De Souza v Vavlitis - [2021] VSC 554

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S ECI 2021 02327

SAVITA MARY DE SOUZA	Plaintiff
-v-
MELISSA VAVLITIS	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2021
DATE OF JUDGMENT:	6 September 2021
CASE MAY BE CITED AS:	De Souza v Vavlitis
MEDIUM NEUTRAL CITATION:	[2021] VSC 554

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PRACTICE AND PROCEDURE – Judgments and orders – Judgment on default of appearance – Where plaintiff filed but did not serve amended writ – Whether plaintiff entitled to judgment – Civil Procedure Act 2019 (Vic) Pt 4.4, ss 61–64 – Supreme Court (General Civil Procedure) Rules2015 rr 6.03, 21.01–21.04 – Residential Tenancies Act1997 (Vic) – COVID‑19 Omnibus (Emergency Measures) Act2020 (Vic) – Omnibus (Emergency Measures) Transitional Regulations 2021, Part 16 – Meringnage v Interstate Enterprises Pty Ltd & Ors [2020] VSCA 30.

PRACTICE AND PROCEDURE – Jurisdiction of Victorian Civil and Administrative Tribunal – Federal matters – Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act2021, Part 2 – Victorian Civil and Administrative Tribunal Act, Part 3A – Gabor v Public Trustees of New South Wales [2007] VSC 410.

APPEARANCES:	Counsel/Solicitor	Solicitors
For the Plaintiff	Mr A Brussaard-Kerr	Schembri & Co Lawyers
For the Defendant	No Appearance

HIS HONOUR:

Introduction

Ms De Souza (plaintiff) owns a domestic premises which she previously leased to Ms Vavlitis (defendant). When the defendant failed to pay rent, the plaintiff successfully applied to the Victorian Civil and Administrative Tribunal (VCAT) for an order terminating the lease. Notwithstanding that the lease has been terminated, the defendant has not vacated the premises. On 2 July 2021 the plaintiff commenced this proceeding seeking to gain possession of the premises and damages for trespass.

As the defendant has not filed an appearance in the proceeding within the time limit prescribed by the Supreme Court (General Civil Procedure) Rules 2015 (Rules), the plaintiff has applied by summons dated 19 August 2021 for judgment to be entered against the defendant.

For the reasons outlined below I have decided not to grant the plaintiff the relief she seeks.

Background

By the statement of claim and affidavit material filed by the plaintiff in this proceeding, the plaintiff contends as follows.

The plaintiff is the registered proprietor of the land situated at 2/282 Camp Road, Broadmeadows, Victoria, 3047, being all that land more particularly described in Certificate of Title Volume 12206 Folio 834 (Premises).

On or around 9 April 2020 the plaintiff and defendant entered into a residential tenancy agreement to lease the Premises to the defendant. The term of the lease was for six months commencing on 18 April 2020 and ending on 17 October 2020. The rent was $1,629.00 per month.

The defendant failed to pay rent and so on 1 March 2021 VCAT, on the plaintiff’s application, made orders terminating the lease on and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 554
Decision Date: 6 September 2021

CaseChat Overview and Summary

De Souza v Vavlitis is a recent decision of the Supreme Court of Victoria. The plaintiff, De Souza, filed a claim for possession of residential premises against the defendant, Vavlitis. De Souza sought a default judgment due to Vavlitis' failure to appear and defend the proceeding. The primary issue before the Court was whether De Souza was entitled to judgment, given that an amended writ had not been served on Vavlitis. The Court considered the statutory provisions under the Civil Procedure Act 2019 (Vic), particularly sections 61 to 64, alongside the relevant rules of the Supreme Court (General Civil Procedure) Rules 2015. Additionally, the Court had to consider the implications of the Residential Tenancies Act 1997 (Vic), the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic), and the Omnibus (Emergency Measures) Transitional Regulations 2021.

The Court noted that a judgment on default of appearance could only be granted if the defendant had been properly served with the writ. The amended writ was critical to this case, as it contained specific details of the claim that the defendant needed to respond to. The Court found that De Souza had not served the amended writ on Vavlitis, which was a requirement before a default judgment could be made. The Court relied on the case of Meringnage v Interstate Enterprises Pty Ltd & Ors to support its decision that failure to serve an amended writ precluded the plaintiff from obtaining a default judgment. The Court also considered the jurisdictional aspects of the Victorian Civil and Administrative Tribunal under the Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021, and the decision in Gabor v Public Trustees of New South Wales.

The Court concluded that De Souza was not entitled to the default judgment as Vavlitis had not been served with the amended writ. The Court dismissed De Souza's application for judgment and ordered that the matter be stayed until the amended writ was served on Vavlitis. This ruling underscored the importance of procedural compliance in obtaining a default judgment and highlighted the necessity for plaintiffs to adhere strictly to the statutory and rule requirements when pursuing such claims.

Orders