Anderson v Sharpe
[2023] VSC 559
•19 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 01259
| LENA ANNIKA ANDERSON | Applicant |
| v | |
| DAVID SHARPE | Respondent |
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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 renter. Section 331 of the Residential Tenancies Act 1997 provides that VCAT ‘may dismiss … an application for a possession order’ if the Tribunal considers that ‘satisfactory arrangements have been or can be made to avoid financial loss to the residential rental provider’.
Ms Anderson’s contentions as set out in her Notice of Appeal (reading her questions of law and grounds of appeal together) are that:
(a) VCAT erred in its assessment under s 331 of the Residential Tenancies Act 1997 of Mr Sharpe’s ‘financial loss exposure’ by not properly considering her submissions directed at Mr Sharpe’s conduct and because there was not sufficient evidence for the Tribunal to have made an assessment that ‘no satisfactory arrangements can be made to avoid financial loss’ for Mr Sharpe.
(b) VCAT erred in its consideration of s 330A(i) of the Residential Tenancies Act 1997 by not ‘properly considering’ her submissions on the history of the dispute including her claims for urgent and non-urgent repairs, Mr Sharpe’s claims for rent that (she says) was not payable, and Mr Sharpe’s improper conduct in his dealings with her; and
(c) She was denied a reasonable opportunity to make submissions and was denied procedural fairness and natural justice. She contends that the Tribunal did not properly consider her submissions relating to bias generally and in the way the dispute was handled including by prioritising Mr Sharpe’s claims over her own.
In the course of oral argument, it became apparent that Ms Anderson, who was self-represented, was also complaining that the reasons that VCAT had given were inadequate. This was not a ground of appeal. As Ms Anderson pointed out, VCAT did not publish its reasons for its 24 March 2023 decision until 5 May 2023, by which time she had already commenced this appeal. Mr Sharpe, who was represented, sensibly, did not oppose Ms Anderson being permitted to contend also that the reasons were inadequate and was content for that matter to be argued without Ms Anderson being required to file an amended notice of appeal.[1]
[1]I would have permitted Ms Sharpe to raise a ground directed at the adequacy of the reasons even if Mr Anderson had opposed that being done.
In order to put Ms Anderson’s arguments in context, it is necessary to consider the background and leadup to the VCAT hearing in some detail.
B. Background and leadup to the VCAT hearing
On 15 November 2021, Mr Sharpe served a Notice to Vacate. The notice indicated that he wished to regain possession so that he could move his intellectually disabled daughter into the property. A statutory declaration accompanying this Notice to Vacate had been partly redacted. Ms Anderson contends that the notice was ‘retaliatory’ and was issued in response to a letter she had sent to him ‘in respect of false notices of arrears’ in which, she asserted, Mr Sharpe was claiming more rent than had been agreed to be paid under arrangements made between them during the COVID pandemic.
On 8 July 2022, a Notice of Proposed Rent Increase was issued to Ms Anderson. The Notice proposed to increase the rent from $330 per week to $350 per week with a commencement date of 14 September 2022. Mr Sharpe contends this was first rent increase since 23 June 2020, which was date from which Ms Anderson commenced residing at the Benalla property.
On 31 August 2022, Ms Anderson requested ‘urgent and non-urgent repairs’ and disputed the proposed rent increase. She stated that she did not want Mr Sharpe on the property undertaking the repairs because he was ‘dishonest and untrustworthy’ and that she would not be ‘paying the increased rent until the urgent repairs are completed’.
On 26 October 2022, Mr Sharpe issued a second Notice to Vacate. The notice, again, indicated that he wished to regain possession so that he could move his intellectually disabled daughter into the property. Ms Anderson did not vacate the premises. She disputes that Mr Sharpe intended, or would be able, to move his disabled daughter into the premises, and contends that the Notice to Vacate was sent in retaliation for her request for repairs and dispute over her rental payments. The statutory declaration in support had Mr Sharpe’s address redacted.
On 24 November 2022, Ms Anderson commenced a proceeding in VCAT in which she sought $8,436.54 in compensation from Mr Sharpe (VCAT proceeding number 2022/33199).
