Djordjevich v Peter Djeka Pty Ltd

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] In 2019 Djeka applied to the Victorian Civil and Administrative Tribunal (‘VCAT’ or the ‘Tribunal’) for an order for the sale of the land, pursuant to pt IV div 2 of the Property Law Act 1958, and for the equal division of the proceeds. Mr Djordjevich opposed the order, and claimed that Djeka had become a co‑owner of the land by fraud.
[1]The second respondent is the Attorney-General for Victoria, who intervened in the proceeding below.
VCAT made orders for the sale of the land by public auction. It also made orders to facilitate the sale, including, in summary:
(a)an order that, if the parties had not agreed on a real estate agent to conduct the sale of the land by 5 August 2021, then a real estate agent is to be selected by the Principal Registrar (the ‘Registrar’) of VCAT, after the parties had submitted the name or names of real estate agents for the Registrar’s consideration (order 4);
(b)an order that, if the parties had not agreed on a solicitor to prepare the necessary documents and conduct the conveyance of the land by 5 August 2021, then a solicitor is to be selected by the Registrar, after the parties had submitted the name or names of solicitors for the Registrar’s consideration (order 7);
(c)an order that the reserve price for the sale of the land is to be $2,000,000 or such other price as the parties may agree or, where the parties cannot agree, such other price as reasonably determined by the real estate agent (order 8);
(d)an order that the parties must sign all necessary documents to give effect to the sale and conveyance of the land within 72 hours of receiving written notice to do so from the solicitor and, if they fail to do so, for the Registrar to sign the necessary document ‘which shall in all respects be treated as an execution by the party’ who failed to execute the document (order 14(a));
(e)an order that the Registrar ‘is empowered to give such directions and execute such documents as may in his opinion be necessary or desirable to give effect to’ the orders (order 15); and
(f)an order that, if a contract for the sale of the land has not been signed by a party prior to the day of the auction, such contract may be executed on behalf of that party by the real estate agent if the property is sold (order 16).[2]
[2]Peter Djeka Pty Ltd v Djordjevich [2021] VCAT 829 (‘VCAT Reasons’).
Mr Djordjevich appealed from those orders to the Supreme Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). That section permits an appeal on a question of law only.
Mr Djordjevich relied upon 21 grounds of appeal. The judge held that most of the grounds sought to challenge factual findings made by VCAT. His Honour dismissed the grounds that did not raise questions of law on that basis.
In relation to the grounds that raised questions of law, two were directed to the question whether VCAT had power to make orders that the Registrar was, in certain circumstances, to select the real estate agent and the solicitor and that the Registrar could give directions and execute documents (orders 4, 7, 14(a) and 15). Mr Djordjevich contended that these orders were outside the statutory powers conferred on VCAT and outside the functions permissibly exercised by the Registrar pursuant to the VCAT Act and the Victorian Civil and Administrative Tribunal Rules 2018 (the ‘Rules’). The Attorney-General for Victoria intervened in relation to those questions, in support of the validity of the orders. The judge held that VCAT had the power to make orders of that kind and that the Registrar was permitted to exercise the functions conferred on the Registrar by the orders.[3]
[3]Reasons, [101]–[104].
Ultimately, the judge granted leave to appeal on those grounds that raised questions of law, refused leave to appeal on all other grounds, and dismissed the appeal. Mr Djordjevich now seeks leave to appeal from the judge’s decision. He relies upon 11 proposed grounds of appeal,[4] with associated questions that are said to be questions of law. We will set out the proposed grounds of appeal in more detail below.
[4]The notice of appeal contained 12 grounds, but ground 10 was abandoned in the course of the hearing.
For the reasons that follow, we grant leave to appeal on proposed grounds 1, 2, 4 and 5, which are directed to the question of the scope of VCAT’s and the Registrar’s powers. However, we dismiss the appeal. We refuse leave to appeal on the remaining proposed grounds because they have no prospects of success.
Our reasons for these conclusions are set out below.
KEY FACTS
The parties agreed the following facts for the purpose of the application for leave to appeal:
(a)Mr Djordjevich and Djeka are registered as proprietors of the land.
(b)On 9 July 2002, Mr Djordjevich purchased the land for the sum of $280,000.
(c)In late July 2002, Djeka purchased a half interest in the land.
(d)In 2016, Mr Djordjevich initiated a Magistrates’ Court proceeding for the sum of $23,842.73. That proceeding was resolved by a Magistrates’ Court judgment of $10,000.
(e)In 2019, Djeka applied to VCAT for orders for the sale of the land. Mr Djordjevich opposed such orders.
The land comprises six contiguous allotments. When Mr Djordjevich purchased the land, there was a planning overlay which prevented five of the allotments from being developed. That overlay has since been removed.
