VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential tenancies division
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2022/29886
CATCHWORDS	
Challenge to notice to vacate given for the reason that the rental provider intended to occupy the premises – relevance of response to the exercise of a renter’s right – notice to vacate was valid and given in good faith – Residential Tenancies Act 1997 (Vic) s 91ZZA. 	

first APPLICANT	Steven Gibbons	
second applicant	John Woods	
RESPONDENT	Michael Sapountzis	
WHERE HELD	Melbourne	
BEFORE	Senior Member A. Vassie	
HEARING TYPE	Hearing	
DATE OF HEARING	22 November 2022	
DATE OF ORDER	21 December 2022	
DATE OF REASONS	21 December 2022	
CITATION	Gibbons v Sapountzis (Residential Tenancies) [2022] VCAT 1472	

Order
1.	The proceeding is dismissed. 

A. Vassie
Senior Member			

APPEARANCES:		
For Applicants	Mr S. Gibbons	
For Respondent	Ms S. Shamoon, managing agent	

Reasons
1	The applicants have challenged the validity of a notice to vacate given to them as renters of premises at 26 Focus Drive Coburg North. The respondent is the residential rental provider who gave the notice for the reason, he alleged, that he intended to occupy the premises himself. Between the date of the commencement of the proceeding and the hearing of it by telephone on 22 November 2022 the applicants had vacated the premises. The first applicant Steven Gibbons, who appeared for himself and for his co-applicant, nevertheless asked me to rule upon the challenge because he believes that if the challenge were to be successful the applicants would have additional grounds for a claim for compensation that they intend to make. 
2	The applicants challenge the validity of the notice to vacate in two ways. First, they say that it was not given in good faith: the respondent does not intend to occupy the premises himself but gave the notice in retaliation for requests that they had made for repairs to be done. Secondly, they say that the notice to vacate did not comply with the requirements of the Residential Tenancies Act 1997 (Vic) (“the Act”) for the giving of such a notice. In support of their second argument Mr Gibbons cited a Supreme Court decision and three VCAT decisions. I reserved my decision so that I could consider the authorities that Mr Gibbons had cited. 
3	Section references in these reasons are to sections of the Act. 
4	The notice to vacate was given to the renters on 30 August 2022 and bore that date. It required them to vacate the rented premises by the termination date of 6 November 2022. It set out the following reason for the giving of the notice:
I am giving you this notice for the following reason:
Section 91ZZA Occupation by residential rental provider or family
The premises are to be occupied by me; my partner, son, daughter, parent, partner’s parent, or a person who normally lives with and is dependent on me immediately after the termination date. 
The rental provider requires vacate possession of the property (26 Focus Drive, Coburg North), and the rental provider intends on moving into the premises as of the 6th of November 2022. 
The rental provider acknowledges that they must not re-let the premises to any person (other than the person named to be moving into the rented premises in the statutory declaration) for use primarily as a residence before the end of 6 month after the date on which notice was given, unless approved by VCAT.
5	Section 91ZZA provides:
Premises to be occupied by residential rental provider or provider's family
  (1)     A residential rental provider may give a renter a notice to vacate rented premises if the premises are immediately after the termination date to be occupied—
(a)     by the residential rental provider; or
(b)     in the case of a residential rental provider who is an individual—
(i)     by the residential rental provider's partner, child, parent or partner's parent; or
(ii)     by another person who normally lives with the residential rental provider and is wholly or substantially dependent on the residential rental provider.
(2) 	The notice must specify a termination date that is not less than 60 days after the date on which the notice is given.
6	Accompanying the notice to vacate when it was given was a statutory declaration by the rental provider Michael Sapountzis made on 30 August 2022. In it he declared:
1. I require vacate possession of my property (26 Focus Drive, Coburg North VIC 3058), I the rental provider intend on moving into the premises as of the 6TH of November 2022.
I acknowledge that I must not re-let the premises to any person (other than the person named to be moving into the rented premises in this statutory declaration) for use primarily as a residence before the end of 6 months after the date on which notice was given, unless approved by VCAT.
7	Section 91ZZO provides:
91ZZ0 Form of notice to vacate
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
Note
See section 486A.
        (f)     it specifies the termination date which is the date by which compliance is required.
A statutory declaration in the terms of the one made by Mr Sapountzis is documentary evidence that the Director (of Consumer Affairs Victoria) has approved for the support of a notice to vacate given under section 91ZZA, as the Director is empowered by section 486A to do. 
8	I deal first with the second argument raised: alleged non-compliance with the requirements of the Act, because in logical order it should be first. 
