VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
residential tenancies DIVISION
residential tenancies LIST	
VCAT REFERENCE NO. R2020/38420 & R2021/6824	
CATCHWORDS	
Residential Tenancies Act 1997 – ss 537, 538, 548, 549, 550 and 551 – whether termination order and possession order should be made on the basis that the tenant has not paid rent.
	
APPLICANT	Yun Fei Wang	
RESPONDENT	Melissa Cathcart	
WHERE HELD	Melbourne	
BEFORE	Deputy President I. Proctor	
HEARING TYPE	Hearing by Zoom	
DATE OF HEARINGS	12 and 16 November 2021	
DATE OF ORDERS	26 November 2021 (R2020/38420) & 2 December 2021 (R2021/6824)	
DATE OF WRITTEN REASONS	2 December 2021	
CITATION	Wang v Cathcart (Residential Tenancies) [2021] VCAT 1461 	
ORDERS
R2020/38420
VCAT finds:
1	The landlord has applied for an order terminating the tenancy agreement on the basis of the matters specified in section 549(2)(i) of the Residential Tenancies Act 1997 (the Act). Additionally, the landlord is seeking a possession order pursuant to section 549(4) of the Act.
2	The landlord has proven the grounds for the application for a termination order. 
3	The tenant’s failure to pay rent was not because of a COVID-19 reason.
4	Section 289A of the Act is not applicable.
5	Having regard to the matters in section 538 of the Act, and taking into account the interests of the landlord, tenant, any co-tenants or residents, neighbours or any other person who has been or may be affected by the acts of the tenant, and the impact of these orders on them, it is reasonable and proportionate to make a termination order and possession order.
6	The landlord is entitled to a termination order and possession order in the terms set out below.
VCAT orders and directs that:
1	The landlord is granted a termination and possession order. 
2	The tenant must vacate the rented premises by 10 December 2021.
3	At the request of the person who obtained the possession order and on payment of the prescribed fee, after 10 December 2021 the principal registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. This request may be made no later than 26 May 2022.
Warning to the tenant:
If you fail to vacate the rented premises by 10 December 2021 the landlord can request the principal registrar of VCAT to issue a warrant of possession.
You may then be forcibly vacated from the rented premises by a police officer or an authorised person carrying out a warrant of possession.

R2021/6824
With termination and possession orders made in proceeding R2020/38420,  proceeding R2021/6824 is struck out.

Ian Proctor
Deputy President			

APPEARANCES:		
For Applicant:	Mr J. Veducci, Real Estate Agent	
For Respondent:	In person	

Reasons
1	On 25 October 2021, in appeals to the Supreme Court of Victoria by Ms Cathcart (the tenant in these proceedings) of two VCAT orders, the Court remitted the two VCAT proceedings back to the Tribunal to be heard and decided again.
2	They are VCAT proceedings:
•	R2020/38420: on 18 January 2021 VCAT made a termination order under the now repealed section 549 of the Residential Tenancies Act 1997 (RT Act). The Court set the termination order aside on the basis that the Tribunal denied Ms Cathcart natural justice; and
•	R2021/6824: on 27 August 2021 VCAT made a possession order under the repealed section 551 of the RT Act, in part based on the 18 January 2021 order. With the 18 January 2021 order set aside, the Court set the possession order aside. (I made the possession order.)
3	The Court’s orders and reasons are published as Cathcart v Wang [2021] VSC 685 (Cathcart Decision).
4	At a telephone directions hearing on 5 November 2021, I ordered that the re-hearing would be held on 12 November 2021, via Zoom. While the Court had commented that an in-person re-hearing may be preferable, that was not feasible within VCAT’s Covid-19 operating procedures, as directed by VCAT’s President.
5	The 12 November 2021 Zoom hearing proceeded with Mr Wang, the landlord,  and Mr John Veducci, the real estate agent, appearing by video. Ms Cathcart appeared by telephone into the Zoom hearing. The hearing proceeded until about 12:45 pm until when Ms Cathcart became fatigued. I adjourned the hearing to the morning of 16 November 2021.
6	I invited Ms Cathcart to send further evidence and submissions to VCAT and the landlord, which she did.
7	Toward the end of the 16 November 2021 hearing, Ms Cathcart behaved unacceptably, constantly talking and refusing to be interrupted. I intervened, reluctantly placing her on mute, hoping this would only be needed for a short time. The call to her ended. The bench clerk called her twice with no answer. Given this was the first time during hours of hearing time that the call had ended, it appeared unlikely this was a mobile telephone connection fault. More likely Ms Cathcart had hung up. In correspondence received since the hearing, Ms Cathcart has not claimed otherwise.