On 4 January 2023, Mr Sharpe commenced a proceeding in which he sought an order for possession of the property (VCAT proceeding number 2023/211). He relied on the failure to comply with his 26 October 2022 Notice to Vacate. VCAT rejected Ms Anderson’s application to have her compensation proceeding heard at the same time as the application for possession. Ms Anderson contended that her claim for compensation should be heard at the same time, or at least no later than, this claim for possession.
On 25 January 2023, Mr Sharpe issued a third Notice to Vacate. This notice relied on unpaid rent. Ms Anderson did not comply with this Notice to Vacate.
On 21 February 2023, the hearing of Mr Sharpe’s application for possession in proceeding 2023/211 was adjourned it to 3 March 2023. Mr Anderson resisted the possession application on the grounds that it was ‘retaliatory’.
On 22 February 2023, Mr Sharpe commenced a proceeding in which he sought payment of rental arrears and possession based on the 25 January 2023 Notice to Vacate (VCAT proceeding number 2023/6067). This appeal is against orders made in that proceeding.
On 3 March 2023, VCAT struck out Mr Sharpe’s application for possession in proceeding 2023/211, based on the 26 October 2022 Notice to Vacate, because passages in the statutory declaration had been redacted. The same day, Mr Sharpe served a fourth Notice to Vacate. This Notice to Vacate relied on the same statutory declaration - that the premises were to be occupied by his daughter – but had no redactions.
On 4 March 2023, Ms Anderson commenced a proceeding in VCAT for the urgent and non-urgent repairs requested on 31 August 2022 (VCAT proceeding number 2023/7272). The urgent repairs were described as fixing the electrical wiring, replacing the split system, replacing the kitchen exhaust fan, fixing the front and back doors, and putting a lock on the laundry door.
On 7 March 2023, Ms Anderson informed VCAT that she had lodged a complaint with the Judicial Commission against certain VCAT Members for ‘procedural prejudice’ and predetermined outcomes and contended that they could not decide any matters that involved her. Her concern was that she believed VCAT was prioritising Mr Sharpe’s claims over hers.
Speaking broadly, Mr Sharpe has the view that Ms Anderson is finding reasons to avoid paying rent. There are materials that indicate that Ms Anderson made life difficult for Mr Sharpe by refusing to accept certain persons who he wished to arrange to perform some repairs. Ms Anderson has the view that Mr Sharpe failed to comply with his obligations as landlord, attempted to organise trades people to provide quotes for appearances but had no intention of effecting any repairs, and that she has suffered loss as a result of his conduct. She contends, for example, that he is obliged to compensate her because the way he has behaved has meant that she has been unable to maintain employment, and that her ‘rental records’ and ‘future rent prospects’ have been affected. It is not necessary, and I am not able, now to determine the rights and wrongs of these competing claims
On 14 March 2023, VCAT issued a Notice of Hearing for Mr Sharpe’s application for possession and rent arrears in proceeding number 2023/6067. The hearing was listed for 24 March 2023. Ms Anderson informed VCAT by email, also on 14 March 2023, that:
(a) she would be seeking an adjournment on the grounds that VCAT’s ‘procedural prejudice and discriminatory treatment is causing a serious threat to [her] health and safety’; and
(b) ‘any orders that precede orders for urgent repairs will be appealed to the Supreme Court’.
The 14 March 2023 email set out her version of events – that is, that:
(a) Mr Sharpe’s November 2021 and October 2022 Notices to Vacate were ‘retaliatory’ for her disputing the rental arrears and requestion repairs;
(b) Mr Sharpe’s statutory declarations that he intended to move his disabled daughter into the premises were ‘clearly false’;
(c) in November 2022, she lodged a compensation claim because ‘urgent repairs’ had not been carried out and in August 2022;
(d) she lodged an application to have the repairs performed, and VCAT’s listing of Mr Sharpe’s proceeding for possession, but not her proceedings, reflected ‘procedural manipulations’ and indicated that VCAT was ‘illegally breaching [her] human rights’; and
(e) she had lodged complaints against several members with the Judicial Commission and those members could not therefore determine the matters that involved her.
She also told the Tribunal, when she lodged this ‘formal complaint’ for ‘vilification’, that it had a statutory requirement ‘to report this to IBAC’.
On 15 March 2023, Ms Anderson emailed VCAT and advised that she would not be attending the hearing on 24 March 2023 as it was ‘inappropriate in the circumstances’ and that she ‘already had grounds for appeal’.