THE VCAT DECISION
The VCAT proceeding concerned the following issues:
(a)whether Mr Djordjevich and Djeka entered into a partnership in or about July 2002;
(b)what Mr Djordjevich and Djeka agreed as to the purchase price of the half interest in the land;
(c)how Djeka became registered on the title of the land;
(d)how Djeka procured Mr Djordjevich’s signature to the transfer of land forms for the land;
(e)whether Djeka or its agent committed fraud or unconscionable conduct in relation to Mr Djordjevich;
(f)whether there should be an adjustment to the amount distributed to the parties from the net proceeds of sale for the amounts of outgoings paid by Mr Djordjevich or Djeka;
(g)whether Mr Djordjevich’s claim for a contribution for outgoings merged in the Magistrates’ Court judgment.
VCAT heard evidence from Djeka’s director, Mr Krickic, from Mr Djordjevich, and from Mr Poljakovic.
(a)Mr Krickic worked for the real estate agency that had arranged the purchase of the land by Mr Djordjevich. Mr Djordjevich had previously bought a number of properties referred to him by Mr Krickic.
(b)Mr Poljakovic was a builder who, Mr Djordjevich said, had offered to purchase a half interest in the land and redevelop it with Mr Djordjevich.
In relation to the issues identified above, VCAT held as follows:
(a)Mr Djordjevich and Djeka had not entered into a partnership in or about July 2002, because there was no evidence that they had carried on any business in common with a view to profit. Indeed, it appeared that they had not done anything in common, other than co-own the land and share expenses. The Tribunal observed that the mere fact that they owned the land as tenants in common was insufficient to create a partnership.[5]
(b)Mr Djordjevich and Djeka had agreed to a purchase price of $160,000 for the half interest in the land.[6]
(c)On 10 November 2003, six certificates of title were issued to the parties showing Mr Djordjevich and Djeka as the registered proprietors. Each transfer document bore what appeared to be Mr Djordjevich’s signature and Mr Djordjevich acknowledged in evidence that the signatures were his.[7]
(d)VCAT accepted that Mr Djordjevich had signed the documents at Mr Krickic’s office. It rejected Mr Djordjevich’s claim that he thought he was signing a ‘heads of agreement’ document for the partnership.[8]
(e)VCAT rejected Mr Djordjevich’s claim that Djeka had procured the registration of its interest by fraud.[9] As to Mr Djordevich’s claim of unconscionable conduct, it was premised on his asserted lack of proficiency in English. The Tribunal implicitly rejected that assertion.[10]
(f)As to whether there should be an adjustment to the amount distributed to the parties to reflect the outgoings paid by either Mr Djordjevich or Djeka, VCAT said that ‘most of these alleged payments were made many years ago and, if recovery were now sought by court action, the claim would be statute barred’. Thus the Tribunal concluded that there should be no adjustment of rights by reason of such payments.[11] VCAT further found that the evidence in relation to alleged outgoings by Djeka was unsatisfactory and that was a further reason for not making an order for adjustment in favour of Djeka.[12]
(g)In relation to Mr Djordjevich’s claim for a contribution for outgoings, VCAT again observed that most of the claims in question were statute barred. The Tribunal further held that Mr Djordjevich had already received an order from the Magistrates’ Court in the amount of approximately $10,000 for contribution to expenses incurred with respect of the land. All of the amounts now claimed were incurred before the date of the Magistrates’ Court order, and thus the claim with respect to those amounts had merged in the judgment.[13]
[5]VCAT Reasons, [61]–[62], referring to s 6 of the Partnership Act 1958 and to Jafari v 23 Developments Pty Ltd [2018] VSC 404.
[6]VCAT Reasons, [51].
[7]VCAT Reasons, [28], [33].
[8]VCAT Reasons, [36]–[37], [42].
[9]VCAT Reasons, [64].
[10]VCAT Reasons, [38]. The Tribunal said that ‘although [Mr Djordjevich] claimed that his English was poor, he was an experienced property developer, having bought and sold numerous properties, and was very familiar with buying and selling land and the forms that were used’.
[11]VCAT Reasons, [67].
[12]VCAT Reasons, [70].
[13]VCAT Reasons, [71]–[73].
On 28 July 2021, VCAT made orders for the sale of the land with the net proceeds to be shared equally. The orders made were as follows:
(1)The name of the Applicant is corrected to Peter Djeka Pty Ltd (ACN 057 188 235).
(2)By 16 September 2021, or such other time as the parties agree, the land located at 44A to 44F (both inclusive) Patterson Avenue, Keilor, in the State of Victoria and described in Certificates of Title Volume 10762 Folios 614, 615, 616, 617, 623, 624, 625, 626, 627, 628, 631 and 632 ('the Property'), shall be offered for sale by public auction.
(3)Subject to Order 4 of these orders, the sale shall be conducted by a licensed real estate agent jointly selected by the parties ('the Real Estate Agent').
(4)If the parties have not agreed in writing on the Real Estate Agent by 5 August 2021, then the Real Estate Agent is to be selected by the Principal Registrar who, to the exclusion of the parties, is empowered to give any necessary direction. Each party may submit the name or names of a real estate agent to the Principal Registrar who shall consider such submissions but will not be bound by them.