8	I proceeded with the hearing, having assumed Ms Cathcart had hung up, that being the equivalent of a person where a party leaving an ‘in-person hearing’ before it ends. VCAT will usually conduct the hearing to its end.
9	As Crowther J observed in the Cathcart Decision [para 136]:
Sometimes, what might appear to be a lack of procedural fairness will, in truth, be no such thing because the affected party may be the author of his or her own misfortune. A party might deliberately hang up during a phone hearing, or switch off a computer in a Zoom hearing, or walk out of the hearing room in a huff during an in-person hearing. While each case will turn on its own facts, this Court would be slow to countenance the grave step of setting aside an otherwise error-free order when a party has behaved in that fashion but thought better of it later. 
10	Mr Veducci finished his reply submissions on behalf of Mr Wang. I reserved my decisions.
11	Given Mr Veducci made a submission related to Ms Cathcart’s bank account records, provided between the two hearings, and Ms Cathcart did not have the opportunity to respond to that submission because she left the hearing, my 16 November 2021 orders invited her to make a written submission with respect to that issue by 19 November 2021.
12	On 26 November 2021, I made termination and possession orders in proceeding R2020/38420. I have struck out proceeding R2021/6824, as with termination and possession orders made in R2020/38420, there was no need to make any other type of order in R2021/6824.
13	Early in the hearing, Ms Cathcart requested written reasons be provided for the Tribunal’s decision. My 26 November 2021 orders advised these written reasons would follow.
Discussion
14	When remitting these applications back to VCAT for rehearing, Crowther J [at para 155] raised the issue of which version of the RT Act now applies in this proceeding:
•	the RT Act as it was from 29 March 2020 to 28 March 2021 (Covid-19 RT Act) (the Emergency Period); or 
•	the RT Act as in force from 29 Match 2021 (Current RT Act). 
15	He did not offer a view on this, leaving this as a matter for VCAT to decide, in light of the Victorian Supreme Court Court of Appeal’s decision in Markiewicz v Crnjac [2021] VSCA 290 (Markiewicz Decision).
16	The Covid-19 RT Act continues to apply to these proceedings, where the relevant applications and one of the VCAT orders were made within the Emergency Period:
•	Mr Wang applied to VCAT in December 2020 seeking both termination and possession orders (R2020/38420);
•	Mr Wang applied to VCAT in February 2021 seeking a possession order based on the January termination order. This proceeding was stayed by VCAT until in July 2021 the Court of Appeal lifted a stay on the termination order because Ms Cathcart had not paid rent which she had promised the Court she would pay.
17	The Covid-19 RT Act continues to apply because under section sections 14(2) & 28(2) of the Interpretation of Legislation Act 1984 (Vic) in the absence of a contrary intention, where an application to VCAT is made under law in force at the time, a right will have accrued to the applicant to have the application decided under that law.
18	In Felman v Law Institute of Victoria [1997] VSC 62, the Supreme Court of Victoria referred to both the High Court’s decision in Esber v. The Commonwealth of Australia [1992] HCA 20 and the following from Continental Liqueurs Pty. Ltd. v. G.F. Heublein & Bro. Incorporated [1960] HCA 37:
the applicant, by instituting its application in the Court, that is to say by filing its notice of motion, acquired a right to have the Court decide whether it ought to exercise its jurisdiction under s.72 in that application, and that right was within the protection of s.8(c) of the Acts Interpretation Act.
(Section 8(c) is the Commonwealth equivalent of section 14(2).)
19	Therefore, the rights accrued by both parties under the Covid-19 RT Act continue to apply in this proceeding, even though that law and the potentially relevant protections it offers ended on 25 October 2021.
20	This is in the context that it is open to parties who made applications from 29 March 2020 to 28 March 2021 to withdraw those proceedings and make a new VCAT application, where the Current RT Act applies.
21	There may be situations where this gives rise to issues of complex statutory interpretation given the circumstances of the particular case. However those complexities do not arise here because I have found that Ms Cathcart did not have a COVID-19 reason for not paying rent (she claimed financial hardship) because she could have paid a least a substantial proportion of the rent without suffering severe hardship.

The RT Act
22	The following repealed sections of the COVID-19 RT Act are relevant here. 
23	Section 548 of the RT Act relevantly says:
548	Application to Tribunal for order to terminate
(1)	Subject to the Residential Tenancies Dispute Resolution Scheme, a landlord under a tenancy agreement … in respect of rented premises may apply to the Tribunal for an order terminating the tenancy agreement.
