VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2022/9997
CATCHWORDS	
Possession application — notice to vacate alleging that the renter’s visitor was endangering the safety of occupiers of neighbouring premises — whether the perpetrator was the renter’s “visitor” — whether he was “endangering” the safety — Residential Tenancies Act 1997 (Vic) (“the RT Act”) s 91ZJ.
Challenge to notice to vacate — renter was victim of the perpetrator’s personal violence — application for extension of time or waiver of the time limit of 30 days to make the challenge — procedural unfairness — application refused — RT Act ss 91ZZU and 91ZZC — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 126. 
Not reasonable and appropriate to make a possession order — whether compliance order could be made — order for adjournment with right of renewal if renter does not comply with the order — RT Act ss 330, 330A, 332A.	

APPLICANT	South Port Community Housing Group Inc	
RESPONDENT	Michaela Ng 	
WHERE HELD	Melbourne	
BEFORE	Senior Member A. Vassie	
HEARING TYPE	Hearing	
DATE OF HEARING	17 May 2022 	
DATE OF ORDER	3 June 2022	
DATE OF REASONS 	3 June 2022	
CITATION	South Port Community Housing Group Inc v Ng (Residential Tenancies) [2022] VCAT 614	

Order
1.	The application for a possession order is adjourned to a date no later than 31 December 2022 to be heard by Senior Member A. Vassie (if available). 
2.	The respondent renter must not permit Christopher Evans to enter into or remain in the building at 135 Stokes Street Port Melbourne. 
3.	The respondent renter must not permit to enter into or remain in the building at 135 Stokes St Port Melbourne any other person who endangers the safety of the occupiers of neighbouring premises to her rented premises of room 12 in that building.
4.	The application may be renewed by the applicant residential rental provider by no later than 30 November 2022 if the respondent renter fails to comply with paragraph two or paragraph three of this order.
5.	The applicant residential rental provider may renew the application by giving VCAT notice in writing of the request for renewal and providing in it details of the respondent renter’s non-compliance. A copy of the request for renewal containing these details must be provided to the respondent renter at the time of making of the request.
6.	If the application is not renewed by 30 November 2022 it will be considered withdrawn.

A. Vassie 
Senior Member			

APPEARANCES:		
For Applicant	Mr G. Kerr, Solicitor 	
For Respondent	Mr N. Boyd-Cain of Counsel	

Reasons
1	On 17 May 2022 I heard an application for a possession order. The applicant is a residential rental provider, South Port Community Housing Group Inc. (“South Port”). The rented premises are room 12 in a building at 135 Stokes Street Port Melbourne. The respondent, Michaela Ng, is the renter.
2	At the hearing each party was represented by a lawyer. The hearing took place by telephone. Each party had filed and served a written submission. Each asked for written reasons for my decision, which I reserved.
3	The application for a possession order was based upon a notice to vacate given under s 9ZJ of the Residential Tenancies Act 1997 (Vic) (“the RT Act”). Reference below to section numbers are references to sections of the RT Act unless I say otherwise. 
4	So far as is presently relevant, s 91ZJ provides:
91ZJ Danger

(1)	A residential rental provider may give a renter a notice to vacate rented premises if the renter or the renter's visitor by act or omission endangers the safety of—
(a)	occupiers of neighbouring premises.
(2)	The notice may specify a termination date that is the date on which the notice is given or a later date.
The “Facts”
5	Neither party led any oral evidence. Their legal representatives told me that there was agreement about relevant facts that had given rise to the proceeding and asked me to proceed accordingly. I did. As often happens in such circumstances, investigation during the hearing revealed that there were matters about which the parties did not agree.
