VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential Tenancies DIVISION
Residential Tennancies LIST	
vcat reference No. R2021/16039	
CATCHWORDS	
Renter’s challenge to the validity of a notice to vacate – Notice given under s 91ZZB(1) of the Residential Tenancies Act 1997 – consideration of s 91ZZO(e) and Director’s approved documentary evidence 	

FIRST APPLICANT	Rupali Mane	
SECONd APPLICANT	Prakash Mane	
RESPONDENT	Glory Guo	
WHERE HELD	Melbourne	
BEFORE	Member A. Eastman	
HEARING TYPE	Hearing	
DATE OF HEARING	9 June 2021	
DATE OF ORDER	9 June 2021	
Date of Reasons	12 July 2021	
CITATION	Mane v Guo (Residential Tenancies) [2021] VCAT 752	

Order
The application is dismissed.

A. Eastman
Member			

APPEARANCES:		
For the applicants
For the respondent	Mr P. Mane & Ms R Mane, in person
Ms M Jays, agent	

Reasons
Introduction
1.	The renters, Mr and Ms Mane, and the residential rental provider, Mr Guo, are parties to a residential rental agreement. 
2.	In this proceeding, the renters challenged the validity of a notice to vacate dated 8 April 2021 (Notice) given to them by Mr Guo under section 91ZZB(1) of the Residential Tenancies Act 1997 (Act) and which requested that they vacate the rental premises by 15 June 2021. Section 91ZZB(1) provides that a residential rental provider may give a renter a notice to vacate the rented premises if the premises are immediately after the termination date to be sold or offered for sale with vacant possession. 
3.	This matter was heard and determined by me on 9 June 2021. At the conclusion of the hearing, I dismissed the renters’ application and gave oral reasons for my decision.  After doing so, the renters sought written reasons pursuant to section 117 of the Victorian Civil and Administrative Tribunal Act 1998. These reasons reflect the reasons given orally with some additional background facts and references to evidence given during the hearing to improve readability and clarity.
The Hearing
4.	The renters, who run their own real estate business, represented themselves at the hearing. Mr Mane spoke on behalf of his wife and himself. Mr Guo was represented by Ms Jays, the real estate agent engaged to manage the rental of the premises. Mr Guo gave evidence as did Mr Jarrod Wei, the real estate agent engaged by Mr Guo to sell the premises. 
5.	The formal application issued at the Tribunal on 12 May 2021 stated the renters challenged the validity of the notice to vacate on the grounds that it was retaliatory, given because the renters had tried to exercise their rights under the Act.  In a document filed in support of the application, the renters set out a detailed history of various issues which they said had arisen between the parties, most recently in the last 12 months, and which were said to be examples of when the renters had sought to exercise their rights as renters under the Act. The renters said in seeking to sell the rental property, Mr Guo was being vindicative.
6.	At the outset of the hearing I explained to the parties, by reference to the relevant section of the Act, that a notice to vacate given because the premises are to be sold was not able to be challenged on the grounds that it is retaliatory. Accordingly, the focus of the evidence given during the hearing related to the grounds discussed and set out below.
Issues
7.	The renters contended the Notice was invalid because:
a.	the exclusive sales authority which was sent along with the Notice was fraudulent in that the renters alleged it had been back dated so as to appear to have been signed on 2 February 2021; and/or
b.	at the time the Notice was given, Mr Guo had signed two exclusive sales authorities with different agencies; and/or 
c.	the exclusive sales authority which accompanied the Notice was invalid because it expired on 3 May 2021 and was therefore not a continuing sales authority as at the termination date, being 15 June 2021.
Evidence and submission by the renters
8.	It was not disputed that prior to giving the Notice, the subject of this application, Mr Guo had given the renters another notice to vacate, also under section 91ZZB, dated 30 March 2021 (30 March Notice). The termination date set out in the 30 March Notice was 8 June 2021. The 30 March Notice was accompanied by an Exclusive Sales Authority dated 29 March 2021 in which J & D International Property Pty Ltd (J&D real estate) were the appointed selling agent (J&D sales authority).
9.	Subsequently, the renters received the Notice. The Notice was accompanied by an Exclusive Sales Authority dated 2 February 2021 in which Jellis Craig were the appointed selling agent (Jellis Craig sales authority). The Jellis Craig sales authority was for a period of 90 days and expired on 3 May 2021.  
10.	Mr Mane alleged that Mr Guo and the Jellis Craig agent who had executed the Jellis Craig sales authority had back dated the document to 2 February 2021 in order to predate the J&D sales authority which had been executed on 29 March 2021.  Mr Mane contended the J&D sales authority was the valid authority. He said that after the Jellis Craig sales authority was signed on 2 April 2021, ‘they realised they already had signed an authority on 29 March 2021’ and so it was alleged they therefore backdated the Jellis Craig sales authority. 
