Anderson v Sharpe

[2024] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0054

LENA ANDERSON	Applicant
v
DAVID SHARPE	Respondent

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JUDGES:	EMERTON P and KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2024
DATE OF JUDGMENT:	19 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 166
JUDGMENT APPEALED FROM:	Anderson v Sharpe (No 2) [2024] VSC 279 (Gorton J)

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RESIDENTIAL TENANCY – Appeal to trial division against orders of Victorian Civil and Administrative Tribunal decisions for possession of residential premises – Orders based on non-payment of rent and on intention that premises be occupied by rental provider’s disabled daughter – Appeal from decision of trial judge dismissing applications for leave to appeal against decisions of VCAT – Whether judge erred in not concluding that VCAT had erred in determining respondent’s claims for possession before hearing and determining applicant’s claims for repair of premises and compensation – Whether breach of provisions of Victorian Civil and Administrative Tribunal Act 1998 and Charter of Human Rights and Responsibilities Act 2006 – Whether judge erred by not allowing time for response to notice under s 35 of Charter.

Residential Tenancies Act 1997, ss 75, 76, 77, 91ZM, 91ZZA, 330A; Victorian Civil and Administrative Tribunal Act 1998, ss 97, 102, 148; Charter of Human Rights and Responsibilities Act 2006, ss 8, 13, 15, 18, 20, 24, 35.

Young v Chief Executive Officer (Housing) (2023) 97 ALJR 840; [2023] HCA 31; Osland v Secretary, Department of Justice (2010) 241 CLR 320; [2010] HCA 24, considered.

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Counsel
Applicant:		In person
Respondent:		Mr C Pym
Solicitors
Applicant:	In person
Respondent:	MA Legal

EMERTON P
KAYE JA:

1. The respondent is the owner of a residential property at 26 Benson Street, Benalla (‘the property’). In June 2020, the respondent leased the property to the applicant, initially for a period of 12 months. The lease was renewed for a further period of six months in June 2021, and, thereafter, the applicant remained in occupation of the premises on a holdover tenancy.

2. A number of disputes arose between the parties. As a consequence, the respondent commenced proceedings in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) seeking orders that the applicant vacate the property. The applicant herself commenced a number of proceedings, alleging, in effect, that the respondent had failed to keep the property in proper repair.

3. On 19 April 2024, in VCAT proceeding R2023/6067 (‘the first Tribunal proceeding’), the Tribunal, constituted by Deputy President Warren, ordered the applicant to vacate the property by 19 April 2024, and to pay outstanding rent in the sum of $20,907.40. That order was based on a notice to vacate, given by the respondent, pursuant to s 91ZM of the Residential Tenancies Act 1997 (‘the Act’), on the ground that the applicant was in arrears in payment of rental.

4. On 26 April 2024, in a second proceeding, VCAT reference number R2023/14647 (‘the second Tribunal proceeding’), the Tribunal, constituted by Senior Member Campana, ordered the applicant to…