Frequently asked questions about Residential Tenancy disputes (July 2013)

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1 Frequently asked questions about Residential Tenancy disputes (July 2013) What types of applications can the Residential Tenancies List hear? The Residential Tenancies List can hear cases under the Residential Tenancies Act 1997 which includes disputes relating to houses, units, flats, a room in a rooming house or a caravan if a caravan as your normal home in a caravan park and site agreements. The List can hear disputes between: tenants and landlords rooming house owners and rooming house residents the Director of Housing and tenants caravan park owners and tenants site owners and site tenants. The list also hears disputes under the: Supported Residential Services (Private Proprietors) Act 2010 relating to fees paid by the resident to the proprietor, orders to vacate and challenges by the resident to notices to vacate and Disability Act 2006 relating to notices to vacate and challenges by the resident to notices to vacate. The Residential Tenancies List cannot hear applications between tenant and tenants or neighbourhood disputes. If you have a dispute of this type, you should seek legal advice. Service of documents Once you have completed your application form, you must send a copy of the form to VCAT and serve it on the other side/s (the respondent). It is preferable that the application form is served by registered post. Please note that under the Residential Tenancies Act 1997 any notice to vacate must be served by registered post or delivered personally to the tenant It is very important that reasonable efforts are made to find the current address of all parties as VCAT must send a notice of the hearing date to the address of the parties as provided by you in the application. How do I apply for an adjournment? If you are seeking an adjournment, you will need to put your request in writing to the tribunal. This request should be made two business days prior to the hearing date. Your letter must include: that you are requesting an adjournment 1

2 the reason for your request a copy of supporting documentation, such as a medical certificate, medical appointment card, airline ticket or itinerary, the date after which you will be available the parties names the address of the rented premises, room, site and caravan (as the case requires) the date the application was lodged the VCAT file number, if known the scheduled hearing date, if known the venue for the hearing, if known. An application for an adjournment will be considered by the tribunal on its merits but the parties should be ready to proceed in the event that an adjournment is refused. What if the other party agrees to the adjournment? If the other party or parties agrees to an adjournment their consent should be in writing and signed by them and that document should be sent with the adjournment request. When do I need to apply for an adjournment? You should send the letter as soon as you find out about the hearing and have a reason not to attend. It should arrive no later than two business days before the scheduled hearing date). This will mean that: a member can consider the adjournment request in time and the decision to adjourn or not can be notified to the parties in time. If a case is adjourned, the tribunal may order that the person seeking the adjournment notify all other parties. If an application for adjournment is received by VCAT within two business days prior to the scheduled hearing date the parties will be expected to attend the hearing, unless there are exceptional circumstances (such as sudden serious ill health). An application for an adjournment may also be made at the commencement of the hearing for good reason. For further information on the tribunal s adjournment policy, please refer to Practice Note VCAT 1 Common Procedures on the VCAT website. 2

3 How do I withdraw my case? If an applicant seeks to withdraw their proceeding, the party should advise the tribunal in writing as soon as possible and also tell the other party. A party may choose to use the Application for Leave to Withdraw form provided on the tribunal s website for this purpose. For further information on withdrawing applications, please refer to Practice Note VCAT 1 Common Procedures on the VCAT website. What should I bring to the hearing? It is essential that you bring all your evidence with you to the tribunal hearing. Insufficient evidence can result in you losing your case. As the applicant or respondent, you should consider bringing: documents such as the tenancy agreement, condition reports, rent records and other relevant financial records first hand knowledge of the facts in the case as provided by witnesses who can give a first hand account if a witness does not wish to attend court and you believe the evidence is crucial to your case, it may be necessary to issue a witness summons to compel their attendance or the production of documents affidavits and statutory declarations are useful in hearing but remember that this form of evidence carries less weight than a person actually giving evidence in person other written documents such as reports from professionals or qualified tradesperson letters and other correspondence written before, during or after the tenancy between the parties invoices to show the amount that it has actually cost to have works completed if you are relying on photo evidence, please complete the Digital Camera Evidence Declaration form, which you can download from the website telephone notes, records. The onus of proof lies with the applicant. This means that the applicant must prove the grounds set out in the application - it is not for the respondent to disprove these things. For example, in a compensation claim, invoices are always better than quotes because they show that the work has been completed. The difficulty with a quote is that the work may never be done so it is harder to prove loss. In instances where both invoices and quotes are submitted, they should be clear and include full details. 3

