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Restraining orders

Last updated: 29 Mar 2021

Restraining orders

The Tribunal has broad powers to compel a person to perform their duties under the Residential Tenancies Act 2018 (Vic) (RTA) or to comply with the term of a residential rental agreement or other relevant agreement under the RTA.

Such orders may be made on the application of the party for whose benefit they are sought, or at the initiative of the Tribunal in any proceeding before it.

When might a restraining order be required?

Pursuing injunctive relief may be an effective remedy where a person’s rights under the RTA or a lease have been, or are being infringed, to a severe degree, or over a prolonged period of time.

Specific instances in which a restraining order may be appropriate include:

  • Where a residential rental provider has attempted, or indicated that they may attempt, to illegally evict a renter from the rented premises.

For example: where a residential rental provider has changed the locks at a property without terminating the residential rental agreement in accordance with the RTA (as required by s 91B of the RTA), an order may be sought to require the residential rental provider to provide the renter with access to the rented premises in accordance with the terms of the lease.

  • Where a residential rental provider has manifest an unwillingness to be bound by a term of the residential rental agreement.

For example: where a residential rental provider has refused to accept a certain method of rent payment, despite the fact that the lease makes specific provision for this method, an order may be sought to require the residential rental provider to comply with the term of the residential rental agreement relating to rent and to accept the renter’s payment via the established payment method.

  • Where the residential rental provider has severely interfered with renter’s quiet enjoyment of the property.

For example: where a residential rental provider has repeatedly turned up at rented premises without giving the renter:

  1. 24 hours’ notice in writing required by s 85(b)(iii) RTA;
  2. 48 hours’ notice in writing required by s 85(b)(i) RTA; or
  3. 7 days notice in writing as required by s 85(b)(ii) and(iv) RTA,

as appropriate, orders may be sought to both restrain the residential rental provider from seeking access to the property without following the requirements of the RTA, and to require the residential rental provider to respect the right to quiet enjoyment conferred on the renter by s 67 RTA. See Duties of renters, residents and residential rental providers for more information on inspection rights under s 85 RTA.

Equivalent principles apply to the conduct of rooming house operators, caravan park owners, Part 4A site tenants and specialist disability accommodation (SDA) providers.

What law applies?

The Tribunal has powers under both the RTA and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) to grant injunctive relief.

If a restraining order is sought in relation to a residential rental provider exercising a right of entry under s 85 RTA but failing to comply with Part 2 Division 8 RTA (right of entry), a renter can make an application under s 91 RTA for an order prohibiting the residential rental provider from exercising a right of entry under s 85 RTA for a period. An equivalent application can be made under s 142 (for rooming houses), s 206 (caravan parks) and s 206ZZO (for Part 4A site agreements).

If another kind of restraining order is sought in relation to a matter governed by the RTA, the applicant can apply for an order under s 452 RTA.

In hearing an application under s 452, the Tribunal has the power to (amongst other things):

  1. Restrain any action in breach of a residential rental agreement, site agreement or the RTA relating to a residential rental agreement (s 472(1)(a)); or
  2. Require any action in performance of a residential rental agreement, site agreement or of duties under the RTA in relation to a residential rental agreement (s 472(1)(b)).

Additionally, the Tribunal may make any orders that are ancillary or incidental to the making of other orders: s 472(1)(g).

Where the relief required is urgent (for example, a threatened illegal eviction is imminent) the Tribunal has further powers under s 123VCAT Act to grant an interim injunction pending the hearing of the renter’s substantive application. Interim orders may be made irrespective of whether a party whose interests are affected by them has been given an opportunity to be heard: s 123(4) VCAT Act.

The Tribunal is required to consider the Director of Consumer Affairs Victoria’s guidelines in determining an application under s 452 RTA: s 452(9) RTA. Lawyers should confirm if such guidelines are in place at the time of making the application.

How to apply for a restraining order

To apply for an order under s 472(1)(a) or (b) RTA, a General Application to the VCAT Residential Tenancies List should be completed, or an online application should be submitted (see the Tribunal website), with the relevant application fee.

The application can be submitted by email (renting@vcat.vic.gov.au), in person at the Tribunal (55 King St, Melbourne VIC 3000) or by post to:

The RegistrarVictorian Civil and Administrative TribunalResidential Tenancies ListGPO Box 5408Melbourne Victoria 3001

It is important that a copy of the application, along with any supporting documentation, be sent to the respondent (who will in most cases be the residential rental provider of the rented premises) within seven days of the application having been lodged with the Tribunal (Victorian Civil and Administration Tribunal Rules 2018 (Vic) r 4.09). A failure to do so may unnecessarily delay the proceedings, and may make the applicant vulnerable to an award of costs being made under s 109(3)(ii) VCAT Act.

What if the application is urgent?

The process for making an urgent application for injunctive relief is set out in the Tribunal’s practice note PNVCAT5 – “Directions Hearings and Urgent Hearings”.

To seek an urgent hearing, a party should file with the Tribunal:

  • the relevant application form for the proceeding (if not already filed) i.e. the General Application to the VCAT Residential Tenancies List;
  • if the relevant application form does not contain provision for the application for urgent or interim relief, a separate application setting out the urgent order sought and the reason for the request. The Application for Directions or Orders form should be used for this purpose;
  • supporting material, which should generally be in the form of an affidavit or statutory declaration; and
  • contact details for all parties, or for prospective parties who may be affected by the making of the urgent order.

Applications made in the absence of the other party, or without the required documents, may still be considered in exceptional circumstances or if the Tribunal considers that full compliance would be unduly onerous having regard to the nature of the proceeding and the orders sought.

The Registrar will then fix a time and place for the urgent hearing. The applicant seeking urgent or interim relief must also take all reasonable steps to notify all other parties of the time and place for the urgent hearing, including by, if practicable, serving a copy of the application on the other parties. If practicable, the application should be served as soon as possible before the hearing if the hearing is listed for the same day, or by 12:00pm the day before the hearing otherwise.

What evidence/instructions are relevant to restraining order applications?

Advocates seeking to prepare a restraining order application should collect as much evidence as possible in relation to the alleged breach of the residential rental agreement, site agreement or contravention of a provision of the RTA. Such evidence may be either testimonial or documentary, but should be as specific and particularised as possible. For example, where the substance of an application relates to repeated unannounced visits to the property by a residential rental provider, detailed evidence should be collected as to the time, date and duration of these visits.

Where, on the other hand, an application relates to a threatened illegal eviction, the Tribunal may be satisfied by the renter’s oral testimony that the residential rental provider made certain statements indicating their intention to change the locks at the property. In this respect, it is significant that the Tribunal is not bound by the rules of evidence (VCAT Act s 98(1)(b)) (see Evidence), and may therefore receive evidence that would, in other jurisdictions, be considered hearsay and therefore inadmissible. This exemption greatly enhances the ability of advocates to prepare for last-minute or urgent restraining order applications, by enabling witnesses to be called to give evidence of a respondent’s conduct where the respondent themselves is unwilling or unable to attend the hearing.

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