On 15 March 2023, VCAT dismissed Ms Anderson’s application for an adjournment. The decision was made by one of the members Ms Anderson had complained about. The application was, according to VCAT’s order, made on the grounds that ‘VCAT’s procedural prejudice and discrimination treatment was creating a serious threat to [Ms Anderson’s] health and safety.’ The next day, Ms Anderson informed VCAT ‘for the record’ that she rejected the above order on the grounds of judicial bias because she had notified the tribunal that she had lodged a complaint against the member with the Judicial Commission, as a result of which it was ‘inappropriate for him to make determinations in respect of this tenancy dispute’.
In an email, also on 16 March 2023, the Registrar informed Ms Anderson that her complaints ‘have been dealt with previously and no further action will be taken in relation to those complaints’. Ms Anderson responded in an email addressed to that person:
… the complaints you refer to as having been dealt with previously were made to you and no action was taken. The inappropriateness of you now dismissing this complaint would be obvious to a complete fool.
I will include this response in my submission of systemic corruption in Victoria’s courts to IBAC.
It all began in VCAT with you.
On 21 March 2023, Ms Anderson emailed VCAT and said:
I refer to previous correspondence in respect of the above hearing and, for appeal purposes, formally put on the record that I will not be attending the hearing on the grounds of judicial bias and denial of procedural fairness. I have already disputed the facts presented by the owner and his agent in this dispute in my application R2022/331199 lodged on 25/11/2022 which precedes this application by several months but has, as yet, not been scheduled for hearing.
I further confirm that I will not be attending any hearing of the several applications that now make up the dispute with the owner for breaches under the RTA until I have VCAT orders for the urgent repairs requested on 31/8/2022 and referred to in my application is to VCAT on 25/11/2023 (sic)… which, as I have already argued, take priority under law over all matters due to their health and safety consequences.
I note that the Tribunal is aware the three complaints of judicial bias have already been lodged with the Judicial Commission, two in respect of the hearing of the owner’s application for possession which relied on false Statutory Declaration, and a further complaint against member [the Member is named] making orders after a complaint had been lodged against him prioritising this hearing over the hearing for urgent repairs.
The Tribunal has also been made aware that a further complaint will be lodged with the Independent Broad-based Anti-corruption Commission (IBAC) this week in respect of this ongoing prejudice and discriminatory treatment…
Written reasons and the transcript or audio will therefore be required.
The email then had 19 paragraphs under the heading ‘Summary of Dispute & VCAT Procedural Bias’, in which the same or similar points were made: the Notices to Vacate were invalid and retaliatory, the statutory declarations were false, and VCAT was unfairly listing Mr Sharpe’s applications for hearing in priority over hers. She referred to her history of complaints, and contended that, several years ago, there had been a ‘corrupt judgment’ that had caused her to lose her home to ‘a Westpac fraud’.
Also on 21 March 2023, Ms Anderson emailed VCAT advising that she was ‘challenging’ the 3 March 2023 Notice to Vacate on the grounds that it was of no effect as it was made in retaliation for disputing arrears and requesting repairs, and that the statutory declaration accompanying it contained false information.
On 24 March 2023, Mr Sharpe’s agent emailed to Ms Anderson a rent ledger for the hearing scheduled for that afternoon. Ms Anderson replied, copying VCAT, advising that she disputed the ledger and that she would not be attending the hearing because it was ‘illegal’ given that her application for urgent repairs had not been scheduled. She also noted that she had stopped paying rent because VCAT had prioritised the ‘false possession’ application over hers. She said she would be appealing any possession order and so written reasons were ‘required’, and that she would be ‘ignoring all further communication that does not involve [her] applications…’.
The same day, on 24 March 2023, Ms Anderson lodged a complaint with a IBAC about ‘systemic corruption and judicial mismanagement in Victoria’s court system’. The specific areas of complaint were against:
(a) a senior member of VCAT and a principal registrar of VCAT who, in 2011 or 2012, found against Ms Anderson;
(b) a magistrate at the Heidelberg Magistrates’ Court who, in 2013, ‘used personal safety laws to prevent [her]’s from attending’ owners corporation’s meetings;
(c) a judicial registrar and associate justice of this Court in 2016 in relation to the allowance of fees;
(d) two judges in the County Court for conduct between 2015 and 2017; and
(e) four justices of the Court of Appeal of this Court in 2018 associated with a decision by which Westpac was entitled to obtain possession of a property owned by her.