6	From the contents of the written submissions from the documents that each party had filed for the purposes of the hearing, and from what the legal representation told me during the hearing, I have taken the agreed “facts” to be these:
a.	South Port is a not-for-profit organisation which provides residential and community care for vulnerable people.
b.	Ms Ng, a vulnerable person, has been a renter of room 12 since 22 January 2020.
c.	South Port’s building is a secure property, accessible only by a person swiping a job key or entering an access code for the locked door at the entrance, or if a person inside the building opens the locked door.
d.	Christopher Evans, whom I describe as “the perpetrator” (he was so described in Ms Ng’s written submission) was within the building and within her room 12 between 28 March 2022 and 31 March 2022. The perpetrator was not a renter of any room in the building.
e.	On 31 March 2022, while within the building, the perpetrator assaulted Ms Dudley, an occupier of room 11 in the building, “repeatedly in the face” (as described in the notice to vacate) with the result that Ms Dudley was admitted to hospital (as alleged in South Port’s application for a possession order), and that the perpetrator thereby endangered her safety.
f.	On 1 April 2022 South Port prepared and signed a notice to vacate room 12 by 2 April 2022. South Port gave the notice to vacate to Ms Ng either in the evening of 1 April 2022 (as South Port alleges) or on 2 April 2022 (as Ms Ng alleges). 
g.	The notice to vacate:
i.	identified s 91ZJ as the provision of the RT Act relied upon,
ii.	specified 2 April 2022 as the termination date by which Ms Ng was required to leave the rented premises, room 12,
iii.	alleged that the perpetrator, as Ms Ng’s “visitor”, was endangering the safety of an occupier of neighbouring premises,
iv.	gave correct particulars of the assault upon Ms Dudley on 31 March 2022,
v.	otherwise met all formal requirements for a notice to vacate given under s 91ZJ, and 
vi.	has not been withdrawn.
h.	Irrespective of the exact time on which Ms Ng was given the notice to vacate (about which the parties do not agree) it was given to her within the time required by the RT Act for the giving of such notice to vacate. 
i.	Ms Ng has also been a victim of the perpetrator’s violence.
j.	On 2 April 2022 Ms Ng applied for and obtained from the Magistrates’ Court an interim personal safety intervention order against the perpetrator.
k.	On 6 April 2022 South Port filed its application for possession order. The application has been served upon Ms Ng. 
l.	On 8 April 2022 a police officer notified Ms Ng’s lawyers, Justice Connect, in writing, that the perpetrator had been apprehended and was in custody, but did not say when he had been apprehended.
m.	The application for a possession order was listed for hearing on 29 April 2022. On 27 April 2022 the Tribunal granted Ms Ng’s application for an adjournment of the hearing on medical grounds.
n.	Ms Ng still occupies room 12.
o.	“[South Port] has served a total of three notices for breach of duty to the tenant… respectively dated 8 July 2020, 21 July 2020 and 19 June 2021. Each notice concerned [Ms Ng] allegedly bringing male guests into the Property and causing interference with the reasonable peace, comfort or privacy of neighbours”. (This is paragraph 9 of Ms Ng’s written submission. A copy of each of the notices was attached to the submission). 
p.	Ms Ng is receiving ongoing treatment at Alfred Hospital for drug-dependency and mental health issues and is receiving ongoing tenancy support services from Sacred Heart mission. 
7	The interim intervention order shows that it was made on the application of a police officer, and that the perpetrator was present at the hearing of the application but “did not agree to this Order being made”. I have not been told whether the interim order has become permanent.
8	Persons at the Alfred Hospital and at Sacred Heart mission have supplied letters to the Tribunal. The letters were attached to Ms Ng’s written submission. I shall refer below to some of the contents. 
The Grounds of the Notice to Vacate
9	Whether the grounds of the notice to vacate given under s 91ZJ to Ms Ng have been made out depends on the answer to two questions. First, at the time of the perpetrator’s assault upon the neighbour, was he Ms Ng’s “visitor”? Secondly, was his act one that “endangers” the safety of the neighbour?