9	Mr Gibbons submitted that in the notice the rental provider has recited the words of section 91ZZA and that the law is that a rental provider must do more than that: the notice must contain sufficient information to enable the person given it to know what exactly was the reason for the giving of the notice. So far as it goes, that statement of the law is correct; it was adopted in the Supreme Court case that Mr Gibbons cited: Jafapruser v Tancevski [2018] VSC 497. However, in that case the notice to vacate identified the relative (a grandson) as the person whom the rental provider intended should occupy the premises immediately after the termination date. The Court decided that the notice contained sufficient information for it to comply with the section of the Act which was the equivalent of what is now section 91ZZA. The Court went on to decide that the VCAT member who made a possession order ought not to have done so because a dependency of the grandson on the rental provider had not been proved.
10	Similarly, in this proceeding, the rental provider has identified the person – the rental provider himself – who was to occupy the premises immediately after the termination date. That is all that the rental provider needed to do for the notice to comply with the requirements of section 91ZZA (1). Recitation in the notice’s second sentence of the words of the section was not necessary but did not affect the notice’s sufficient compliance with the section. The third sentence identified the rental provider himself as the intended occupier. 
11	The three VCAT decisions that Mr Gibbons cited do not assist the applicants’ argument of alleged non-compliance with the section:	
i.	Mitchell v Aa Integrity Holdings Pty Ltd [2019] VCAT 1306 decided that the notice to vacate complied with the Act but the challenge to it was successful because it was proved to have been given in retaliation for the renter’s exercise of a right under the Act. 
ii.	Servinis v Hartwick [2020] VCAT 1017 involved proceedings under Part 16 of the Act, headed “COVID-19 temporary measures.” While Part 16 was in operation a rental provider could not give a notice to vacate at all. No question of compliance with the Act of a notice to vacate could arise. 
iii.	Kher v Young [2020] VCAT 818 was a claim for compensation for water entry, not an application for a possession order, so had nothing to do with a notice to vacate. 
12	So there is nothing in that second argument. 
13	The first argument is that the notice was not given in good faith because the rental provider did not have the intention that he alleged in the notice that he had, but rather was attempting to evict the renters because they had made requests for repairs. 
14	In support of that first argument Mr Gibbons gave the following evidence. 
(a)	Before June 2022 he and his co-renter had for months asked for repairs to a shower and for the provision of a heater. The rental provider did not attend to those requests but gave them a notice to vacate, which they successfully challenged in a VCAT proceeding. 
(b)	On 23 June 2022 an internet website advertisement appeared for the letting of the premises, accompanied by photographs, even though that notice to vacate had not expired. 
(c)	After he and his co-renter had vacated the premises, a neighbour told him that the rental provider’s agents were showing prospective renters through the premises. 
15	Since the repeal of s 266 of the Act in 2018 the Act no longer provides that a notice to vacate is of no effect if it was given in response to the exercise or proposed exercise by a renter of a right under the Act, such as a right to require the rental provider to repair the premises. Evidence, however, that a notice to vacate was a response to the exercise or proposed exercise of a right under the Act may lead the Tribunal to conclude that the rental provider’s expressed intention, to move into the premises once a notice to vacate had expired, did not exist and that the notice was not given in good faith. 
16	The rental provider’s managing agent Stephanie Shamoon gave evidence about the website advertisement. She said that it had been shown on the website by mistake. Her office had intended to advertise a property at 26 Snapshot Drive for rental but by mistake had advertised 26 Focus Drive instead; the mistake was soon rectified. She also gave evidence that she had not shown any prospective renters through the 26 Focus Drive property after the renters had vacated. 
17	The rental provider Michael Sapountzis also gave evidence. He said that he had been doing some work on the premises and obtaining quotations from tradesmen and so was “in the process of moving in.” He repeated that it was his intention to move into the premises and occupy the premises himself once it was ready for occupation, that he did not intend to re-let the premises, and that he was aware that the Act prohibited a re-letting for six months unless the Tribunal made an order permitting a re-letting. 
18	I see no reason not to accept the evidence of Ms Shamoon and of Mr Sapountzis. I prefer it to the hearsay evidence of what a neighbour allegedly saw. Otherwise I accept Mr Gibbons’ evidence of requests for repairs not having been met, but on the evidence as a whole, I am satisfied that Mr Sapountzis did have and does have the intention to occupy the premises himself and that the notice to vacate was given in good faith. 
19	The challenge to the notice to vacate given on 30 August 2022 has failed. The proceeding is dismissed. 

A. Vassie
Senior Member