AML v Longden Super Custodian Pty Ltd - [2023] VSCA 118

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0043

AML (A PSEUDONYM)	Applicant
v
LONGDEN SUPER CUSTODIAN PTY LTD	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2023
DATE OF JUDGMENT:	18 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 118
JUDGMENT APPEALED FROM:	[2023] VSC 204 (Judge Forbes)

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ADMINISTRATIVE LAW – Judicial review – Procedural fairness – Materiality – Appeal from decision of judge refusing application for interlocutory injunction from decision of Victorian Civil and Administrative Tribunal order to vacate premises previously leased by applicant – Whether primary judge erred in failing to conclude that no arguable error in decision of Tribunal – Whether primary judge erred in concluding that the balance of convenience did not weigh in favour of the grant of the interlocutory injunction – Application for leave to appeal refused.

Nathanson v Minister for Home Affairs (2022) 403 ALR 398; Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR 421.

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Counsel
Applicant:		In person
Respondent:		Ms C. Jones
Solicitors
Applicant:
Respondent:	Patten Robins Lawyers

NIALL JA
KAYE JA:

The applicant seeks leave to appeal against an order made by Forbes J of the Trial Division on 21 April 2023. By that order, her Honour refused an application by the applicant for an interlocutory injunction, and further or alternatively, for a stay pending an appeal by him to the Trial Division. That appeal is in respect of an order by the Victorian Civil and Administrative Tribunal (‘VCAT’) granting possession to the respondent of premises which he had previously leased to the applicant.

Background circumstances

On 18 December 2017, the respondent and the applicant entered into a fixed twelve month residential tenancy agreement in respect of unit 405/12 High Street, Glen Iris (‘the property’) which is owned by the respondent. After the expiration of that term, the rental agreement was not renewed, and accordingly the tenancy continued as a periodic monthly tenancy from 18 December 2018.
On 6 May 2022, the respondent served on the applicant a notice to vacate the property, as the respondent intended to sell it. The applicant did not vacate the property. Accordingly, on 22 June 2022, the respondent commenced proceedings in VCAT seeking orders for possession. On 2 September 2022, Member D Galvin of the Tribunal made an order granting possession of the property to the respondent, and requiring the applicant to vacate the property (the ‘possession order’).
On 12 September 2022, the applicant lodged an appeal, in respect of the possession order, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). In response, by summons dated 22 November 2022, the respondent made an application, pursuant to ss 62 and 63 of the Civil Procedure Act 2010 , seeking summary judgment in respect of the s 148 appeal.
The summary application was initially heard before Irving AsJ on 21 February 2023. On that date, his Honour adjourned the hearing of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 118
Decision Date: 18 May 2023

CaseChat Overview and Summary

The case of AML v Longden Super Custodian Pty Ltd involves a dispute between AML, the applicant, and Longden Super Custodian Pty Ltd, the respondent. The dispute arose from a decision by the Victorian Civil and Administrative Tribunal (VCAT) ordering the applicant to vacate premises previously leased by the applicant. AML sought an interlocutory injunction to prevent the enforcement of the VCAT order. The case was heard in the Federal Court of Australia, which subsequently dismissed the application for leave to appeal the primary judge’s refusal of an interlocutory injunction.

The primary legal issues before the court were whether the primary judge erred in concluding that there was no arguable error in the VCAT decision and whether the primary judge erred in concluding that the balance of convenience did not weigh in favour of the grant of an interlocutory injunction. The applicant argued that the VCAT failed to consider certain material facts and that the balance of convenience favoured granting the injunction. The respondent contended that the VCAT decision was correct and that the balance of convenience favoured enforcing the VCAT order.

The court, in dismissing the application for leave to appeal, held that the primary judge did not err in concluding that there was no arguable error in the VCAT decision. The court found that the VCAT had considered all relevant material and that the applicant had failed to establish that the decision was in error. In relation to the balance of convenience, the court held that the primary judge’s conclusion was not erroneous as there was no significant prejudice to the applicant if the injunction was not granted. The court noted that the applicant had other options to address the alleged procedural unfairness, such as an appeal against the VCAT decision.

No orders were made as the application for leave to appeal was dismissed. The applicant was not granted leave to appeal the primary judge’s decision, and the VCAT order remained in effect.

Orders