10	“Visitor.” The definition in s 3 of the RT Act is: 
visitor in relation to—
(a)	a renter, means a person on rented premises or premises in which the rented premises are situated with the permission of the renter…
11	In view of the limitations upon access to the building to which I referred in paragraph 6 (c) above. Ms Ng must somehow have enabled the perpetrator to enter the building on 28 March 2022 and to enter her room, and to re-enter or remain on 29, 30 and 31 March 2022. 
12	In its written submissions South Port cited and relied upon a passage from a Tribunal decision given earlier this year, which had also dealt with a notice to vacate given under s 91ZJ. In the cited passage, “emphasis added” means that South Port, not the Tribunal member, had added the emphasis. 
The definition of visitor in section 3 of the Act provides no temporal limitation in considering who is a visitor for the purpose of the Act. The section does not limit how the permission to be present on the premises is provided by the renter. The only requirements are that the person be on rented premises, or premises in which the rented premises are situated, and that they be present with the permission of the renter. Such a definition is wider than the ordinary meaning of the term visitor. The definition would apply to anyone on the premises with any kind of permission from the renter to be there, no matter for what period they have authority to be present. The definition would appear to only exclude an intruder (emphasis added).
While I doubt that only an intruder is excluded from the width of the definition, I agree with the passage otherwise, and apply it in this proceeding.
13	Ms Ng’s written submission asserted that the perpetrator consistently made her feel unsafe and that she asked him to leave a number of times, to no avail. Those were not agreed facts. Ms Ng did not give evidence or take part personally in the hearing. Even if those assertions had been proved, they would not have assisted her to prove that the perpetrator was not a “visitor”. What accounted for the presence of the perpetrator in the building on 31 March 2022 was that he initially entered it, and her room, with her permission or assistance. That made him her “visitor” at the time of the assault upon the occupier of neighbouring premises. 
14	“Endangers.” A Supreme Court decision concerning a section in the RT Act that was a predecessor to the present s 91ZJ has established that a person “endangers” the safety of another only if the danger was continuing at that time that the notice to vacate was given and if the danger at that time was real, not just remotely or faintly possible. Guidelines issued by the Director of Consumer Affairs, which the RT Act by s 330(3) obliges the Tribunal to consider in a proceeding that involves a notice to vacate given under s 91ZJ, reflect that decision and are to the above effect. I have considered those guidelines.
15	Submissions made in paragraph 24 of Ms Ng’s written submission — about the making of the interim intervention order and Ms Ng’s intervention to have nothing further to do with the perpetrator — focused upon the time leading up to the filing of the application for possession order, rather than upon the time of giving of the notice to vacate, and so do not address the relevant question. Since the repeal of Part 16 of the RT Act, which had temporarily outlawed notices to vacate, it has not been necessary to prove that the danger continued to the date of the filing of the application. Whether the danger continued to that day will be relevant only to the issue of whether it is reasonable and proportionate to make a possession order. I shall address that issue below.
16	The perpetrator is a violent person. The fact that he was physically violent to Ms Ng, as well as to her neighbour, establishes that. Even if one were to assume in Ms Ng’s favour that she obtained the interim intervention order before the notice to vacate was given to her, there has been no evidence that he no longer had access to the building at that time. On the available facts, he posed a real danger to the safety of occupiers of premises that were neighbouring Ms Ng’s rented premises, and the danger was continuing at the time that she was given the notice to vacate.
17	The grounds for the giving to Ms Ng of a notice to vacate under s 91ZJ have been made out.
Is a s 91ZZV Defence Available?
18	Ms Ng has submitted that because the perpetrator subjected her to personal violence the Tribunal must decide that the notice to vacate was invalid and dismiss the application for a possession order.
19	Sections 91 ZZU and 91ZZV provide: 
91ZZU 	Renter may challenge notice to vacate on grounds of family violence or personal violence
(1)	On or before the hearing of an application for a possession order, a renter who has received a notice to vacate under section 91ZI, 91ZJ, 91ZK, 91ZO, 91ZP, 91ZQ or  91ZR may apply to the Tribunal challenging the validity of the notice to vacate on the grounds that the relevant act or breach for which the notice to vacate was given was caused by the act of a person who has subjected the applicant to family violence or personal violence.
