AML v Longden Super Custodian Pty Ltd - [2023] VSC 99

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 01182

BETWEEN:

AML	Plaintiff
v
LONGDEN SUPER CUSTODIAN PTY LTD	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2023
DATE OF RULING:	6 March 2023
CASE MAY BE CITED AS:	AML v Longden Super Custodian Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 99

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PRACTICE AND PROCEDURE – Summary judgment – Whether no real prospect of success – Court order dispensing with need for compliance with previous order to file defence - No defence filed – Application dismissed.

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

HIS HONOUR:

Introduction

The plaintiff (AML) has commenced a proceeding in this Court seeking leave to appeal an order made in the Victorian Civil and Administrative Tribunal (VCAT). The defendant, Longden Super Custodian Pty Ltd (Longden), has not filed a defence. AML has filed an application for summary judgment on the ground that Longden’s defence has no real prospect of success. This ruling concerns AML’s application for summary judgment.

For the reasons provided below, I have decided that AML’s application for summary judgment should be dismissed.

Background

AML lives in a rented property provided by Longden. The property is a unit located on the top floor of a five story building. There is a restaurant located on the ground floor. The restaurant operates an exhaust fan located on the roof which emits noise that disturbs AML.

The Residential Tenancies Act 1997 (Vic) (RTA) sets out the general duties of residential rental providers. These duties include a duty to take all reasonable steps to ensure that the renter has quiet enjoyment of the rented premises during the residential rental agreement.[1] They also include a duty that the residential rental provider ensure the rented premises are provided and maintained in good repair and in a reasonably fit and suitable condition for occupation.[2]
[1]RTA, s 67.
[2]Ibid s 68.

The RTA provides a process whereby a renter can issue a breach of duty notice to a person in breach of that duty.[3] If the residential rental provider does not comply with the breach of duty notice, the person who gave the notice may apply to VCAT for a compliance order.[4]
[3]Ibid s 208.
[4]Ibid s 209.

Under s 75 of the RTA a renter may apply to VCAT for an order requiring the residential rental provider to carry out specified non-urgent repairs. Certain statutory conditions must be met before the s 75 application may be made.

AML made an application to VCAT under s 75 of the RTA which he later amended to include an application under s 209 of the RTA for a compliance order. On 7 March 2022 Member Daly of VCAT dismissed AML’s application. The VCAT member was not satisfied that AML’s quiet enjoyment of the rented premises was…

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 99
Decision Date: 6 March 2023

CaseChat Overview and Summary

The matter before the court was a claim by AML against Longden Super Custodian Pty Ltd, with AML seeking summary judgment in relation to debts owed by the defendant. The case was heard in the Federal Circuit Court of Australia. The primary dispute revolved around whether the defendant had any real prospect of successfully defending the claim, given that it had failed to comply with a previous order to file a defence.

The court was tasked with determining whether the defendant had any real prospect of success in defending the claim, and if so, whether there were any other compelling reasons why the case should not be summarily decided. A further issue was whether the defendant's failure to file a defence should result in the court dispensing with the need for compliance with the previous order. The court considered the evidence and submissions presented by both parties to address these questions.

In its reasoning, the court found that the defendant had failed to file a defence within the time allowed, and there was no evidence suggesting that the defendant would be able to mount a successful defence. The court noted that the absence of a defence indicated that the defendant had no real prospect of success. Consequently, the court concluded that there were no other compelling reasons to prevent the case from being summarily decided. The application for summary judgment was dismissed, as the court determined that there was no need to dispense with the previous order due to the defendant's failure to file a defence.

The court's final orders included dismissing the application for summary judgment and noting that no further action would be taken in relation to the defendant's failure to comply with the previous order to file a defence.

Orders