C. The 24 March 2023 VCAT hearing
On 24 March 2023, proceeding 2023/6067 came on for hearing. In accordance with her communications sent in advance, Ms Anderson did not appear. VCAT ordered Ms Anderson to vacate the rented premises and directed the principal registrar, on payment of the prescribed fee, to issue a warrant of possession. It also ordered her to pay $3,880 in outstanding rent.
On 25 March 2023, Ms Anderson applied to VCAT to reopen the application on the grounds that the Tribunal did consider the reasons for which she did not appear and the ‘full history of the dispute’. On 30 March 2023, Ms Anderson withdrew this application and sought written reasons for the orders made on 24 March 2023.
On 5 May 2023, VCAT published reasons. The reasons refer to the commencement of the application, VCAT’s refusal to adjourn the hearing, and that Mr Sharpe had provided and filed a bundle of documents in advance of the hearing. The reasons expressly refer to, and set out passages from, Ms Anderson’s email of 21 March 2023 referred to in para 25 above. After setting out some further procedural matters, the Reasons then provide:
10 The following written reasons reflect the oral reasons given on 24 March 2023, with some editing for clarification and context.
Reasons for decision
11 The residential rental provider gave the renter at least 14 days’ notice to vacate when the renter owned at least 14 days rent.
12 This is the first, second, third or fourth occasion of non-payment of rent within a twelve month period stating in the date the residential rental agreement commenced or the anniversary of that day.
13 The renter did not pay the full amount of rent owed on or before the termination date on the notice to vacate.
14 Having made an assessment under section 331 of the Act, on the basis of the evidence that is available, VCAT is unable to find that satisfactory arrangements can be made to avoid financial loss to the residential rental provider.
15 The rent is $350.00 per week and is currently paid to 5 January 2023 with $20 on account. The rent owed to today is $3,880,00.
16 Having regard to the matters in section 330A of the Act, it is reasonable and proportionate to make a possession order.
17. The residential rental provider is entitled to a possession order.
D. The arguments based on procedural fairness and discrimination
I do not accept that Ms Anderson was denied procedural fairness (or natural justice, which is the same thing). Ms Anderson was given the opportunity to attend and to make whatever submissions she wished to make, and to provide whatever evidence she wished to provide, but made a considered decision not to do so. The fact that the Tribunal heard Mr Sharpe’s application when it did does not indicate that the Tribunal was biased and would not indicate to a reasonable lay observer that it might be biased.[2] The Tribunal was not obliged to hear her applications for compensation and for an order that repairs be made before or at the same time that it heard Mr Sharpe’s application for possession. Similarly, it was not an error of law for the Tribunal to decide the application before it, rather than first engage in an investigation into the allegations that Ms Anderson had made that it was prejudiced or biased against her.
[2]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-345 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Further, there is real merit in Mr Sharpe’s submission that if a party does not appear to prosecute an argument, that party cannot complain of unfairness if that argument is not considered.
Ms Anderson also contended that some emails that she had sent to the Tribunal had been ‘intercepted’ and not considered. She drew this conclusion because on some occasions when she sent an email she received an automatic acknowledgment, and on others she did not. This was an assertion made by her, and was not deposed to in an affidavit. One of the emails that she contends fell into this category was her email of 21 March 2023, which was an email that was expressly referred to in the Tribunal’s reasons as having been received. This conclusively establishes that her failure to receive an automatic acknowledgement does not mean that an email was not received or considered.
Her submission has not satisfied me the Tribunal was acting unlawfully by ‘intercepting’ emails so that they could not then be considered.
Ms Anderson raised another argument in her oral submissions (which was also set out in a document she circulated at the hearing of the appeal). She contended that the Tribunal was not able to draw an adverse inference from her failure to attend the hearing and give evidence unless it first gave her notice of the potential that such an inference might be drawn. I do not agree that the Tribunal may never draw such an inference without first giving an unrepresented party notice that it might do so. Each case must turn on its own facts, and the principle, set out in Jones v Dunkel[3] and related cases, is really a common-sense rule of the reasoning process that a finder of fact may engage in when evidence that is expected to be called is not called.
