AML v Longden Super Custodian Pty Ltd - [2023] VSC 204

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03618

AML (a pseudonym)	Applicant
v
LONGDEN SUPER CUSTODIAN PTY LTD	Respondent

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATES OF HEARING:	18, 20 April 2023
DATE OF JUDGMENT:	21 April 2023
CASE MAY BE CITED AS:	AML v Longden Super Custodian Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 204

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PRACTICE COURT – Application for interlocutory injunction pending appeal – Appeal against summary dismissal of appeal pursuant to s 148 VCAT Act - Whether serious question to be tried that s 148 appeal had real prospect of success – Where balance of convenience lies between owner of property and renter pending appeal - Where appellant alleges legal error in lack of procedural fairness before VCAT – Whether applicant demonstrated any procedural unfairness could be determinative of the outcome – Where applicant led no evidence addressing the realistic possibility of a different outcome - Nathanson v Minster for Home Affairs (2022) 403 ALR 398, considered.

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APPEARANCES:	Solicitors
For the Applicant	AML, self-represented
For the Respondent	C Jones, counsel on 20 April	Patten Robins Lawyers
J Wood, solicitor on 18 April

HER HONOUR:

Longden Super Custodian Pty Ltd (Longden) (the respondent) is the owner of residential premises leased to AML (the applicant). Longden applied for a possession order of the residential premises pursuant to the Residential Tenancies Act 1987 (Vic) (RTA). The Victorian Civil and Administrative Tribunal (VCAT) made orders granting possession of the property. AML sought leave to appeal the VCAT orders pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the s 148 appeal). Longden applied for summary dismissal of the s 148 appeal under ss 62 and 63 of the Civil Procedure Act 2010. That application was heard and determined by Associate Justice Irving, who published reasons on 31 March 2023 and made orders on 5 April 2023 dismissing the application for leave to appeal.

On 13 April 2021 VCAT issued a warrant of possession. Shortly thereafter AML commenced an appeal to a judge of the trial division in accordance with r 77.06 of the Supreme Court (General Civil Procedure) Rules. He also sought to bring an application for a stay on the warrant of possession in the Practice Court. However, the warrant was issued and executed before any stay application was filed. AML accepts that, the warrant having been executed, the order for possession is now spent. Accordingly, AML now seeks interim injunctive relief permitting him to reside at the residential premises pending his appeal. Alternatively he seeks a stay of the orders of Irving AsJ. These reasons deal with these two applications.

Background

AML and Longden entered into the residential lease for the premises on 18 December 2017 for a period of 12 months. The lease ended on 17 December 2018. Since that time, in compliance with the RTA, AML was on…

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] VSC 204
Decision Date: 21 April 2023

CaseChat Overview and Summary

The case of AML v Longden Super Custodian Pty Ltd involved an application for an interlocutory injunction pending an appeal against the summary dismissal of an appeal to the Victorian Civil and Administrative Tribunal (VCAT). The appellant, AML, sought to appeal the VCAT decision that dismissed their appeal regarding the summary possession of a property. The application was heard in the County Court of Victoria. The central legal issue before the court was whether there was a serious question to be tried that had a real prospect of success in the appeal against the dismissal by VCAT. Additionally, the court had to consider the balance of convenience between the property owner, AML, and the renter in the interim period.

The court examined whether the appellant had demonstrated a serious question to be tried that could result in a different outcome if the appeal was successful. AML argued that there was a legal error in the VCAT proceedings, specifically that there was a lack of procedural fairness. However, the court noted that AML had not provided any evidence to suggest that this alleged procedural unfairness could be determinative of the outcome. The court further considered the case of Nathanson v Minster for Home Affairs, where it was held that the applicant must demonstrate that the alleged error could realistically result in a different outcome. Given that AML did not meet this threshold, the court found that there was no serious question to be tried that had a real prospect of success.

As a result, the court dismissed the application for an interlocutory injunction. The court found that the balance of convenience favoured the respondent, Longden Super Custodian Pty Ltd, the renter of the property, as it would be unjust to deprive them of possession pending the outcome of the appeal. The court concluded that the appellant had not demonstrated that there was a serious question to be tried that could realistically result in a different outcome, nor had they shown that the balance of convenience favoured them. Therefore, the application for an interlocutory injunction was dismissed.

Orders