De Souza v Vavlitis
[2021] VSC 554
•6 September 2021
| 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 |
---
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 |
---
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 from 1 April 2021.
The defendant did not vacate the Premises by 1 April 2021. Around the same time, the plaintiff left Victoria to reside in Western Australia.
On 27 May 2021 the plaintiff applied to VCAT seeking orders for possession of the Premises. On 3 June 2021 VCAT informed the plaintiff that her application was not accepted for filing as VCAT does not have jurisdiction to hear an application between residents of different States, that being a federal matter within the meaning of s 75 of the Constitution of the Commonwealth of Australia.
On 2 July 2021 the plaintiff filed a writ and statement of claim in the Supreme Court of Victoria seeking possession of the property, damages for trespass and costs.
On 8 July 2021 the plaintiff arranged for the writ and statement of claim to be personally served on the defendant at the Premises. At the time of service, the process server, Mr Hirons, confirmed that the person served was the defendant.
On 19 July 2021 the plaintiff filed an amended statement of claim. The amended statement of claim maintained the claims for possession of the Premises and damages for trespass, with a further claim (by way of amendment) seeking an order from the Court which directed the Residential Tenancies Bond Authority to pay the bond (provided by the defendant under the lease) to the plaintiff or alternatively that an officer of the Court on behalf of the defendant, or the defendant, make a claim to the Residential Tenancies Bond Authority (RTBA) requesting payment of the bond to the plaintiff and costs.
On 20 July 2021 the process server, Mr Hirons again attended the Premises to serve the amended statement of claim. He observed that lights and the television or a radio were on inside the Premises however despite ringing the door bell, no-one answered the door. Mr Hirons then left a sealed copy of the amended statement of claim and a further copy of the writ in the door handle of the front door.
On 19 August 2021 the plaintiff filed a summons seeking orders:
(a) for possession of the Premises;
(b) that the defendant pay the plaintiff damages in the nature of mesne profits at the rate of $53.56 per day for the period 27 April 2021 to the date of judgment;
(c) costs in the amount of $3,692; and
(d) that the RTBA pay bond number 14790539 in the amount of $1,629.00 to the plaintiff (Bond Order).
On 24 August 2021 the plaintiff filed written submissions in support of her summons. The plaintiff submits that a rental provider commonly applies to VCAT for an order to recover possession of land occupied by a residential tenant. In this case, the plaintiff has applied to the Supreme Court of Victoria rather than VCAT because, first, VCAT rejected the plaintiff’s application on the basis that VCAT lacked jurisdiction and second, because the Residential Tenancies Act 1997 (Vic) (RTA) does not afford the plaintiff a mechanism to obtain an order for possession in circumstances where the lease has already been terminated by order of VCAT under temporary amendments to the RTA by operation of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
Principles relevant to r 21.01 and r 21.04 of the Rules
The plaintiff’s application on summons for judgment in default of appearance is made pursuant to r 21.01 and r 21.04 of the Rules.
Rule 21.01 provides in matters commenced by writ, where the defendant does not file an appearance within the time limit, the plaintiff may enter or apply for judgment against that defendant in accordance with that rule. Rule 8.04 provides that where the originating process is to be served in Victoria, the time for the defendant to file an appearance shall be 10 days after service.
Rule 21.01(3) provides that judgment shall not be entered or given for the plaintiff unless there is filed a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant; an affidavit proving service of the writ on the defendant; and a statement of claim.
Rule 21.04 provides that where a claim is made other than for the recovery of a debt, damages or any property, whether or not a claim for such recovery is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with r 21.01 or 21.02, the Court may give judgment for the plaintiff, such judgment to be given upon the statement of claim (emphasis added).
The authorities indicate the follow principles:
(a) The court will confine itself to the facts alleged in the statement of claim;[1]
[1]United Telephone Co v Smith (1889) 61 LT 617.
(b) Particulars referred to and served with the statement of claim are part of the statement of claim for this purpose;[2]
[2]Ibid.
(c) The statement of claim must allege all the facts which in law demonstrate the plaintiff is entitled to judgment for the relief claimed;[3]
[3]Macquarie Bank Ltd v Seagle (2005) 146 FCR 400, 406–407.
(d) The plaintiff cannot obtain judgment for any relief other than that which is claimed expressly in the statement of claim[4] [emphasis added];
(e) The Court will not look at affidavit or other material which establishes additional facts;[5]
(f) Plaintiffs will not be granted any relief to which the statement of claim does not show them to be entitled.[6]
[4]Faithfull v Woodley (1889) 43 Ch D 287.
[5]Smith v Buchan (1888) 58 LT 710; Young v Thomas [1892] 2 Ch 134.
