AML v Longden Super Custodian Pty Ltd
[2023] VSC 204
•21 April 2023
| 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 a periodic (that is, month-to-month) tenancy.
On 6 May 2022, Longden issued a Notice to Vacate (NTV) to AML on the basis that the property was to be sold.[1] AML did not vacate the property, and Longden applied to VCAT for a possession order.
[1]A previous NTV issued on July 2021 was later agreed by both parties to be defective, causing an earlier possession order to be set aside.
On 22 August 2022, VCAT notified the parties that the hearing was listed for 2 September 2022. On 23 August 2022 at 8:0 am, AML sent VCAT an email requesting an adjournment because he had a ‘civil court case’ on the same day at the Magistrates’ Court. AML sent a second email to VCAT the same day at 2.48pm attaching correspondence from the Magistrates’ Court showing he had an appointment with a registrar on 2 September 2022 and requesting that this evidence be kept confidential. Langdon wrote to VCAT and AML on 24 August 2022 indicating opposition to the requested adjournment. Prior to receipt of AML’s second email on 23 August 2022, VCAT made a decision refusing the adjournment on the basis of insufficient evidence. That decision was communicated to AML on 25 August 2022. The order stated that VCAT may consider a further application for adjournment if Longden provided consent or if AML provided sufficient evidence.
AML sent a further email on 26 August 2022 again requesting the hearing be rescheduled referring to the evidence previously sent to VCAT in the email sent at 2.48pm on 23 August 2022. AML contacted VCAT a number of times seeking a response and was told that a decision was yet to be made. On 1 September 2023 he was told that a decision had not yet been made and the request would be considered at the hearing. He then sent an email to VCAT which said:
I was informed that the hearing tomorrow was not adjourned. Was said that a decision about the 26 August request I made, was not made the previous 6 days, thus the hearing may be adjourned at the hearing tomorrow.
I’m not going to be at the hearing.[2]
[2]Plaintiff, ‘Affidavit of AML’ sworn on 12 October 2022 in AML v Longden Super Custodian Pty Ltd S ECI 2022 03618, exhibit bundle APP-1 12.
The VCAT hearing on 2 September 2022 proceeded in AML’s absence. The Member granted Longden’s application for a possession order. AML appealed the Member’s decision to this Court, alleging procedural unfairness because he did not appear in the hearing and that VCAT did not properly consider his request for an adjournment. Longden applied for summary judgment of AML’s appeal.
In a decision dated 31 March 2023, Irving AsJ granted Longden’s summary judgment application. Irving AsJ made the following observations about the adjournment applications at VCAT:
The transcript of the VCAT hearing shows that Longden’s solicitor brought to the VCAT Member’s attention a further email of 1 September 2022 from AML indicating that AML would not be at the hearing. The Member noted that AML may apply to review the Member’s order but that, in doing so, AML would have to provide a good excuse for not attending the hearing and a good defence to the possession order. The Member noted that there was nothing in the material before him that indicated the requirements for making the possession order were not met or that it would not be reasonable and proportionate to make the possession order.[3]
The transcript records that Mr Murdoch then said to the Member that AML’s email of 1 September 2022 does not constitute, in terms, a further request for an adjournment and that even if it had, AML’s adjournment application had been denied only days before. The Member responded by stating that he had a discretion to consider any adjournment request received overnight on the day of the hearing but that there was no one present asking for an adjournment.[4]
[3]AML v Longden Super Custodian Pty Ltd [2023] VSC 146, [9] (Irving AsJ) (‘Summary Judgment’).
[4]Summary Judgment, [10]
Irving AsJ observed that the relevant test in the summary judgment application – that is, whether there was ‘a real prospect of success’ – was not in dispute between the parties. AML argued that the second request for an adjournment was not refused, rather it was not considered at all. He contended therefore that his circumstances were distinguished from cases where an adjournment was refused where he would need to establish that he was shut out from having an opportunity to advance an argument that could have affected the outcome.[5] That distinction was not accepted and was described as arid.[6] Irving AsJ invited AML to advise the Court ‘what he would have argued in VCAT that might have affected the outcome of the VCAT hearing’.[7] AML did not do so and argued that it was unfair that he be obliged to do so.
[5]Summary Judgment, [23].
[6]Summary Judgment, [29].
