Commonwealth Bank of Australia v Shrestha
[2024] VSC 229
•10 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 01695
| COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) | Applicant |
| v | |
| RIBESH SHRESTHA | Respondent |
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JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 November 2023, 15 March 2024 |
DATE OF JUDGMENT: | 10 May 2024 |
CASE MAY BE CITED AS: | Commonwealth Bank of Australia v Shrestha |
MEDIUM NEUTRAL CITATION: | [2024] VSC 229 |
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RESIDENTIAL TENANCIES – Application for leave to appeal from Victorian Civil and Administrative Tribunal – Mortgagee entitled to possession – Service of notice to vacate on renter – Application for possession order against renter – Whether order of the court showing the mortgagee’s entitlement to possession is required in every case - Residential Tenancies Act 1997 (Vic) ss 91I, 91ZZK, 91ZZO, 330, 325, 326.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S J Maiden KC with Ms A L Gaber | Clayton Utz |
| For the Respondent | No appearance |
TABLE OF CONTENTS
Factual background........................................................................................................................... 1
The question in the appeal............................................................................................................... 2
Applications for leave to appeal a decision of the Tribunal on a question of law............... 3
The provisions of the Residential Tenancies Act relevant to applications for possession orders by a mortgagee................................................................................................................................... 4
The Senior Member’s reasons......................................................................................................... 7
CBA’s submissions............................................................................................................................ 9
Mr Shrestha’s contention that the application for leave to appeal was out of time........... 12
Analysis – did the Tribunal err in the construction of s 325(5) of the RTA?........................ 13
The relevant principles of statutory interpretation................................................................ 13
The language of s 325................................................................................................................. 14
The scheme of the relevant RTA provisions........................................................................... 17
The broader context and the legislative history..................................................................... 20
Inconvenient consequences of the Tribunal’s construction.................................................. 23
Conclusion: s 325(5) of the RTA does not require that a court order must be obtained in order to make an application for a possession order.......................................................................... 25
Relief sought by CBA...................................................................................................................... 25
Application for release from the obligation in Hearne v Street.............................................. 27
Principles as to the obligation in Hearne v Street.................................................................... 29
The release from any Hearne v Street obligation applying to the documents is appropriate 32
Conclusion......................................................................................................................................... 33
APPENDIX: Hearing in the absence of Mr Shrestha................................................................ 35
HER HONOUR:
Commonwealth Bank of Australia (CBA) holds a mortgage over a residential property in Flemington of which the respondent, Ribesh Shrestha is the renter. After the mortgagor defaulted on the mortgage, CBA served a notice to vacate to Mr Shrestha pursuant to s 91ZZK of the Residential Tenancies Act 1997 (the RTA).
CBA applied to the Victorian Civil and Administrative Tribunal for an order of possession under s 325(1) of the RTA. The Tribunal dismissed the application on the basis that the application was required by s 325(5) of the RTA to be accompanied by a court order for possession, and the failure of CBA to obtain and produce a court order was fatal to the application.
The question in this proceeding is whether a mortgagee of premises subject to a residential rental agreement can obtain an order for possession from the Tribunal if no court order showing an entitlement to possession exists, or whether s 325(5) has the effect of requiring that that a court order showing an entitlement to possession must be obtained before any application for a possession order can be made.
For the reasons that follow, s 325(5), properly construed, requires an application by a mortgagee for a possession order under s 325(1) to be accompanied by a court order showing the entitlement to possession only if such an order has been obtained. In all cases a mortgagee must be legally entitled to possession of, or to exercise a power of sale in respect of the premises under the mortgage before serving a notice to vacate pursuant to s 91ZZK of the RTA. However that entitlement may exist in the absence of a court order. Section 325(5) requires that a copy of any court order which shows the entitlement to possession, if one exists, must be provided with the application for an order for possession.
Factual background
CBA holds registered mortgages over the property at 7 Elm Street, Flemington VIC (the Property). The Property is registered to Mr Selwyn Krepp. The mortgage relevant to this proceeding was registered on 12 December 2008 and secured over the Property (the Mortgage).[1] The Mortgage was provided as security for loans made to Mr Krepp in 2008.[2]
[1]Affidavit of Robert Charles Ralston sworn 2 May 2023 (Ralston Affidavit), [6]; Exhibit RCR-1, 30-33; see also Transcript of Tribunal hearing 03/03/23, T4.06-.29.
[2]Ralson Affidavit, Exhibit RCR-1, 51 (Deed of Appointment for Mortgagee, recitals).
On 1 February 2022, Mr Krepp entered into a rental agreement in relation to the Property with Mr Shrestha. CBA as mortgagee did not consent to the rental agreement.[3]
[3]Ralston Affidavit, [8]-[9]; Exhibit RCR-1, 57-58; See also Transcript of the Tribunal hearing 03/03/23, T8.25-.31.
Mr Krepp defaulted in payment of the loans.[4] On 2 September 2022, CBA served on Mr Shrestha a notice to vacate the property pursuant to s 91ZZK of the RTA. The notice stated that CBA held a mortgage over the land, that the landlord was in default of the mortgage, and that CBA intended to exercise a power of sale. The notice required Mr Shrestha to vacate the Property by 11 November 2022.[5]
[4]Ralson Affidavit, Exhibit RCR-1, 51 (Deed of Appointment for Mortgagee, recitals).
[5]Ralston Affidavit, [10]; Exhibit RCR-1, 61-65.
Mr Shrestha failed to vacate the Property. On 1 December 2022 CBA filed an application in the Tribunal for a possession order against Mr Shrestha pursuant to s 325(1) of the RTA.[6] The application was heard on 3 March 2023. Mr Krepp was permitted to appear on Mr Shrestha’s behalf at the hearing of the application. The Tribunal Senior Member dismissed the application on the basis that s 325(5) required that the applicant for a possession order have a court order for possession of the Property at the time of the application, and the fact that CBA did not have such an order was fatal to the application.[7]
[6]Ralston Affidavit, [12]; Exhibit RCR-1, 66-75.
[7]Commonwealth Bank v Shrestha [2023] VCAT 331 (Tribunal Reasons), [20], [26].
The question in the appeal
CBA seeks leave to appeal the Tribunal’s decision pursuant to s 148 of the Victorian Civil and Administrative TribunalAct 1998 (Vic) (VCAT Act), on a single question of law:
Did the senior member err in finding that s 325(5) of the Residential Tenancies Act 1997 (Vic) (the RTA) had the effect that an application for an order for possession of rented premises under s 325(1) of the RTA could not be made unless the applicant had obtained a court order entitling the applicant to possession and exercise a power of sale of those premises and a copy of that order accompanied the application?
The ground of appeal in support of the question is to similar effect:
The senior member erred in holding, in effect, that s 325(5) of the RTA had the effect that an application for an order for possession of rented premises under s 325(1) of the RTA could not be made unless the applicant had obtained a court order entitling the applicant to possession and exercise a power of sale of the premises and a copy of that order accompanied the application.
The Notice of Appeal as first filed sought orders for possession against Mr Shrestha. At the first hearing date for the proceeding on 16 November 2023, CBA advised that it would not seek that the possession orders be made by this Court, but rather that it sought, if successful on appeal, an order for remittal of the proceeding to the Tribunal. I granted leave to CBA to amend its Notice of Appeal to that effect.
The application for leave to appeal and the appeal were heard on 15 March 2024, after having been adjourned at Mr Shrestha’s request on 16 November 2023. The hearing in March proceeded in Mr Shrestha’s absence after I ruled that it was appropriate to proceed despite his non-attendance. The facts relevant to the adjournment and Mr Shrestha’s non-attendance at the hearing, and the reasons for my decision to proceed in Mr Shrestha’s absence, are set out in the Appendix to these reasons, so as not to detract from the central issue in the application and the appeal.
Applications for leave to appeal a decision of the Tribunal on a question of law
CBA’s application is brought pursuant to s 148 of the VCAT Act which states, relevantly:
148 Appeals from the Tribunal
(1)A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
….
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
As the High Court has observed:
Despite the description of proceedings under the section as an ‘appeal’, it confers original not appellate jurisdiction; the proceedings are ‘in the nature of judicial review’.[8]
[8]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ); Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320, 331, 332 [18] (French CJ, Gummow and Bell JJ).
A question of the proper construction of a statute is a question of law.[9] Pursuant to s 148(2A), the Court may only grant leave to appeal if it has a real prospect of success. The application for leave and the appeal, if leave was granted, were ordered to be heard together.[10]
The provisions of the Residential Tenancies Act relevant to applications for possession orders by a mortgagee
[9]Commissioner of State Revenue v Arrigo [2016] VSCA 339, [46] (Ashley, Santamaria and McLeish JJA).
[10]Orders of Keith JR dated 26 July 2023.
The key provision for consideration in this application is s 325 of the RTA, which governs the making of an application for a possession order by a mortgagee. That section addresses applications in various circumstances, including in the context of rooming houses and caravan parks. As relevant to the current application, it provides as follows:
325 Application for possession order by mortgagee
(1)A mortgagee of rented premises may apply to the Tribunal for a possession order for rented premises if—
(a)the mortgagee has given the renter a notice to vacate the premises; and
(b)the renter has not delivered up vacant possession of the premises.
