| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0015 |
| DAVID DJORDJEVICH | Applicant |
| v | |
| PETER DJEKA PTY LTD | First Respondent |
| AND | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Second Respondent |
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| JUDGES: | McLEISH, WALKER and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 March 2024 |
| DATE OF JUDGMENT: | 11 April 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 60 |
| JUDGMENT APPEALED FROM: | [2022] VSC 732 (Garde J) |
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STATUTORY CONSTRUCTION – VCAT made orders for sale of property and ancillary orders conferring functions on Principal Registrar – Powers conferred on VCAT by pt IV of Property Law Act 1958 – Purpose of relevant provisions to give VCAT broad and flexible powers to resolve disputes between co-owners – No basis on which to read down provisions – No general principle that VCAT cannot enforce own orders – Whether orders impermissibly conferred functions on Principal Registrar – Functions fell within s 32(2) of Victorian Civil and Administrative Tribunal Act 1998 because they were conferred under Property Law Act – Appeal dismissed.
PRACTICE AND PROCEDURE – Whether VCAT provided adequate reasons – Whether VCAT failed to examine evidence as a whole – Whether errors in certain VCAT findings – Substance of submissions directed to factual findings rather than questions of law.
Property Law Act 1958 ss 228, 232; Victorian Civil and Administrative Tribunal Act 1998 s 32; Supreme Court Act 1986 s 122.
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| Counsel | |||
| Applicant: | Mr J Levine | ||
| First Respondent: | Mr B Guzzo | ||
| Second Respondent: | Mr L Brown SC with Ms E Smith | ||
Solicitors | |||
| Applicants: | Maciel Pizzorno & Co | ||
| First Respondent: | Aniston Lawyers | ||
| Second Respondent: | Victorian Government Solicitor | ||
TABLE OF CONTENTS
INTRODUCTION
KEY FACTS
THE VCAT DECISION
THE GROUNDS OF APPEAL BELOW, THE PROPOSED GROUNDS OF APPEAL IN THIS COURT, AND THE GROUNDS OF CONTENTION
(1).... The grounds of appeal in the Trial Division
(2).... The proposed grounds of appeal in this Court
(3).... The notice of contention
(4).... The relationship between the grounds of appeal below and the proposed grounds of appeal in this Court and the notice of contention
PROPOSED GROUNDS 1 AND 2: DID THE ORDERS FALL WITHIN VCAT’S POWERS?
(1).... The judge’s decision on VCAT’s powers
(2).... The parties’ submissions
(3).... Consideration
PROPOSED GROUNDS 4 TO 6: DID THE ORDERS CONFER ON THE REGISTRAR PERMISSIBLE FUNCTIONS?
(1).... The judge’s decision on the Registrar’s functions
(2).... The parties’ submissions
(3).... Consideration
PROPOSED GROUNDS 7, 8 AND 9: WERE VCAT’S REASONS ADEQUATE?
(1).... The judge’s decision on the adequacy of VCAT’s reasons
(2).... The parties’ submissions
(3).... Consideration
PROPOSED GROUND 11: DID VCAT CONSIDER WHETHER THE PARTIES ENTERED INTO A PARTNERSHIP?
(1).... The judge’s decision concerning the partnership issue
(2).... The parties’ submissions
(3).... Consideration
PROPOSED GROUND 12: DID VCAT ERR IN SETTING A RESERVE PRICE OF $2,000,000?
(1).... The judge’s decision on the reserve price issue
(2).... The parties’ submissions
(3).... Consideration
CONCLUSION
MCLEISH JA
WALKER JA
MACAULAY JA:
INTRODUCTION
The applicant, Mr Djordjevich, and the first respondent, Peter Djeka Pty Ltd (‘Djeka’), are the co-owners of land in Keilor.[1]…
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- Case
- [2024] VSCA 60
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to decide whether the orders made by VCAT were valid and whether they impermissibly conferred functions on the Principal Registrar. The Court had to examine the relevant statutory provisions, including sections 228 and 232 of the Property Law Act 1958, section 32 of the Victorian Civil and Administrative Tribunal Act 1998, and section 122 of the Supreme Court Act 1986. The Court had to determine whether the orders fell within the broad and flexible powers conferred on VCAT by the relevant provisions of the Property Law Act, and whether there was any basis to read down those provisions. The Court also had to consider whether the orders impermissibly conferred functions on the Principal Registrar.