[7]Summary Judgment, [31].
Rejecting the alleged distinction between whether VCAT refused or failed to consider AML’s application for an adjournment, Irving AsJ concluded that AML had to show a real prospect of success in his argument that he was denied procedural fairness and that, had he not been denied procedural fairness, it ‘would or could have made a difference’.[8] Expanding on this test, Irving AsJ determined that, for AML to have a real prospect of success, he must establish:
that he has been deprived of the opportunity of putting a sustainable proposition that might have affected the outcome of the proceeding before VCAT. [9]
[8]Summary Judgment, [29].
[9]Summary Judgment, [30]-[34], citing at [30] Opeka Pty Ltd v Mackie Group Pty Ltd (2003) 214 CLR 1, 14 [37] (Nettle J).
Irving AsJ approached the question of AML’s opportunity on assumption that denial of procedural fairness was arguable. However, he ultimately concluded that a real prospect of establishing a denial of procedural fairness itself was also problematic.[10]
[10]Summary Judgment, [35]-[36] where he observed that the effect of AML’s submission was that any hearing was left to his convenience; a position contrary to the duty to accord procedural fairness and contrary to modern case management principles.
Legal principles
Injunction
In order to grant an interlocutory injunction, I must be satisfied that:
(a) there is a serious question to be tried;
(b) the balance of convenience favours the granting of the injunction; and
(c) damages will not be an adequate remedy for the likely injury to be suffered.[11]
[11]Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J), [65]-[83] (Gummow and Hayne JJ) (‘ABC v O’Neill’).
Other discretionary considerations that militate against the grant of injunction can also be considered.[12]
[12]See Environment East Gippsland Inc v VicForests [2009] VSC 386, [62] (Forrest J) (‘Environment East Gippsland Inc v VicForests’).
In order to be satisfied that there is a serious question to be tried, I must be satisfied that the grounds of appeal advanced by AML in the upcoming appeal have a sufficient likelihood of success to justify the granting of the injunction pending trial.[13] The injunction sought does not seek to preserve the status quo but return AML to the premises until trial of his appeal on 5 June 2023. As such AML seeks orders that would mandate Longden to provide access. There is no different or more stringent test to be applied because of the mandatory nature of the injunctive relief. I should take the course that carries the lower risk of injustice if the decision turns out to have been wrong.[14]
[13]ABC v O’Neill (n 11) [19], [65]-[83]; Environment East Gippsland Inc v VicForests (n 12) [62].
[14]Bradto v State of Victoria (2006) 15 VR 65, [35]
Stay on summary judgment orders
An application for a stay must show the existence of special or exceptional circumstances to be successful.[15] Such circumstances will exist where there is a real risk that it will not be possible for a successful appellant to be restored substantially to their former position if the judgment against them is executed. In essence, special or exceptional circumstances will exist, where, if the stay is not granted, the appeal would be rendered nugatory.
[15]Cellante v G Kallis Industries & Ors (1991) 2 VR 653, 657.
These circumstances must be balanced against the principle that a successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.
Evidence relied on and submissions
AML relied on his affidavit before Irving AsJ dated 12 October 2022, as well as a sworn affidavit in support of the application for injunction dated 18 April 2023.
Longden was only served with the summons and the April affidavit at the commencement of the hearing and had not had an opportunity to file any material. However, before the second day of the hearing, Longden filed an affidavit and a number of exhibits dated 19 April 2023.
Both parties filed outlines of written submissions.
In relation to the injunction, AML submitted that:
(a) there is a serious question to be tried at appeal, because Irving AsJ could not have been satisfied that he had no real prospects of success should the substantive hearing have been allowed. AML submitted that he did not advance evidence of what his arguments would have at the VCAT hearing, before Irving AsJ because – citing Nathanson v Minister for Home Affairs[16] (Nathanson) – he was not required to do so.[17]
(b) the balance of convenience would favour the granting of the injunction because he would be rendered homeless and had nowhere to stay. He has no family in Australia, nor is he employed. He submitted he had made enquiries at rooming houses for temporary accommodation but had been told there was no availability.[18]
[16]Nathanson v Minster for Home Affairs (2022) 403 ALR 398 (‘Nathanson’).