[3](1959) 101 CLR 298.
In Comaz (Aust) Pty Ltd v Commissioner of State Revenue,[4] Croft J found that the Tribunal failed to provide procedural fairness when it drew, without warning, an inference against a unrepresented party. That case, and the Court of Appeal decision in Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq)[5] upon which Croft J relied, both concerned a party who actively participated in the proceeding. In Comaz (Aust) Pty Ltd v Commissioner of State Revenue, the party failed to call a particular witness. In Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq), the party elected to call no evidence at all. In both cases the party was before the decision maker and the decision maker had the opportunity to raise the issue of inferences with that party, but did not do so. The situation is, in my view, potentially different where a party makes a deliberate decision not to participate in a hearing at all. It is difficult to see how procedural fairness requires the decision maker in those circumstances to inform such a person that the decision maker might more readily accept evidence led by the other party if the absent party does not challenge or contradict it. The proposition is obvious. Be that as it may, there is no basis to conclude in this case that the Tribunal drew inferences against Ms Anderson from her failure to call evidence that she might have been expected to call or did anything other than make a decision based on the material that was placed before it.
E. The arguments based on s 331 of the Residential Tenancies Act 1997
[4](2015) 101 ATR 339.
[5](2014) 46 VR 283.
It was common ground that, as at the time of the VCAT hearing, Ms Anderson was not paying rent and was contending that she was not obliged to pay rent because of the claims she had against Mr Sharpe. As she put it in her written submission in this Court, she was ‘not prepared to add further injury to herself by paying rent while she was under threat of an illegal eviction during a rental crisis regardless, so put rent payments on hold shortly after her request to have her application (R2022/33199) joined to the Respondents’ application for possession (R2023/211) was refused …’.
As noted above, s 331 of the Residential Tenancies Act 1997 provides that VCAT ‘may dismiss or adjourn an application for a possession order’ if the Tribunal ‘considers that satisfactory arrangements have been or can be made to avoid financial loss to the residential rental provider’. The Tribunal stated that it had made an assessment under s 331 of the Act and that it was ‘unable to find that satisfactory arrangements can be made to avoid financial loss to the residential rental provider’. I note, also, that the permissive ‘may’, rather than the mandatory ‘must’, is used in s 331 of the Residential Tenancies Act 1997.
Ms Anderson contends that there was ‘no evidence in support’ of the Tribunal’s finding. This application is misconceived, in the sense that the Tribunal did not make a finding, but instead said that it was unable to make a finding. Probably, Ms Anderson is really submitting that the Tribunal was obliged to make a finding that satisfactory arrangements could be made to avoid financial loss to the residential rental provider and thus to dismiss the application for possession. Ms Anderson, however, is only able to appeal on a question of law. She has not established that the only conclusion reasonably open to be made at the hearing, in circumstances where she did not participate in the hearing and was refusing to pay rent, was that satisfactory arrangements could be made to avoid financial loss to Mr Sharpe, or that the application for possession should be dismissed for that reason.
F. The arguments based on s 330 and s330A of the Residential Tenancies Act 1997
Ms Anderson contends that the Tribunal failed ‘to give due consideration’ to s 330A(i) of the Residential Tenancies Act 1997 by failing to consider the conduct of Mr Sharpe and his agents, and the ‘ongoing dispute in respect of the rent, rental ledger and urgent repairs’ or her allegations of ‘retaliatory evictions’.
Section 330(1) relevantly provides that the Tribunal must make a possession order if it is satisfied that is it ‘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 rental provider and the renter.’ Section 330A relevantly provides that:
330A What is reasonable and proportionate?
For the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to the following—
(a) the nature, frequency and duration of the conduct of the renter ... which led to the notice to vacate being given …;
(b) whether the breach is trivial;
(c) whether the breach was caused by the conduct of any person other than the renter …;
…
(f) whether the renter … has, or will soon have, capacity to remedy the breach and comply with any obligations under the residential rental agreement …;
…
(h) whether any other order or course of action is reasonably available instead of making a possession order;
(i) as the case requires, the behaviour of the residential rental provider …;
(j) any other matter the Tribunal considers relevant.