…
(5)An application under this section must be accompanied by a copy of any court order which shows the mortgagee's entitlement to possession and to exercise a power of sale.
Section 91ZZK of the RTA identifies the circumstances in which a mortgagee may give notice to a renter to vacate the premises:
91ZZK Notice by mortgagee
(1)Subject to subsection (4), if a mortgagee in respect of rented premises under a mortgage entered into before the residential rental agreement was entered into becomes entitled to possession of, or to exercise a power of sale in respect of, the premises under a mortgage, the mortgagee may give the renter a notice to vacate the premises.
(2)The notice must specify a termination date that is not less than 60 days after the date on which the notice is given.
(3)If the mortgagee exercises a right conferred by subsection (1) in relation to a residential rental agreement, this Division, Part 5 and Part 7 have effect as if a reference to a residential rental provider under a residential rental agreement included a reference to the mortgagee.
(4)A notice to vacate must not be given by a mortgagee if the mortgagee has expressly or impliedly consented to the mortgagor entering into a residential rental agreement in relation to the rented premises, regardless of when the residential rental agreement was entered into.
Section 91ZZO of the RTA provides as follows:
91ZZO Form of notice to vacate
A notice to vacate given under this Division is not valid unless—
(a) it is in the relevant prescribed form; and
(b) it is addressed to the renter; and
(c)it is signed by the person giving the notice or by that person's agent; and
(d) it specifies the reason or reasons for giving the notice; and
(e)in the case of a notice to vacate given under section 91ZW, 91ZX, 91ZY, 91ZZ, 91ZZA, 91ZZB or 91ZZC, it is accompanied by documentary evidence, as approved by the Director from time to time, which supports the reason for giving the notice; and
(f)it specifies the termination date which is the date by which compliance is required.
Section 326 provides that an application under s 325 must be made after the termination date specified in the notice to vacate, but not later than 30 days after that date. Section 329 provides, relevantly, that the Tribunal must not determine an application for a possession order earlier than the termination date specified in the notice to vacate.
Section 330 sets out when the Tribunal must make a possession order. As applicable to an order sought by a mortgagee with respect to rented premises, it states:
330 Order of Tribunal
(1)The Tribunal must make a possession order requiring a renter … to vacate rented premises … on the day specified in the order if the Tribunal is satisfied –
(a)in the case of an application where notice to vacate has been given, that –
(i)the residential rental provider … or mortgagee was entitled to give the notice; and
(ii)the notice has not been withdrawn; and
(b) …
(c)that the residential rental provider … or mortgagee has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998;[11] and
(d)that the renter, resident or site tenant is still in possession of the rented premises … after the termination date specified in the notice to vacate …; and
(e)…
(f)that in the particular circumstances of the particular application, 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, each of the following in making the possession order:
(i)the residential rental provider … or mortgagee, as the case requires;
(ii)the renter, resident or site tenant;
(iii) any co-tenants or co-site tenants or other residents;
(iv)any neighbours or any other person who may be, or who has been affected by, the acts or behaviour of the renter… to whom the notice to vacate was given.
[11]Section 72(1) of the VCAT Act provides that an applicant must serve a copy of the application on each other party, any other person entitled to notice of the application under the Act, the enabling enactment or the rules, and on any person that the Tribunal directs be given notice of the proceeding.
Section 330A provides that for the purposes of determining whether it is reasonable and proportionate to make a possession order, the Tribunal must have regard to a range of matters, including for example:
(a) whether the breach is trivial (s 330A(b));
(b) whether the breach has been remedied as far as is practicable (s 330A(e));
(c) whether any other order or course of action is reasonably available instead of making a possession order (s 330A(h)); and
(d) ‘as the case requires, the behaviour of the residential rental provider, the provider’s agent, the rooming house operator, the caravan park owner, the caravan owner or the site owner’ (s 330A(i)).
The Senior Member’s reasons
The Tribunal Senior Member accepted that the Notice to Vacate issued to Mr Shrestha was in the form required by the Act, and that it had been served on him. The Senior Member also noted that there was no dispute that there was a mortgage over the property; that the mortgage had been entered into before the rental agreement (which satisfied the requirement in s 91ZZK of when a notice to vacate may be given); and that the renter had not vacated the rented premises.[12] However, the application to the Tribunal was not accompanied by a copy of any court order showing the applicant’s entitlement to possession. The Senior Member observed that it was her understanding that CBA did not have any order establishing its right to possession or sale at the time of the application or at the time of the hearing, which she regarded as fatal to the application.[13]
[12]Tribunal Reasons, [11]-[13], [18].
[13]Tribunal Reasons, [20].
The Senior Member gave reasons for interpreting s 325(5) of the RTA as requiring that the applicant for a possession order have an order establishing entitlement to possession and that it accompany the application. She acknowledged that the submission of CBA was that the word ‘any’ court order in s 325(5) meant that the requirement was to attach a court order if there was one. It was submitted that this was consistent with there being no requirement to have such an order at the time of giving the notice to vacate. The Senior Member acknowledged that this was a possible interpretation but not a natural one from the words of the section, its context in the legislation, and the wider context of the provision.[14] She considered that the word ‘any’ usually means ‘a’, ‘one’, some’ and the word ‘must’ identified the obligatory nature of the requirement that there be a court order and that it accompany the application to the Tribunal.
[14]Tribunal Reasons, [21]-[25].
The Senior Member also referred to the practice with respect to applications for possession under the law as it existed prior to the 2018 amendments, and the ‘usual expectation that the applicant’s entitlement [to] possession and sale would be evidenced by an order of the court’.[15] The Senior Member considered that the inclusion of the requirement in s 325(5) ‘made it clear to mortgagee applicants that this would be a requirement for an application to proceed’.[16]
[15]Tribunal Reasons, [32].
[16]Tribunal Reasons, [30], [32].
The Tribunal’s order stated:
The Tribunal finds that –
1.The applicant did not comply with section 325(4) of the Residential Tenancies Act 1997 (Vic) in making application to the Tribunal.
The Tribunal orders –
1.The application is dismissed for the reasons given orally at the hearing.
Having regard to the reasons given by the Senior Member, I construe the reference in the above order to s 325(4) as likely to have been a slip, and that the reference was intended to be to s 325(5) of the RTA.
CBA’s submissions
CBA submitted that the effect of the statutory construction adopted by the Tribunal was that in order for a mortgagee to obtain an order for possession of a property under a mortgage, it would be necessary first to obtain an order from the Supreme Court or County Court providing for possession against the landlord, and then make an application to the Tribunal for an order for possession as against the renter.[17]
[17]Applicant’s Outline of Submissions, 8 September 2023, [67]-[68]; Transcript 15/03/24, T64.12-.24, T98.02-.30.
It was submitted for CBA that the language and structure of s 325 suggested that a court order was not a necessary precondition to an application for possession being made. It was observed that s 325(5), requiring that an application ‘be accompanied by a copy of any court order’, appears to contemplate that the court order is not necessary in order to constitute the matter an ‘application’.[18] CBA also submitted that a notice to vacate under s 91ZZK(1) requires only that the mortgagee is entitled to possession of, or to exercise a power of sale over, the premises, which would be enlivened by any available means, including a contractual right to possession arising on default under the mortgage, or a statutory right to possession, for example by operation of foreclosure under s 79 of the Transfer of Land Act 1958 (Vic).[19] It was put that to permit the service of a valid notice to vacate under s 91ZZK without holding a court order for possession under the Act, but then if the renter failed to vacate, to require the mortgagee to obtain a court order before it could apply for a possession order from the Tribunal, would produce a ‘lack of harmony in the provisions’.[20]
[18]Applicant’s Outline of Submissions, 8 September 2023, [60] (emphasis added).
[19]Applicant’s Outline of Submissions, 8 September 2023, [62](a).
[20]Applicant’s Outline of Submissions, 8 September 2023, [63].
CBA also noted that the Tribunal’s interpretation could lead to an absurd result in circumstances where a mortgagor voluntarily surrenders the property to a mortgagee to exercise a power of sale. If the mortgagee still had to obtain a court order showing an entitlement to possession in order to obtain an order for possession against the renter in the Tribunal, the cost of the proceedings would unfairly cause the mortgage debt to increase on account of the additional court costs.[21]
[21]Applicant’s Outline of Submissions, 8 September 2023, [66].
Finally, CBA tendered evidence of documents relevant to the legislative history of s 325,[22] which was part of a set of new provisions inserted into the RTA by the Residential Tenancies Amendment Act 2018 (Vic) which commenced in 2021.[23] I admitted the documents on the basis that, although they were not before the Tribunal in the hearing below, they would be admissible on questions of statutory construction.[24] Although CBA ultimately contended that the extrinsic materials, if anything, created the ambiguity that had arisen in this case and did not aid the construction task,[25] it was appropriate that the materials were made available to the Court in circumstances where there was no represented contradictor.
[22]Affidavit of Sophie Griffiths-Mark affirmed 1 May 2023 (First Griffiths-Mark Affidavit) (Exhibit SGM-1: Engage Victoria, ‘Laying the Groundwork – Consultation Paper’, Fairer Safer Housing (June 2015); Engage Victoria, ‘Heading for Home Residential Tenancies Act Review’, Fairer Safer Housing (February 2017); Tribunal Submission to the Director of Consumer Affairs on the Residential Tenancies Act Review; Screenshot of Engage Victoria website displaying Reform 82 to the Fairer Safer Housing review.
