VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2020/36275

CATCHWORDS	
Application for termination and possession under s 549(2)(i) of the Residential Tenancies Act 1997; previous leases in company name; renewal in name of one tenant; who is the tenant.	

APPLICANT	Liangqin Jia	
RESPONDENT	Michael Soon	
WHERE HELD	Melbourne	
BEFORE	K. Metcalf, Member	
HEARING TYPE	Hearing, by telephone	
DATE OF HEARING	29 January 2021	
DATE OF ORDER	2 March 2021	
CITATION	Jia v Soon (Residential Tenancies) [2021] VCAT 169	

Order
Application dismissed for the reasons provided in writing.

K. Metcalf
Member			

APPEARANCES:		
For Applicant	Ricci Sauler, Agent
Carolyn Purnell, Agent	
For Respondent	Michael Soon, in person 	

Reasons
1	This is an application by the landlord of a property in St Kilda Rd, Melbourne for a termination and possession order under s 549(2)(i) of the Residential Tenancies Act 1997 (RTA) on the basis that the tenant had not paid rent. The application came before me for hearing by telephone on 29 January 2021. The landlord was represented by the agents Ricci Sauler and Carolyn Purnell. The tenant Michael Soon represented himself. Both parties had submitted volumes of documents which for technical reasons were not available at the hearing. Both parties gave evidence that they had received the evidence from the other party and confirming the contents of the documents each had submitted. At the end of the hearing I reserved my decision.
The application
2	The evidence of the landlord, not disputed by the tenant, was that the tenancy commenced on 11 September 2017 on a 12 month fixed term tenancy and was thereafter renewed in 2018 and again in 2019. After expiry of the fixed term on 10 September 2020 the tenancy is now periodic. Michael Soon remains in residence. The rent is $8,212.50 per calendar month (reduced from $9,125.00 on 11 April 2020) and is currently paid to 10 April 2020 with $4,004.17 on account. The rent arrears at the date of hearing were $75,038.33. The landlord seeks a termination and possession order.
The residential tenancies agreement
3	The agents provided a copy of the original residential tenancies agreement from when the tenancy commenced dated 21 August 2017. The term is for 12 months, commencing on 11 September 2017 and terminating on 10 September 2018. The tenant is described as “Pamimsa Pty Ltd (Michael Soon)”. The document is signed by the director of the company, who the tenant says is Andrew Illman, the sole director of the company and the tenant’s former domestic partner (the first lease). The evidence of the agents was that there was then another residential tenancies agreement signed when the first lease expired on 10 September 2018, though no copy of that document was provided.
4	The agents provided a copy of the Lease Renewal Agreement signed on 25 June 2019 for a 12 month fixed term tenancy commencing on 11 September 2019 and ending on 10 September 2020 (the third lease). The tenant is described as “Michael Soon”. The document has been signed by Michael Soon as tenant by means of ‘an approved, digital representation of the signature’, and by Ricci Sauler for and on behalf of the agents Kaye & Burton South Yarra also by means of ‘an approved, digital representation of the signature’.
Who is the tenant?
5	Mr Soon says that the third lease should always have been in the company name, not his personal name, and that previous leases had all been in the company name. In substantiation of this contention, in addition to providing a copy of the first lease he also provided a copy of another residential tenancies agreement, prepared by the same agents, dated 28 February 2017, for another apartment in the same building. The tenant’s evidence was that this document related to a pervious home with his former partner. That document shows the tenant to be “Pamimsa Pty Ltd (Occupant: Michael Soon)”.
6	The landlord provided a copy of the original application for occupation of the rented premises. That application was made jointly by Michael Soon and Andrew Illman, and shows their current address as the previous rented premises in the same building managed by the same agents and for which the tenant was Pamimsa Pty Ltd. The reason for moving was given as ‘more space’.
7	Mr Soon says the agents made a mistake in the preparation of the third lease document and that it should also have been in the name of Pamimsa Pty Ltd as the first lease and then, he says, the second lease had been. His evidence was that he was just the contact person for the agents in relation to the tenancy. His evidence was that he had been in a relationship with the sole director of Pamimsa Pty Ltd, Andrew Illman, and that the relationship broke down in June 2020. His evidence, supported by a letter from his family lawyers, was that the rented premises had been the former relationship home, and that the issue of outstanding rent arrears and the ongoing tenancy are the subject of continuing family law discussions as issues arising from the breakdown of the relationship. Mr Soon signed the third lease, but he says it was as mistake that it was in his personal name. He is effectively saying he signed as agent for the company, and as named resident of the rented premises.
8	Mr Soon’s evidence was that most of the rent payments in relation to the third lease were made from the account of Pamimsa Pty Ltd until COVID-19 impacted the income of the company, and then once the relationship broke down Mr Soon’s friends made rent payments. The ledger provided by the landlord does not indicate who made the payments, but the agents did not dispute this evidence.
9	There was no explanation from the agents as to why the third lease for the on-going tenancy was in the tenant’s personal name, rather than that of the company. There was no evidence that there had been a transfer of tenancy from the company to the tenant personally. Mr Soon was adamant that the third lease should have been in the company name, as previous leases had been.
10	This is an ongoing tenancy. The application for a tenancy was made in the joint names of domestic partners. A previous tenancy had been in the name of the company of which one of those domestic partners was the sole director (Pamimsa Pty Ltd). The first lease was in the name of Pamimsa Pty Ltd, as was, the tenant says, the subsequent lease. There was no evidence to the contrary provided by the agents. The uncontradicted evidence of Mr Soon is that Pamimsa Pty Ltd paid the rent for the third lease even though the third lease was in the name of Mr Soon. There is no evidence of a transfer of the tenancy to Mr Soon. 
11	In all the circumstances, based on the evidence, I am not persuaded that the company has given up its rights and obligations or that the tenant has assumed those right and obligations personally. I am therefore not persuaded that the landlord has established that Michael Soon is the tenant of the rented premises. As a result, the landlord’s application against Michael Soon cannot succeed and must be dismissed. An order will be made accordingly.

K. Metcalf
Member