Housing and Tenancy

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Review hearings

  • the person or their representative did not attend the hearing; and
  • an order was made in the person's absence.

Section 120(4) of the VCAT Act provides that VCAT may revoke or vary the order if:

  • it is satisfied the person had a reasonable excuse for not attending; and
  • it is appropriate to hear and determine the application having regard to:
    • whether the applicant has a reasonable case to argue in relation to the subject-matter of the order; and
    • any prejudice that may be caused to another party if the application is heard and determined.


Note a person cannot apply for more than one review in respect of the same matter without leave of VCAT.

Time limits: The VCAT Rules (Regulation 4.19(1)) require a review application to be made within 14 days of an applicant becoming aware of an order. An application for review should be made in writing and can be faxed to the Tribunal. The applicant must give notice of the application to the other parties.

Extension of time: the applicant may apply to extend the 14 day time period in which to apply for a review hearing pursuant to section 126 of the VCAT Act.

Considerations:

Reasonable excuse for not attending

If VCAT considers the applicant had a reasonable excuse for not attending, the Tribunal has a discretion to  vary or revoke an order. A key consideration in relation to the exercise of this discretion is whether the initial order has been acted upon or there has been a change of circumstances that would make an order inappropriate. See practice tip.

Whether the applicant has a reasonable case to argue

The recently inserted section 120(4A) now formally gives a VCAT member power to inquire as to an applicant’s chances of success in relation to the substantive matter, when deciding whether or not to grant a review.

Prior to the amendments, many VCAT members took a similar approach in relation to determining review applications, on the basis that there would be little utility granting review if the applicant had no chance of changing the VCAT order that was made in their absence (see Tomasevic v Victoria [2005] VCAT 1525). 

However, as this position has now been codified, VCAT members are required to actively inquire as to the merits of the substantive case before being satisfied that a review should be granted.

 

Accordingly, at a review hearing, lawyers should be in a position to provide the VCAT member with a general overview about the outcome sought and the evidence to be relied upon in relation to the substantive matter.

It is still the case that VCAT members are required to construe section 120 liberally (see Alesci v Salisbury [2002] VSC 475). 

Prejudice to another party

VCAT must also consider prejudice that may be caused to another party if the application is heard and determined. Accordingly, be aware that landlords may make submissions about the detrimental effects a review hearing may have on them (e.g. further lost rent etc.).

The VCAT Act s 120(4B) provides that VCAT may hear and determine an application if it is satisfied that any prejudice that may be caused to a party may be addressed by an order for costs or an order for reimbursement of fees or both. However, it is very rare that VCAT would make a costs order against a party in relation to a residential tenancies matter.

 

Where a review application succeeds and a member finds a tenant or resident had a reasonable excuse and applied within 14 days, the matter will generally be reheard immediately following this application. Exceptions to a substantive hearing proceedings immediately after granting an application might be if the other party is not present at the hearing, or if the evidence required for the substantive hearing is not available.

Review forms have been updated by VCAT in July 2016 but are not yet available on VCAT's 'Forms' page. A copy of the updated form is available below. 

Practice tip - Evictions and review hearings

Where a possession order has been made and the applicant seeks a review hearing:

  • it is important to apply for a review as soon as possible;
  • the application for review should be faxed to the Residential Tenancies Registry at VCAT on 03 9628 9822;
  • you should ring the registry to confirm receipt of the application;
  • if a warrant has been purchased, you should also confirm that an order has been made staying the warrant; and
  • ideally you should obtain confirmation in writing and provide this to the client as security against execution of the warrant.

Practice tip - Change of position

As discussed above, even where an applicant can prove he or she had a reasonable excuse for not attending the hearing, VCAT may still refuse to grant a review hearing on the basis that there has been a change of circumstances. One example of a change of circumstance would be the execution of a warrant to evict a tenant. In such circumstances it is extremely unlikely that VCAT will approve a rehearing and set aside a possession order. Therefore it is particularly important to act quickly to obtain a review before a warrant has been executed.