[23]Section 2(2) of the Amendment Act provided for a commencement date of 1 July 2020. However, that date was extended to 1 January 2021 by s 50 of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), and further extended to 27 April 2021 by s 11 of the COVID-19 Commercial and Residential Tenancies Legislation Amendment (Extension) Act 2020 (Vic). The date proclaimed for the commencement of the relevant provisions was 29 March 2021: Victoria, Victoria Government Gazette, No S42, 21 January 2021.
[24]Transcript 15/03/2024, T85.05-.16; See Interpretation of Legislation Act1984 (Vic), s 35 (1)(b)(iii), (iv).
[25]Applicant’s Outline of Submissions, 8 September 2023, [56].
The extrinsic materials related primarily to the review of the RTA, which had commenced in 2015 with the release of a consultation paper titled Laying the Groundwork.[26] An Options Paper titled Heading for Home was published in January 2017.[27] Relevantly to the provisions of the RTA dealing with notice to vacate by a mortgagee, the Options Paper stated:[28]
[26]First Griffiths-Marks Affidavit, [6(a)].
[27]First Griffiths-Marks Affidavit, [6]-[7].
[28]First Griffiths-Marks Affidavit, Exhibit SGM-1, 208 (Engage Victoria, ‘Heading For Home Residential Tenancies Act Review’, Fairer Safer Housing (February 2017) 208).
Issues
Stakeholders noted that under the current provisions, a mortgage provider is not required to honour a fixed term agreement once it repossesses a property, and therefore a tenant who has signed a fixed term agreement may be given a notice to vacate with 28 day’s notice.
Most property owners do not obtain the mortgagee’s permission for the tenancy. Mortgage providers would most likely object to proposals for them to take over the responsibilities of a landlord would they repossess the property that is tenant under a fixed term agreement, having not been a party to the agreement in question.
In addition, VCAT must establish the mortgagee’s entitlement to possession or to exercise a power of sale. Currently this can be done either with a court judgment declaring its entitlement, or where there is no court judgment, providing VCAT with evidence to demonstrate the fact. VCAT has noted that, in the latter case, there can be uncertainty where proceedings against the mortgagor have not been finalised.
…
Option 11.33 – Require mortgagee in possession to produce court judgment for possession order
A court judgment demonstrating the mortgagee’s entitlement to possession and to exercise a power of sale would be required to accompany an application for possession.
The Tribunal provided a submission which supported Option 11.33.[29] Proposed reforms arising from the Fairer Safer Housing review were published on the Engage Victoria website, with the text of reforms available but with no further material explaining the reforms.[30] Relevantly to mortgagee applications for possession of rented premises, Reform 82 was as follows:[31]
If a mortgagee applies to VCAT for possession of a rented property, the mortgagee will need to evidence their entitlement to possession and to exercise a power of sale with the relevant court order. This reform also applies to mortgagee repossession to rooming houses, caravan partis and residential parks.
[29]First Griffiths-Marks Affidavit, [13]; Exhibit SGM-1, 298 (Tribunal Submission to the Director of Consumer Affairs on the Residential Tenancies Act Review, 8).
[30]First Griffiths-Marks Affidavit, [6(a)], [14]-[15]; Exhibit SGM-1, 305.
[31]First Griffiths-Marks Affidavit, [15]; Exhibit SGM-1, 305.
The Amendment Act was subsequently enacted in 2018. The Explanatory Memorandum stated, in respect of the new s 325(5):[32]
Subclause (2) inserts new subsection (5) into section 325 of the Act, which provides that an application under section 325 must be accompanied by a copy of any court order which shows the mortgagee’s entitlement to possession and to exercise a power of sale. This amendment is necessary to ensure that the mortgagee has entitlement to possession or to exercise a power of sale.
[32]Explanatory Memorandum, Residential Tenancies Amendment Bill 2018, 220-221 (re clause 242 of the Bill).
CBA contended that these extrinsic materials did not assist the interpretative task, and that to the extent that Explanatory Memorandum or other the extrinsic materials suggested that the purpose of s 325(5) was to require a mortgagee to produce a court judgment to the Tribunal to obtain an order for possession, could not overcome the clear effect of the terms of the legislation, which in its submission, construed properly, did not require that a court judgment be obtained.[33]
[33]Applicant’s Outline of Submissions, 8 September 2023, [45]-[48], [56]; Transcript 15/03/24, T77.06-.27; T82.24-82.05, T88.13-.22.
Mr Shrestha’s contention that the application for leave to appeal was out of time
Although Mr Shrestha did not appear, he sent a letter to the Court (as discussed further in the Appendix below). In the letter, he stated that CBA’s first Notice of Appeal ‘was outside time limitations’.
Despite this submission not having been properly raised with the Court, it is appropriate to address it to avoid any doubt as to the appropriateness of hearing the application.
The application for leave to appeal was filed with the Court on 26 April 2023.
The application for possession made to the Tribunal by CBA was dismissed by the Tribunal by orders made on 3 March 2023. CBA requested, pursuant to s 117 of the VCAT Act, that the Senior Member provided written reasons for the decision. Those reasons were provided on 28 March 2023.[34] Pursuant to s 148(4), the day on which written reasons are provided is deemed to be the date on which the orders are made, for the purposes of s 148(2), which provides that an application for leave to appeal must be made within 28 days after the order of the Tribunal, unless the rules of the Supreme Court otherwise provided.
[34]Tribunal Reasons, 1.
The day 28 days after the deemed date of the order, noting that the date of the order is not to be counted in the calculation of the period,[35] was 25 April 2023. This was ANZAC Day, a public holiday in Victoria.[36] Pursuant to the Interpretation of Legislation Act 1984 (Vic), s 44(3), the application for leave to appeal was to be filed on the next day following that which is not a holiday. That was 26 April 2023, the date on which the application was filed. The application was, therefore, filed within time.
[35]Interpretation of Legislation Act 1984 (Vic), s 44(1).
[36]Public Holidays Act 1993 (Vic), s 6(h).
Analysis – did the Tribunal err in the construction of s 325(5) of the RTA?
The relevant principles of statutory interpretation
The central issue is the interpretation of s 325(1) of the RTA. The starting point is the text of that section, construed by reference to the language of the statute viewed as a whole.[37] A construction of legislation which will promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that object.[38]
[37]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 388-389, [23]-[24] (French CJ and Hayne J).
[38]Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, 649 [5] (French CJ and Bell J), 655-656 [20] (Hayne J); Interpretation of Legislation Act 1984 (Vic) s 35(a).
Construction may require reference to the context of the statute which
… includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[39]
[39]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
Reference to the legislative history of a statutory provision and to its historical setting may assist in understanding what the object of the legislature was, or what ‘mischief’ it intended to address by enacting the relevant provisions.[40] However the primary source of guidance as to the legislative intention must remain the text of the legislation itself. As explained by a plurality of the High Court in Saeed v Minister for Immigration and Citizenship:
As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the “legislative intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation”. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.[41]
[40]Heydon’s Case (1534) 3 Co Rep 7a at 7b; 76 ER 637, 638; Alcan (NT) Alumina (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[41](2010) 241 CLR 252, 264-265 [31] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (emphasis in the quotation of the case by the plurality in Saeed); see also Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 388-389, [25] (French CJ and Hayne J).
The language of s 325
Section 325(1) provides that a mortgagee of rented premises may make an application for a possession order to the Tribunal, if two requirements are satisfied:
(a) the mortgagee has given the renter a notice to vacate the premises; and
(b) the renter has not delivered up vacant possession of the premises.
Section 325(5) imposes a further requirement, that:
An application under this section must be accompanied by a copy of any court order which shows the mortgagee's entitlement to possession and to exercise a power of sale.
It is clear that s 325(5) imposes a mandatory obligation, given the use of the words the ‘application … must be accompanied by’. However the use of the word ‘any court order which shows the mortgagee's entitlement to possession and to exercise a power of sale’,[42] raises to the question of whether the obligation is simply to provide, with the application, any court order which exists, or an obligation that a court order showing the entitlement must first be obtained and provided with the application.
[42]Emphasis added.
Taking first the language of s 325(5), it is necessary to start with the ordinary grammatical meaning of the phrase ‘a copy of any court order’. As the Senior Member observed, the word ‘any’ can mean ‘a’, ‘one’ or ‘some’.[43] However, to say as the Senior Member did that the use of the world ‘any’ ‘usually means’ a, one or some, does not in my view accord with common usage. In many contexts, the ordinary usage of the word ‘any’ acknowledges that there may or may not exist a thing or things of the kind which is qualified by the adjective ‘any’.
[43]Tribunal Reasons, [25].
The Macquarie Dictionary definitions of ‘any’ acknowledge this type of usage. The first two definitions of the word ‘any’ are as follows:[44]
Adjective 1. one, a, an, or (with plural noun) some, whatever or whichever it may be: if you have any witnesses, produce them.
2. in whatever quantity or number, great or small: have you any butter?; have you any blank disks?
[44]Macquarie Dictionary (online at 6 May 2024) ‘any’ (defs 1-2).
