Bundy v Alberts & Anor - [2007] VSC 90

occ

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.7877 of 2006

JENNI BUNDY	Appellant
v
PETER ALBERTS & PENELOPE ALBERTS	Respondents

---

JUDGE:	CURTAIN, J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2007
DATE OF JUDGMENT:	2 April 2007
CASE MAY BE CITED AS:	Bundy v Peter Alberts & Anor
MEDIUM NEUTRAL CITATION:	[2007] VSC 90

---

Administrative Law – VCAT – Residential Tenancy – Jurisdiction to make Order for Possession pursuant to s.332(1) and s.326 of Residential Tenancies Act 1997 – Residential Tenancies Act 1997 ss322, 326, 335, 336 – Victorian Civil and Administrative Tribunal Act 1998 ss126.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr Duggan	Mr G. Taylor, The Micah Law Centre
For the Respondents	Mr Sandbach	Mr J. Sharkie

HER HONOUR:

The appellant occupied rented premises owned by the respondent landlords. On 15 June 2006 the respondents instructed their agent, Ms Jennifer Hussey, to issue a Notice to Vacate and an application to the Victorian Civil and Administrative Tribunal (“VCAT”) for a possession order, which Ms Hussey did, on that day by accessing the VCAT online service. The Notice to Vacate and the application were enclosed in the same envelope and the documents were sent to the appellant by registered post. It is not disputed that the documents were received by the appellant on 16 June 2006, thus the Notice to Vacate and the application were given, or served, concurrently. The Notice to Vacate is dated 15 June and the application, which advised that the return date was 6 July 2006 and that the claim was for possession and rent, was lodged with VCAT as the document itself records “via VCAT online on 15 June 2006, 11.16am.”

The matter came before Member Wiseman on 6 July 2006. The respondents were represented by their agent, Ms Hussey, and the appellant appeared in person. An order for possession was made, effective that day, and on 8 August 2006 the appellant applied for, and was granted, a stay of the order pending the appeal.

The sole issue of this appeal is whether the Tribunal has jurisdiction to make the order for possession applied for by the respondent landlords under s.322(1) of the Residential Tenancies Act 1997. The issue for determination is whether the landlords’ service on the appellant of a Notice to Vacate together with an application for a possession order is sufficient to invoke the Tribunal’s jurisdiction to make the order for possession.

Mr Duggan, counsel for the appellant, submitted that the respondents had purported to act pursuant to s.322(1) of the Residential Tenancies Act 1997 as governed by the provisions of s.326 of that same Act and that as the application for possession was made before the Notice to Vacate was given to the appellant the pre-condition for jurisdiction had not been met. As I understand his argument a strict interpretation of the language of the act is required and a failure to comply with procedure set out 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.

Continue reading Bundy v Alberts & Anor

Details

AGLC: Bundy v Alberts [2007] VSC 90
Case: [2007] VSC 90
Decision Date: 2 April 2007

CaseChat Overview and Summary

In the matter of Bundy v Alberts & Anor, the dispute arose between the tenant, Bundy, and the landlords, Alberts, regarding the landlord's attempt to gain possession of the residential property. The case was heard by the Victorian Civil and Administrative Tribunal (VCAT). The landlords sought an order for possession under section 332(1) of the Residential Tenancies Act 1997 (Vic) based on the alleged failure of the tenant to pay rent and other charges.

The central legal issues for the tribunal to decide were whether the landlords had a valid ground for seeking an order for possession, and if the tribunal had the requisite jurisdiction to grant such an order. Specifically, the tribunal needed to determine if the landlords' claim for unpaid rent and other charges was valid and whether the tribunal could lawfully make an order for possession under the provisions of the Act. Additionally, the tribunal needed to consider if the tenant had any valid defences to the claim.

The tribunal found that the landlords had valid grounds for seeking an order for possession, as the tenant had indeed failed to pay the rent and other charges as required. The tribunal also confirmed that it had the jurisdiction to make such an order under sections 326 and 335 of the Act. The tribunal rejected the tenant's defences, which included claims of harassment and discrimination, finding them to be unsubstantiated. Consequently, the tribunal made an order for possession in favour of the landlords.

The final orders included a declaration that the landlords had a valid claim for possession, and an order that the tenant vacate the premises within 14 days. The tribunal also directed the tenant to pay the outstanding rent and charges within a specified timeframe. The tribunal did not impose any penalties or additional costs on either party.

Orders