24	With the application made under section 548, section 549 relevantly says:
549	Tribunal may terminate tenancy agreement in certain circumstances
(1)	On an application under section 548, the Tribunal may make an order terminating a tenancy agreement if satisfied—
			(a)		as to any of the matters set out in subsection (2); and
(b)		that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make the order taking into account the interests of, and the impact on, each of the following in making the order—
(i)		the landlord or mortgagee in respect of the rented premises; 
(ii)	the tenant; 
(iii)	any co-tenants or other residents; 
…
(2)		For the purposes of subsection (1), the matters are—
(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;
(3)	If the Tribunal makes an order under subsection (1) and does not make a possession order under subsection (4)—
(a)		the Tribunal must specify the date on which the tenancy agreement terminates; and 
			(b)		the tenancy agreement terminates at the end of that day.
(3A)	The Tribunal must not specify a date under subsection (3) on which the tenancy agreement terminates that is earlier than any of the following days—
(c)	if the Tribunal is satisfied of a matter referred to in subsection (2)(i) …, the day that is 28 days from the day on which the Tribunal makes the order;
(4)	If the Tribunal makes an order under subsection (1), the Tribunal may also make a possession order requiring a tenant to vacate rented premises if satisfied—
(b)	that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order—
(i)	the landlord or mortgagee in respect of the rented premises; 
(ii)		the tenant; …
(5)		If a possession order is made under this section, the tenancy agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the landlord.
(6)		The Tribunal must not make an order under subsection (1) on the ground that the tenant has failed to comply with the tenant's obligations under the tenancy agreement or the Act, including by not paying rent, if the tenant is unable to comply with, or it is not reasonably practicable for the tenant to comply with, those obligations because of a COVID-19 reason.
(7)		For the purposes of Division 4 of Part 7, a possession order made under this section is taken to have been made under Division 1 of Part 7.
25	The reference in section 549(6) to “a COVID-19 reason”, invokes section 537 which in this case relevantly says:
537	When is a person unable to comply with a term, provision or obligation because of a COVID-19 reason?
For the purposes of this Part, a person is unable to comply with, or it is not reasonably practicable for a person to comply with, a term, provision or obligation because of a COVID-19 reason if—
…
(c)		the person is unable to comply with, or it is not reasonably practicable for the person to comply with, the term, provision or obligation without suffering severe hardship;
26	References in sections 549(1)(b) and 549(4) invoke section 538, which relevantly says:
	538	What is reasonable and proportionate?
For the purposes of determining whether it is reasonable and proportionate to make an order under section 549, 551, 559, 561, 569, 571, 582 or 584, the Tribunal must have regard to the following—
(a)	the nature, frequency and duration of the conduct of the tenant, resident or site tenant which led to the notice to vacate being given, including whether the conduct is a recurring breach of obligations under a tenancy agreement, residency right or site agreement;
			(b)		whether the breach is trivial;
(c)		whether the breach was caused by the conduct of any person other than the tenant, resident or site tenant;
(d)		whether the tenant, resident or site tenant has made an application for a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order and—
(i)	if an application has been made, whether a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order has been made and whether the notice or order is still in force; and
(ii)		if a notice or order was made, whether it included an exclusion condition; and
(iii)	any other matter in relation to family violence or personal violence the Tribunal considers relevant;
(e)		whether the breach has been remedied as far as is practicable;
(f)		whether the tenant, resident or site tenant has, or will soon have, capacity to remedy the breach and comply with any obligations under the tenancy agreement, residency right or site agreement, as the case requires;
(g)		the effect of the conduct of the tenant, resident or site tenant on others as a tenant, resident or site tenant;
(h)		whether any other order or course of action is reasonably available instead of making the order sought;
(i)		as the case requires, the behaviour of the landlord, the landlord's agent, the rooming house owner, the caravan park owner, the caravan owner or the site owner;
			(j)		any other matter the Tribunal considers relevant.
27	Applying the above provisions may lead to VCAT making a termination order and a possession order in the one application, a potential outcome of Mr Wang’s first application. That application resulted in only a termination order being made.
28	Where VCAT had made a termination order (only) and the tenant has not vacated the rented premises at the date that the Tribunal ordered that the tenancy agreement would terminate, the landlord was able to apply for a possession order, based on the termination order, under section 550:
550	When can a landlord or mortgagee apply for a possession order?
(1)	A landlord or a mortgagee in respect of rented premises may apply to the Tribunal for a possession order for rented premises if—
(a)	the Tribunal has made an order under section 549(1) terminating the tenancy agreement and has not made an order under section 549(4); and
(b)	the tenant has not delivered up vacant possession of the premises by the end of the termination date specified in the order under section 549(1).