Had the intention of Parliament been to ensure that a court order showing an entitlement to possession had been obtained, and was then provided with the application, a more direct way of imposing the requirement would have been to refer to ‘a copy of the court order showing entitlement to possession’. The use of the definite article, or even the indefinite article (‘a copy of a court order ...’) would have been more natural expressions to convey an intention that such an order be obtained before the application under s 325 is made.
The terms and structure of s 325 as a whole, and the broader scheme of the process by which an application for an order for possession may be made, reinforce the interpretation that the reference to ‘any court order’ is to any court order, if one exists. Taking first s 325 as a whole, the structure of that section reinforces the interpretation that it is not a requirement that a court order showing entitlement to possession first be obtained before an application for possession may be made.
The requirements in s 325(1) are substantive factual requirements which operate in effect as pre-conditions to the making of an application for an order for possession. Section 325(5) expresses the requirement with respect to ‘any court order’ for possession not as a pre-condition to the making of the application, but more as a requirement of how the application is to be made in circumstances where such an order exists.
To interpret s 325(5) as requiring that an order showing an entitlement to possession must be obtained in order to apply for an order for possession would be to give that sub-section operation as a substantive limitation on when a mortgagee could apply for an order for possession of rented premises. It would be unusual to introduce a substantive requirement of that nature into the process for applications for possession of rented premises by what is in effect a procedural stipulation as to how the application is to be made. Had it been the intention to make it a substantive requirement that any applicant for an order for possession must first obtain a court order showing an entitlement to possession, it would have been more natural to include the requirement that the applicant have obtained such a court order in s 325(1), along with the other substantive matters that must be satisfied in order to make an application, including that the applicant has given a notice to vacate the premises.
An interpretation of s 325(5) that requires the applicant to accompany the application with a copy of any court order, if an order has been obtained, would be more consistent with its place in the scheme of s 325, which suggests that s 325(5) addresses a procedural requirement applicable to the making of the application, rather than substantive preconditions to such an application.
If interpreted in that way, it is readily understandable that the intention of the requirement is to ensure that the Tribunal is aware of any relevant court order already made with respect to the premises, so that the Tribunal can:
(a) conveniently and readily be satisfied of the criterion in s 330(1)(a)(i) of the RTA that the mortgagee was entitled to give the notice to vacate; and
(b) ensure that any order it makes is not inconsistent with the existing court order in any way.
This appears from the text of the legislation to be the legislative intention behind s 325(5), rather than an intention to require that a mortgagee obtain a court order establishing an entitlement to possession prior to making an application for a possession order as against the renter.
The scheme of the relevant RTA provisions
The broader statutory scheme in the RTA by which a mortgagee can obtain possession of rented premises reinforces this conclusion as to the legislative intent of s 325(5).
Pursuant to s 91I of the RTA, a residential rental agreement will terminate if a mortgagee in respect of the rented premises gives a notice under s 91ZZK and
(a) the renter vacates the rented premises on or after the termination date specified in the notice, or
(b) the residential rental agreement terminates in accordance with section 334 (which provides for termination of the residential rental agreement when a possession order is obtained).
The giving of a notice to vacate by a mortgagee is governed by s 91ZZK. Pursuant to s 91ZZK(1), a notice can be given when the mortgagee becomes entitled to possession of the rented premises:
Subject to subsection (4), if a mortgagee in respect of rented premises under a mortgage entered into before the residential rental agreement was entered into becomes entitled to possession of, or to exercise a power of sale in respect of, the premises under a mortgage, the mortgagee may give the renter a notice to vacate the premises.
Section 91ZZK(4) provides that the mortgagee must not give a notice to vacate if the mortgagee has expressly or impliedly consented to the mortgage.
It can first be observed that s 91ZZK(1) refers to a mortgagee who ‘becomes entitled to possession of, or to exercise a power of sale in respect of, the premises’, but does not stipulate how that entitlement must have arisen. It does not refer to the entitlement having to arise from a court determination, or that it be shown by a court order. Section 91ZZK(2) stipulates that the notice must specify a termination date not less than 60 days after the date on which the notice is given, but does not itself identify any other substantive requirement for the notice.
Section 91ZZO stipulates the formal requirements for a notice to vacate. It must be in the prescribed form, addressed to the renter and signed by the person giving the notice or their agent, and must specify the reason or reasons for giving the notice. Importantly for present purposes, s 91ZZO(e) also identifies notices to vacate issued under certain sections of the RTA which must be ‘accompanied by documentary evidence, as approved by the Director from time to time, which supports the reason for giving the notice’.[45] Section 91ZZK is not one of the sections identified in s 91ZZO(e) as requiring documentary evidence to support the reason for giving the notice. Notices which do require documentary evidence include those given under s 91ZX and s 91ZY (where the residential rental provider intends to repair and reconstruct the premises, or to demolish them, and has the necessary permits and consents to carry out the work) and under s 91ZZB (where the premises are to be sold). Had it been intended that in all cases a court order was required to show the entitlement to possession of a mortgagee in order to serve a notice to vacate, it would have been consistent to include in s 91ZZO(e) the requirement that the notice be accompanied by the documentary evidence to support the entitlement. This would have enabled the Director to stipulate a copy of the court order. However no such requirement was included in s 91ZZO(e).
[45]Section 486A(1) provides the power for the Director to approve documentary evidence supporting the reason for giving a notice to vacate in the identified sections, and s 486(2) provides that the approval of documentary evidence must be published in the Government Gazette and on the website maintained by the Director.
There is, therefore, no requirement that a mortgagee provide a court order showing an entitlement to possession with the notice to vacate when serving it. There is no other provision in the RTA which refers to a mortgagee being required to obtain a court order to show an entitlement to possession of, or to exercise a power of sale in respect of the mortgaged premises. In these circumstances, it is open to construe the reference in s 91ZZK to a mortgagee becoming ‘entitled to possession of, or to exercise a power of sale in respect of, the premises’ as encompassing a legal entitlement to possession, whether arising from a court order or otherwise. As discussed below, it is recognised that an entitlement to possession may arise from the specific terms of the mortgage agreement, as well as by a court order.
Returning to the interpretation of s 325(5), the statutory scheme is to the effect that no court order showing an entitlement to possession is required at the time of service of a notice to vacate; but if the interpretation of s 325(5) adopted by the Tribunal was correct, such an order would be required in order to obtain an order for possession.
If it was in fact the legislative intention to make it a requirement that before obtaining possession of rented premises subject to a mortgage, a mortgagee was required first to obtain a court order, it would be surprising to introduce this substantive requirement at the stage only of the application in s 325(5), rather than making it a requirement which applies before a notice to vacate could be served on a renter, under s 91ZZK. Any substantive requirement to obtain a court order for possession would presumably be primarily to protect the position of renters. Any protection for renters to be gained from requiring a mortgagee to obtain a court order showing an entitlement to possession before obtaining an order for possession would be limited if there was no requirement to obtain the order before serving the notice to vacate on the renter. It is likely that in many cases a renter would respond to receipt of a formal notice to vacate by vacating the property, thereby terminating the lease in accordance with s 91I(a) of the RTA.
Another element of the broader statutory scheme which assists in construing s 325(5) is s 330(1), which sets out the circumstances in which the Tribunal must make an order for possession. Section 330(1)(a) states, relevantly:
The Tribunal must make a possession order requiring a renter … to vacate rented premises … on the day specified in the order if the Tribunal is satisfied –
(a) in the case of an application where notice to vacate has been given, that–
(i)the residential rental provider … or mortgagee was entitled to give the notice; and
(ii)the notice has not been withdrawn …
The question for the Tribunal is whether there was an entitlement to give the notice at the time it was given, and whether it has not been withdrawn. In the case of a mortgagee seeking an order for possession, s 330(1)(a) requires the Tribunal to consider whether the mortgagee was entitled to give the notice. As discussed above, s 91ZZK does not require the mortgagee to have obtained a court order for possession in order to be entitled to give the notice. There is, therefore, nothing in the terms of s 330(1)(a) which would require a court order showing an entitlement to possession in order for the Tribunal to be satisfied that the mortgagee was entitled to give the notice.
The Tribunal’s consideration of this question would undoubtedly be assisted if a court order showing an entitlement to possession had been obtained, but only if the circumstances of the court order demonstrated that there had been an entitlement to possession at the time the notice was served, that being the question for the Tribunal under s 330(1)(a)(i).
The broader context and the legislative history
The legislative history to s 325 and the extrinsic materials surrounding the introduction of the new provisions through the Amendment Act provide very limited assistance in construing the provision and identifying its intended purpose. Ultimately, they do not elucidate Parliament’s purpose for the introduction of s 325(5), and do not compel any different interpretation of the provisions than that which arises from the text of s 325 and the relevant scheme of the RTA as addressed above.
Before the Amendment Act, s 325 did not contain s 325(5), but was otherwise largely as it now reads. The section of the RTA providing for service of a notice to vacate by a mortgagee was s 268, which was in similar terms as s 91ZZK(1) and (2), but provided a shorter minimum period between the date of giving the notice and the termination date:
268 Notice by mortgagee
(1)If a mortgagee in respect of rented premises under a mortgage entered into before the tenancy agreement was entered into becomes entitled to possession of, or to exercise a power of sale in respect of, the premises under a mortgage, the mortgagee may give the tenant a notice to vacate the premises.
