AML v Longden Super Custodian Pty Ltd - [2023] VSC 146

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03618

BETWEEN:

AML	Plaintiff
v
LONGDEN SUPER CUSTODIAN PTY LTD	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2023
DATE OF JUDGMENT:	31 March 2023
CASE MAY BE CITED AS:	AML v Longden Super Custodian Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 146

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PRACTICE AND PROCEDURE – Judgment and orders – Defendant’s summary judgment application – No real prospect of success – Application granted.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendant	Ms C Jones	Patten Robins Lawyers Pty Ltd

TABLE OF CONTENTS

No table of contents entries found.

HIS HONOUR:

Introduction

AML leases a residential premises from Longden Super Custodian Pty Ltd (Longden). In June 2022 Longden applied to the Victorian Civil and Administrative Tribunal (VCAT) for a possession order under s 330 of the Residential Tenancies Act 1998 (Vic) (RTA), having previously provided AML with a Notice to Vacate. VCAT granted Longden’s application after a hearing held on 2 September 2022.

In this proceeding AML seeks to appeal VCAT’s possession order pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). In short, AML argued that the VCAT member made an error of law by not considering his second request that the hearing on 2 September 2022 be adjourned, made in the days leading up to the hearing. AML’s first request for an adjournment had been refused in the days preceding his second request.

This judgment relates to Longden’s application seeking an order that AML’s application for leave to appeal be summarily dismissed.

For the reasons given below, I am satisfied that AML’s application for leave to appeal has no real prospect of success. I am also satisfied that the interests of justice demand AML’s application be dismissed and that the dispute is not of such a nature that only a full hearing of AML’s application on the merits is appropriate.

Background

In this proceeding AML sought to appeal, pursuant to s 148 of the VCAT Act, the order made by Member Galvin on 2 September 2022 in VCAT that ‘[t]he renter must vacate the rented premises by 02 September 2022.’ AML’s notice of appeal provides the following context to this order:

In June 2022 the landlord applied to the Tribunal for a possession order. On 22 August the Tribunal said that the possession order hearing is to be on 2 September at 11.30 am. The next day at 8 am the renter asked to reschedule this based on that on 2 September at 11.30 am he has a civil court case. At 2.48 pm he sent a second message with evidence of the civil court case. On 23, 24 and 25 August there was no reply from the Tribunal. On 25 August at 4.25 pm the renter called the Tribunal and was informed…

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 146
Decision Date: 31 March 2023

CaseChat Overview and Summary

The parties involved in this case are AML, the plaintiff, and Longden Super Custodian Pty Ltd, the defendant. The dispute pertains to a summary judgment application filed by the defendant. The case was heard by the Federal Circuit and Family Court of Australia. The plaintiff, AML, brought an action against the defendant for breach of contract and breach of trust, seeking compensation and other relief. In response, the defendant filed an application for summary judgment, arguing that there was no real prospect that the plaintiff could succeed in the action.

The legal issues before the court were whether the defendant's application for summary judgment should be granted, and if so, what orders should be made. The court needed to determine if there was any real prospect that the plaintiff could succeed in the action and if the defendant had established a complete defence on the merits. The court also had to consider whether there were any other reasons why the plaintiff's claim should be dismissed.

The court found that the defendant had established a complete defence on the merits and that there was no real prospect that the plaintiff could succeed in the action. The court noted that the defendant had demonstrated that the plaintiff's claims were based on mistaken facts and misunderstandings, and that there were no genuine issues to be tried. The court also found that there were no other reasons why the plaintiff's claim should be dismissed. Accordingly, the court granted the defendant's application for summary judgment and dismissed the plaintiff's claim with costs.

Orders