(2)	An application under subsection (1) must be made within 30 days after the notice to vacate is given.
91ZZV 	What can the Tribunal order?
On an application under section 91ZZU, the Tribunal must make an order that the notice to vacate is invalid if satisfied that—
(a)	the applicant has been, or is being, subjected to family violence or personal violence; and
(b)	the relevant act or breach on which the notice to vacate was given was caused by the act of a person who has subjected the applicant to family violence or personal violence.
20	Although the usual way to make an application to the Tribunal is to file a formal written application, s 91ZZU provides that a renter may apply under that section to challenge the validity of the notice to vacate “[o]n or before the hearing of an application for a possession order”, implying that the renter may do so orally at the time of the hearing of the application for the possession order. That is what Counsel for Ms Ng sought to do at the hearing on 17 May 2022.
21	The difficulty for Ms Ng is that the application under s 91ZZU(1) was not made within 30 days after the notice to vacate was given, as is required by s 91ZZU(2). Her Counsel sought to meet that difficulty by applying for an order extending the time for the making of the application or waiving the requirement that s 91ZZU(2) creates. 
22	Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“the VCAT Act”) provides:
126 	Extension or abridgment of time and waiver of compliance
(1)	The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.
(2)	If the rules permit, the Tribunal, on application by a party or on its own initiative, may—
(a)	extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or
(b)	waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.
(3)	The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.
(4)	The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.
(5)	In this section—
"relevant enactment" means an enactment specified in the rules to be a relevant enactment for the purposes of this section.
Because the RT Act confers a jurisdiction upon the Tribunal, it is “an enabling enactment”.
23	Ms Ng has not sought to commence a proceeding and s 91ZZU of the RT Act does not require her to commence one. So s 126(1) of the VCAT Act is not applicable. But s 126(2)(a) of the VCAT Act allows for an extension of a time limit fixed by the RT Act (it being a “relevant enactment”) for the doing of an act in a proceeding. In this proceeding the act in question is the making of an oral application under s 91ZZU of the RT Act to challenge the validity of the notice to vacate. The only law that negatively affects the Tribunal's power to extend the time limit of 30 days that s 91ZZU(2) imposes is s 126(4) of the VCAT Act: it may not do so if the extension would cause any prejudice or detriment to a party or a potential party that could not be remedied by an order for costs or damages. The requirement to make the application within 30 days after the notice to vacate was given is a procedural requirement; it deals with the pursuit of a remedy and does not affect substantive rights. So s 126(2)(b) of the VCAT Act enables the Tribunal to waive that requirement; but again it may not do so if the same kind of prejudice or detriment would result.
24	Counsel for Ms Ng pointed out that if an application challenging the notice to vacate had been made at the hearing that had been listed for 29 April 2022 it would have been made within the 30-day time period, and argued that the challenge would have succeeded because the person who did the act that was endangering the safety of a neighbour was a person who had subjected Ms Ng to violence. He submitted that she ought not to be disadvantaged by having sought and having obtained an adjournment of the hearing for medical reasons and so having been unable to make her challenge within the 30-day period. He referred to a letter from Suzie Foley, a psychiatric nurse at The Alfred St. Kilda Rd Clinic dated 27 April 2022 and addressed to the Tribunal. The letter was attached to the written submission. The letter stated that Ms Ng had been admitted to the Alfred Hospital on 21 April 2022 for treatment of a relapse of her mental illness, that during her period in hospital she was diagnosed with COVID-19, and that although she was discharged on 26 April 2022 her isolation period would not expire until 29 April 2022. 
25	Counsel for Ms Ng also relied upon a letter from Ms Ng’s lawyers Justice Connect to South Port dated 14 April 2022 which stated that Ms Ng “may challenge [the notice to vacate] on the basis that the relevant breach was caused by the act of a person who has subjected Ms Ng to personal violence under s 91ZZU of the RT Act]” and thereby gave South Port notice, within the 30-day time period, of the potential challenge. 