(2)The notice must specify a termination date that is not less than 60 days after the date on which the notice is given.
Section 268 also did not include the qualification introduced by s 91ZZK(4) that a notice to vacate must not be given by a mortgagee if the mortgagee has expressly or impliedly consented to the mortgagor entering into a residential rental agreement in relation to the rented premises. The changes in the legislation made by the Amendment Act do not of themselves give any clear indication as to the exact purpose of s 325(5) or the problem it intended to remedy.
The broader legal context of the pre-amendment RTA provisions, including ss 268 and 325, relating to a mortgagee obtaining possession of rented premises, was that a mortgagee may be entitled to obtain possession of premises or exercise a power of sale as against the mortgagor based on a contractual entitlement under a mortgage agreement, and the statutory entitlements created by the Transfer of Land Act 1958 (Vic), namely:
(a) ss 76 and 77 which provide the procedure for exercising a power of sale where there is default in payment of moneys secured by a mortgage; or
(b) s 78 which provides that the mortgagee upon default in payment of amounts due under a mortgage may enter into possession of the mortgaged land by receiving rents and profits thereon, or bringing an action of ejectment to recover the land.[46]
[46]See, with respect to an entitlement to possession based on a mortgage provision (in a Memorandum of Common Provisions) and s 76, Tajon Pty Ltd v Arvanitis [2017] VSC 130, [20] (Derham AsJ). In that case, Derham As J also concluded that because any tenancy which existed in that case had arisen after the relevant mortgages were created, the effect of s 87C of the Transfer of Land Act 1958 (Vic) which provides that a lease is not binding as against a mortgagee unless the mortgagee has consented to the creation of the lease was that no protection was conferred on the tenant by s 268 or other provisions of the RTA. See also Balanced Securities Limited v Bianco & Ors [2010] VSC 162, [92] (J Forrest J), cited by Derham AsJ in support of his conclusion. In MA 46 Pty Ltd v Paglia Properties Pty Ltd (2020) 64 VR 88, Delany J also concluded that the RTA, as in force at the time of his judgment in 2020, would not apply to a tenancy agreement entered into after a mortgage where the mortgagee had not consented in writing to the creation of the tenancy: see [80]-[90]. It is unnecessary in this case to consider if the same analysis would apply to the RTA as amended, including with the introduction of s 91ZZK(4), as no point was taken that the RTA did not apply to the residential rental agreement the subject of this proceeding.
The Options Paper issued by the Victorian Government in January 2017 in the context of the review of the RTA recognised that where the Tribunal was required to establish the mortgagee’s ‘entitlement to possession or to exercise a power of sale’, at the time of the paper this could be done ‘either with a court judgment declaring its entitlement, or where there is no court judgment, providing the Tribunal with evidence to demonstrate the fact’.[47] This reflected the legal position that there may be an alternative basis to entitlement to possession other than a court order. It was observed in the discussion paper that ‘VCAT has noted that in the latter case, there can be uncertainty where proceedings against the mortgagor have not been finalised.’ [48] This statement may support an understanding that a problem or ‘mischief’ to which the amendments to s 325 were targeted was the difficulty that the Tribunal may sometimes face in being satisfied (as required by s 330(1)(a)(i) of the RTA both then and now) that the mortgagee had an entitlement to possession of the premises when serving a notice to vacate. However, any such understanding does not assist in identifying what the intended solution was. Neither the discussion paper nor later extrinsic materials arising in the course of the review of the RTA identifies whether the intention was simply to require that any court order that had been obtained must be provided to the Tribunal with the application, so that the Tribunal could readily be satisfied by reference to the order if one existed; or whether it was intended to introduce a much more substantial change, in requiring that the mortgagee must obtain a court order before it could apply for an order for possession.
[47]First Griffiths-Mark Affidavit, [9]; Exhibit SGM-1, 254 (Engage Victoria, ‘Heading For Home Residential Tenancies Act Review’, Fairer Safer Housing (February 2017) 208).
[48]First Griffiths-Mark Affidavit, [9]; Exhibit SGM-1, 254 (Engage Victoria, ‘Heading For Home Residential Tenancies Act Review’, Fairer Safer Housing (February 2017) 208).
The statement in the Explanatory Memorandum to the bill for the Amendment Act, that the introduction of s 325(5) was necessary ‘to ensure that the mortgagee has entitlement to possession or to exercise a power of sale’[49] also does not assist in this respect. The statement does not identify how s 325(5) serves to ‘ensure that the mortgagee has entitlement to possession’. It also does not identify what the basis of the entitlement must be, whether a court order or a contractual or statutory entitlement.
[49]Explanatory Memorandum, Residential Tenancies Amendment Bill 2018, 221.
Ultimately, it could be expected that if s 325(5) was regarded by the draftsperson of the Explanatory Memorandum as having the substantive effect that for a mortgagee to obtain possession of rented premises, it would be necessary first to obtain a court order showing an entitlement to possession, rather than to recognise a contractual or statutory entitlement as sufficient, such a significant change would be expressly acknowledged. It could also have been expected to have been expressly stated in the RTA itself.
Inconvenient consequences of the Tribunal’s construction
Finally, a consideration of the consequences of the construction of s 325(5) adopted by the Tribunal indicates that it is not the proper construction of the sub-section.
The primary consequence of the construction of s 325(5) by the Tribunal is that in every case, in order for a mortgagee entitled to possession of rented premises to obtain possession, the mortgagee would first have to initiate proceedings in the County Court or the Supreme Court to obtain an order which demonstrates the mortgagee’s entitlement to possession, and then make the application to the Tribunal. This would be a costly and time consuming process, and one with limited utility where the owner of the premises and mortgagor did not contest the right of the mortgagee to possession.
Further, I accept the submission on behalf of CBA that if the interpretation of s 325(5) adopted by the Tribunal applies, the court order showing an entitlement to possession would need to be obtained in an unrealistically short time frame.[50] An application for an order for possession under s 325 must be made no later than 30 days after the termination date specified in the notice.[51] The notice to vacate may be served by the mortgagee under s 91ZZK without first obtaining a court order, if the mortgagee otherwise has a legal entitlement to possession. If the renter vacates in response to the notice, the residential rental agreement will terminate.[52] If the renter does not vacate, in order to make an application for a possession order, the mortgagee will first be required to obtain a court order showing the entitlement to possession, but this will need to be done within 30 days between the termination date identified in the notice to vacate and the date on which the s 325 application must, by reason of s 326, be made. It is no answer to suggest that the mortgagee should obtain the court order for possession prior to the service of the notice to vacate, given that a renter may willingly vacate simply on the receipt of a notice to vacate, making both a court order and an order for possession from the Tribunal unnecessary.
[50]Transcript 15/03/24, T98.13-.30.
[51]RTA, s 326.
[52]RTA, s 91I(a).
Finally, the interpretation adopted by the Tribunal would risk making the provisions of the RTA directed to a mortgagee obtaining possession of rented premises nugatory. If it was necessary to obtain a court order in to show an entitlement to possession, the result would either be to:
(a) require both a court proceeding and an application to the Tribunal to obtain possession in every case; or
(b) to encourage mortgagees to seek an order against the renter as well as the mortgagor in the court proceedings, making the Tribunal process unnecessary.
Given that the Tribunal is intended to provide cost effective and efficient mechanisms for resolution of civil disputes,[53] neither outcome is likely to have been the legislative intention.
[53]Director of Housing v Sudi (2011) 33 VR 559, [19] (Warren CJ); Kracke v Mental Health Review Board [2009] VCAT 646 [857] (Bell P); see also VCAT Act s 98(1)(d).
By contrast, if s 325(5) is construed simply to require that an applicant for an order under s 325 provide a copy of a court order if one has been obtained, this will provide the Tribunal with a clear basis on which it can be satisfied that the mortgagee was entitled to possession of the rented premises, and entitled to serve the notice to vacate. That interpretation would recognise that the entitlement may be proved by clear evidence of a contractual or statutory entitlement to possession.
Conclusion: s 325(5) of the RTA does not require that a court order must be obtained in order to make an application for a possession order
For the above reasons, s 325(5), properly construed, requires an application by a mortgagee for a possession order under s 325(1) to be accompanied by a court order showing the mortgagee’s entitlement to possession only if such a court order has been obtained by the mortgagee.
It follows that the Question of Law identified in the Amended Notice of Appeal,
Did the senior member err in finding that s 325(5) of the Residential Tenancies Act 1997 (Vic) (the RTA) had the effect that an application for an order for possession of rented premises under s 325(1) of the RTA could not be made unless the applicant had obtained a court order entitling the applicant to possession and exercise a power of sale of those premises and a copy of that order accompanied the application?
should be answered: ‘Yes’.
Relief sought by CBA
It is appropriate to set aside the order made by the Tribunal dismissing the CBA’s application, which included the finding that CBA did not comply with s 325(4) [scil (5)] of the RTA, and to remit the matter to the Tribunal to be heard and determined in accordance with law.[54]
[54]Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, 432, [34] (Warren CJ, Maxwell P, Osborn AJA).