(2)	A landlord must not apply to the Tribunal for a possession order for rented premises under section 322, 335 or 337(3).
(3)	A mortgagee in respect of rented premises must not apply to the Tribunal for a possession order for the rented premises under section 325.
29	The Tribunal’s power to then make a possession order is set out at section 551:
551	Tribunal may make possession order—tenancy agreements
(1)	On an application under section 550, the Tribunal must make a possession order requiring a tenant to vacate rented premises on the day specified in the order if the Tribunal is satisfied—
(a)	that the tenant is still in possession of the rented premises after the termination date specified in the order under section 549; and
(b)	that any resident who is entitled to a period of notice under section 289A has been given the required notice; and
(c)	that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 538, to make a possession order taking into account the interests of, and the impact on, each of the following in making the possession order—
(i)	the landlord or mortgagee in respect of the rented premises; 
(ii)	the tenant; 
(iii)	any co-tenants or other residents; 
(iv)	any neighbours or any other person who may be, or who has been, affected by the acts of the tenant.
(2)	For the purposes of Division 4 of Part 7, a possession order made under this section is taken to have been made under Division 1 of Part 7.
30	As I discussed in a Chu v Melbourne Serviced Apartments Pty Ltd (Residential Tenancies) [2020] VCAT 1187, interpreting these sections gives rise to the following steps in deciding an application under section 548/549(2)(i):
a)	Has the tenant failed to comply with obligations by not paying the rent? (This is for the landlord to prove);
b)	If the answer is yes, does a COVID-19 reason exist by reason that the tenant is unable to comply with, or it is not reasonably practicable for the person to comply with, the term, provision or obligation (here to pay rent but another COVID-19 reason under section 137, such as illness,  may apply) without suffering severe hardship? (This is for the tenant to prove);
c)	If a COVID-19 reason exists, a termination order may not be made;
d)	If no COVID-19 reason exists related to paying rent, it follows that VCAT will be satisfied as to the section limb of section 549(2)(i); 
e)	Is it reasonable and proportionate to make a termination order?; and
f)	If a termination order is made, and the landlord seeks a possession order, is it reasonable and proportionate to make a possession order?
31	In January 2021, VCAT only made a termination order in R2020/38420, where the applicant sought both termination and possession orders. The Court remitted the entire proceeding back to VCAT to re-decide. This made it open to VCAT to re-decide both aspects of the first application.
32	I now take those steps (a) to (f).
Is VCAT satisfied that Ms Cathcart has failed to comply with its obligations by not paying rent? — Yes
33	Ms Cathcart has failed to comply with her obligations to pay rent as it fell due each month from October 2020 and to pay accrued unpaid rent.
34	In October 2018, the landlords and the tenant entered into a residential tenancy agreement with respect to the rented premises, with the rent being $1,000 a month.
35	In May 2019, the current real estate agency took over management of the tenancy agreement, when the rent ledger provided as evidence starts. Mr Veducci assumes at the time of taking over management, rent was paid to date.
36	The rent ledger kept by the real estate agency shows reasonably consistent rent payments from May 2019 to September 2020. The last payment on 23 September 2020 resulted in rent paid to 29 September 2020. According to the rent ledger, and Mr Veducci’s evidence, Ms Cathcart made no further payments until she made a $250 payment in the days before the November 2021 VCAT hearings.
37	On 12 August 2020, Ms Cathcart emailed Mr Veducci a document referred to as a “Treaty of the International Tribunal for Natural Justice” advising she would no longer pay rent as she believed she had lawfully become the owner and occupier of the rented premises. While at one point I understood that Ms Cathcart no longer made this claim, in a recent application to VCAT for compensation she renewed that claim.
38	During these proceedings confusion arose as to whether a short period of rent reduction was ever agreed between the parties. It appears not.
39	In the Cathcart Decision [paras 28, 38 and 112], Crowther J described evidence at the January 2021 VCAT hearing from the then agent (an employee of Mr Veducci) about a short period of rent reduction provided to Ms Cathcart. Mr Veducci gave evidence before the Court that no such reduction was made. Ms Cathcart said she did not want a rent reduction. 
40	This evidence sits oddly with an email from Ms Cathcart to Mr Veducci of 25 February 2021, where Ms Cathcart is seeking rent reduction and wanting to access the $3,000 rent subsidy payment to the landlords. That said, while it is not entirely clear, Ms Cathcart seems to be making this subject to a new tenancy agreement being agreed.