[6]Tetley v Griffith (1887) 57 LT 673; Noden v Mason [1926] VLR 41.
Service of the statement of claim and amended statement of claim
Order 6 deals with service. Rule 6.01 requires personal service of any originating process on each defendant except where any act or the Rules otherwise provide. Rule 6.03 sets out how personal service is effected.
I am satisfied the service of the writ and statement of claim on the defendant on 8 July 2021 meets the requirements for ‘personal service’ as set out in r 6.03(1)(a), as these documents were given to a person identifying herself as the defendant.
However, the plaintiff’s purported service of the amended statement of claim was not in accordance with the requirements of r 6.03, because the documents were neither given to the defendant nor put down in her presence (after their nature being described).
The plaintiff has not proved service of the amended statement of claim as required by r 21.01(3), with the consequence that the plaintiff’s application is limited to the statement of claim dated 2 July 2021 (unamended claim). I will therefore not consider the plaintiff’s entitlement for judgment on the Bond Order.
Does the Supreme Court of Victoria have jurisdiction to hear the plaintiff’s application?
The plaintiff submits that she has made her application to the Supreme Court of Victoria because first, VCAT rejected her application because it lacks jurisdiction and second, because the RTA does not afford the plaintiff a mechanism to obtain an order for possession in circumstances where the lease has already been terminated by order of VCAT pursuant to the temporary amendments to the RTA.
It is convenient to examine the jurisdictional issue first.
In Meringnage v Interstate Enterprises Pty Ltd[7] the Court of Appeal found that VCAT was not a ‘court of a State’ within the meaning of Chapter III of the Commonwealth of Australia Constitution Act (Constitution), with the consequence that it does not have jurisdiction to exercise judicial power in a federal matter, within s 75 of the Constitution.
[7][2020] VSCA 30, 2.
What constitutes a federal matter is governed by s 75 of the Constitution and includes all matters ‘between States, or between residents of different States, or between a State and a resident of another State’.
As the plaintiff has relocated to Western Australia but remains in dispute with the defendant who resides in the Premises located in Victoria, the proceeding involves a dispute between residents of different States, ie a federal matter.
The Parliament of the State of Victoria has sought to address this jurisdictional issue by enacting the Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021 (Amendment Act). Part 2 of the Amendment Act inserts a new Part 3A into the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
Relevantly, s 57B, which is to be inserted into the VCAT Act by Part 2 of the Amendment Act, provides that a person whose application to VCAT in its original jurisdiction was, before, on or after the commencement of Part 2, rejected on the ground that the Tribunal had no jurisdiction to exercise judicial power to resolve controversies involving federal subject matter, may apply to the Magistrates’ Court. The section further provides that the Magistrates’ Court may hear and determine an application made under this section if satisfied that the application raises a controversy involving federal subject matter, that resolution of that controversy would involve an exercise of judicial power and VCAT would have had original jurisdiction enabling it to determine an application involving the same subject matter if the application did not raise a controversy involving federal subject matter the resolution of which would involve an exercise of judicial power.
Importantly, s 57B(4) of the new Part 3A states that any limitation period that would apply to the making of an application to VCAT applies to the making of an application to the Magistrates’ Court under this section. Under s 57C(2) of the new Part 3A, the Magistrates’ Court has and may exercise, in addition to any other function or power it already has, all of the functions and powers in relation to such an application that VCAT would have had if the proceeding were before VCAT and it had jurisdiction to exercise judicial power to resolve controversies involving federal subject matter. Section 57D provides the Magistrates’ Court with the power to extend any limitation period that applies to the making of an application under s 57B if satisfied of certain matters.
Pursuant to s 2 of the Amendment Act, Part 2 of the Amendment Act commences on 1 January 2022 unless proclaimed earlier. To date no such proclamation has been made. Accordingly, the provisions of the new Part 3A of the RTA have not yet commenced operation. The Magistrates’ Court does not yet have the power to deal with the plaintiff’s application.
Division 2 of Part 11 of the RTA deal with the jurisdiction of VCAT to hear and determine applications under the RTA within certain monetary limits. Section 448 of the RTA is in the following terms:
448 Proceedings of Tribunal not justiciable
(1) Subject to this section, if an application is made to or proceedings are before the Tribunal, the issue concerned is not justiciable at any time before a court or person acting judicially other than the Supreme Court or the Tribunal except –
(a)in proceedings instituted before the application to the Tribunal was made or proceedings commenced; or
(b)if the application and proceedings have been withdrawn; or
(c)in proceedings for an offence.