CBA sought orders enabling the hearing of further evidence in the remitted hearing. It submitted that the consequence of an order remitting the matter to the Tribunal was that it would be obliged to determine, in light of the circumstances existing at the date of the hearing following remittal, whether CBA was entitled to the possession order sought.[55] It was desirable that the order for remittal made this explicit, as provided for by s 148(7)(c) of the VCAT Act, and as the Supreme Court has done in remitting matters to the Tribunal and other decision makers on several occasions.[56]
[55]Applicant’s Supplementary Outline of Submissions dated 7 February 2024, [7], [16], citing Minister for Immigration and Multicultural Affairs vWang (2003) 215 CLR 518, 522 [7] (Gleeson CJ).
[56]Applicant’s Supplementary Outline of Submissions dated 7 February 2024, [9]-[12], [17], citing Curry v Melton Shire Council (2000) 111 LGERA 30, [31] (Balmford J); Moules v Transport Accident Commission (2021) 97 MVR 34, [156] (O’Meara J); DEK Rendering v Gaffy [2017] VSC 53, [58] (J Forrest J).
It would be desirable to ensure that the Tribunal can receive further evidence as necessary to enable it to determine the application for a possession order. Some of the necessary information would not reflect any new circumstances existing as at the date of the Tribunal hearing, such as the question arising by reason of s 330(1)(a) of the RTA as to whether the CBA was entitled to give the notice to vacate, which directs attention to the circumstances at the time of the service of the notice. However, it remains desirable to ensure that the Tribunal has all evidence necessary to be able to determine that issue on remittal. There will also be matters which require the Tribunal to consider the circumstances prevailing at the time of the hearing, such as whether in the circumstances of the particular application it is reasonable and proportionate to make a possession order, as required by s 330(1)(f) of the RTA. It will be necessary to allow for evidence to be filed on that and any other issue with respect to which the Tribunal must be satisfied if it is to make a possession order.
It is apparent from the evidence before the Court that not all evidence which will be required for the Tribunal to make its determination was put before the Tribunal at the first hearing. The documents had been tendered to the Tribunal in the first hearing deposing to service of the notice to vacate and of the VCAT application on Mr Shrestha; evidence of CBA’s registered mortgage over the Property,[57] and the Memorandum of Common Provisions (MCP) AA966 held by the Victorian Registrar of Titles which was incorporated into the mortgage.[58] Clauses A21 and A22 of the MCP provides for what occurs in the event of default on the mortgage, including pursuant to cl A22.5 that after giving notice to the mortgagor, the mortgagee may take possession of the mortgaged property.
[57]Ralston Affidavit, [6]; Exhibit RCR-1, 32 (Registered Mortgage of Land AG244161P).
[58]AA966 held by the Victorian Registrar of Titles: Ralston Affidavit, [6], Exhibit RCR-1, 34-49.
The registered mortgage and the MCP was in evidence before the Tribunal member, but there was no other evidence as to the procedure in clause A22 having been followed. Evidence of that and other matters may be required by the Tribunal in determining the question arising under s 330(1)(a) of the RTA as to whether CBA was entitled to possession of the Premises and entitled to serve the notice to vacate.
In the circumstances, it is appropriate to make the order for remittal on the basis that the Tribunal may hear such further evidence as is necessary to enable the application to be determined.
CBA did not seek its costs in the proceeding, and no order for costs will be made.
Application for release from the obligation in Hearne v Street
CBA sought further orders to enable it to able to use documents filed and served in this proceeding in the remitted proceeding in the Tribunal. If the proceeding is remitted to the Tribunal, one matter of which the Tribunal would need to be satisfied, by reason of s 325(1)(b) of the RTA, is that the renter had not vacated the property by the date specified in the notice.[59] CBA sought release from the obligation in Hearne v Street[60] with respect to documents that were said to establish an ongoing occupation of the Property by Mr Shrestha.[61]
[59]Transcript 15/03/24, T108.09-.18.
[60]Hearne v Street (2008) 235 CLR 125.
[61]Transcript 15/03/24, T108.15-.18, T109.09-.13.
The documents which CBA sought to be able to use were:
(a) a document titled ‘Application to have dismissal of application for leave set aside’ signed by Mr Shrestha and dated 11 July 2023, and a supporting affidavit dated 11 July 2023, both of which had been sent to the Court but not filed, and were exhibited to an affidavit filed by CBA and read at the hearing,[62] (the July pplication and affidavita) and
(b) a letter sent to the Supreme Court dated 4 October 2023 and an affidavit of Mr Shrestha dated 19 October 2023, neither of which had been filed or tendered to the Court by Mr Shrestha (the October letter and affidavit). I had ordered at the first hearing date of this matter that both documents should be put in evidence by affidavit filed on behalf of CBA,[63] CBA filed an affidavit for that purpose on 17 November 2023,[64] which was read at the hearing.[65]
[62]Affidavit of Sophia Griffiths-Mark affirmed on 4 August 2023 (Fifth Griffiths-Mark Affidavit), [5]; Exhibit SGM-5, 5-10; Transcript 15/03/24, T57.01-.10, T63.23-.29.
[63]Orders of Harris J dated 17 November 2023, order 2.
[64]Affidavit of Sophia Griffiths-Mark affirmed on 17 November 2023 (Seventh Griffiths-Mark Affidavit), Exhibit SGM-7, 5-12.
[65]Transcript 15/03/24, T62.25-63.06, T63.23-.29.
The documents refer to Mr Shrestha wanting to continue being a tenant of the Premises,[66] and to his family remaining in occupation of the Premises.[67]
[66]Affidavit of Ribesh Shrestha, 11 July 2023, [13]; Affidavit of Ribesh Shrestha 19 October 2023, [14].
[67]‘Application’ dated 11 July 2023, [6]. The 4 October 2023 letter and 19 October 2023 affidavit refer to Mr Shrestha wanting to return to his family in Australia.
CBA’s primary position was that the documents in question were not subject to the implied undertaking, because they had been voluntarily submitted by Mr Shrestha to CBA, although not formally filed.[68] However, it was acknowledged that the position was unclear as it appeared that Mr Shrestha had been attempting formally to file the documents.[69]
[68]Transcript 15/03/24, T109.02-.04.
[69]Transcript 15/03/24, T119.01-.12.
The orders were sought in the interest of avoiding any dispute arising in the future as to the use of the documents in any remitted proceeding. As CBA correctly noted, this practice is encouraged where there is any doubt as to the application of the implied undertaking.[70]
[70]R v Silverstein [2020] VSC 724, [91] (Kyrou, Kaye and McLeish JJA); Transcript 15/03/24, T111.13-.24.
CBA submitted that special circumstances warranting the grant of the release existed for the following reasons:[71]
[71]Transcript 15/03/24, T120.02-.15.
(a) The documents will contribute to achieving justice in any remitted proceeding in VCAT, given they go to establishing a necessary element for the grant of a possession order, namely failure of the respondent to vacate the premises;
(b) The use of the evidence may save time and costs in any remitted VCAT proceeding;
(c) The documents do not contain any commercially sensitive information; and
(d) Save that the documents would be used in any remitted proceeding against Mr Shrestha, there is otherwise no known prejudice to Mr Shrestha.
Principles as to the obligation in Hearne v Street
The implied undertaking not to use documents produced in the context of litigation, also described as the Harman undertaking,[72] was described by the High Court in Hearne v Street[73] in the following terms:[74]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
[72]After the principles discussed in the judgment in Harman v Secretary of State for the Home Department [1983] 1 AC 280.
[73](2008) 235 CLR 125.
[74]Hearne v Street (2008) 235 CLR 125, 155 [97] (Hayne, Heydon and Crennan JJ).
Given the implied undertaking is an obligation owed to the court, the court may control, modify or release a party from it:
The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear.[75]
[75]Hearne v Street, 159-160 [107] (Hayne, Heydon and Crennan JJ).
The court will exercise its discretion to release a party from the implied undertaking only if there are special circumstances which afford a good reason to do so.[76] In Springfield Nominees,[77] Wilcox J described the requirement for ‘special circumstances’:
For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[78]
[76]Williams v TT-Line [2021] VSC 150, [34]-[35] (Digby J).
[77](1992) 38 FCR 217.
[78](1992) 38 FCR 217, 225, cited with approval in Williams v TT-Line [2021] VSC 150, [36] (Digby J) and Re Clarinda Pty Ltd (in liq) [2023] VSC 109, [18] (Connock J).
The implied undertaking does not, generally, continue to apply to a document that has been adduced in evidence in court and has entered the public domain, unless the court restrains publication of it.[79] Documents which have been produced by a party under compulsion on discovery, which may be personal and private, may continue to be protected by the undertaking even if adduced into evidence by the opposing party.[80]
Did the obligation in Hearne v Street apply to the documents?
[79]Esso Australia Resource Ltd v Plowman (1995) 183 CLR 10, 32-33 (Mason CJ); Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95, 112-113 [53]-[54] (Jagot, Markovic and Thawley JJ); cf British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571, 584 [30]-[31] (Phillips, Batt and Buchanan JJA) where the Court regarded Mason CJ’s observations as meaning that a document could, after tender in evidence, be used by a stranger to litigation, but would not affect the implied undertaking as between the parties to the litigation. Their Honours acknowledged that witness statements prepared for the purposes of the litigation tendered into evidence may be in a different position, where the use in evidence would have the result that the undertaking is spent: (2003) 8 VR 571, 591 [43].