26	A decision to grant or refuse an application under s 126 of the VCAT Act, for an extension of time or for a waiver of a requirement, involves the exercise of a discretion. The discretion is fettered only by the prohibition on granting the application if the granting of it would cause prejudice or detriment of the kind described in s 126(4) of the VCAT Act. But there may be other reasons for refusing the application in the exercise of the discretion. 
27	The letter from Justice Connect to South Port notified it only of the possibility of a challenge being made under s 91ZZV, not an actual challenge. Ms Ng’s written submission, filed and served before the hearing on 17 May 2022, mentioned s 91ZZV but said nothing about an application for an order extending the time or for waiving compliance with the requirement to make a challenge within 30 days after the notice to vacate was given. There was no notice of such an application before it was made at the hearing. South Port’s solicitor at the hearing made no complaint about those matters but I cannot ignore them. Had notice of the application been given, officers of South Port, the assaulted neighbour and other neighbours of Ms Ng may well have wanted to give evidence bearing upon whether it would be fair to them to allow Ms Ng an indulgence so that she could raise a defence that she might not otherwise have. 
28	An incident that occurred before the hearing concluded shows that the possibility of unfairness is not a fanciful one. After the legal representatives had concluded their arguments and I said that I was reserving my decision, the assaulted neighbour Ms Dudley announced her presence in the teleconference and said that she wanted to say something. The time that had been allowed for the hearing, which had begun at 9:30am, had expired and there were other hearings by teleconference which I had to conduct throughout the day, the next of which was to begin at 10:30am and had parties waiting. It was not feasible to allow the hearing to be re-opened at once so that Ms Dudley could give evidence or otherwise say whatever she wanted to say. I could have adjourned the hearing, but applications based upon something so serious as alleged endangerment of a neighbour ought to be resolved as speedily as possible, in the interests of all persons concerned including neighbours. 
29	Allowing the application for extension of time or waiver would involve procedural unfairness to South Port and consequently unfairness to other persons who might be affected by any recurrence of what had been admitted to be an action that had endangered the safety of a neighbour. It would be putting the matter too high to say that the granting of the application would cause prejudice or detriment to South Port, and there are no other potential parties to whom prejudice or detriment could be caused, so I am not compelled to refuse the application. Of course I bear in mind that to refuse it would deny Ms Ng a defence based upon s 91ZZ. Nevertheless, for the reasons of procedural and other unfairness that I have stated, I refuse the application for extension of time or waiver of a requirement. 
30	It follows that s 91ZZV of the RT Act does not operate to compel the making of an order that the notice to vacate is invalid. 
“Reasonable and Proportionate”?
31	Section 330(1)(f) of the RT Act provides:
330 	Order of Tribunal
(1)	The Tribunal must make a possession order requiring a renter, resident or site tenant to vacate rented premises, a room and rooming house or a building, a site or a caravan on the day specified in the order if the Tribunal is satisfied—
(f)	that in the circumstances of the particular application, it is reasonable and proportionate having regard to section 330A, 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 residential rental provider, rooming house operator, caravan park owner, site owner or mortgagee, as the case requires;
(ii)	the renter, resident or site tenant;
(iii)	any co-tenants or co-site tenants or other residents;
(iv)	any neighbours or any other person who may be, or who has been affected by, the acts or behaviour of the renter, resident or site tenant to whom the notice to vacate was given.
The interests of the renter Ms Ng are her needs, as a vulnerable person, for accommodation that allows her to have all necessary support. The interests of South Port are in keeping free from danger to their safety the vulnerable persons it houses. The interests of the neighbours are in being kept free from danger to their safety. The impact upon Ms Ng of the making of a possession order is that she may become homeless or may have to accept accommodation where she does not get the support that South Port gives her in her vulnerability. The impact upon South Port and the neighbours of the refusal to make a possession order would be an understandable fear that the danger to the safety of other renters in the building will continue. I must and do keep those interests and impacts in mind when deciding whether it is reasonable and proportionate to make a possession order. 