The Court of Appeal found that the orders made by VCAT were valid and enforceable, and that they did not impermissibly confer functions on the Principal Registrar. The Court held that the purpose of the relevant provisions of the Property Law Act was to give VCAT broad and flexible powers to resolve disputes between co-owners. The Court found that there was no basis on which to read down those provisions, and that there was no general principle that VCAT could not enforce its own orders. The Court held that the functions conferred on the Principal Registrar fell within section 32(2) of the Victorian Civil and Administrative Tribunal Act because they were conferred under the Property Law Act. The Court dismissed the appeal.
The Court of Appeal found that the orders made by VCAT were valid and enforceable, and that they did not impermissibly confer functions on the Principal Registrar. The Court held that the purpose of the relevant provisions of the Property Law Act was to give VCAT broad and flexible powers to resolve disputes between co-owners. The Court found that there was no basis on which to read down those provisions, and that there was no general principle that VCAT could not enforce its own orders. The Court held that the functions conferred on the Principal Registrar fell within section 32(2) of the Victorian Civil and Administrative Tribunal Act because they were conferred under the Property Law Act. The Court dismissed the appeal.
The Court of Appeal dismissed the appeal and affirmed the orders made by VCAT. The Court held that the orders were valid and enforceable, and that they did not impermissibly confer functions on the Principal Registrar. The Court found that the purpose of the relevant provisions of the Property Law Act was to give VCAT broad and flexible powers to resolve disputes between co-owners. The Court held that there was no basis on which to read down those provisions, and that there was no general principle that VCAT could not enforce its own orders. The Court held that the functions conferred on the Principal Registrar fell within section 32(2) of the Victorian Civil and Administrative Tribunal Act because they were conferred under the Property Law Act.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Finally, the Attorney-General submitted that the fact that the Property Law Act does not contain the equivalent of s 22 of the Supreme Court Act is beside the point. Section 228 of the Property Law Act must be construed on its own terms and in its own context. The Supreme Court Act does not provide a statutory conferral of jurisdiction on a Tribunal that is intended to provide a fast, fair, simple and cost-effective process to resolve disputes between co-owners of land. For that reason, any comparison between s 228(1) of the Property Law Act and s 22 of the Supreme Court Act is inapt and does not assist the resolution of the question of the proper interpretation of s 228(1).(3)Consideration Proposed grounds 1 and 2 raise interesting questions of statutory construction. They are to be resolved on the basis of the correctness standard, not on the basis of the House v The King standard.[22] We grant leave to appeal on these proposed grounds, but dismiss the appeal. [22](1936) 55 CLR 499; [1936] HCA 40. As the Attorney-General submitted, and the judge found, the impugned orders fall within the literal terms of s 228(1) of the Property Law Act, which provides for the Tribunal to make ‘any order it thinks fit to ensure that a just and fair sale of land occurs’ (emphasis added). The real question is whether there is any basis on which to read down those broad terms. In this Court, Mr Djordjevich advanced, as the principal basis for reading down that broad power, the proposition that VCAT does not have power to enforce its orders. The source of that proposition was not clearly identified. However, Mr Djordjevich pointed to the fact that neither the VCAT Act nor the Property Law Act contain an equivalent to s 22 of the Supreme Court Act, which provides as follows: Execution of instruments by order of Court (1)If a person fails or refuses to comply with a judgment directing that person to execute a document or indorse a negotiable instrument, the Court may, on such terms and conditions as it considers just, order that the document be executed or that the instrument be indorsed by a person nominated by the Court. (2)A document or instrument executed and indorsed under subsection (1) operates and is for all purposes available as if it had been executed or indorsed by the person originally directed to do so. He contended that if VCAT made an order for sale, the appropriate mechanism to enforce that order would be to make an application to the Supreme Court pursuant to s 122 of the VCAT Act,[23] and to make an application for an order under s 22 of the Supreme Court Act.[23]That section provides as follows:(1) A person in whose favour a non-monetary order is made may enforce the order in the Supreme Court.(2) For the purposes of the enforcement of a non-monetary order under subsection (1), the order is taken to be an order of the Supreme Court. In our opinion, Mr Djordjevich’s arguments are misguided. First, the terms of different legislation — namely the Supreme Court Act — provide no basis on which to construe, and to read down, the relevant provisions of the Property Law Act. At its highest, s 22(c) of the Supreme Court Act demonstrates that, in a different statutory regime, an express power of the kind in question has been conferred on a Court, and the express consequences of the exercise of such a power spelled out.