Serious damage

Under s 91ZI of the Residential Tenancies Act 1997 (Vic) (RTA), a residential rental provider may give a renter a notice to vacate if:

(1) the renter or the renter’s visitor, whether by act or omission intentionally or recklessly causes serious damage to the premises, including any safety equipment, or to any common areas.          

Section 91ZI(2) provides that the notice must specify a termination date that is the date on which the notice is given or a later date.

Equivalent ‘damage’ notice to vacate provisions apply to rooming houses (s 142ZB), caravan parks (s 206AQ) and Part 4A sites (s 207W). A separate scheme applies to specialist disability accommodation (s 498ZX(1)(f)).

Who is a visitor?

A visitor means a person on rented premises (or premises on which rented premises are situated)  with the permission of the renter (s 3 of the RTA).

What is “intentional” or “reckless” conduct?

The Tribunal has not yet commented on the meaning of ‘intentionally or recklessly”. However, some guidance may be obtained from the New South Wales Civil Administrative Tribunal (NSWCAT).

Section 90 of the NSW Residential Tenancies Act 2010 (NSW) provides for a similar basis for eviction where a tenant or any other person occupying the premises intentionally or recklessly causes or permits serious damage to the residential property or any neighbouring property.

1. In the decision of Cure v Bridge Housing Ltd [2014] NSWCATAP 80 NSWCAT held it is causing serious damage, that is a result, and not simply the actions which lead to such damage, which must be intentional or reckless. That is, the serious damage is the essential part of the test, and the mental element (intentional or reckless) must attach to that essential part. To “intentionally” cause serious damage, a person must determine mentally upon that result or such result much be that person’s aim or purpose. For that reason, an intention to cause serious damage will not be present if the causing of serious damage was unforeseen.
2. In the related matter of Bridge Housing Limited v Cure [2015] NSWCATCD 39 the renter commenced excavation works in the property to lower the ground level of the back yard, and then to lay brick pavers to form a hard surface. The renter’s evidence was that he intended to improve the premises by managing storm water runoff. NSWCAT held that, although an intention to cause serious damage may not have been present when the renter set out to improve the premises, the evidence showed that at some stage he became aware that serious damage was being caused. This was in the form of water and mud flooding, and damage to the dividing fence and a retaining wall. When the renter continued the works with this knowledge, he intended to cause serious damage. It was also held that the renter recklessly caused serious damage, in the sense that the renter failed to give any thought to the possibility of risk of damage or harm when carrying out the works. It was not necessary to show that the renter considered the possibility of risk of damage.

Note that the contravention of either one (or both) the requirements to ‘intentionally’ or ‘recklessly’ would be sufficient to engage this provision.

What is “serious damage”?

The test of “serious damage” was introduced recently and therefore there is limited case law available on its operation. However, an equivalent test applied under s 549(2)(a) of the COVID-19 temporary tenancy laws (repealed).

In Reich v Power (Residential Tenancies) [2020] VCAT 1232, the Tribunal considered the meaning of serious damage in s 549(2)(a). It held that:

1. damage caused by the renter having driven a knife into the wall was intentional (as admitted by the renter) but was not serious, as it “could be rectified inexpensively by patching the hole and touching up the patch with paint”; and
2. an oval-shaped hole in a wall, around 1.5 times the width of a light switch, was serious damage as it required “extensive repair”..

There are cases in other jurisdictions that consider equivalent provisions:

1. In Corcoran v Far [2017] NSWCATCD 40, NSWCAT held that the use of a known faulty shower by the renter despite direction from the residential rental provider to refrain from doing so caused serious damage to the walls of the premises and a light in a room below;
2. In Commissioner for Social Housing v CC (Residential Tenancies [2017] ACAT 17 it was held that the premises being in a seriously unclean state, including there being human faeces on the walls, a cockroach infestation, and significant rubbish in the dining and kitchen area constituted serious damage. The tenant advanced an argument that the ACT government had authored a press release stating that the flat complex was to be demolished, and so a finding of serious damage could be abrogated. This was rejected by the Tribunal on the basis that the demolition was not certain and may never happen; and
3. In Moore & Moore v Deng & Deng & Dhieu [2017] NTCAT 7, the alleged serious damage was a range of relatively minor matters, including a cupboard door being ripped off, chipped paint, the mesh hanging out of a screen door frame, walls being covered in crayon and pen, paint marks, a damaged vehicle gate, general uncleanliness, rubbish, and an unmaintained yard and spa. The tribunal held that these various matters did not rise to the level of serious damage.