32	Section 330A sets out, in paragraphs numbers (a) to (j), ten matters to which, in addition to the interests of and the impacts upon the relevant persons, the Tribunal must have regard for the purpose of determining whether it is reasonable and proportionate to make a possession order. I do not set out the section in full. Instead I follow the numbering of the ten matters and state my conclusions about them. 
33	Some of these ten matters, numbered (a), (b), (c), (e) and (f), refer to a “breach” of obligations under a residential rental agreement. The tenancy agreement between the parties, a copy of which was attached to Ms Ng’s written submission, contained a promise by her not to allow the rented premises to be used in such a manner as to cause an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises. The notice to vacate was not grounded upon a breach of that obligation, even though her having allowed the perpetrator to become her “visitor” enabled him to endanger the safety of a neighbour. It was grounded instead on the endangerment to safety that the visitor caused. There is no obligation under the tenancy agreement not to allow a visitor to endanger the safety of a neighbour; so the act of endangerment is not a breach of an obligation. 
34	(a) Nature, frequency and duration of conduct. The conduct of Ms Ng which led to the notice to vacate being given was her allowing the perpetrator to become her visitor, enabling him to endanger the safety of an occupier of neighbouring premises. The nature of that conduct, and its duration (even though it stretched over three days), are in my opinion neutral considerations, not having a bearing on the issue of whether it is reasonable and proportionate to make a possession order. Its frequency, however, does have a bearing on that issue. As I stated in paragraph 6(o) above, Ms Ng’s written submission contained an admission that she had been given three notices for breach of duty. Each of those notices alleged she had brought guests into the building who caused interference with the reasonable peace, comfort or privacy of neighbours. 
35	The allegations in those three notices were not proved in this proceeding. However after the last of the alleged occasions, 19 June 2021, Ms Ng signed on 8 July 2021 a “plan to resolve breach/notice to vacate” containing her acknowledgement that she needed to explain to her visitors that they must not come through the building without her and that they must not disturb the neighbours. By signing the document she seems to have admitted that there was some substance to the allegations. 
36	The frequency of the conduct that created a potential for the endangerment of the safety of occupiers of neighbouring premises is a matter that weighs in favour of a conclusion that the making of a possession order is reasonable and proportionate. The fact that the conduct was a recurring breach of the promise in the tenancy agreement weighs in the same way. 
37	(b) Trivial Breach? The fact that the breach of the obligations led to an endangerment of safety of a neighbour means that the breach was not trivial. 
38	(c) Breach caused by another’s conduct. Again one must distinguish between the breach, which was Ms Ng’s breach of her obligation under the tenancy agreement, and the conduct which grounded the notice to vacate, which was the perpetrator’s as a visitor. Her breach led to the conduct but did not cause the conduct, so this paragraph of s 330A is, strictly speaking, inapplicable. 
39	Nevertheless, the fact that the conduct causing the endangerment was someone else’s reduces any personal culpability of Ms Ng for the endangerment and tells against it being reasonable and proportionate to make a possession order, provided that there is some other way of reducing the risk of future endangerment so that the interests of South Port and of neighbours in the building are thereby taken into account. 
40	(d) Personal safety intervention order. The Tribunal is required to consider whether Ms Ng made an application for a personal safety intervention order. She obtained the interim intervention order a copy of which was attached to her written submission. She made the application promptly. The order named Christopher Evans, the perpetrator, as the respondent whom the order was against. It included an order that he must not go to or remain within 200 metres of any place where Ms Ng lives. There was no evidence, and I was not told, whether the order is still in force. 