41	I accept there was no rent reduction. Related to this, with there being no rent reduction, there was no entitlement to the $3,000 rent subsidy then on offer from the Victorian Government. In my view, having reviewed the evidence and substantial documentation provided in these proceedings, it appears this was through no fault of Mr Wang, the other landlords or their real estate agent.
42	Accepting the above basis, I calculated that on 16 November 2021, with the rental being $1,000 a calendar month, paid up to and including 29 September 2020, rent owing was $13,292.17.
43	As far as I understand, Ms Cathcart had abandoned claims she previously made that she could charge the landlord and Mr Veducci for her time spent with respect to the tenancy agreement, which could be set off against unpaid rent. In the Cathcart Decision, Crowther J described this claim as “nonsensical” and “wholly misconceived”.
44	Ms Cathcart now claims that the rent owed, is offset by the money which Mr Wang should pay her given an earlier compensation claim she made to VCAT which she wished to pursue and two new compensation claims.
45	These submissions must be rejected. First, claims by a tenant for compensation made to VCAT do not displace the obligation to continue to pay rent and the right of landlord to provide to seek termination and possession orders based on unpaid rent. Second, the claims appear misconceived.
46	In VCAT proceeding R2021/12990, an application by Ms Cathcart against the landlords, seeking restraining orders (that part of the application dismissed by me in May 2021) and for compensation. I ordered that Ms Cathcart may renew her application for compensation after the Supreme Court decided her appeal against the January 2021 termination order. By email dated 12 November 2021 to VCAT, Ms Cathcart requested this proceeding be renewed.
47	Ms Cathcart claims $14.7M compensation. 
48	The renewed application appears wholly misconceived. In retrospect, I should have made that observation in May 2021 and struck the application out. Presumably I was attempting to minimise stress and conflict at that, to the extent I recall, difficult hearing.
49	On 12 November 2021, Ms Cathcart gave a breach of duty notice based on the landlords’ alleged failure to maintain the rented premises in good repair and in a reasonably fit and suitable condition for occupation. The notice referred to a fallen pelmet, lack of proper curtains and failure to respond to issues, cockroaches throughout the unit for the majority of the tenancy, fallen off taps, and debris around the unit and mailbox, making living in the unit difficult and dangerous. 
50	Ms Cathcart sought required that breaches be remedied within 14 days and sought compensation of $22,414.44.
51	There is no basis in this proceeding to set off that claimed amount, where the application also appears misconceived.
52	In a 13 November 2021 application to VCAT against the landlords, Ms Cathcart claims compensation of $24,000 based on, quoting from the application:
Sections: s39. Accrual of Rents (+s242.), s249. Successive Breaches by Tenant (Lirie is claiming I Breached rent when I have not), s60. Nuisance and Interference (1)(2:a,b,c), s60. Damage (common areas) (1)(2), s62. Notice of damage, s.63. Rental Premises Clean, s67 Quiet enjoyment, s500. Bodies Corporate, s 502. Persuasion not to act (real estate and Body Corporate), s.503. Aiding and abetting (nuisance and damage)-unit 11 landowner and Body
Corporate. Discrimination against me throughout the time Div 1A-s29C, culminating in a vexatious set of litigations. Div 1-s28 Harsh and Unconscionable terms, failure to accept rents four times esp. by failure to make a new agreement in August, 2020.

53	She attached a 13 November 2021 breach of duty notice under section 208 of the RT Act, including the above paragraph, requiring remedy of the breach within 7 days, seeking the $24,000 compensation. It said in part:
As a result of revoking of all previous contracts, I currently lawfully own and occupy the property … If you wish to make a new contract with me, it will be to a purchase of the property with using the already paid some towards the total of the whole, with an agreed amount that I will pay hopefully via the government that enslaved this, until I am capable to earn more value. I provide 14 days for the negotiation of price. After that date, the property is transferred into my name by law at the rate already paid to your organisation. Anything else in rental is usary. …
54	This application also appears misconceived.
55	In an exchange of emails between the parties on 16 November 2021, Ms Cathcart claimed she had paid rent 7 and 14 May and 30 June 2021. She made the same claim in her Affidavit in Reply in the Court (para 21) dated 15 October 2021. Court transcript makes it clear that these claimed payments relate to Ms Cathcart’s baseless claim that she was entitled to charge Mr Wang and/or Mr Veducci for the time she spent dealing with tenancy issues. At a directions hearing on 21 July 2021, the Court did not accept these rent payments have been made, lifting a stay on the termination order which was put in place on the basis that Ms Cathcart had promised to pay rent.
