If the Tribunal has previously made orders that a client owes debt to the Director of Housing (DOH) in relation to a public housing property, and negotiations with the DOH to waive or reduce the debt have been unsuccessful, it may be necessary to file an application with the Tribunal to reopen the previous orders.
The substantive hearing of the application will usually immediately follow a successful application to re-open the previous orders.
Under s 120(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), a person may apply to the Tribunal for a review of an order against them if they did not appear and were not represented at the initial hearing where the order was made.
The Tribunal may hear and determine the application to re-open the order if:
it is satisfied the person had a reasonable excuse for not attending the hearing; and
it is appropriate to hear and determine the application having regard to:
whether the applicant has a reasonable case to argue in relation to the subject-matter of the order; and
any prejudice that may be caused to another party if the application is heard and determined.
The Tribunal may order that the order be revoked or varied ‘if it thinks fit’ (s 120(4(b)).
Note a person cannot apply for more than one review in respect of the same matter without leave of the Tribunal (Rule 4.24(2)Victorian Civil and Administrative Tribunal Rules 2018 (VIC) (VCAT Rules)).
A review application must be made within 14 days of an applicant becoming aware of an order (r 4.24(1) VCAT Rules).
However, an application for an extension of time can be made under s 126 VCAT Act. This will often be required for Homeless Law clients who often not seek assistance with housing debts until many years after the original Tribunal hearing.
If a review hearing is granted, the substantive hearing will generally take place immediately after. An application for an adjournment can be made but this may not be granted.
In compensation matters, the DOH will generally apply for a compensation order under s 210 of the Residential Tenancies Act 1997 (RTA) once the tenancy has ended. If the DOH has made an application under section 210, the application must specify (r 8.10(1)VCAT Rules:
the date on which the renter vacated the property;
the breach of duty alleged;
the loss or damage caused by the breach; and
the amount of compensation claimed.
In a compensation hearing, the Tribunal may consider (s 211 RTA):
whether the renter took all reasonable steps to comply with their duties under the RTA and residential rental agreement;
whether or not the residential rental provider has consented to the failure to comply with the duties in respect of which the claim is made;
whether or not money has been paid to or recovered by the residential renter provider by way of compensation;
whether any reduction or refund of rent or other allowance has been made to the residential rental provider;
whether or not the residential rental provider has taken action to mitigate the alleged loss or damage;
any offer of compensation; and
if the claim is respect to damage, whether the renter had taken action to repair the damage at their own expense.
The Tribunal is also required to consider the following (s 211A(2) and s 211B)
if compensation is sought for loss or damage to the property – any depreciation of the damaged part of the property for which the housing provider is seeking compensation;
if compensation is sought for early termination of a rental agreement –
the proportionality of any claim for compensation of advertising fees incurred;
the extent to which the loss could reasonably have been mitigated by the rental provider promptly re-letting the premises;
any severe hardship the renter would have suffered, due to an unforeseen change in circumstances, if the rental agreement had continued; and
that compensation for future rent should not be awarded if a notice to vacate was served on the renter, unless the notice was served because the renter terminated or repudiated the rental agreement.
guidelines issued by the Director of Consumer Affairs Victoria under s 486 RTA.
Practically speaking, this may involve:
resisting any claim that goes beyond the actual loss (for example the cost of painting a whole room for a mark on one wall); or
disputing the quotes, invoices and evidence of the residential renter provider on the basis that they are inflated, repetitious or fail to consider fair wear and tear.
For further detail, go to the Annotated Residential Tenancies Act 1997 which provides detailed commentary, particularly in relation to factors be considered in repairs claims. Note that this resource may not cover s 211A and 211B RTA, which were introduced as part of the 2021 rental reforms.
If the client was a joint renter and a claim is made by the DOH, the claim is an “apportionable” claim under Part IVAA of the Wrongs Act 1958. The Tribunal member can consider evidence regarding the responsibility of each renter and apportion liability accordingly. Each renter will then only be liable for the amount that reflects the proportion of loss or damage for which they are liable. Note also that the power to apportion liability requires concurrent wrongdoers (i.e. a joint tenant cannot be blameless).