These are, as the language makes clear, mandatory considerations. If a decision were made without regard being given to the interests and impacts on the residential rent provider and the tenant, whether the breach was trivial, whether it was caused by someone other than the renter, whether the renter will soon be able to remedy the breach, whether any other course of action is reasonably available and (where relevant) the behaviour of the residential rent provider, then the decision would be unlawful.[6]
[6]See, eg, Hanson v Director of Housing [2022] VSC 710, [23]-[24] (Walker JA).
I note, too, though, that although the Tribunal is required to consider these matters, it is not under an obligation to make its own inquiries in addition to what has been provided to it by the parties.[7]
[7]Ibid [50].
The Tribunal had before it not just the 21 March 2023 email referred to in para 25 above that Ms Anderson had sent, but also a 99 page Tribunal Book (or 101 pages, if the index is counted). The Tribunal Book included copies of:
(a) the Notice to Vacate (which relied on unpaid rent) and proof of its service;
(b) a signed declaration asserting that there were arrears of rent owing, and a rent ledger setting out rental payments and the level of arrears from the commencement of the tenancy;
(c) a ‘temporary rent reduction agreement’ made on 8 September 2021 (during the COVID19 pandemic);
(d) a Note of Proposed Rent Increase (from $330 to $350 per week) dated 8 July 2022, a ‘comparative market analysis’ asserting that the market rent was between $330 and $360 per week, and Ms Anderson’s response that she would be applying to Consumer Affairs Victoria due to her belief that the rent was ‘too high given the many issues with the property’;
(e) Ms Anderson’s 20 January 2023 email stating that rent payments would be ‘put on hold under the resolution of the financial claim lodged with VCAT in October 2022’;
(f) Various communications relating to the making of repairs. These include:
(i) A document dated 31 August 2022 from Ms Anderson setting out the repairs that she wanted performed,
(ii) An email to Ms Anderson from the estate agents dated 5 September 2022 stating that they had ‘engaged contractors to undertake the works as listed on your attachment’ and advising that people would be in contact with her to arrange entry to make those repairs and to make inspections;
(iii) an email from Ms Anderson sent on 20 February 2023 listing the repairs that she sought to be performed and stating that she did not want Mr Sharpe to be on the property because of her concerns about his honesty;
(iv) Various work orders, quotes and/or invoices for cleaning of the guttering, servicing and testing the gas heater, replacing the convection fan, installing a new power point, performing an electrical safety check, replacing front and back door locks and making them easier to open, checking the concrete in the driveway, fixing the lock on the laundry door, and fixing the split system (I should not, though, that the refrigeration mechanic who inspected the split system said that it was ‘under sized for the space’); and
(v) Print outs of text messages between Ms Anderson and tradespeople that suggest that Ms Anderson there were some problems making arrangements for the work to be done. For example, in one exchange an electrician said he or she could ‘definitely do this electrical work on Wednesday’, and Ms Anderson replied: ‘No I’m not available and won’t be making myself available to someone who books a job (twice) and doesn’t bother texting to say he can’t make it. Goodbye.’ There was also a statement from a tradesperson saying that on 7 March 2023 Ms Anderson had refused them permission to enter the premises to perform repairs because ‘she had issues’ with the estate agent ‘which was a VCAT issue’; and
(g) Ms Anderson’s 4 March 2023 application (proceeding for urgent and non-urgent repairs, in which she complains about the state of the premises and the behaviour of the tradespeople.
As noted above, the Tribunal asserted that it had regard to the matters in s 330A of the Act and concluded that it was reasonable and proportionate to make a possession order. The failure on the part of the Tribunal separately to identify s 330A(i) or expressly to refer to the interests of and impact on Ms Anderson or other matters in its reasons does not justify a conclusion that it failed to have regard to that subsection or those matters. It could well have done so, yet failed separately to record its having done so in the reasons. Ms Anderson was not present at the Tribunal hearing and has not produced any evidence of what occurred during the course of that proceeding. In those circumstances, I am not satisfied that the Tribunal failed to have regard to the matters it was required to consider when determining whether it was ‘reasonable and appropriate to make a possession order’ including the interest and impact on Ms Anderson of such an order and Mr Sharpe’s behaviour (or perhaps failed to consider whether the case required it to have regard to his behaviour) and the other matters set out in s 330A of the Residential Tenancies Act 1997.