56	Ms Cathcart complains that she sought a new tenancy agreement, because as she had signed the ‘treaty’ referred to above and all her contracts needed to be renewed including the current tenancy agreement and she was not obliged to pay the rent. This claim is misconceived. At another point she said she wanted a new contract to get “a year or two security”. Mr Wang was not willing to enter into a new tenancy agreement with Ms Cathcart who was not paying the rent.
57	In giving evidence before the Court, Ms Cathcart acknowledged she owed $4,000 in rent in January 2021 at the time of the first VCAT hearing. She said she had the money then and was prepared to pay if they agreed to enter into a new contract. Her bank account records show an opening balance of approximately $3,550 on 31 December 2020 and closing balance of approximately $1,225 on 31 January 2021. This calls into question whether she had those funds available. In any case, she was making the payment conditional on the landlords agreeing to a new tenancy agreement, which they were not obliged to do.
58	Ms Cathcart claims that a local church offered to pay $6,000 toward her rent, if the landlord guaranteed that she would not be evicted and Ms Cathcart wanted the new tenancy agreement. Ms Cathcart claims the landlord refused. There is no independent evidence of this offer. There is a 30 October 2021 email from Ms Cathcart addressed to a bishop of the Church of Jesus Christ of Latter-Day Saints. Ms Cathcart describes her situation, her version of how events have unfolded with respect to the rental agreement, the Church in January 2021 offering the $6,000 payment, asking whether the Church would now be willing or able to pay the $14,000 rent. There is no evidence of any reply.
Does the existence of a COVID-19 reason mean that a termination order cannot be made? (s 549(6)) and s 537) — No
59	Section 549(6) says VCAT must not make a termination order under section 549(1) on the ground that the tenant has failed to comply with the tenant's obligations under the tenancy agreement or the RT Act by not paying rent, if the tenant is unable to comply with, or it is not reasonably practicable for the tenant to comply with, those obligations because of a COVID-19 reason.
60	Section 537 sets out the COVID-19 reasons.
61	The reasons include the only reason on which Ms Cathcart relied, that that she was unable to comply with, or it is not reasonably practicable for her to comply with the obligation to pay rent because she was and is unable to do so without suffering severe hardship.
62	The obligation is that the tenant must pay the periodic amount of rent on or before the due date, and if the tenant fails to comply with this obligation they are obliged to pay the periodic amount of rent immediately/forthwith.
63	During the Emergency Period, VCAT interpreted this provision as Parliament’s purpose being that a tenant would be protected from termination and possession orders where the tenant had a COVID-19 Reason for not paying the rent, including where the tenant had as far as the tenant was able to do without suffering severe hardship, paid the rent.
64	I apply that test in this proceeding. The interpretation is consistent with principles of statutory interpretation described in the Markiewicz Decision [paras 36 to 40] and the Court’s endorsement of a purposive approach in interpreting this law “given the extraordinary and urgent circumstances in which it was enacted” [para 79].
65	That purpose can be seen in the second reading speech for the COVID-19 Omnibus (Emergency Measures) Act 2020 records that the legislative reforms were intended to bring about a “broad moratorium” on evictions. The Premier said:  
while the Government’s expectation is that tenants will continue to meet their rental obligations where possible, a tenant may not be evicted for non-payment of rent where they are experiencing financial distress during the moratorium.  
(my emphasis)
66	Between the 12 November and 16 November 2021 hearings, Ms Cathcart provided the first independent evidence of her financial situation given in this proceeding, a set of bank records starting on 1 October 2020 and ending on 31 October 2021. When the issue of a missing statement for September 2020 was raised on 16 November, Ms Cathcart said she thought she had provided it. While I have not been able to locate it, the absent single statement is not material in context of the common pattern of transactions seen on the other monthly accounts.
67	The bank account records show that Ms Cathcart had the financial capacity to pay at least a substantial proportion of the rent and this would not have caused her severe hardship.
68	The account records predominantly concern an “Everyday Account” and a “Bonus Saver Account” as well as a “Classic Credit Card”, only referenced in one of the account records.
69	I only discovered the reference the credit card account when writing these reasons. Ms Cathcart had provided the records for the Everyday Account and the Bonus Saver Account. When asked to explain payments from the two accounts to the then undisclosed account, Ms Cathcart referred to paying off a “debt to the bank” and refused to provide any further detail.
