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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)).
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).
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.
Note that the contravention of either one (or both) the requirements to ‘intentionally’ or ‘recklessly’ would be sufficient to engage this provision.
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 However, an equivalent test applied under s 549(2)(a) of the COVID-19 temporary tenancy laws (repealed).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)  VCAT 1232, the Tribunal considered the meaning of serious damage in s 549(2)(a). It held that:
There are cases in other jurisdictions that consider equivalent provisions:
In Jafarpourasr v Tancevski  VSC 497 at  (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.
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).
In the alternative the renter can wait for the possession order hearing and challenge the application for a possession order based on the reasonable and proportionate test (see Reasonable and Proportionate Test).
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)):
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.
If you make an argument that a compliance order would be a more reasonable course of action, you should ensure that any compliance order that you submit would be appropriate is framed as narrowly as possible to minimise the risk of future eviction.
The reasonable and proportionate test in s 330A was introduced recently and therefore there is limited case law available on its operation. However, an equivalent test applied under the COVID-19 temporary tenancy laws.
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.
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.
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