JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2023
DATE OF JUDGMENT:	19 September 2023
CASE MAY BE CITED AS:	Anderson v Sharpe
MEDIUM NEUTRAL CITATION:	[2023] VSC 559

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APPEAL – Residential tenancies - Appeal against VCAT decision to grant application for possession order and rental arrears – Where applicant deliberately chose not to participate in hearing – Whether applicant was denied procedural fairness – Whether the Tribunal failed to give due consideration – Reasonable and proportionate – Whether Tribunal’s reasons were sufficient - Whether to allow appeal against possession order but not order for payment of arrears of rent - Whether to remit for rehearing by the same Member without further evidence - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 117 and 148 – Residential Tenancies Act 1997 (Vic) ss 330, 330A and 331.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Litigant in person	N/A
For the Respondent	Mr C Pym	Mr J Koadlow

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. Background and leadup to the VCAT hearing....................................................................... 2

C. The 24 March 2023 VCAT hearing............................................................................................ 8

D. The arguments based on procedural fairness and discrimination.................................... 9

E. The arguments based on s 331 of the Residential Tenancies Act 1997.............................. 11

F. The arguments based on s 330 and s330A of the Residential Tenancies Act 1997.......... 12

G. The argument based on the Tribunal’s reasons................................................................... 16

H. The order for the payment of rent.......................................................................................... 18

I. Disposition................................................................................................................................... 19

HIS HONOUR:

A. Introduction

On 23 June 2020, Ms Lena Anderson commenced to reside as tenant at 26 Benson Street, Benalla. Mr David Sharpe was and remains her landlord, or ‘residential rental provider’. Ms Anderson’s lease has come to an end and she now resides there under a monthly hold-over tenancy. On 24 March 2023, the Victorian Civil and Administrative Tribunal (‘VCAT’, or ‘the Tribunal’) ordered Ms Anderson to vacate the premises and to pay Mr Sharpe rent owed of $3,880. On 28 March 2023, Ms Anderson commenced this application for leave to appeal against VCAT’s orders. On 5 May 2023, VCAT published reasons for its decisions. The appeal is brought under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 and is limited to an appeal on a question of law. The application for leave to appeal and the appeal if leave were granted were heard together.

Under s 330(1)(f) of the Residential Tenancies Act 1997, the Tribunal must make a possession order following a failure to comply with a notice to vacate sent for the non-payment of rent if it is satisfied that it is ‘reasonable and proportionate having regard to section 330A, to make a possession order taking into account the interests of, and the impact on’ the residential rent provider and the…

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.

Continue reading Anderson v Sharpe

Details

AGLC: Anderson v Sharpe [2023] VSC 559
Case: [2023] VSC 559
Decision Date: 19 September 2023

CaseChat Overview and Summary

The appellant, Anderson, appeals against a decision of the Victorian Civil and Administrative Tribunal (VCAT) which granted an application by the respondent, Sharpe, for a possession order and for payment of rental arrears. The dispute arose from a residential tenancy agreement between the parties. The appeal was heard by the Supreme Court of Victoria, which was required to consider whether the VCAT decision was legally sound and fair.

The court was tasked with determining several legal issues, including whether the applicant's decision not to participate in the hearing deprived the respondent of procedural fairness, and whether the Tribunal properly considered the relevant factors when deciding to grant the possession order. The court also had to assess whether the Tribunal's reasons for the decision were sufficient and whether the possession order was reasonable and proportionate, and if the order for payment of arrears of rent was justified.

The Supreme Court found that the applicant's decision not to participate in the hearing did not deny the respondent procedural fairness, as the respondent had been given ample opportunity to present their case. The court also concluded that the Tribunal had failed to give due consideration to the reasonableness and proportionality of the possession order. The reasons provided by the Tribunal were deemed insufficient as they did not adequately address the specific circumstances of the case. Consequently, the appeal against the possession order was allowed, but the order for payment of arrears of rent was not. The matter was remitted for rehearing by the same Member without the need for further evidence.

The Supreme Court ordered that the decision of VCAT be set aside in part, and the matter be remitted to VCAT for rehearing by the same Member without the need for further evidence.

Orders