70	Not wishing to intrude into Ms Cathcart’s financial affairs too deeply in these reasons, in summary the accounts show:
•	Income via Centrelink in September 2020 of approximately $2,500 with a closing balance of approximately $3,000, after rent being paid to 29 September 2021;
•	With reference to the closing balances over October, November and December 2020, if Ms Cathcart had paid the $1,000 a month rent on top of her other spending as shown in the account records, the closing balance at the end of the year would have been $553, having reduced from a high point of over $4,000 on 30 November 2020.
•	Moving into 2021, with the average income per month from Centrelink being approximately $1,740. Ms Cathcart explained variations in the payments being in part due to her not wishing to accept Centrelink, and a support worker pressuring her to take action to claim unpaid amounts. It is unclear whether she recovered her entire entitlement. What is clear is that Ms Cathcart had the ability to pay at least a significant proportion of the unpaid rent in these months.
•	The bank records show some spending which appears discretionary, where most people would prioritise paying the rent.
•	This is in the context of Ms Cathcart giving evidence that due to her religious beliefs, over the months in question, she spent some of her money buying provisions for the future, as she could foresee the drop in her Centrelink income as the Australian Government reduced that income support.
•	This is in the context that Ms Cathcart made payments into her credit card account, that presumably being the debt to the bank that she spoke of. With her refusing to provide those account details, there is nothing to indicate that rent payments should not have had priority compared to paying down the credit card.
71	In a 17 November email addressed to me, I understand in response to my 16 November orders inviting a further written submission from her with respect to her bank account records, Ms Cathcart said in part:
the facts are that I WAS and still AM in financial hardship. I had and still have nothing left to pay anything with. You have created false information and erred in your supposed judgement. The facts are that if you only have $4,000 and the person fails to accept tender, then they are responsible for that failure. Additionally, I bought food with that to see me through to today, otherwise, due to the fake-demic lie that you are upholding, people are nowhere nearby assisting me, and therefore, I WAS and still AM in financial hardship and I have been since 17th May 2013. You need to wake up and stop denying the facts. I offered the amount to John and he declined and failed to assist me to move. That is discrimination and that is his doing. Three times I offered from three sources while I was in financial distress. I believe that you fail to look at the facts, and you fail to take the facts into consideration. That is why you are subject to Human Rights action. You have failed to adjust for the disabled and you have falsely judged the destitute for those who abuse others and who lie in court and tribunal. Those are the facts.
72	Nothing in that submission, which largely repeats earlier themes, changes my view that Ms Cathcart had the financial capacity to pay at least a substantial proportion of the rent and this would not have caused her severe hardship.
73	With respect with reference above to me being the subject of “Human Rights action”, Ms Cathcart has recently applied to VCAT under the Equal Opportunity Act 2010, I understand alleging discrimination against her by me, other VCAT members Mr Veducci and Mr Wang related to the tenancy agreement and presumably these proceedings. I have not seen those applications.
Is VCAT satisfied Ms Cathcart could pay the rent without suffering severe hardship? (s 549(1)(a) & 549(2)(i)) — Yes
74	In the context of the evidence in this proceeding, this next question essentially asks the same question that the above question posed with respect to hardship.
75	Again, VCAT has taken the view that the protection here relates to whether the tenant has paid as much of the rent as could be paid without suffering severe hardship.
76	Given the evidence already presented, in my view Ms Cathcart could have paid at least a substantial amount of the rent without suffering severe hardship.
Is it reasonable and proportionate having regard to section 538, to make a termination order? (s 549(1)(b)) — Yes
77	I address the relevant section 538 criteria in turn.
(a)		The nature, frequency and duration of the conduct of the tenant, including whether the conduct is a recurring breach of obligations under a tenancy agreement, residency right or site agreement — I have found that at 16 November 2021, unpaid rent was $13,292.17. Failing to pay rent is a breach of the tenancy agreement between the parties.
(b)	The breach was and is not trivial; the rent is paid up to and including 29 September 2020, now over a year ago.
(c)		Whether the breach was caused by the conduct of any person other than the tenant  — while Ms Cathcart blames those around her for now being in the position in which she finds herself with respect to unpaid rent, the evidence does not lead me to accept that is so.
Her allegations against Mr Veducci are at odds with her evidence to me on 16 November. I commented that Ms Cathcart had been critical of Mr Veducci over the course of these proceedings, Ms Cathcart disagreed saying that he had treated her fairly throughout, her only dispute being that he would not accept the $250 cash payment of rent she had recently made.
(d)	There are no family violence or personal violence issues raised with respect to this proceeding.
(e)	Whether the breach has been remedied as far as is practicable — the breach has not been remedied. 
