CASE SUMMARY

Write a case summary of the following one VCAT (Residential Tenancies) case as reported in Austlii (www.austlii.edu.au):

Lodden Mallee Housing Services Ltd v OBG (Residential Tenancies) [2021] VCAT 1388 (17 November 2021)

Your answer should take the form of a case summary. 

 

Further guidance/clarifications

1. Form of Writing: The Case summaries must be written in the third person.
2. Subheadings: Use of sub-headings is expected as they add clarity for the reader and often provide direction for the writer.  Modern legal writing commonly uses sub-headings, e.g. in case summaries, court judgments, letters of advice, articles and essays.
3. Descriptive writing or critical/analytical writing?  The case summary requires reports summarising the background facts, central issues, the decision and the reasoning of the case. 
4. Use of external sources:   Research into relevant legislation is required to be required to fill in ‘gaps’ for  comprehensive case summaries regarding  the hearings and to demonstrate your understanding of the relevant legislation.  (eg Victorian Civil and Administrative Tribunal  Act 1998 (Vic), Equal Opportunity Act 2010 (Vic), Australian Consumer Law;) Residential Tenancies Act 1997 (Vic).

Total word limit for the Case summary is 1000 words excluding footnotes and bibliography. The word limit will be strictly applied.

 

SOLUTION

 

Lodden Mallee Housing Services Ltd v OBG (Residential Tenancies) [2021] VCAT 1388 (17 November 2021)

Applicant: Lodden Mallee Housing Services Ltd

Respondent: OBG

Background Facts

Lodden Mallee Housing Services Ltd (here 'Applicant') provides accommodation services for vulnerable people who are at risk of homelessness, including a complex in Doncaster with 98 residential apartments. OBG (here 'Respondent'), a psychiatric patient who had previously experienced homelessness, had been renting an apartment from them for four years. OBG was under a treatment order under the Mental Health Act 2014 at the time of the hearing, which required her to receive psychiatric treatment as an in-patient at a hospital, but her treatment team was seeking to change the order so that she could receive treatment in the community and as an in-patient.

 

The Applicant issued a 'Notice to Vacate' (NTV) to the Respondent on September 9, 2021, under the Residential Tenancies Act 1997 (Vic), giving a deadline of September 17, 2021, for the Respondent to vacate the premises. On September 20, 2021, the Applicant applied for a possession order under section 322(1) of the same act.

 

Relevant Laws

Residential Tenancies Act 1997 (RTA) is the legislation governing the relationship between landlords and tenants in Victoria, Australia. The relevant laws of the RTA used in the case are as follows:

• Section 91ZJ (1) of RTA[1]: It provides that a rental provider can issue a notice to vacate to a renter or their visitor if their actions endanger the safety of neighbouring occupants or other specified parties. If the notice is not followed, the rental provider can apply for possession through section 322 of the RTA.
• Section 330(1)(f) of the RTA[2]: It provides that the Tribunal must order the renter to vacate the premises if it finds that it is reasonable and proportionate to do so, considering the interests of the rental provider, the renter, any affected neighbours or persons, and other relevant factors outlined in section 330A.
• Section 330A of the RTA[3]: When considering an application for possession, the Tribunal must consider the conduct that led to the application, whether the breach is significant, whether the breach resulted from the actions of someone other than the renter, whether the breach occurred during an episode of family violence, whether other alternatives to a possession order exist, and any other relevant factors.
• Section 332A of the RTA[4]: After considering the relevant factors, the Tribunal can dismiss an application for possession and issue a compliance order on its own if it believes that doing so is reasonable, proportionate, and appropriate.

[1] Residential Tenancies Act 1997 (Vic) s 91ZJ (1).

[2] Residential Tenancies Act 1997 (Vic) s 3309(1)(f).

[3] Residential Tenancies Act 1997 (Vic) s 330A.

[4] Residential Tenancies Act 1997 (Vic) s 332A.

 

Central Issues

1. Whether there was a danger to the occupants of neighbouring properties?
2. Whether danger still exist at the time of notice to vacate?
3. Whether relevant misconduct constituted a real threat to the health and safety of neighbouring occupiers?
4. Whether the grant of a possession order is reasonable and proportionate?

 

Evidence Submitted

The Applicant's Evidence

The Applicant submitted evidence to VCAT that included copies of intervention orders against the Respondent, videos showing physical altercations between the Respondent and occupants of neighbouring premises, and detailed accounts of verbal and physical assaults by the Respondent against neighbouring occupants from May 2020 to March 2021. This evidence demonstrated that the Respondent had confronted neighbouring occupants, specifically named Samreen and Ali, who lived in a different apartment in the same complex.

 

The Respondent’s Evidence

The Respondent presented evidence including letters from a doctor and social workers, but did not dispute the Applicant's evidence. The doctor's letter stated that the Respondent's mental state was improving with anti-psychotic medication, while the social worker's letter said that the Respondent had not shown violent behavior during her stay at the Box Hill Hospital and would be destabilized if she became homeless.

 

Arguments Advanced

Contentions of Respondent

The Respondent argued that the application should be dismissed because the danger from her actions had ceased by the time the notice to vacate (NTV) was issued. The Respondent's lawyer contended that the incidents after the major incident could be classified as no more than anti-social behavior. The Respondent did not dispute the validity of the notice to vacate or its service. The Respondent's lawyer also argued that it would not be reasonable or proportionate to make a possession order due to various factors, including the nature, frequency, and duration of the conduct, the Respondent's capacity to comply with obligations, and OBG's mental health and financial hardship[5].

 

The Respondent also submitted that if a possession order was made, the vacate date should be delayed by 30 days[6]. Additionally, the Respondent submitted that the VCAT should exercise its discretion to postpone the issuing of a warrant for possession by 30 days[7]. 

 

Contentions of Applicant

The Applicant argued that OBG's behavior posed a continued threat to Ali, Samreen, and their child and that her conduct had not been remedied. The Applicant pointed out that OBG's behaviour was irrational[8], egregious[9], and not provoked by others. The Applicant conceded that the vacate date under a possession order should be delayed slightly to allow OBG to move out of her apartment under police supervision.

 

Order Of The VCAT (Decision)

The rental provider gave notice to vacate due to endangering the safety of neighbouring premises[10], but the VCAT orders that a possession order is not reasonable at this time, and instead issues orders for the renter to comply with a treatment plan for her psychiatric condition, not approach or communicate with certain individuals, and not engage in conduct that endangers the safety of neighboring premises. The application for possession is adjourned until May 30, 2022, and may be renewed by the rental provider if the renter fails to comply with the orders. If not renewed by May 30, 2022, the application will be considered withdrawn. Additionally, the court has anonymized the respondent as "OBG" due to sensitive medical information regarding their mental health[11]. Only parties or authorized legal practitioners may inspect the file, and the respondent is allowed legal representation[12].

[5] Residential Tenancies Act 1997 (Vic) s 330A.

[6] Residential Tenancies Act 1997 (Vic) s 333.

[7] Residential Tenancies Act 1997 (Vic) s 352.

[8] Residential Tenancies Act 1997 (Vic) s 330A(c).

[9] Residential Tenancies Act 1997 (Vic) s 330A(b).

[10] Residential Tenancies Act 1997 (Vic) s 91ZJ.

[11] Open Courts Act 2013 (Vic) s 17.

[12] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 146(4)(b).