a half months behind in her rent, so the breach of her rental obligation was not trivial and had not been remedied as far as was practicable;
(b)	rent had not been paid since July 2019 and the tenant had failed to communicate with the landlord about any reasons for not paying rent, or seeking a rental rebate or arranging a payment plan, so the nature, frequency and duration of her conduct weigh in favour of terminating the tenancy;
(c)	the tenant’s failure to pay rent was not caused by the conduct of any other person and there do not appear to be any circumstances relating to family violence that have prevented the tenant from paying rent; and
(d)	given the tenant’s failure to pay rent for several months and to communicate with the landlord by early December 2019, there was no other course of action reasonably available instead of making the order sought.
53	In assessing whether the tenant would have the capacity to remedy her breach and comply with her obligation to pay rent, I have found that she could have done so by taking the rental rebate steps, and so accept that she would have soon had the capacity to comply with the rent obligation by taking the rental rebate steps. However, the failure of the tenant to participate in the hearing in December 2019 and the fact that she then did not take the rental rebate steps after indicating she would do so in early January 2020 leads me to give little weight to this factor in assessing whether it was reasonable and proportionate to make a termination order in December 2019.
54	The landlord submits that I should also take into account its role as a provider of well-maintained, safe and habitable public housing stock and its need to ensure it has revenue available through the payment of rent for that purpose. I accept this submission and consider that the effect of significant amounts of unpaid rent on the landlord’s public housing operations is a relevant matter I can take into account under s 538.
55	In light of the above, I am satisfied it would have been reasonable and proportionate, taking into account the interests of, and the impact on, the landlord, the tenant, any co-tenants or other residents and any neighbours or other person who may be, or who has been affected by the acts of the tenant, to make a termination order on 16 December 2019.
Was it also reasonable and proportionate to make a possession order? 
56	For the same reasons I am satisfied that it would have been reasonable and proportionate to make a termination order on 16 December 2019 I also find it was reasonable and proportionate to make a possession order. 
57	In making this assessment, I also give weight to the landlord’s policy of not immediately seeking a warrant of possession after a possession order is made. As stated by the landlord, “it aims to provide tenants with an opportunity to sustain their tenancy by recommencing rental payments and maintaining a repayment agreement through the six-month period” after a possession order is made. 
58	Consistent with this policy, the landlord did not apply for a warrant of possession until 12 June 2020, after giving the tenant almost six months to take the rental rebate steps necessary for her to comply with her obligation to pay rent.
Conclusion
59	In light of the above, I am satisfied that, unlike in Done, there was sufficient rational, probative evidence before the Tribunal for me to be satisfied that the Possession order could have been made under Part 16 and so the landlord’s request for the issue of a warrant of possession should be granted.

C. Powles
Member