11.	In support of his contentions that the Jellis Craig sales authority was fraudulent, Mr Mane referred to:
a.	A telephone call he had received on 5 April 2021 from Josh Yu of Jellis Craig, who had allegedly said they had ‘just signed an exclusive sales authority to sell the property’; 
b.	An email from Mr Yu dated 7 April 2021, stating Jellis Craig had been engaged by the owner to sell the property, and requesting entry to the rental premises in order to conduct a bank valuation; and
c.	The fact the date inserted on the Jellis Craig sales authority, being 2 February 2021, was highlighted in yellow.
Mr Mane posed questions, such as:
d.	if the Jellis Craig sales authority had been signed on 2 February 2021, why would a further exclusive sales authority be entered into on 29 March 2021?; and
e.	if the Jellis Craig sales authority was entered into on 2 February 2021, why did it take 49 days to commence the process of selling?
12.	Further, Mr Mane also contended that as the Jellis Craig sales authority was not an ongoing authority, noting it expired on 3 May 2021, the Notice was invalid.
Evidence and submissions on behalf of the residential rental provider
Mr Guo
13.	Mr Guo said he signed the Jellis Craig sales authority on 2 February 2021. 
14.	Mr Guo said he signed the J&D sales authority on 29 March 2021 because J&D real estate had a buyer for the property. Mr Guo said he entered into a contract of sale with the buyer, and a deposit had been paid. However, Mr Guo said this contract was subsequently cancelled and he had then cancelled the J&-D sales authority.
15.	When pressed by the renters that he had, in fact, signed the J&D sales authority first, before signing the Jellis Craig sales authority, Mr Guo said J&D real estate had been engaged throughout last year to try and sell the property. He said he signed with Jellis Craig on 2 February 2021 to attempt to sell the property off the market. He then engaged J&D real estate again because they had someone who was willing to buy.
16.	Mr Guo concluded his evidence saying it was his problem if he signed an exclusive sales authority with two agencies.
Mr Jared Wei, Director of Jellis Craig
17.	Mr Wei said the Jellis Craig sales authority was signed by the parties on 2 February 2021. He said it was signed using an electronic signature and that no one can change or alter the date on the document when it is executed in this way.
18.	Mr Wei said he only became aware that Mr Guo had signed another exclusive sales authority with another agency in April 2021 when Mr Guo told him he had done so because that agency had a buyer. Mr Wei said he queried why Mr Guo would do that, explaining that he would be required to pay double the commission if the property was sold.
19.	Mr Wei agreed Jellis Craig had a 90-day exclusive sales authority period and that it expired on 3 May 2021. He said that was a matter between Mr Guo and Jellis Craig. 
20.	When asked by the renters why it had taken so long before a notice to vacate was sent, Mr Wei said the agency had been trying sell the property off the market but that the renters had refused to allow potential purchasers through the premises.
The Law
21.	Section 91ZZS of the Act provides that on or before the hearing of an application for a possession order in respect of a notice to vacate given under s91ZZB, a renter may apply to the Tribunal challenging the validity of the notice to vacate. Subsection 91ZZS(2) states that the application must be made within 30 days after the notice to vacate is given. There was no dispute in this matter that the renters had made their application within this time. 
22.	Section 91ZZO sets out the requirements of a notice to vacate. It states:
A notice to vacate given under this Division is not valid unless— 
(a)		it is in the relevant prescribed form; and 
(b)	it is addressed to the renter; and 
(c)	it is signed by the person giving the notice or by that person's agent; and 
(d)		it specifies the reason or reasons for giving the notice; and 
(e)	in the case of a notice to vacate given under section 91ZW, 91ZX, 91ZY, 91ZZ, 91ZZA, 91ZZB or 91ZZC, it is accompanied by documentary evidence, as approved by the Director from time to time, which supports the reason for giving the notice; and 
(f)	it specifies the termination date which is the date by which compliance is required.
23.	There was no dispute that the Notice complied with the requirements of subsections 91ZZ0 (a) to (d) inclusive and (f) above. The basis of the challenge to the validity of the Notice related to the documentary evidence accompanying the Notice. This raised for consideration the requirements of subsection 91ZZO(e).  
24.	The documentary evidence requirements approved by the Director of Consumer Affairs Victoria are published in the Government Gazette. In relation to a notice to vacate given under section 91ZZB, the documents required are stated to be one of the following:
a.	Contract of sale, signed by the vendor and purchaser and dated; or
b.	Contract of engagement/authority to sell with a licensed estate agent; or
