There are circumstances where a registered proprietor or lessor of a property has exhausted all avenues in trying to get an occupier to vacate their property and requires the assistance of the Supreme Court to obtain orders for possession of the property, a timeframe for the occupier to vacate the property, and, if vacant possession is not granted, the final step is the engagement of the Sheriff to execute a Warrant of Possession.

FCW Lawyers acted for a client recently and successfully opposed an application for leave to appeal, lodged by the occupier of our client’s leased property, against a decision by an Associate Justice who granted summary judgment and orders for possession of the property to our client. Our client had been extremely patient with the occupier, who had resided at the property for almost four years without paying rent. Our client had made numerous attempts to resolve the dispute with the occupier, who went to great lengths to avoid eviction. The occupier was represented at various times by lawyers and barristers who went on and off the Court record, eventually leaving her as a self-represented litigant for the application for leave to appeal, which presented its own issues, including numerous adjournments due to purported illnesses.

In the decision of Stewart v Good Shepherd Australia New Zealand [2025] VSC 351, Justice Finanzio conducted a detailed analysis of the rights under the Residential Tenancies Act 1997 (Vic) (RTA) in respect of “temporary crisis accommodation,” including consideration of the various changes in the residential tenancies legislation as to the meaning of “temporary crisis accommodation” and the issue of a notice to vacate in order to obtain possession of the property. The occupier’s application for leave to appeal was refused, as there was no error of law in relation to the decision made by the Associate Justice.

The brief facts of the case can be summarised as follows:

• The registered proprietor of the property is the Department of Families, Fairness and Housing, which was a defendant to the proceedings. It leased the property to our client, Good Shepherd Australia New Zealand (Good Shepherd), who used the property as temporary crisis accommodation for people exposed to domestic violence or homelessness;
• The occupier had resided at the property for almost four years, despite originally entering the property on a temporary basis of 6 to 8 weeks. She issued proceedings, making claims—among other things—that she was owed a duty of care which was breached and that she had suffered harm, loss, and damage;
• A cross-claim was made in the proceedings that our client was entitled to possession of the property;
• The occupier was served with a Notice to Vacate by FCW Lawyers, on behalf of our client, but she refused to leave the property;
• Orders were made by the Associate Justice for summary judgment and for our client to obtain possession of the property and for the occupier to deliver up vacant possession of the property within one month. After failing to do so, our client issued a Warrant of Possession and instructed the Sheriff’s Office to take possession of the property;
• The occupier lodged an application for leave to appeal against the decision of the Associate Justice. The Sheriff’s Office became a necessary party to the appeal because the occupier issued an application seeking an injunction to restrain the Sheriff from executing the Warrant of Possession. The occupier also raised a new argument on appeal, which was not raised before the Associate Justice in the summary judgment application—that the Associate Justice’s decision was based on a finding that the occupier could reasonably secure alternative accommodation within the one-month period fixed by the Court. As this was a new argument raised on appeal, His Honour was not prepared to accept any new arguments that were not previously raised before the Associate Justice.

By refusing leave to appeal the Associate Justice’s decision, Justice Finanzio noted the following relevant points:

1. The occupier’s right to stay in the property fell within the meaning of “temporary crisis accommodation.” Even though she failed to leave the property, her stay was always characterised as temporary and fell within the meaning of section 22 of the RTA. By contrast, the occupier argued that even though her stay commenced as temporary, during the course of her stay, her occupancy had become permanent;
2. Good Shepherd endeavoured to source alternative accommodation for her, but she refused all offers;
3. The reference in the Notice to Vacate to a sublease had led the occupier to the erroneous conclusion that her stay was something other than “temporary crisis accommodation” and that the RTA and its notice provisions applied [at 43]. The Notice to Vacate was valid and entitled Good Shepherd to possession [at 27];
4. However, the operation of the RTA was excluded because, at all times, the occupancy fell within the meaning of “temporary crisis accommodation” [at 44] and was therefore outside the operation of the RTA [at 84];
5. The occupier had resided in the property for such a lengthy period that other people who were exposed to similar circumstances, including family violence or homelessness, had been prevented from accessing the use of the property through Good Shepherd; and
6. Good Shepherd had been a good provider of accommodation and had given careful consideration—including significant leniency—to the occupier and her rights. The occupier had taken advantage of Good Shepherd’s charity and goodwill in permitting her to stay in the property for such a considerable period [at 106].

This case involved interesting and challenging issues in respect of:

1. the characterisation of the type of accommodation and the legislative amendments made to the residential tenancies legislation over time;
2. whether the RTA applied to the type of accommodation in this case; and
3. the validity of the service of the Notice to Vacate.

Notwithstanding that the parties had to deal with a self-represented litigant throughout the course of the appeal, the Judge was careful to ensure that, at all times, procedural fairness was granted to the occupier—including when she failed to attend hearings—and gave her ample opportunities to respond to written submissions filed by the parties.

Catherine Pulverman has considerable experience in this area, where she acts for parties seeking to obtain possession of property, including trustees in bankruptcy who are faced with uncooperative spouses or parties who refuse to vacate. If you require advice in relation to applications for possession orders, Catherine and her colleague, Laura Pavia, would be happy to provide assistance.