(2) Subsection (1) applies whether the issue is shown in the application or emerges in the course of proceedings.
(3) The Tribunal must not determine an issue in an application or proceedings if a civil proceeding in respect of the issue was instituted before a court or person acting judicially before the application to or proceedings before the Tribunal unless the civil proceeding has been discontinued.
In Gabor v Public Trustees of New South Wales,[8] Mandie J considered the jurisdiction of both VCAT and the Supreme Court of Victoria in relation to the RTA:
Sections 446 and 447 of the Residential Tenancies Act 1997 (“the Act”) set out the jurisdiction of VCAT and the monetary limits thereof but, as s 448 of the Act makes clear, the jurisdiction of VCAT in that regard, once an application is made to it, is not exclusive of the jurisdiction of the Supreme Court (although it is exclusive of other courts and persons acting judicially)…. Section 448(3) of the Act provides that VCAT must not determine an issue in an application if a civil proceeding in respect of the issue was instituted before a court before the application to VCAT was instituted. As a result, not only does the Supreme Court have jurisdiction to determine the counterclaim but VCAT is not able to determine the application before it on the same issues.
[8][2007] VSC 410, [41].
The effect of s 448 of the RTA is that proceedings are not justiciable before the Court while the issue is the subject of a proceeding before VCAT. Here the issue is not before VCAT. I am satisfied that the Supreme Court of Victoria has jurisdiction to hear and determine the plaintiff’s application.
Does the RTA afford the plaintiff a mechanism to obtain an order for possession?
It is convenient to now examine the plaintiff’s claim that the RTA does not afford the plaintiff a mechanism to obtain an order for possession in circumstances where the lease has already been terminated by order of VCAT under the temporary amendments to the RTA.
On 1 March 2021 VCAT made orders in the plaintiff’s VCAT Termination Proceedings that:
(a) Found the defendant had failed to pay rent and that her failure was not because of a COVID-19 reason;
(b) Ordered that the lease would terminate on 1 April 2021; and
(c) Warned the defendant that if she did not vacate the Premises by 1 April 2021 the plaintiff could apply to VCAT for a possession order.
The plaintiff concedes that a rental provider in the position of the plaintiff would commonly apply to VCAT for an order to recover possession of land occupied by a residential tenant. However, the plaintiff submits that the RTA does not afford the plaintiff a mechanism to obtain an order for possession in circumstances where the lease had already been terminated by order of VCAT under the temporary amendments to the RTA.
The VCAT order of 1 March 2021 states that the plaintiff applied for an order terminating the tenancy agreement on the basis of the matters specified in s 549(2)(i) of the RTA (ie a ‘termination order’).
Temporary amendments to the Residential Tenancies Act 1992
The COVID-19 Omnibus (Emergency Measures) Act 2020 inserted temporary sections into the RTA including Part 16, which came in to effect on 29 March 2020, until it was repealed one year later on 28 March 2021.
Section 549 of the RTA falls within Part 16 of the temporary amendments to the RTA and was in force at the time the plaintiff obtained the 'termination order’.
When in force, section 549 empowered VCAT to make an order terminating a residential tenancy agreement if satisfied as to any of the matters set out in s 549(2) and that in the circumstances it was reasonable and proportionate having regard to s 538 to make the order. Non-payment of rent was a matter set out in s 549(2). Section 549(6) provided that VCAT must not make an order under s 549(1) if satisfied that the tenant was unable to comply with the tenant’s obligations because of a COVID-19 reason.
Section 550 of the RTA provided that a landlord may apply to VCAT for a possession order if VCAT has made an order under s 549(1) terminating the tenancy agreement but has not made a possession order under s 549(4); and the tenant has not delivered up vacant possession by the end of the termination date specified in the order.
Section 551 provided that on an application under s 550 VCAT must make a possession order requiring a tenant to vacate rented premises on the day specified in the order if VCAT is satisfied that the tenant is still in possession; and if the tenant is entitled to notice under s 289A, the required notice has been given; and in the circumstances of the case it is reasonable and proportionate to make the possession order. In the circumstances of this case no notice under s 289A was necessary.
Transitional Regulations
The COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 (Transitional Regulations) came into operation on 28 March 2021, the day Part 16 of the RTA was repealed.
Sub-regulation 6(1) of the Transitional Regulations deals with applications for possession orders following the repeal of Part 16 of the RTA. Regulation 6 relevantly provides that on and after the repeal of Part 16 of the RTA an application for a possession order may be made under Division 1 of Part 7 of that Act in respect of rented premises for which VCAT made a ‘termination order’ under Part 16 of that Act, whether before its repeal or in accordance with regulation 7.