What are the formal requirements of a serious damage notice to vacate?

Section 91ZI lists several formal requirements a notice to vacate must comply with in order to be valid. These are detailed on Checking a Notice to Vacate.

In Jafarpourasr v Tancevski [2018] VSC 497 at [50] (Daly AsJ), the Supreme Court held that immediate notices to vacate alleging misconduct such as malicious damage must contain a greater level of particularity than notices to vacate with longer notice periods. ‘Danger’ notices should therefore at a minimum provide details of the times, dates, incidents and affected individuals implicated in the allegations of danger.

Challenging the Notice to Vacate on family violence of personal violence grounds

A notice to vacate given under s 91ZI can be challenged 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 renter to family violence or personal violence (s 91ZZU) (see Family Violence Provisions).

A challenge under s 91ZZU must be made within 30 days after the notice is given. If the challenge is not made within 30 days, it is necessary to request that the Tribunal waive the 30 day requirement under s 126(2)(b) of the VCAT Act (see: South Port Community Housing Group Inc v Ng [2022] VCAT 614.

Defending a possession order application

Notices to vacate for serious damage are ‘immediate’ notices which allow a residential rental provider to immediately apply to the Tribunal for possession of the premises: s 91ZI(2). They therefore provide a swift process by which a renter may be evicted almost immediately from their home.

The Tribunal can only make a possession order if (s 330(1)):

• a residential rental provider was entitled to give the notice to vacate (and the notice has not been withdrawn); and
• it is reasonable and proportionate (as defined by s 330A) to make the possession order, taking into account the interests of the residential rental provider, the renter, any co-renters and any neighbours who have been affected or may be affected by the acts of the renter.

In applying the reasonable and proportionate test, the Tribunal must consider (amongst other things) whether any other order or course of action is reasonably available instead of making a possession order: s 330A(h). In making that assessment, it is important to consider the Tribunal’s power under s 332A in serious applications to dismiss the possession order application and make a compliance order on its own motion if it considers it reasonable and proportionate and appropriate to do so. The compliance order may require the renter to remedy the breach and to refrain from committing a similar breach. See Compliance Procedures. Care should be taken in arguing this as a reasonable alternative to eviction as it may create difficulties for a renter at a later stage if they should breach the compliance order.

What evidence?

As discussed above, the notice to vacate must provide sufficient detail of the reason for the issuing of the notice.

It would also be expected that prior to the possession order hearing, a renter would be provided with details of any evidence to be relied upon by the residential rental provider in support of its application for possession. You may wish to consider requesting an adjournment if the other party is not forthcoming with the evidence they intend to rely on during the hearing, or applying for a directions hearing under s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Section 80 empowers the Tribunal to give directions requiring a party to produce a document or provide information.

Section 104 of the VCAT Act give powers to subpoena parties to provide evidence under oath.

Additionally, the rule in Briginshaw v Briginshaw (1938) 60 CLR 336 may apply in cases of serious damage. In Briginshaw, the High Court stated that while there are only two standards of proof, criminal and civil, where a party is attempting to prove criminal allegations (or non-criminal allegations with serious implications) in a civil proceeding, the probity of evidence required to discharge the balance of probabilities will fluctuate depending on the seriousness of the allegations. 

Read more about evidence and the standard of proof for serious allegations at VCAT.

Is there a discretion to postpone a warrant for possession?

For most evictions, the Tribunal has the power to postpone the issuing of a warrant for possession after a possession order is made if satisfied that the renter would suffer hardship if the issue of the warrant were not postponed, and that hardship would exceed the residential rental provider’s: s 352.

However this power does not exist where the renter is evicted for serious damage. see s 352(3)(a)(i). The residential rental provider will be able to request a warrant of possession immediately.