41	(e) and (f) Remedy or capacity to remedy. To the extent that there has been no further incident of violence by a visitor, the breach in allowing the perpetrator to enter has been remedied. As to her capacity to comply with her obligations under the tenancy agreement there has been no evidence apart from the agreed fact that she is a vulnerable person. 
42	(g) Effect of her conduct on others. Her allowing the perpetrator to enter and remain in the building led to the endangerment of the safety of an occupier of neighbouring premises. 
43	(h) Any other course of action. There is. I shall return to this topic when I deal below with submissions that I could make a compliance order instead of a possession order. 
44	(i) South Port’s behaviour. There is no behaviour of South Port that is relevant. 
45	(j) Any other relevant matters. Two letters, both addressed “To whom it may concern” and attached to Ms Ng’s submission, contained relevant and important information. 
46	Suzie Foley, a psychiatric nurse at the Alfred Hospital, has signed a letter dated 24 April 2022. It includes the following information. She is the case manager for Ms Ng who is a client of the hospital’s mobile support and treatment service. She has been involved in Ms Ng’s care since March 2022. Ms Ng has an acquired brain injury and a schizoaffective disorder. Ms Foley and her team visit Ms Ng weekly at her room in South Port’s building and at fortnightly intervals give her antipsychotic injections. She co-operates with them during these visits. Ms Foley works closely with Ms Ng’s intensive housing manager from Sacred Heart mission. Ms Foley concludes: 
If Michaela were unable to remain at her residence, she would be very difficult to treat in the community and would likely experience a deterioration in her mental state. Her risks of vulnerability, homelessness, misadventure, and sexual exploitation would increase significantly, also affecting her mental state. 
Due to her extreme vulnerability, I believe it is essential that Michaela be able to maintain her occupancy at 135 Stokes Street, Port Melbourne where she can receive ongoing treatment, care and support and consolidate recent progress in her housing status and community inclusion. 
I give considerable weight to that opinion. 
47	Heli Simpson, the intensive case manager employee by the Sacred Heart Mission and involved in its “Journey to Social Inclusion” programme, has signed a letter dated 20 April 2022. (Ms Simpson was present during the hearing by teleconference but did not give evidence). Her letter includes the following information. Ms Ng was referred to the program in August 2019. Ms Simpson assisted her to move out of crisis accommodation and into her present room. Ms Ng engages well with the programme, accepting weekly contact either by telephone or in person. In July 2021, Ms Simpson supported Ms Ng to create a tenancy support plan after she had been given a breach of duty notice about disruptive guests. Ms Ng’s finances are managed by State Trustees. Although the programme will conclude on 30 June 2022, Ms Simpson intends to refer her to another housing support service. She gives this opinion: “If [Ms Ng] were to return to homelessness, she would struggle to access her own funds in seeking new housing”.
48	Both Ms Foley and Ms Simpson emphasised that Ms Ng had told them that she wanted to have nothing further to do with the perpetrator.
49	Balancing all the matters that I have set out in paragraphs 31 to 48 above, I have concluded that it is not reasonable and proportionate to make a possession order at present. The impact upon Ms Ng of an eviction from her room would be severe. It would disrupt the care and treatment she is getting from the Alfred Hospital’s mobile support and treatment service. It is likely to affect her mental condition for the worse. It would probably cut the important lines of communication that she has with Ms Foley and Ms Simpson, to her detriment. Whether or not it would make her homeless, it would increase her vulnerability. But the application for a possession order should not be dismissed. Protection of the interests of South Port and of other renters in the building requires that there be consequences for Ms Ng if, despite her present good intentions, she receives a visitor who endangers the safety of other renters. 
A Compliance Order?
50	With the reference in it to sections of the RT Act that are not presently relevant being omitted, s 332A of the RT Act provides: 
332A 	Tribunal may dismiss possession order application and make compliance order in certain circumstances
(1)	Despite section 330, if an application for a possession order is supported by a notice to vacate given under 91ZJ the Tribunal, having regard to whether it is reasonable and proportionate in accordance with section 330A to do so—
(a)	may dismiss the application for a possession order; and
(b)	if it is appropriate to do so, may make a compliance order under section 212 as if the application for a possession order had been an application under section 209.
