David v Picard
[2018] VSC 713
•3 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 01361
IN THE MATTER of an application under s 148 of the Victorian Civil and Administrative Tribunal Act 1998
BETWEEN:
| JOHN DAVID and REMY DAVID | Plaintiffs |
| - and - | |
| SYLVESTRE PICARD | Defendant |
---
JUDGE: | Mukhtar AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2018 |
DATE OF JUDGMENT: | 3 September 2018 |
CASE MAY BE CITED AS: | David v Picard |
MEDIUM NEUTRAL CITATION: | [2018] VSC 713 |
---
APPEAL – Leave to appeal on a question of law Order of Victorian Civil and Administrative Tribunal – Residential tenancies matter – Order made for possession of rented premises and payment of rent – No denial of procedural fairness – No apparent error of law – Proceeding dismissed summarily
---
APPEARANCES: | Counsel | Solicitors |
| The Plaintiffs appeared in person | ||
| The Defendant appeared in person |
HIS HONOUR:
The Court sees it fit to state these brief reasons for granting the defendant’s application for summary judgment. The defendant landlord is the owner of rented premises at 5/214 Biggs Street in St Albans. The plaintiffs are in occupation of those premises under a residential tenancy agreement that was made in about October 2016. The monthly rental is $1,170. Both landlord and tenant are legally unrepresented. The materials in this case are not satisfactory but it seems to me they are the product of a distressed state of affairs.
The plaintiff has filed an originating motion seeking to appeal (that is, leave to appeal) a decision of the Victorian Civil and Administrative Tribunal. The motion does not identify the order from which he seeks leave to appeal, but it says:
I wish to appeal the tribunal (vcat) decision that was granted on the ground of not being given an opportunity to speak and hearing the circumstances. And I’m currently repaying my rent arrears $835 including my rent $585 that I usally pay every 2 weeks from centre pay that comes out of my Centrelink payments.
Our current situation is im in finasial hardship and centerlink is our only income I got wife and 2 kid under age of 4 years old and were are in risk of being evicted the real estate and landlord know our situation but they put up advances with they know we can’t afford $5000 for us to stay and we have know where else to go..thats why im appealing the jugdes decision and get another chance to explain and letting them know im repaying for us to stay.
The first plaintiff, Mr David, who I wish to say has conducted himself in a most respectful manner, has not filed any affidavit material in opposition to the application. However, in the circumstances I proceeded by allowing him to explain to the Court the basis of his appeal. He has been made to understand that the Court’s jurisdiction is engaged only if leave to appeal is given, and that leave can only be given on a question of law. He tells me that he lives in the premises with his wife and two children, aged three and five. It is a two-bedroom unit, part of a block of eight units. He says that his wife is on a bridging visa and is not permitted to work but could apply for welfare payments in October. I do not know the details but he says he is now working as a builder.
According to other materials, the Tribunal’s order he identifies as being the subject of this appeal was made on 27 March 2018. I have prepared a compilation of all the orders made by the Tribunal and identified them as Court Exhibit ‘A’. What follows is a concise history of the matter. For ease of narration I shall use the terms landlord and tenant.
The tenancy agreement was made in October 2016. The landlord had a managing agent acting for him. The rent was paid to 12 December 2016. On 11 January 2017, on the landlord’s application, the Tribunal ordered the tenant to vacate by 11 January 2017 and to pay rent of $1,154. The tenant did not appear at that hearing, but applied later to the Tribunal for a review of the order under s 120 of the VCAT Act which requires him to give a reasonable excuse for non‑attendance. That application was refused on 3 February 2017, and the possession order was affirmed.
I am told by the landlord that arrangements were then made between landlord and tenant to enable the tenant to remain in occupation, I presume on terms that first required the payment of all arrears of rent. The tenant then fell behind in rent in November 2017. The landlord then commenced new proceedings at the Tribunal seeking a possession order.
On 9 March 2018, the Tribunal made an order requiring the tenant to vacate that day and to pay $2,056 for rent. Again, the tenant did not appear. And again, on 27 March 2018, the Tribunal dismissed the tenant’s application for a review of that decision, and affirmed the order to vacate. The order made on 27 March is the order that the tenant has confirmed to me is the order for which he seeks leave to appeal.
I pressed Mr David to explain the statement in his originating motion that he was not ‘given an opportunity to speak’. He told the Court, in his words, that his situation ‘is nothing to do with the Member’. That is, he does not say he was deprived of a hearing, or the right to speak, or any procedural unfairness. Indeed, he says he told the Member that he wanted to work out a deal with the landlord to try and stay at the premises. On that day, the Tribunal Member encouraged discussions to occur and there is a handwritten notation (dated and signed) on the Tribunal’s order which says in substance that he, the tenant, would pay $585 at noon on 3 April 2018. That obligation was described as a ‘deadline’. The notation went on to say ‘Please Note: if no payment from John David (mention above) Landlord has advised to proceed with warrant of possession.’
Mr David did not meet the 3 April deadline. He told me that on that day, the power to the premises was disconnected and he had to pay to get the power back on. But, under the agreement, the landlord was entitled to obtain a warrant of possession, and did so on 3 April 2018. On 10 April 2018, there were two payments from the tenant of $585 and $250. On the same day, the tenant filed his originating motion in this Court. Since 16 April 2018, the Tribunal has allowed a stay of execution on the landlord’s possession order.
As I say, the tenant has not filed any materials in support of the motion as is required under this Court’s procedural rules. But I am not summarily dismissing this motion on that procedural default. Nor do I think it productive to adjourn matters and make orders against a litigant in person for the preparation of affidavits setting out facts and grounds to identify a legal error or a question of law. However, I can be satisfied that I have elicited, in a meaningful exchange with Mr David, all that I can about the situation he has obtained. I am able to conclude that there is nothing to suggest that he was denied procedural fairness in the Tribunal or that the order is attended with doubt. It seems to me his financial predicament and his personal responsibilities have put him in a situation where he has been unable to meet rental payments on time, whilst at the same time trying to make additional payments to catch up on arrears. There are some suggestions in his material that the landlord failed to repair the hot water system. There are other suggestions of personal friction in the relationship. But the rental obligation is paramount and I detect the personal friction was more the result of problems about the rent.
Justice has to be done to both sides. In this case, much time has passed since the making of the relevant order and whilst some payments were made since then (but not of arrears) the payments ceased on 19 June. As the tenant has acknowledged that he was not deprived of any procedural fairness by the Tribunal, and as I cannot discern amongst the limited material any other conspicuous basis for apprehending an error of law might have occurred, the only available conclusion is that this proceeding has no prospects of success.
0
0
0