4 If I miss my hearing, what can I do? If you miss your hearing, the tribunal may make an order in your absence. A person who did not appear and was not represented at the hearing at which the order was made may apply to VCAT for a review of the order under section 120 of Victorian Civil and Administrative Act You must make an application for review of an order within 14 days after becoming aware of the order. You can make only one application for review in respect of the same order without leave of the Tribunal. After making the application for review, unless the tribunal decides otherwise, you must give notice of the application to all other parties. VCAT will notify all parties of the date for the hearing of the application for review. At the hearing of the application for review, the tribunal must be satisfied that you had a reasonable excuse for not attending or being represented at the hearing. If the review is granted, there will be a re-hearing of the initial application. This may be immediately. The previous orders will be either confirmed, revoked or varied. You should bring to the hearing for review any documents or witnesses who can support your case at both the review application, and if granted, the re-hearing. What if I cannot attend the hearing due to other commitments, can I send a representative? If you are unable to attend the scheduled hearing, you may send someone to be your representative. This should be someone who knows all the facts about the case. They should bring to the hearing written authority to represent you. The bond has been awarded to me, how and when do I get my bond back? Once the Member has directed the Residential Tenancies Bond Authority (RTBA) to release the bond, you must complete a bond claim form. The bond claim form is available from the RTBA and is lodged with the RTBA. A copy of the tribunal s order is required to be attached to the claim form. This means the other party does not need to sign the bond claim form Do you accept digital photos as evidence? If you wish to present digital photos as evidence, please complete the Digital camera evidence declaration form and produce it at the hearing. 4

5 Can I change the venue for the next hearing, somewhere closer to where I live? All hearings are automatically scheduled at the hearing venue closest to the rented premises. Should the venue be unsuitable for good reason, you may request a change of venue, which will be considered by the tribunal. You should contact VCAT by post, fax or requesting the change of venue. Your letter must provide : the venue where you would like the hearing the reason for your request a copy of supporting documentation the parties names the address of the rented premises, room, site and caravan (as the case requires) the date the application was lodged the VCAT file number, if known the scheduled hearing date, if known the venue for the hearing, if known. If the other party or parties agrees to a change of venue, their consent should be in writing and signed by them and that document should be sent with your request. Can I inspect the RTL files? A person who is not a party to the proceedings may pay a fee and inspect a file (if the reference number is known). A party to the proceedings may inspect the file without paying a fee. There is a charge to provide photocopies of documents. See the relevant form on the website VCAT File Access Request. Where does the tribunal sit when it hears residential tenancy cases? In metropolitan Melbourne, the tribunal sits at level 5, 55 King Street Melbourne and at the Magistrates Courts at Broadmeadows, Dandenong, Frankston, Heidelberg, Moorabbin, Ringwood, Sunshine and Werribee. In regional and rural areas, the tribunal visits over 25 venues throughout Victoria. These include Bairnsdale, Ballarat, Benalla, Bendigo, Cobram, Colac, Dromana, Echuca, Geelong, Hamilton, Horsham, Kerang, Korumburra, Mildura, Moe, Portland, Sale, Seymour, Shepparton, Swan Hill, Wangaratta, Warrnambool and Wodonga. 5

6 How do I withdraw an application? The applicant may withdraw a residential tenancies application. You must write to the tribunal and notify all other parties in writing of the withdrawal. If you withdraw an application, you cannot make a further application in relation to the same facts and circumstances without the leave of the tribunal. The Rules require the notice of withdrawal must state: the parties names the address of the rented premises, room, site and caravan (as the case requires) the date the application was lodged the VCAT file number, if known the scheduled hearing date, if known the venue for the hearing, if known. Withdrawal forms may be sent to VCAT by fax and should be sent as soon as it is known that the hearing does not need to proceed. This gives enough time for the proceeding to be marked withdrawn and for other parties to be notified. For example, in an application for possession the tenant may vacate the rented premises and the landlord may longer need a hearing. If the landlord notifies VCAT at the earliest opportunity that the case is withdrawn, VCAT may be able to list another case in its place and so reduce waiting times for all parties. What happens at a hearing? Hearings are conducted in an atmosphere of relaxed formality. However, it is expected that persons appearing will act respectfully towards other parties and the tribunal. (Tribunal members may be addressed as "Madam" or "Sir".) Summary of proof The summary of proof form can be downloaded from the website. If possible, it should be printed on yellow paper. If your application is for possession you should complete a 'Summary of Proofs for Possession ' form. If your application is for a direction that the bond paid to the landlord and/or for compensation you should complete the 'Summary of Proofs for Landlord's Bond and/or Compensation '. The form should be handed to the Tribunal at the hearing and a copy given to the other side. 6

7 The tribunal member will ask who is present and may ask whether the parties have reached, or can reach, a settlement. If there is a settlement, the tribunal will make orders by consent. Otherwise, each party and any witnesses, will, take an oath or make an affirmation and give their evidence. The member and/or the other party may ask questions of persons giving evidence. The tribunal will then consider the evidence and announce its decision and reasons for decision. A written order will be given or sent to the parties as soon as possible following the hearing and, usually, immediately after the hearing. In some cases it may be necessary for the tribunal to reserve its decision. Once a decision is made the order and reasons for decision will be put in writing and sent to the parties. When I lodge my application, how long will it take to hear my application? The Residential Tenancies List hears cases quickly. Applications for possession cannot be heard before the termination date on the notice to vacate but will be heard shortly thereafter depending on when the application for possession was made to the tribunal. This information is current as at July 2013 and there are a number of factors that may impact on this timeframe. Other information and resources Legislation and practice notes about the Residential Tenancies Act 1997 can be viewed from the VCAT website at If you wish to read a case of interest in the Residential Tenancies List, you can visit the Austlii website at There is an annotated version of the Residential Tenancies Act that provides commentary to assist you in navigating the Act. Copies of this document can be obtained by contacting ANSTAT at 7