Anderson v Sharpe (No 2) - [2024] VSC 279

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 01930
S ECI 2024 02012

LENA ANDERSON	Applicant
v
DAVID SHARPE	Respondent

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	23-24 May 2024
DATE OF JUDGMENT:	29 May 2024
CASE MAY BE CITED AS:	Anderson v Sharpe (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 279

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APPEAL – Residential Tenancies – Appeals against VCAT orders for possession and rental arrears following notices to vacate based on non-payment of rent and intention that respondent landlord’s family member move into property – Where applicant tenant contends respondent is in breach of obligations and seeks compensation – Whether applicant is entitled to cease paying rent while remaining in possession – Whether Tribunal erred in law by hearing the respondent’s applications for possession without first or also determining the applicant’s applications for compensation – Whether the Tribunal erred in law in concluding that notices to vacate were valid – Whether the Tribunal erred in law in concluding it was reasonable and proportionate to make possession orders – Distinctions between errors of law and errors of fact – Whether the Tribunal failed to meet obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic) – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – Residential Tenancies Act 1997 (Vic) ss 91ZM, 91ZZA, 91ZZO, 330, 330A and 331 – Charter of Human Rights and Responsibilities Act 2006 (Vic).

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

TABLE OF CONTENTS

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

B. The statutory framework............................................................................................................ 3

C. The findings in the Tribunal..................................................................................................... 6

C.1The order to vacate based on non-payment of rent......................................................... 6
C.2 The order to vacate based on Mr Sharpe’s wish to have his daughter move into the premises.............................................................................................................................................. 10

D. Was Ms Anderson entitled to cease paying rent?................................................................ 17

E. Ms Anderson’s compensation claim....................................................................................... 18

E.1... Did the Tribunal err by hearing Mr Sharpe’s applications without first determining, or determining at the same time, Ms Anderson’s claim for compensation?................. 18
E.2.Did Deputy President Warren err by failing to make findings on Ms Anderson’s compensation claim?......................................................................................................... 19

F. Did Deputy President Warren err in law in concluding that Ms Anderson was 14 days in arrears for the purpose of determining the validity of the notice to vacate?............................... 19

F.1The rent increase.................................................................................................................. 19
F.2The rent owing as at 25 January 2023 notice to vacate................................................... 20

G. Did Deputy President Warren or Senior Member Campana otherwise make errors of law in their determinations?................................................................................................................ 21

H. A return to the questions of law.............................................................................................. 26

H.1Questions 1 to 3 have already been covered................................................................... 26
H.2The Charter of Human Rights and Responsibilities Act 2006 (Vic).................................... 26
H.3The failure of the parties to notify the Attorney-General or the Commission.......... 28

I. Abuse of process?........................................................................................................................ 30

J. Final observations and disposition.......................................................................................... 30

HIS HONOUR:

A. Introduction

Since 26 June 2020, Lena…

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 (No 2)

Details

AGLC: Anderson v Sharpe (No 2) [2024] VSC 279
Case: [2024] VSC 279
Decision Date: 29 May 2024

CaseChat Overview and Summary

Anderson, the tenant, brought an appeal against the decisions of the Victorian Civil and Administrative Tribunal (VCAT) which upheld the landlord's applications for possession and rental arrears. The landlord, Sharpe, sought to evict Anderson based on non-payment of rent and the intention that a family member move into the property. Anderson argued that Sharpe was in breach of their obligations and sought compensation. The central issue was whether Anderson was entitled to cease paying rent while staying in possession, and whether the Tribunal erred in hearing the landlord's applications without first determining the tenant's claims for compensation. Additionally, the court examined whether the Tribunal erred in law by concluding the notices to vacate were valid and whether it was reasonable and proportionate to grant the possession orders. The appeal also questioned whether the Tribunal failed to meet its obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The court held that VCAT did not err in law by hearing the landlord's applications for possession without first determining the tenant's applications for compensation, as the issues were not interdependent. The court found that the Tribunal's conclusion that the notices to vacate were valid was not an error of law, as the requirements of the Residential Tenancies Act 1997 (Vic) were met. The court also held that the Tribunal did not err in concluding that the possession orders were reasonable and proportionate, as it had considered the relevant factors and evidence. The appeal was dismissed, and the orders of VCAT were affirmed.

The court found no errors of law in the VCAT decision and affirmed the orders for possession and rental arrears. Anderson was ordered to vacate the property and pay the outstanding rental arrears to Sharpe. The court further held that the Tribunal did not fail to meet its obligations under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Orders