[17]Transcript of Proceedings, AML v Longden Super Custodian Pty Ltd (Supreme Court of Victoria)
S ECI 2022 03618 (Justice Forbes, 18 and 20 April 2022) 49.6-14; 50.6-24 (‘T’).
[18]T 28.21-25.
Longden submits that:
(a) there is no serious question to be tried at appeal, because there are no discernible errors of law in Irving AsJ’s judgment.[19] Further, Longden submitted that Nathanson was not relevant to the facts in this case; and
(b) even if there was a serious question to be tried, the balance of convenience would favour withholding the injunction because the possession order and the warrant executed in accordance with the order are presumed to be regular. The tenancy, which had been a month-to-month tenancy only, is at an end. AML has no right to possession under a lease, any lease he held having been determined on execution of a warrant of possession. Longden has intended to sell the property since July 2021, and is suffering financial hardship because the sale of the property is required to realise the equity in the self-managed superannuation fund of which it is trustee. It has incurred significant legal fees thus far in obtaining possession of the property from AML. Interim injunctive relief would have the effect of negating the benefit of the possession order and require Longden to apply for a new possession order – in essence, recommencing the underlying proceedings. If granted, Longden would likely face significant further costs, and delay in regaining possession of the property.
[19]T 23.10-17.
In relation to the stay, AML relied on his material and submissions in relation to the injunction.
Longden submitted that there were no special or exceptional circumstances justifying the granting of the stay and it was entitled to the presumption of the judgment being regular.
Longden also submitted that AML failed to identify any injury for which damages will not be adequate compensation, should the injunction not be granted. AML made no submissions on this point.
Consideration
AML accepts that the applicable legal test for a grant of summary judgment was correctly stated by Irving AsJ. In seeking to show that there is a serious question to be tried therefore, the task for AML is difficult when the decision appealed from itself is a decision that the proposed appeal has ‘no real prospect of success’.
In this application, AML maintains the position that he is not obliged to reveal either the evidence or the substance of submissions he might have made if he had been given the opportunity. In effect he submits that the relevant test was not correctly applied. In this context although AML filed written submissions in the s 148 appeal stating that he disputed both the validity of the NTV and VCAT’s satisfaction that it was reasonable and proportionate to make a possession order, he did not respond to invitations to outline the basis of either dispute in the summary judgment application. The result was that Irving AsJ concluded that AML did not have a real prospect of success in demonstrating arguable errors of law arising because the VCAT hearing proceeding occurred in his absence, because he had not shown that any error was material to the outcome.
In support of his argument that Irving AsJ erred in finding that he was required to disclose the argument that he was shut out from making at VCAT, AML relied on Nathanson generally and in particular the comments in the joint judgment of Kiefel CJ, Keane and Gleeson JJ at paragraph 39.[20] He submits that Nathanson is authority for the proposition that he was not required to do anything. Specifically that he was not required to establish the nature of additional evidence or submissions that might have been presented had the hearing been procedurally fair.
[20]T 49.6.
Nathanson discusses the circumstances in which a denial of procedural fairness amounts to a jurisdictional error. The case was concerned with the application of uncontroversial principles. Those principles were set out in the opening paragraph of the joint judgment:
As the Courts below recognised, the Tribunal’s error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal’s decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense.[21]
[21]Nathanson (n 16) [1].
In applying these principles to the facts of Nathanson, AML submits that he had discharged this onus because the record of VCAT’s decision itself demonstrated the realistic possibility that the decision could have been different. It is true that, as expressed in Nathanson:
in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, “reasonable conjecture” from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different.[22]
[22]Ibid [35].
This is not a demanding standard, and demonstrates that, in certain circumstances, materiality may be sufficiently demonstrated from the record of the decision that is made. However, crucially it does not relieve a person from the need to establish that the procedural error was material.
The VCAT order for possession must be made if VCAT is satisfied of two matters: that the NTV is valid and that it is reasonable and proportionate in the circumstances to make the order.[23] Whilst there may be matters that AML wished to raise that might have affected the outcome, they are not apparent from the decision itself. That is why Irving AsJ invited AML to address this issue and accorded him an adjournment to do so. I do not accept AML’s argument that Nathanson, when applied to this case, makes it clear that there is a serious question to be tried arising from the procedural fairness challenge.
[23]Residential Tenancies Act 1997 (Vic) s 330.