[80]British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571, [20]-[34].
The July application and affidavit were plainly intended by Mr Shrestha to come to the attention of the Court and to be used in the proceeding. They were addressed to the Court and made submissions as to why in his view the application should be dismissed, and were not provided with any basis for anticipating that they would remain confidential. There is no clear basis for any argument that documents were provided under compulsion, and thus attracted the obligation in Hearne v Street, because they were provided by Mr Shrestha before any orders had been made requiring the filing of material. However, even if the obligation did apply, it was spent in my view when the two documents were exhibited to an affidavit and tendered as evidence in open court by the CBA.[81]
[81]Transcript 15/03/24, T57.01-.10, T63.23-.29.
There was nothing about the documents which suggests that the obligation should be regarded as subsisting after their tender in open court. It was not inappropriate for the CBA to put the documents before the Court by taking the step of exhibiting the documents to an affidavit filed with and tendered to the Court. To the contrary, it was appropriate that, when appearing against an unrepresented litigant who was not in attendance at the hearing, CBA brought the purported application and supporting affidavit of Mr Shrestha to the Court’s attention. I consider that any Hearne v Street obligation applying to the documents no longer applied after they had been tendered in open court and entered the public domain.
The October letter and affidavit were in a slightly different position. Although they were also documents which were arguably voluntarily provided to CBA by Mr Shrestha, they were provided after orders had been made for the filing of any affidavits and submissions by Mr Shrestha as respondent.[82] They were also put in evidence by CBA after I had made an order that they be exhibited to an affidavit to ensure that they were before the Court, as had obviously been Mr Shrestha’s intention.[83] There is a basis to view the documents as having been provided to or put before the Court under compulsion. However, the CBA affidavit, exhibiting the October letter and affidavit were also read in open court[84] and I consider that the Hearne v Street obligation no longer applied to them from that time.
The release from any Hearne v Street obligation applying to the documents is appropriate
[82]Orders of Keith JR dated 26 July 2023, orders 4 and 7.
[83]Orders of Harris J dated 17 November 2023, order 2.
[84]Transcript 15/03/24, T62.25-63.06, T63.23-.29.
In the event that I am wrong in concluding that there is no longer any obligation on the part of CBA to refrain from using the documents, I consider that there are special circumstances which make it appropriate to release CBA from the undertaking.
The intended use of the documents to establish that vacant possession of the Premises has not been delivered up, which by reason of s 325(1)(b) of the RTA is a necessary condition for making an application for possession, is an appropriate purpose. The use of the documents will save time and costs in the remitted Tribunal proceeding. Mr Shrestha has not appeared in this Court, and has informed the Court that he is in Nepal with no certainty as to whether he may be able to return.[85] In these circumstances there may be difficulties in obtaining suitable evidence as to his family’s continued residence in the premises if use of the documents is not permitted.
[85]See paragraph [9] of Appendix A below.
Although there is some personal information about Mr Shrestha in the documents, relating to his location, and some limited information about his health[86] in the documents, it is information that he volunteered to the Court in circumstances where there were no orders for the filing of material confidentially and no basis on which an expectation of continued confidentiality could arise. The information is very limited and the proposed use in the Tribunal would not require reference to the health information. There is also no commercially sensitive information in the documents.
[86]See paragraph 15 of the 11 July Affidavit.
Finally, I accept that the documents would be used against Mr Shrestha in the sense that they would be used to support the application for a possession order of the premises. I do not consider that prejudice to be a reason overriding the likely contribution of the documents to achieving justice in the remitted application.
Noting that it is desirable in any case where there is uncertainty as to the existence or subsistence of the obligation in Hearne v Street to have that uncertainty resolved by the Court,[87] I will make orders releasing CBA from the obligations with respect to the relevant documents, insofar as they apply.
[87]R v Silverstein [2020] VSC 724, [91] (Kyrou, Kaye and McLeish JJA).
Conclusion
For the reasons above, I will make orders that:
1.The applicant has leave to appeal against the order made by the Victorian Civil and Administrative Tribunal (VCAT) on 3 March 2023 in proceeding R2023/474/00 (the VCAT Order).
2.The appeal against the VCAT order is allowed.
3.The VCAT order is set aside.
4.Pursuant to s 148(7)(c) of the VCAT Act, the matter be remitted to VCAT to be heard and determined according to law, with the hearing of further evidence on the question of whether an order for possession should be made.
5.Pursuant to s 148(8) of the VCAT Act, and subject to any contrary direction of VCAT, the Tribunal be constituted for the rehearing by the same member who made the VCAT Order.
6.Solely for the purpose of the Applicant establishing, in the proceeding when remitted pursuant to order 4 above, that the Respondent did not vacate 7 Elm Street, Flemington, Victoria by the termination date specified in the notice to vacate dated 2 September 2022, the Applicant is released from any obligation identified in Hearne v Street (2008) 235 CLR 125 in relation to the following documents:
(a)affidavit of Ribesh Shrestha dated 11 July 2023 which appears at pages 6 to 7 of Exhibit SGM-5 to the affidavit of Sophia Griffiths-Mark affirmed on 4 August 2023;
(b)document titled ‘Application to have dismissal of application for leave set aside’ dated 11 July 2023 and appearing at pages 8 to 10 of Exhibit SGM-5 to the affidavit of Sophia Griffiths-Mark affirmed on 4 August 2023;
(c)letter from Ribesh Shrestha addressed to the Supreme Court dated 4 October 2023 and appearing at page 5 of Exhibit SGM-7 to the affidavit of Sophia Griffiths-Mark affirmed on 17 November 2023; and
(d)affidavit of Ribesh Shrestha dated 19 October 2023 and appearing at pages 6 to 12 of Exhibit SGM-7 to the affidavit of Sophia Griffiths-Mark affirmed on 17 November 2023
6. There be no order as to costs.
APPENDIX: Hearing in the absence of Mr Shrestha
The hearing of the application for leave to appeal proceeded on 15 March 2024 in the absence of Mr Shrestha, after an adjournment of the first hearing on 16 November 2023 at the request of Mr Shrestha, with the purpose of resuming the hearing at a date on which he could appear. On that second date he did not appear but I proceeded to hear the application. I address here my reasons for determining that it was appropriate to hear the matter in the absence of the respondent, as contemplated by r 49.02 of the Supreme Court (General Civil Procedure) Rules 2015.
In the course of making procedural directions, Judicial Registrar Keith made orders for substituted service of the application and associated documents, as the CBA had been unable to effect service on Mr Shrestha, and Mr Krepp had advised the Court by email that Mr Shrestha was temporarily in Nepal without internet access.[88] Substituted service of the documents to Mr Shrestha’s address in Nepal was effected on 27 June 2023.[89] Judicial Registrar Keith listed the application for leave, and the appeal if leave was granted, for 16 November 2023.[90]
[88]The orders of Keith JR made 6 June 2023 refer in ‘Other Matters’ at paragraphs [B] to [D] to Mr Krepp’s communication to the Court and the CBA’s inability to effect service, and its intention to apply for substituted service. An application for substituted service was made by summons filed 20 June 2023, supported by an affidavit of Jackson Clyde Macaulay affirmed 20 June 2023. Mr Macaulay gave evidence of attempts to serve the Notice of Appeal, accompanying summons and affidavits on Mr Shrestha through post to the Property; enquiries made of Mr Krepp regarding Mr Shrestha’s contact details resulting in the provision of an address and Mr Shrestha’s Nepali phone number; delivery of the documents by international courier to that Nepali address, confirmed by a proof of delivery signed by ‘Ribesh Shrestha’ dated 18 June 2023; and a text message to Mr Shrestha’s Nepali phone number on 19 June 2023 advising of a hearing set down for 21 June 2023. By orders made 21 June 2023, Keith JR made orders for substituted service by posting court documents to the Nepali address, and sending an SMS message to the Nepali phone number.
[89]See Affidavit of Sophia Griffiths-Mark affirmed 10 July 2023 giving evidence of service of the Notice of Appeal, accompanying summons and affidavits on Mr Shrestha via international courier, confirmed by a proof of delivery signed by ‘Ribesh Shrestha’ dated 27 June 2023. Judicial Registrar Keith noted the compliance with the relevance orders and that the respondent was taken to have been served in his orders of 26 July 2023: See ‘Other Matters’ at [A].
[90]Orders of Keith JR made 26 July 2023.
Prior to the hearing, on 21 July 2023, the CBA had received mail by post from Mr Shrestha. The letter enclosed an ‘application to have dismissal of application for leave set aside’ and an affidavit dated 11 July 2023.[91] Both documents were not filed with the Court. Mr Shrestha’s application sought that ‘the Appellant’s application for leave be set aside’. His affidavit stated, among other matters, that he opposed the application for leave to appeal and requested that it be struck out, that he was away from Australia and unable to defend his position nor engage legal representation, and unable to return to Australia due to financial reasons and lack of a visa.[92] CBA filed evidence, by way of affidavit, of having served further documents in the proceeding on Mr Shrestha at his Nepali address by international courier.[93]
[91]Fifth Griffiths-Mark Affidavit, [5]; Exhibit SGM-5, 6-10.
[92]Fifth Griffiths-Mark Affidavit, Exhibit SGM-5, 6-7.