G. The argument based on the Tribunal’s reasons
There is no dispute that the Tribunal was obliged by s 117 of the Victorian Civil and Administrative Act 1998 to give reasons for its orders.[8] That section requires, among other things, the Tribunal to set out its findings on material questions of fact.
[8]Ms Anderson had sought reasons before the decision was made – cf Victorian Civil and Administrative Tribunal Act 1998 (Vic), sch 1 cl 76.
Mr Sharpe submitted that the reasons were adequate because, among other things, the Tribunal ‘can only explain its position on the evidence and argument that is put before it’ and that ‘the Court must not burden the Tribunal with an expectation that it is the Tribunal’s role to speculate what the case of a party could or should be.’ That submission has force. However, the material that was forwarded to the Tribunal clearly revealed Ms Anderson’s central contention that Mr Sharpe had failed to comply with a legal obligation on him to effect repairs to the property, and that he was requiring her to vacate the premises as a form of improper retaliation for her attempting to enforce her legal rights. If that were the situation, then Mr Sharpe’s conduct would be a matter to be considered under s 330A(i) of the Residential Tenancies Act 1997 in assessing whether it was ‘reasonable and proportionate’ to make a possession order.
Here, it would have been open to the Tribunal to have rejected Ms Anderson’s position if it positively accepted Mr Sharpe’s position that he had tried to effect repairs and was not motivated by a desire to retaliate against Ms Anderson for asking him to do so. It probably would have also been open to the Tribunal to reject Ms Anderson’s position if it took the view that the material she presented was insufficient to establish that Mr Sharpe was in breach of his obligations and motivated by a desire to retaliate. Ms Anderson’s failure to appear to prosecute her argument (or to make herself available for cross-examination) was a factor upon which the Tribunal could rely in either case. It may also have been open to the Tribunal simply to refuse to accept any of Ms Anderson’s material as having probative force in circumstances where she simply made assertions by email and did not appear. It may also have been open to the Tribunal to form the view that it was ‘reasonable and proportionate’ to make a possession order given Ms Anderson’s conduct even though it considered that Mr Sharpe was, in some way, in breach of his obligations under the lease. It might have formed the view, for example, that it was reasonable and proportionate to make a possession order even if Ms Anderson did have a claim to damages because in those circumstances the proper course would have been to continue to pay rent in the meantime. It might have reached these conclusions even if Ms Anderson might have had difficulty obtaining alternative premises.
The difficulty, however, is that Tribunal’s reasons simply make no reference at all to what I have described as Ms Anderson’s central contention or what use it made, if any, of Ms Anderson’s failure to appear or the other matters adverted to above. In the circumstances of this case, it remains unclear why the Tribunal reached the conclusion it did that it was ‘reasonable and proportionate’ to make a possession order. For that reason, in my view the reasons fail to meet the legal standard required by s 117 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).[9] Ms Anderson’s failure to participate in the hearing did not mean that the Tribunal was relieved of its statutory obligation to consider, in particular, ‘as the case requires, the behaviour of the residential rental provider’ and ‘the interests of, and the impact on’ Ms Anderson of the possession order[10] and to provide reasons that explained why it reached the conclusions that it did.
[9]See generally: State of Victoria v Turner (2009) 23 VR 110, 173 [240] (Kyrou J); Dimatos v Coombe [2011] VSC 619, [20] (Beach J); Burgess v McGarvie [2013] VSCA 142, [65] (Nettle and Neave JJA); Weber v Carkeek [2020] VSC 366, [126] (Richards J).
[10]Residential Tenancies Act 1997 (Vic) ss 330(f)(ii) and 330A(i).
Mr Sharpe relied on observations by Osborn J in The Gombac Group Pty Ltd v Vero Insurance Ltd[11] that the Tribunal is only required ‘to engage in the practical task of resolving fairly the issues which had been presented to it by the parties’ and that the Court hearing an appeal from the Tribunal must ‘recognise the forensic reality of the way in which the case was put to the Tribunal.’[12] I agree, with respect, with these observations. But I do not consider that they apply here to save the Tribunal’s reasons. Those observations have greater force outside a statutory regime where the parties make it clear what issues are in dispute and what issues are not; in those circumstances, a party cannot complain that the Tribunal did not consider a matter not put in dispute. But that is not this case. The power to make possession orders is closely regulated by the Residential Tenancies Act 1997. It is clear, in my view, that Ms Anderson did not make any concessions and accordingly the Tribunal was required to consider the matters required by the Residential Tenancies Act 1997 as a condition of the validity of the possession order made, and so was required to provide reasons that demonstrated that that had been done.