c.	Preparation of a contract of sale prepared by a conveyancer or an Australian legal practitioner.
Findings
25.	I acknowledged that the renters are very upset about the prospect of leaving what has been their family home for the last 6 years.  Documents filed in support of this application also contained information relating to their personal circumstances and the effect an order requiring them to vacate the premises would have on them and their family. I noted that Mr Guo’s application for a possession order was scheduled to be heard the following week on 16 June 2021 and that the personal information may be relevant to that application. It was not, however, relevant to my task of determining whether the Notice was invalid. 
26.	The onus falls on the renters to prove the grounds upon which they have challenged the Notice. An allegation of fraud is extremely serious. The more serious the allegation, the stronger the evidence needs to be. 
Was the Jellis Craig sales authority fraudulent?
27.	I accepted the evidence given by the selling agent, Mr Wei, and by Mr Guo, who both said the Jellis Craig sales authority was signed on 2 February 2021. There was no evidence before me to substantiate the renters’ assertions that the Jellis Craig sales authority was back dated. The assertion was based on assumptions and hypothesis about what the renters believed happened. The renters’ argument as to why they believed that the document had been back dated was not logical. There was no need for Mr Guo or the agent to back date the Jellis Craig sales authority. I accepted the explanation given by Mr Guo as to how he came to sign two sales authority, that he did so because J&D Real estate had a buyer for the property but that the sale had subsequently fallen through and he had then cancelled the J & D sales authority. The questions by the renters as to why the property was not advertised earlier, were not relevant to the question of the validity of the Notice. In any event, those questions were answered by Mr Wei and Mr Guo during their evidence.
28.	I rejected the submission that the Jellis Craig sales authority was fraudulent and therefore rejected the challenge to the Notice on that ground.
Does the existence of two current exclusive sales authorities invalidate the Notice?
29.	I accepted there were two signed exclusive sales authorities. I accepted that executing two sales authority at one time may have adverse consequences for Mr Guo. For example, if the property was sold, he may be liable to pay two sets of commissions. However, the presence of two sales authorities did not invalidate the Jellis Craig sales authority which accompanied the Notice, the subject of the application before me. I rejected the renter’s submission that the Notice was invalid on that ground.
Does the sales authority have to be current up to the date of termination on the Notice?
30.	In my view, the time to assess the sufficiency of the Jellis Craig sales authority for the purposes of meeting the requirements of the Act is at the time the Notice was given. My view is based on the express wording of section 91ZZO of the Act which provides that a notice to vacate given under Division 9 of the Act is not valid unless ‘it is accompanied by the documentary evidence, as approved by the Director’.  Consistent with this approach I noted the Director of Consumer Affairs Victoria states, at the commencement of the documentary requirements set out in the Victoria Government Gazette, that ‘the following documentary evidence has been approved as required for use when issuing a Notice to Vacate’.
31.	At the time the Notice was given, the Jellis Craig sale authority was continuing. If it had expired prior to the giving of the Notice, then I accept that it would not satisfy the documentary requirements.  However, the Director’s documentary evidence requirements do not stipulate that the contract of engagement or authority to sell must be a continuing one throughout the notice period and as at the termination date. It states only that the Notice be accompanied by an authority to sell with a licensed estate agent. I was satisfied that at the time the Notice was given, it was accompanied by an authority to sell with a licensed estate agent. 
32.	In circumstances where a sales authority expires during the 60 day period between the giving of the Notice and on or before the termination date, it might be that a residential rental provider chooses, for example, to engage another licensed estate agent to sell the property or it is also possible the property may be sold. The fact that either of these things may occur adds further support to my view that an authority to sell that expires during the notice period does not, in and of itself, invalidate the Notice.
33.	I therefore rejected the renters’ submission that the Notice was invalid because the exclusive sales authority expired before the termination date.
34.	For these reasons I dismissed the renter’s challenge to the validity of the Notice.
35.	For completeness I noted the evidence I heard during the hearing was consistent with and demonstrated Mr Guo’s intention to sell the rental premises with vacant possession immediately after the termination date.

A. Eastman
Member