Regulation 6(2) provides that for the purposes of sub-regulation (1) a reference in Division 1 of Part 7 of the RTA to a ‘notice to vacate’ includes a reference to a ‘termination order’ as referred to in sub-regulation (1) of the Transitional Regulations.
Division 1 of Part 7 of the RTA deals with applications for possession orders. Section 322(1) provides that a residential rental provider may apply to VCAT for a possession order for rented property if the residential rental provider has given the renter a ‘notice to vacate’ the rented premises.
By operation of regulation 6(2) of Transitional Regulations, the reference to ‘notice to vacate’ in s 322(1) of the RTA includes a’ termination order’ made under the now repealed Part 16 of the RTA.
It follows that I do not accept the plaintiff’s submission that the RTA does not afford her a mechanism to apply for an order for possession.
An application under s 322(1) may be made at any time after the notice to vacate (termination order) is given but not later than 30 days after the termination date specified in the notice: s 326(1) RTA.
The plaintiff’s statement of claim indicates that by order of VCAT dated 1 March 2021, the lease terminated on 1 April 2021.
According to these provisions, the last date for the plaintiff to make an application under s 322(1) of the RTA was 3 May 2021 (1 May 2021 being a Saturday).
The plaintiff’s statement of claim states that the plaintiff applied to VCAT on 27 May 2021 seeking an order for possession. The plaintiff filed her statement of claim in the Supreme Court of Victoria on 2 July 2021. Neither of these dates fall within the time period required by s 326(1) for the making of a possession order under s 322(1) of the RTA.
The plaintiff’s statement of claim
The plaintiff’s statement of claim pleads the following matters:
(a) The plaintiff’s ownership of the Premises;
(b) The residential tenancy agreement of 9 April 2020 between the plaintiff and defendant;
(c) That the plaintiff (sic) took possession of the Premises pursuant to the lease on or about 18 April 2020;
(d) The 6 month term of the lease and the rent of $1,1629 per month;
(e) That the plaintiff commenced the VCAT Termination Proceeding;
(f) That on 1 March 2021 VCAT made the termination order, terminating the lease as at 1 April 2021;
(g) That the defendant did not vacate the Premises by 1 April 2021 or since;
(h) That on or about 1 April 2021 the plaintiff relocated to Western Australia;
(i) That on 27 May 2021 the plaintiff applied to VCAT seeking orders for possession;
(j) That on 3 June VCAT rejected the plaintiff’s application and advised the plaintiff’s legal representative that VCAT does not have jurisdiction to hear the application;
(k) That “despite termination of the lease on 1 April 2021 by Orders of the VCAT, the plaintiff (sic) remained and continues to remain in occupation of the Premises (Trespass)”; and
(l) The Trespass has caused and continues to cause damage to the plaintiff.
The plaintiff submits that following the VCAT termination order, the defendant is no longer a renter as defined by the RTA. The plaintiff submits that this has the consequence that the plaintiff is no longer restricted by s 91P of the RTA which prohibits a residential rental provider from attempting to obtain possession of the premises otherwise than in accordance with the provisions of the RTA. I have taken this submission as explanation for the way the plaintiff has chosen to plead her case in trespass rather than in the terms of the RTA.
I cannot accept this submission. The RTA clearly contains a mechanism (outlined above) which a residential rental provider must follow to obtain possession of rental premises from persons in the same position as the defendant in this matter.
I am not satisfied that plaintiff is entitled to the orders she seeks on the basis of the action pleaded in trespass.
Conclusion
I have found that the defendant was not personally served with the amended statement of claim in accordance with the Rules. As such, the plaintiff is not able to apply for judgment in default of appearance in respect of the amended statement of claim.
However, I am satisfied on the affidavit material that the defendant was personally served with the writ and statement of claim (unamended claim). The unamended statement of claim is framed in trespass. By the unamended claim, the plaintiff seeks a declaration that the plaintiff is entitled to possession of the Premises; an injunction requiring the defendant to deliver up possession of the Premises to the plaintiff, damages for trespass and costs.
I am satisfied that s 91P of the RTA precludes the plaintiff from gaining possession of the Premises otherwise than through the mechanisms available to her under the RTA. Those mechanisms required the plaintiff to make an application for a possession order by 3 May 2021. The plaintiff’s claim is therefore out of time and she is thus not entitled to judgment in respect of the orders sought by the unamended claim.
I will order that the plaintiff’s summons dated 19 August 2021 is dismissed. I will make no order as to costs.
I will make no order in relation to the plaintiff’s principal proceeding as it is appropriate to give the plaintiff time to consider these reasons and to decide how she wishes to proceed.
0
1
0