[93]Affidavit of Sophia Griffiths-Mark affirmed 16 November 2023 which referred to the service of the Affidavits of Ms Griffiths-Mark dated 19 July 2023 and 4 August 2023, CBA’s submissions and list of authorities dated 8 September 2023, notice of trial filed 4 October 2023, orders of Keith JR dated 26 July 2023, the court book and related correspondence from CBA’s instructing solicitors. In respect of each parcel sent to Mr Shrestha evidence was given of proof of delivery by DHL, signed by Mr Shrestha, except for those parcels containing the court book, list of authorities and a copy of Keith JR’s orders.
At the hearing on 16 November 2023 no appearance was made on Mr Shrestha’s behalf. The CBA referred to the correspondence received from Mr Shrestha, and noted that he had not sought the adjournment of the matter. However, shortly after the commencement of the hearing, counsel for CBA advised that his instructing solicitors had just received correspondence from Mr Shrestha in their mail room.[94] Enquiries were made by my Associates at the Court which revealed that the correspondence had also been received by the Court registry in the course of the morning, but not filed. The letter was dated 4 October 2023 and addressed to the Court:
[94]Transcript 16/11/2013 T5.23-.28; Seventh Griffiths-Mark Affidavit, [5]-[7].
Attention: Judicial Registrar Keith
Dear Sir
Re: Court Matter S ECI 2023 01695
I refer to the above and my correspondence sent to you dated 11 July 2023.
It is noted my efforts to lodge and file documents at the Court, failed to be established.
I reiterate that I am an innocent victim in these proceedings and suffering collateral damage through institutional abuse from the Appellant. My name before the Court may and likely have impacts on my Australian application for a student Visa.
Additionally, I am receiving constant delivery of documents from Bank’s Lawyers via international couriers and documents are not easily translated into simply English terms and expressions. CBA is capitalising on opportunism with me outside of Australia and I unable to afford costly Legal representation.
I want to return to Australia to oppose these proceedings. Also protect my family and return to Australia continue with my studies.
I request this matter is rescheduled for Hearing not before 15 March 2024 and or shortly thereafter.
Further I enclose sealing and filing of my Application for Dismissal and Affidavit dated 11 July 2023 plus my current Affidavit and Exhibit “A”.
For your information and attention.
Thanking you.[95]
[95]Seventh Griffiths-Mark Affidavit, Exhibit SGM-7, 5.
The letter was accompanied by an unfiled affidavit dated 19 October 2023 stating among other things ‘I seek a Court adjournment to 15 March 2024 or soon thereafter for the hearing of this matter’, along with copies of Mr Shrestha’s previous unfiled affidavit and unfiled application for dismissal.[96] The letter had been sent in an envelope bearing Australian stamps, and showing a postmark of 10 November 2023. I directed that the letter be tendered by the CBA by way of affidavit to complete the Court record.[97]
[96]Seventh Griffiths-Mark Affidavit, Exhibit SGM-7, 6-12.
[97]Transcript 16/11/23, T37.29-38.06. This was done by way of the Seventh Griffiths-Mark Affidavit.
The CBA did not oppose an adjournment until on or after 15 March 2024. I made orders adjourning the proceeding to that date, and for CBA to serve on Mr Shrestha at the Nepali address documents including the transcript of the hearing on 16 November 2023, and to send an SMS message to his Nepali phone number stating that the Court had adjourned the hearing to 15 March 2024.[98] Prior to the hearing, CBA was also directed to provide Mr Shrestha, by SMS, the Court’s Zoom link to attend the hearing virtually if we was unable to attend in person.[99]
[98]Orders of 17 November 2023, order 4.
[99]Affidavit of Sophia Griffiths-Mark affirmed 13 March 2024 (Tenth Griffiths-Mark Affidavit), [5]-[6]; Exhibit SGM-10, 1-3.
Evidence was again provided of CBA’s compliance with the orders for service of the documents on Mr Shrestha and notice of the hearing date by text message.[100]
[100]Affidavit of Sophia Griffiths-Mark affirmed 9 February 2024 (sending of the SMS message to the Nepali phone number and service by international courier of the documents to the Nepali address); Affidavit of Sophia Griffiths-Mark affirmed 7 March 2024 (exhibiting the international courier tracking page showing that the package had been delivered to the address in Nepal); Tenth Griffiths-Mark Affidavit (stating that the required information about the Zoom link for the hearing had been sent by SMS message to the Nepali phone number on 13 March 2024 and exhibiting a copy of the message).
No appearance was made on Mr Shrestha’s behalf at the hearing on 15 March 2024. He was called on out of Court but did not appear. Shortly after the commencement of the hearing, CBA’s counsel advised that his instructing solicitors had received correspondence that morning in their mail room.[101] The undated letter stated:
[101]Transcript 15/03/24, T45.03-.07, T48.06-.23.
Attention: Honourable Justice Harris
Dear Sir,
Re Court Matter S ECI 2023 01695
I refer to the previous correspondence from me to the Court dated 11 July 2023 and 4 October 2023 and more particularly a hearing con ducted on 17 November 2023.
I requested at the hearing that this matter be adjourned to 15 March 2024.
The purpose for an adjournment was to allow me to apply for an Australian visa to return to Australia and appear at any forward hearings. However, I have not been able to obtain the visa. I am enroute to visit the Australian Embassy in New Delhi in India to make an application again, now in person. I am extremely paranoid regarding this matter due to my proceedings with the Supreme Court in Melbourne. I believe my application would be in jeopardy and tainted and also I think this is extremely unfair as I am the victim in this matter.
I want to protect my position and therefore I strongly oppose the Amended Notice of Appeal as Commonwealth Bank of Australia and their approach is largely not aligned to their Model Litigant Principles; see copy documentation attached. Additionally, their initial Notice of Appeal was outside time limitations.
I request Amended Notice of Appeal be dismissed.
For your information and attention.
Thanking you.
Ribesh Shrestha[102]
[102]The letter was read into Transcript 15/03/24, T49.27-50.21. It was also marked for identification MFI-1.
The letter then referred to Mr Shrestha’s Nepali address. It was in an Australia Post express post envelope. It enclosed a copy of CBA’s model litigant principles, highlighting the words, ‘Acting fairly towards claimants who lack the resources to litigate a legitimate claim.’ After the hearing had concluded I ascertained that a copy of the same documents had been sent to the Court addressed to me personally, and was received in the Court’s mailroom during the hearing. On Monday 18 March 2024 a copy of the same letter was received by the Court registry. Both letters were sent in Australia Post express post envelopes.
CBA opposed any adjournment of the hearing, and opposed any dismissal of the Amended Notice of the Appeal on the basis of the application being out of time.
Rule 49.02 of the Rules provides that if, when the trial of a proceeding is called on, any party is absent, the Court may take steps including, under r 49.02(1)(b), to proceed with the trial generally, or so far as concerns any claim for relied in the proceeding.
I ruled that I would proceed to hear the matter.[103] My reasons for determining that it was appropriate to proceed were as follows:
[103]Transcript 15/03/24, T54.12-55.13.
(a) Insofar as Mr Shrestha’s letter requested an adjournment, it was an insufficiently specific request. His statement that he was unable to attend the hearing because he did not have a visa and was still in the course of making an application again for a visa indicated his complete uncertainty as to when he could be in Australia. No other mode of appearance was suggested by Mr Shrestha.
(b) There was no explanation for the very late communication by Mr Shrestha with the Court and the CBA as respondent. The undated communication, having been sent by an Australia Post express post envelope, was evidently sent from within Australia by an unidentified person shortly before the hearing. It was unsatisfactory that this notice had been given so late, in the same way as had occurred on the first occasion the when matter was listed in 16 November 2023. I was satisfied that the 15 March 2024 hearing had been brought to Mr Shrestha’s attention by service of documents to his Nepali address and through SMS message to his Nepali phone number and that there was no good reason for not having made either a formal application for an adjournment or for dismissal of the application well in advance of the hearing.
(c) I was also satisfied by the evidence tendered by the CBA[104] that Mr Shrestha had received by SMS message to his Nepali phone number the information including a Zoom link for him to appear remotely. There was no indication that Mr Shrestha had attempted to access that Zoom link.
[104]Tenth Griffiths-Mark Affidavit.
(d) Mr Shrestha had not raised any substantive objection to the proceeding other than that he considered it contrary to model litigant principles that the CBA was obliged to follow. I did not consider there was any substance to that objection, as the CBA had, in the procedural steps leading to the proceeding being heard, including in relation to the adjournment of the hearing from 16 November 2023 to 15 March 2024, acted fairly and reasonably towards Mr Shrestha, acknowledging that the matter involved an application for possession of the premises of which he was the renter.[105]
[105]See also Transcript 16/11/23, T6.26-.30.
In the circumstances, I was satisfied that it was appropriate to proceed to hear the application in the absence of Mr Shrestha. In the course of the hearing senior counsel for CBA acknowledged that the application was proceeding in practice without a contradictor (although Mr Shrestha was a respondent and on notice of the application and the basis for it). He submitted that the CBA had attempted to identify the possible arguments against the relief that was sought and provide the Court with material that I would need to consider them,[106] and I was satisfied that he had in fact done so.
[106]Transcript 15/03/24, T60.27-61.10.
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