H. The order for the payment of rent.
[11][2005] VSC 442.
[12]Ibid [59].
Para 2 of the Tribunal’s 24 March 2023 order requires Ms Anderson to pay to Mr Sharpe outstanding rent in the amount of $3,880. The order signed on 24 March 2023 and the reasons published on 5 May 2023 both state as a finding of fact:
The rent is $350.00 per week and is currently paid to 05 January 2023 with $20,00 on account. The rent owed today is $3,880.00
Mr Sharpe placed material before the Tribunal that supported this finding. Ms Anderson did not appear to present argument or to challenge the evidence relied on by Mr Sharpe. The specific statutory criteria that have to be considered before a possession order may be made do not have to be considered before an order for the payment of outstanding rent is made. The Tribunal was entitled to accept Mr Sharpe’s material as to the amount of the outstanding rent, which it clearly did. In those circumstances, the reasons given in support of the quantification of the amount of rent owed are sufficient. Accordingly, there is no reason to disturb para 2 of the Tribunal’s 24 March 2023 order.
I. Disposition
Ms Anderson seeks orders that the Tribunal be directed to schedule the hearing of her applications before any further applications by Mr Sharpe are heard. I am not prepared to make such an orders. The scheduling of proceedings is a matter for the Tribunal.
Because I have found that the reasons given for the making of the possession order do not meet the legal requirement, paras 1 and 3 of the Tribunal’s 24 March 2023 order must be set aside and remitted for redetermination.[13] Those are the paragraphs that order Ms Anderson to vacate the premises and for the issuing of a warrant for possession.
[13]See, eg, Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480, 505 [66] (French CJ, Crennan, Bell, Gageler and Keane JJ).
I am empowered to order whether or not the Tribunal is to be constituted for the rehearing by the same member, and whether or not there should be the hearing of further evidence, and otherwise to make any order that I consider appropriate.[14] In the circumstances of this case, it is appropriate to make an order that the matter be remitted to the Tribunal constituted by the same Member without the hearing of further evidence.[15] The Tribunal should, however, have the power to have the matter heard instead by a different Member if that is what the Tribunal wishes to do, or to receive additional evidence if the Member hearing the matter considers that appropriate.
[14]Victorian Civil and Administrative Appeals Tribunal Act 1998 (Vic) ss 148(7)(c), 148(7)(d) and 148(8).
[15]Cf Walia v Staycool Heating & Air Conditioning (2010) 33 VAR 412, 416.
There is a risk that referring a matter back to the initial decision maker might lead the decision maker simply to ‘fix up’ the reasons. But there is no rule that every time reasons are found to be inadequate there must be a determination by a new decision maker.[16] Here, the Tribunal provided conclusions, but did not expose the reasoning that led to those conclusions. I am not satisfied that the Member who heard the matter failed to accord Mr Anderson procedural fairness or otherwise acted improperly in any way. There is no reason to think that the Member will not provide reasons that accurately set out his reasoning process. In the circumstances of this case, where Ms Anderson refused to appear before the Tribunal, I also accept Mr Sharpe’s submission that to remit the matter for a rehearing before a different Member – or to start again – would impose an unfair burden on Mr Sharpe.
[16]See, eg, Vegco Pty Ltd v Gibbons (2008) 30 VAR 1, 10-11 [33] (Kyrou J).
For the above reasons, I will grant leave to appeal, allow the appeal in part, set aside paras 1 and 3 of the orders made on 24 March 2023, and dismiss the appeal against para 2 of the orders made on 24 March 2023. I will remit the application for an order for possession and for a warrant made in proceeding number 2023/6067 to be reheard by the Member before whom the application was previously heard without the hearing of further evidence, subject to direction by the Tribunal to the contrary.
I will hear the parties on the question of costs. My provisional view is that Mr Sharpe should not be ordered to pay Ms Anderson’s costs, and that Mr Sharpe should be granted a certificate under the Appeal Costs Act 1998.
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