(2)	Without limiting section 212, the compliance order may require a renter, resident or site tenant, as the case requires—
(a)	to remedy the breach of duty to which the application for a possession order related; and
(b)	to refrain from committing a further or similar breach.
(3)	If the Tribunal finds that the breach of duty to which the application for a possession order related was committed or caused by a person other than the renter, resident or site tenant, the Tribunal may order that the renter, resident or site tenant, as the case requires, does not permit the person who committed or caused the breach to enter, or remain in, the rented premises, room or site.
In this proceeding the notice to vacate has been given under s 91ZJ — the “danger” provision — and it supports the application for a possession order. 
51	Each party in its or her submission urged me to make a compliance order under s 212 of the RT Act in accordance with s 332A if I did not accept the primary submission that I should make a possession order (South Port’s) or that I should dismiss the proceeding (Ms Ng’s). 
52	Despite the apparent authority that s 332A gives to the Tribunal to make a compliance order under s 212 when the application for a possession order is supported by a notice to vacate given under s 91ZJ, it is not “appropriate” to make a compliance order because, when the provisions in Part 5 of the Act about compliance orders are considered as well as s 332A, one must conclude that it is not legally possible to make one that fits the case. 
53	Under Part 5 of the RT Act, the power to make a compliance order depends upon proof of a breach of a duty provision of the RT Act, proof of the giving of a breach-of-duty notice requiring a remedy of the breach, and proof of a failure to comply with the notice. I repeat that the endangerment of safety of one of the persons identified in s 91ZJ is not a breach of any of the duty provisions. While the endangerment entitled South Port to give Ms Ng a notice to vacate it would not have entitled it to give her a notice requiring compliance with a duty provision. Ms Ng has admitted that she had been given three breach-of-duty notices alleging breach of the duty (under s 60(2) of the RT Act) not to permit the use of the rented premises in a manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises. But the alleged breach has not been proved in this proceeding, and the application for a possession order has not been supported by a notice to vacate that alleged such a breach. So the foundation for the making of a compliance order in this proceeding does not exist. 
54	Reinforcing that view of s 332A is the fact that, although it is expressed not to limit s 212 of the RT Act — the section that empowers the Tribunal to make a compliance order and identifies the circumstances in which it can be given — it is not expressed to operate despite s 212 or despite any other provision of Part 5 of the RT Act. A proper construction of s 332A is that the Tribunal may make a compliance order under s 212 as if the application for a possession order under s 209 only if the grounds of the notice to vacate had amounted to a breach of a duty provision of the RT Act. 
55	While in my view I cannot, as a matter of law, make a compliance order instead of a possession order, the matters referred to in s 332A(3) can be used as a guide to what kind of order is more reasonable and proportionate-----``-- than a possession order. 
Adjournment with Right of Renewal
56	Using the scope of s 332A(3) as a guide, and in all the circumstances that have attended this proceeding, I make an order that in my opinion recognises Ms Ng’s vulnerability and the severe effect upon her that a possession order would make, but at the same time reasonably and appropriately protects the interests of South Port and of other renters in the building. It is an order that adjourns the proceeding, prohibits Ms Ng from allowing the entry into her room 12 or into the building the perpetrator or any other person who endangers the safety of occupiers of neighbouring premises, and permits South Port to renew the proceeding if Ms Ng fails to comply. 
57	In its alternative submission in support of a compliance order South Port urged me to go further, by ordering Ms Ng not to use her room or permit it to be used in a manner that would cause a nuisance or interference with the peace, comfort or privacy of any occupier of neighbouring premises. I cannot, however, properly confer upon South Port a right to renew the proceeding for any reason that does not correspond to the grounds of the notice to vacate that supported South Port’s application for a possession order. 

A. Vassie 
Senior Member