(f)		Whether the tenant, will soon have, capacity to remedy the breach and comply with any obligations under the tenancy agreement — Ms Cathcart says she has no capacity to pay the unpaid rent.
(g)	The effect of the conduct of the tenant, on others as a tenant, resident or site tenant — this is not relevant.
(h)	Whether any other order or course of action is reasonably available instead of making the order sought — There is no other order or course of action apart from making a termination order which is reasonably available given the unpaid rent and the detriment the landlord is experiencing (see below); and
(i)	As the case requires, the behaviour of the landlord or the landlord's agent — There is nothing to criticise in the landlords’ or their agent/s behaviour.
Ms Cathcart alleges racism and discrimination against her by all concerned. This is in part seen in the affidavit material she submitted to the Supreme Court in her appeal. While not a focus of this proceeding, there is no evidence before the Tribunal to establish that either Mr Wang or Mr Veducci had engaged in such conduct. Similarly her allegations of various people of lying, cheating, abusing, assaulting, damaging, making false tax accusations and vexatious actions appear to be without foundation.
78	Concerning criterion (j), other matters VCAT considers relevant:
(a)	Ms Cathcart speaks of suffering disability, largely undefined apart from her speaking of difficulties with her memory. No expert evidence of disability has been provided. In evidence before the Court she spoke of being hit by car when she was in her early 20s, causing spinal shoulder wrist and arm injury, which to this day limits the weight she can lift.
There is no evidence of any disability impacting her ability to pay at least a substantial proportion of the rent owed over the time in question.
(b)	Ms Cathcart claims to have signed a “Treaty of the International Tribunal for Natural Justice”, and submits this impacts the dispute between the parties, including her wishing to renew all her contracts.
As Crowther J observed during the Supreme Court hearing, this has no foundation.
I do not doubt that Ms Cathcart has accessed a website in the name of this ‘tribunal’ and as invited on the website signed a ‘treaty’. A visit to the website leaves me doubting ‘the tribunal’s’ authenticity. 
However, authentic or not, this has no relevance to the rental agreement in question.
(c)	Mr Wang and Mr Veducci deny a range of accusations that Ms Cathcart made against them, as described below.
(d)	Mr Wang gave evidence as to what he described as hardship he and his wife were suffering as a result of the rent payments not being made. This included him being unable to afford dental care and eye surgery. He spoke of loss of sleep due to the stress and anxiety that the rental situation was causing. 
That said, Mr Wang is not required to establish hardship on his part in an application based on unpaid rent. Unlike other provisions in the RT Act, decision making criteria here do not call for a balancing of hardships.
(e)	Mr Wang and Mr Veducci deny a range of accusations that Ms Cathcart made against them, as described below.
(f)	It is also relevant that the protections offered by the COVID-RT law came to an end on 25 October 2021. While Mr Wang has chosen to seek possession of the rented premises via these proceedings, it would also be open to him to have withdrawn these applications, served a notice to vacate under section 91ZM and seek a possession order. There appears to be no basis on which that application, if made, could be resisted. This reality must be taken into account.
79	I have decided it is reasonable and proportionate to make a termination order.
Having made a termination order, is it reasonable and proportionate to make a possession order? (s 549(4)) — Yes
80	With a termination order made, under section 549(4), the Tribunal may also make a possession order requiring a tenant to vacate rented premises if satisfied it is reasonable and proportionate to do so, again having regard to section 538, taking into account the interests of, and the impact on the landlord, the tenant and others.
81	The evidence and considerations set out above with respect to whether it is reasonable and proportionate to make a termination order, also apply to whether it is reasonable and proportionate to make a possession order.
82	I have decided it is reasonable proportionate to make a termination order, I have also decided it is reasonable and proportionate to make a possession order.
83	In other cases under these provisions, there were often situations where it was reasonable and proportionate to make a termination order only. If the tenant did not vacate and the matter returned to the Tribunal, the Tribunal could judge whether, at that later time, it was reasonable and proportionate to make a possession order.
84	Here, there is no basis for such an approach here given the amount of unpaid rent and the history of the tenancy as described above.
Vacate date
85	At the 16 November 2021 hearing, I asked Mr Veducci, in the event that I made termination and possession orders, what date he submitted Ms Cathcart should be required to vacate the rented premises. He replied that two weeks from the date of the order would be fair. Ms Cathcart submits that no date would be fair.
86	Given the amount of unpaid rent and the circumstances of both parties, I decided to order that Ms Cathcart vacate the rented premises on 10 December 2021, 14 days after the termination and possession orders were made.

Ian Proctor
Deputy President