The other grounds are numerous and expressed generally – that Irving AsJ didn’t properly consider various relevant matters and/or considered irrelevant matters, and/or failed to exercise jurisdiction. Other grounds identify the clarity (and therefore adequacy) of the reasons.
Many of the grounds asserting relevant and irrelevant considerations are associated with the material provided to VCAT (as outlined in paragraph [5] and [6] and by the fact that documents were not filed in the s 148 appeal). As AML’s affidavit before Irving AsJ dated 12 October 2022 did exhibit the email correspondence, the nature of these errors of law are unclear. To the extent other grounds detail errors regarding filing of evidence and submissions in the summary judgment application, then the comments above discussing Nathanson and what must be shown by the person alleging error of law are relevant.
I cannot exclude the possibility that within the grounds of appeal, if properly and clearly articulated, there may be an arguable claim with some prospect of withstanding a summary judgment application. However, the prospect of success in the s 148 appeal itself, and therefore the prospect that there is a serious question to be tried, on the material before me, is precarious.
I accept that AML’s submissions on balance of convenience demonstrate that he will suffer disruption if the injunction is not granted. Whilst he did not formally put on affidavit evidence about the extent of that impact, he did tell me from the bar table that he has nowhere immediately to live, he has no family in Australia and is not currently employed. I have taken these matters into account, notwithstanding the fact that they were given from the bar table by AML representing himself.
Longden submits that:
(a) The lease has been determined and AML has no interest in the property.
(b) It has been intending to sell the property since July 2021 with vacant possession and is frustrated with so dealing with its property as it wishes.
(c) Mr Wood’s affidavit demonstrates that Bruce Longden – the beneficiary of the self-managed superfund which is operated and managed by Longden – has suffered and is suffering financial hardship both on the basis of the need to sell the property and the costs incurred to date in attempting to do so.
(d) Any injunction would cause significant costs and significant further delay for Longden.
VCAT made the possession orders in September 2022 and the warrant was executed in April 2023, over six months later. Noting that the appeal will be heard in a little more than six weeks’ time, and a decision likely made soon thereafter, granting the injunction would only restore AML to his position for a relatively short period, should his appeal be unsuccessful. AML expressed the view that, if returned to the premises, he would seek to remain there until exhausting any appeal rights.[24]
[24]T 36.27-37.14.
As Longden intends to sell the property with vacant possession it likely that the property will still be available if AML’s s 148 appeal is successful. Therefore, the degree of prejudice for AML being unable to reside in the property pending his appeal is for a short time only.
Furthermore, although the execution of the warrant of possession would be disruptive to his living arrangements, AML has been paying rent and is financially supported by his parents. There is nothing to suggest that he does not have the financial resources to locate temporary accommodation pending the appeal. Nor is there anything to suggest that damages would not be an appropriate remedy if his claims are ultimately successful.
The significant doubt as to any serious question to be tried together with the various factors going to the balance of convenience in my view do not warrant granting the injunction sought.
In the alternative, I am asked to stay the orders of Irving AsJ, for essentially the same reasons. The fact of an appeal itself does not operate as a stay. Special or exceptional circumstances are required to be shown relevant to displacing a presumption that the judgment below is correct and that the respondent is entitled to the benefit of the judgment obtained.[25]
[25]Maher v CBA & Anor [2008] VSCA 122; Abikhair v Ali [2018] VSC 93; Maund v Racing Victoria Ltd [2015] VSCA 276.
The material relied on by AML largely goes to the merit of the s 148 appeal and to an extent the underlying unfairness of the VCAT proceeding and the fact of his eviction. AML also relied on the prospect that the property might be damaged by Longden such that the premises might be rendered uninhabitable should he ultimately succeed. This submission is fanciful and is rejected. No other grounds were advanced relevant to why the judgment should be stayed. AML relied on Burgess v Director of Housing[26] as to special circumstances. That case dealt with special circumstances in the context of an application for an extension of time to commence proceedings under Order 56 and are not relevant to the application for a stay of a judgment.
[26][2013] VSC 626.
The applications are dismissed.
Costs
Longden argued costs of the summons should follow the event.
AML argued that costs should be reserved until the final outcome of the s 148 appeal is known.
The applications for interim relief having failed, in my view it is appropriate to make a discrete order for the costs of the summons. It is appropriate that costs follow the event.
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