Housing and Tenancy

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Restraining orders

The Victorian Civil and Administrative Tribunal (VCAT) has broad powers to compel a person to perform their duties under the Residential Tenancies Act 1997 (Vic) (RTA) or to comply with the term of a tenancy agreement.

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 effective?

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 may be appropriate include:

  • Where a landlord has attempted, or indicated that they may attempt, to illegally evict a tenant from rented premises.

For example: where a landlord has changed the locks at a property without terminating the tenancy in accordance with the RTA (as required by s 216 of the RTA), an order may be sought to require the landlord to provide the tenant with access to the rented premises in accordance with the terms of the lease.

  • Where a landlord has manifest an unwillingness to be bound by a term of the tenancy agreement.

For example: where a landlord 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 landlord to comply with the term of the tenancy agreement relating to rent and to accept the tenant's payment via the established payment method.

  • Where the landlord has severely interfered with tenant's quiet enjoyment of the property.

For example: where a landlord has repeatedly turned up at rented premises without giving the tenant the 24 hours notice in writing required by s 85(b) of the RTA, orders may be sought to both restrain the landlord from seeking access to the property without following the requirements of the RTA, and to require the landlord to respect the right to quiet enjoyment conferred on the tenant by s 61 of the RTA. Note that section 91 of the RTA specifically provides that if a landlord or agent has failed to comply with the Act,  the tenant may apply to VCAT for a restraining order.

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.

Where the relief sought relates to a tenancy agreement or a provision of the RTA, an application may be made to VCAT under s 452 of the RTA. In hearing an application under s 452, the Tribunal has the power to:

  1. Restrain an action in breach of a tenancy agreement or the provisions of the RTA relating to a tenancy agreement (s 472(1)(a)); or
  2. Require an action in performance of a tenancy agreement or of duties under the RTA in relation to a tenancy agreement (s 472(1)(b)).

Additionally, VCAT 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) VCAT has further powers under s 123 of the VCAT Act to make interim orders pending the hearing of the tenant'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.

How do I apply for a restraining order?

To apply for an order under s 472(1)(a) or (b) of the RTA, an application to VCAT must be completed and sent, with the relevant application fee, to:

The Principal Registrar
Victorian Civil and Administrative Tribunal
Residential Tenancies List
GPO Box 5408CC
Melbourne 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 landlord of the rented premises) within seven days of the application having been lodged with VCAT (r 4.07, Victorian Civil and Administration Tribunal Rules 1998 (Vic)). A failure to do so may unnecessarily delay the proceedings, and may render the applicant vulnerable to an award of costs being made under s 109(3)(ii) of the VCAT Act.

What if the application is urgent?

Where an applicant wishes to obtain urgent injunctive relief, they may do so by attending the VCAT Registry - located on the Ground Floor of 55 King Street Melbourne - between 9am and 12pm or 2pm and 4pm on any weekday. A registry staff member will then assist the applicant to complete an application form and pay the relevant fee, before arranging for the matter to be put before a Member for an immediate preliminary hearing. If the applicant is able to satisfy the Member that interim injunctive orders are necessary to protect the applicant's interest in the property or rights under the RTA, the Tribunal may make temporary orders to give effect to these rights or interests while the parties are waiting for the matter to be listed for full hearing.

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 a tenancy agreement or contravention of a provision of the RTA. Such evidence may be either testimonial or documentary, but should be as specific and particularized as possible. For example, where the substance of an application relates to repeated unannounced visits to the property by a landlord, 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 tenant's oral testimony that the landlord 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 (s 98(1)(b), VCAT Act), and may therefore receive evidence that would, in other jurisdictions, be considered 'hearsay'. 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.