See, eg, HatchPatrick, ‘Airbnb: St Kilda landlord succeeds in kicking out tenants over home-sharing agreement’, The Age (Melbourne), 10 June 2016.
2.
Swan v Uecker [2016] VSC 313 (unreported, 10 June 2016, Supreme Court of Victoria, Croft J) (‘Swan decision’).
3.
MooreAnthony, Commercial and Residential Tenancies: The Laws of Australia (Lawbook Company, 2008) [2.74.1].
4.
Ibid [2.13.3].
5.
Residential Tenancies Act 1997, s 331.
6.
Swan decision, at [19]-[20].
7.
Swan v Uecker (Residential Tenancies) [2016] VCAT 483 (unreported, VCAT, Member Campana, 24 March 2016).
8.
An appeal from a VCAT decision is available only for an error of law: see s 148 Victorian Civil and Administrative Tribunal Act 1998 (Vic).
9.
The decision applies only to the alleged subletting of the whole apartment, not of the one bedroom: Swan decision, at [19], Whether the decision applies to the offering of a single room is unclear.
10.
Swan decision, at [31].
11.
Swan decision, at [4l]–[42].
12.
Swan decision at [57].
13.
Moore, above n 4 [2.3.7].
14.
Swan decision, at [46].
15.
Swan decision, at [37].
16.
[1985] I AC 809.
17.
Ibid.
18.
[2013] VSCA 365.
19.
(2002) 213 CLR I.
20.
Swan decision, at [42].
21.
Section 10 of the RTA provides This Act does not apply … if the rented premises are ordinarily used for holiday purposes'. This section was referred to in the VCAT decision, but not in the Supreme Court decision.
22.
In Alexis Taxis v Knight (Residential Tenancies) [2016] VCAT 528 (unreported, VCAT, Member Kirmos, 30 March 2016) (‘Knight’), the VCAT member emphasised that a tenancy would usually involve the premises becoming a person's ‘usual residence’ and also an ‘expectation [by the parties] of…continuing occupation’ (at [30]).
23.
Swan decision, at [37].
24.
Street v Mountford [1985] I AC 809.
25.
Moore, above n 4, [2.3.7].
26.
Swan decision, at [46].
27.
Section 7 of the RTA provides that the Act applies to a tenancy ‘even if a trade, profession or business is also carried on by the tenant on the premises [provided that] the premises are used primarily for residential purposes’. This section was referred to in the VCAT decision, but not in the Supreme Court decision.
28.
Under s 148(7) of the VCAT Act, the court may remit the proceeding back to VCAT for rehearing or it may determine the outcome of the proceeding itself.
29.
Swan decision, at [79].
30.
PizerJason, Pizer's Annotated VCAT Act (4th ed, 2012), [148.500], This point was also emphasised by the High Court in Osland v Secretary to the Department of Justice [2010] HCA 24.
31.
In Knight, VCAT held that the offering of rooms on Airbnb did not constitute subletting (at [31]). This decision was not mentioned in the court's decision.
Ibid at [18]. Smith J also noted that granting a possession order is mandatory once VCAT has determined that the grounds for giving the NTV have been established, and that VCAT has no power to adjourn or postpone the possession order. In other words, VCAT must order the tenant to vacate the premises immediately.
34.
Under s 244 of the RTA, a landlord may give a NTV in these circumstances.
35.
Pavletic, at [13].
36.
Ibid, at [18].
37.
Pavletic, at [14].
38.
Charter, s 32.
39.
Charter, s 13(a).
40.
Moore, above n 4, [2.13.1].
41.
[2014] VSC 650.
42.
Ibid at [41].
43.
Moore, above n 4, [2.13.1].
44.
In Knight, the VCAT member emphasised that, when subletting is alleged, the landlord must provide evidence of a specific sublease, including details of a particular subtenant: at [42].
45.
Wong & Shih v Doney [2016] NTCAT (unreported, Northern Territory Civil and Administrative Tribunal, Richard Buxner SM, 3 February 2016).
