Bowers-Taylor v The Michael Walsh Superannuation Fund

[2024] VSC 154

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 00708

JONATHAN BOWERS-TAYLOR	Applicant
v
THE MICHAEL WALSH SUPERANNUATION FUND	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2024
DATE OF JUDGMENT:	26 March 2024 (Revised)
CASE MAY BE CITED AS:	Bowers-Taylor v The Michael Walsh Superannuation Fund
MEDIUM NEUTRAL CITATION:	[2024] VSC 154

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APPEAL – Stay of orders application – Residential tenancy – VCAT’s orders granting the rental provider possession following non-payment of rent – Renter seeking leave to appeal the orders – Renter seeking stay order – Judicial Registrar refusing application – De novo appeal – Stay refused – Residential Tenancies Act 1997 s 91Z.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr J Price	Garland Hawthorn Brahe Lawyers

HIS HONOUR:

1. The applicant, Mr Bowers-Taylor, appeals orders of Judicial Registrar Keith made on 28 February 2024 refusing to issue a stay of orders of the Victorian Civil and Administrative Tribunal made on 18 January 2024. 

1. The VCAT orders concerned an apartment in Darling Street, South Yarra, and provided that the renter, Mr Bowers-Taylor, was to vacate the rented premises by 17 February 2024.  The rental provider’s application to VCAT was based on the non-payment of rent.

1. The VCAT Member’s orders contain the finding that the rental provider gave Mr Bowers-Taylor at least 14 days’ notice to vacate when he owed at least 14 days’ rent.  Mr Bowers-Taylor commenced this proceeding seeking leave to appeal VCAT’s orders.  He sought a stay of them, but the Judicial Registrar refused that application. Mr Bowers-Taylor has now appealed the Judicial Registrar’s order and I have heard that de novo appeal this morning in the Practice Court.  Mr Bowers-Taylor sought the setting aside of the Judicial Registrar’s orders, leave to appeal from the VCAT order, and that order 1 of the VCAT’s order be stayed pending the hearing and determination of his appeal.

1. Mr Bowers-Taylor argued that if he does not receive a stay his appeal will be nugatory or futile. Stays are not issued automatically, but are discretionary orders. There is no right to appeal VCAT’s orders without leave. Some authorities suggest that a stay pending an application for leave to appeal will only be granted in exceptional or special circumstances.[1] One relevant matter is whether a successful appeal would be rendered nugatory if a stay of the initial orders is not granted. 

   [1]See for example Maher v Commonwealth Bank of Australia [2008] VSCA 122 [19]-[27]; Medical Practitioners Board of Victoria v Lal (2008) 30 VAR 347; [2008] VSCA 264 [15].

1. The onus for obtaining a stay is on the party seeking it, in this case Mr Bowers-Taylor.  The principal issue he raised this morning to indicate the strength of his appeal is that he was not served with the notice to vacate as is required by the Residential Tenancies Act 1997.[2]

   [2]Section 91Z.

1. The rental provider’s case to VCAT was that Mr Bowers-Taylor was served with the notice to vacate by registered post.  Mr Bowers-Taylor contested that and said that he could prove that he did not receive a copy of it by registered post. 

1. Before me, both in oral submissions and in a supporting affidavit, the rental provider’s case was that Mr Bowers-Taylor was served by an email sent to an email address and that he had agreed in the rental agreement to the service of notices and other documents by email sent to that address.  He said that he did not receive such an email. He also said that the email address used by the rental provider had ceased to be his correct email address, a fact that he had notified the rental provider’s agent in August 2023, two months before the notice to vacate is said to have been served by email. 

1. The issue of whether the notice to vacate was validly served may be determined at the final hearing of this proceeding.  There is some evidence before me today, although incomplete, that the VCAT decision was made on the basis of the rental provider’s assertion that the notice to vacate had been sent by registered mail. But that is no longer its case as it now contends that it was sent by email.  It has to be kept in mind that VCAT’s finding as set out in its order, was that 14 days’ notice to vacate was given, not as to how that notice was given. It is at least arguable that this Court, if persuaded that VCAT erroneously found that the notice to vacate had been given by registered post, may still dismiss the proceeding if it is satisfied that the notice to vacate had been served by email. 

1. The other matters relevant to the exercise of the discretion to grant a stay include as I have said, Mr Bowers-Taylor’s argument that the absence of a stay may render his appeal nugatory.  I also take into account that Mr Bowers-Taylor owes in excess of $14,000 in rent to the rental provider and that there is no certainty that those arrears will be paid in any timely manner. Rent would continue to accrue if he is entitled to regain possession of the apartment.

1. In addition, Mr Bower-Taylor did not comply with VCAT’s order in that, after the execution of the warrant of possession, on two occasions he re-entered and re-occupied the premises.    

1. It is important to emphasise that orders of a tribunal or a court must be obeyed until they are either set aside or stayed.  Obedience to court and tribunal orders is not optional even if a right of appeal from them may exist.

1. After considering these matters,  in my opinion, because of the outstanding rental, the actions Mr Bowers-Taylor took to re-enter the premises after being removed and because of the consideration that this Court may ultimately find that the proceeding should be dismissed because the notice to vacate was validly served, it is appropriate to refuse to grant a stay of VCAT’s orders.

1. I therefore dismiss the applicant’s appeal from the Judicial Registrar’s orders of 28 February 2024 and his applications made in paragraphs 1 and 4 of his summons dated 20 March 2024.  The future of the proceeding will be dealt with at the forthcoming directions hearing.