Baker v Culvenor - [2019] VSC 224

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 01381

DIANNE BAKER	Plaintiff
v
ALEXANDER TRISTAN CULVENOR t/as REDLINE MOTORCYCLES	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2019
DATE OF JUDGMENT:	10 April 2019
CASE MAY BE CITED AS:	Baker v Culvenor
MEDIUM NEUTRAL CITATION:	[2019] VSC 224

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CIVIL CLAIMS — Order of VCAT summarily dismissing civil claim on limitation defence — Plaintiff self-represented — Issue as to when cause of action arose — Tribunal found loan repayable on a date not advanced by the parties — Tribunal decided case on written submissions after limited hearing — Failure to find terms of contract — Appeal allowed — Limitation of Actions Act 1958 s 5(1)(a); Victorian Civil and Administrative Tribunal Act 1998 ss 75, 148.

ADMINISTRATIVE LAW — VCAT — Natural justice — Granting summary judgment on basis not advanced by parties —Parties not given opportunity to lead oral evidence or cross-examine witnesses — Denial of natural justice — Victorian Civil and Administrative Tribunal Act 1998 s 98, 102.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Defendant	Self-represented

HIS HONOUR:

The plaintiff, Ms Dianne Baker, seeks leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) made on 19 March 2018 summarily dismissing her proceeding against the defendant, Mr Alexander Culvenor. The plaintiff seeks leave to appeal pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). An appeal lies only with leave on questions of law.

The challenged decision of VCAT was the summary dismissal of a proceeding under s 75 of the VCAT Act on the ground that is ‘frivolous, vexatious, misconceived or lacking in substance’. The VCAT Member dismissed the plaintiff’s application on the basis that her claim against the defendant was commenced after the limitation period under s 5(1)(a) of the Limitation of Actions Act 1958 (‘Limitation Act’), as six years had elapsed since her cause of action accrued. The plaintiff’s application for leave to appeal is based on arguments that she was denied procedural fairness, and a range of other matters that are detailed below, which in summary were a failure to take into account relevant considerations and to properly apply the law.

The case at VCAT

On 21 January 2017, the plaintiff commenced a civil claim application against the defendant in VCAT. The plaintiff sought, inter alia, to recover loans that she purportedly paid to the defendant in and after 2005. At the time the loan money was allegedly paid, the defendant desired to open a motorcycle shop, ‘Redline Motorcycles’. The plaintiff claims that she loaned a sum in excess of $73,000 to assist him to open this business, and in consideration she was to become a formal equal partner once the business became profitable. The defendant denies that he promised to make her a partner, claiming that he offered her a partnership in…

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: [2019] VSC 224
Decision Date: 10 April 2019

CaseChat Overview and Summary

Baker v Culvenor was an appeal by the plaintiff from a decision of the Victorian Civil and Administrative Tribunal (VCAT) which summarily dismissed his claim for the recovery of money. The plaintiff, Baker, was self-represented and sought to recover a debt from Culvenor, who had previously loaned Baker money. The dispute centred on the enforceability of the loan agreement, with the central issue being the date on which the cause of action arose, thereby determining whether the claim was subject to limitation.

The primary legal issues the court had to address were the application of the Limitation of Actions Act 1958 and the principles of natural justice as they pertained to the procedural fairness of VCAT's decision. Specifically, the court needed to determine whether VCAT had the authority to decide the case on the basis of a loan repayment date that was not argued by either party. Additionally, the court had to assess whether VCAT's decision to grant summary judgment without providing the parties an opportunity to lead oral evidence or cross-examine witnesses violated the principles of natural justice.

In its reasoning, the court noted that VCAT had decided the case on a date for repaying the loan that neither party had argued, thus not following the parties' submissions. The court found that VCAT's decision was erroneous as it had not been given the opportunity to address or contest this date. Furthermore, the court held that by summarily dismissing the case without allowing the parties to present oral evidence or cross-examine, VCAT had failed to observe the principles of natural justice. Consequently, the appeal was allowed, and the matter was remitted back to VCAT for further consideration.

The final orders of the court were to allow the appeal and remit the matter back to VCAT for reconsideration, ensuring that the parties were given an opportunity to present their case fully and that any determinations were made on the basis of the evidence and arguments properly advanced by the parties.

Orders