(5)The Real Estate Agent must conduct the sale using all proper and lawful methods, including advertising as appropriate (whether by board, internet or otherwise) and arranging open for inspection times but not so as to be at an excessive or unreasonable cost.
(6)Subject to Order 7 of these orders, and in order to give effect to the sale of the Property, the parties shall jointly select and appoint a solicitor to prepare all necessary documents and conduct the conveyance of the Property upon sale ('the Solicitor').
(7)If the parties have not agreed in writing on the identity of the Solicitor by 5 August 2021, then the Solicitor is to be selected by the Principal Registrar who, to the exclusion of the parties, is empowered to give any necessary direction. Each party may submit the name or names of a solicitor to the Principal Registrar who shall consider such submissions but will not be bound by them.
(8)The reserve selling price shall be $2,000,000.00, or such other price as the parties may agree in writing upon or, where the parties cannot agree, as reasonably determined by the Real Estate Agent.
(9)The terms of the contract of sale shall provide for a deposit of not less than 10% upon the signing of the contract with the balance to be payable within 60 days, or such other time as the parties agree in writing.
(10)Each of the parties may bid at the auction provided he or it holds a written pre-approval from a financial institution for finance for at least the reserve selling price or otherwise provides satisfactory evidence of an ability to pay an amount equalling the reserve price less the amount that would otherwise be payable to that party under Order l4(b)(v) of these Orders.
(11)Where one of the parties purchases the Property at auction or by private treaty, then the residue payable by that party is to be reduced by the amount that would otherwise be payable to that party under Order 14(b)(v) of these Orders.
(12)The Real Estate Agent shall appoint the auctioneer for the sale.
(13)If the Property is not sold at public auction:
(a)The Property shall be offered for sale by private treaty at a price to be determined by the Real Estate Agent but not less than the reserve price. The sale price and or the reserve price may be varied by written agreement of the parties or by the Real Estate Agent upon giving the parties 72 hours prior written notice of the Real Estate Agent's intention to vary the sale price or the reserve price.
(b)The advertising costs of the auction will become a charge upon the Property.
(14)If the Property is sold:
(a)Each of the parties must sign all necessary documents in order to give effect to the sale and conveyance of the Property (including the Transfer of Land) within 72 hours of receiving written notice to do so from the Solicitor. If any of the parties refuses or neglects to sign a necessary document, or if in the opinion of the Solicitor, it is not practicable to make the necessary request of that party, the Principal Registrar may sign the necessary document which shall in all respects be treated as an execution by the party who has failed or neglected to do so.
(b)The proceeds of sale will be applied as follows and in the following priority:
(i)Payment of the Real Estate Agent’s Commission or fee, including the auctioneer’s fee and other expenses of the sale;
(ii)The discharge of any registered encumbrance on the Property;
(iii)Payment of any outstanding rates, charges, taxes and imposts which have not already been paid;
(iv)Payment of the reasonable legal costs associated with the sale and conveyance of the Property; and
(v)The net balance shall be paid to the parties in the following proportions:
(A)Applicant: One half
(B)Respondent: One half
(15)The Principal Registrar is empowered to give such directions and execute such documents as may in his opinion be necessary or desirable to give effect to these orders.
(16)Where any contract for the sale of the Property by public auction has not been signed by a party prior to the day of the auction, such contract may be executed on behalf of that party by the Real Estate Agent if the Property is sold.
(17)Under s 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, no person other than a party to the proceeding or their legal representatives may inspect the Tribunal's file of this proceeding unless the Tribunal orders otherwise.
(18)Any application for costs must be made in writing to the Registry and served upon the opposite party, together with supporting material, within 21 days of the date of this order, otherwise there will be no order for costs. If such an application is made, the other party must file and serve any opposing material within 14 days thereafter and the matter will be dealt with on the papers.
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
Mr Djordjevich sought leave to appeal from VCAT’s decision, pursuant to s 148 of the VCAT Act. He advanced 21 proposed grounds of appeal (which we shall refer to as grounds of appeal). Of those, grounds 1, 2, 8, 10, 11, 17, and 21 are relevant on the present application for leave to appeal. They were as follows:
(1)The Tribunal misconstrued its powers pursuant to Pt IV of the [Property Law Act] in making the following orders:
(a)an order that the Principal Registrar select the real estate agent;
(b)an order that the Principal Registrar select the solicitor with the care and conduct of the conveyance of the land upon sale; and
(c)an order that the Principal Registrar can give such directions and sign such documents as are in her opinion necessary or desirable to give effect to these orders.
(2)The Principal Registrar’s powers to make the following directions are outside of the terms of the rules made pursuant to s 157A of the VCAT Act:
(a)a direction that the Principal Registrar can select the real estate agent;
(b)a direction that the Principal Registrar can select the solicitor with the care and conduct of the conveyance of the land upon sale; and
(c)a direction that the Principal Registrar can give such directions and sign such documents as are in [her] opinion necessary or desirable to give effect to these orders.
(8)The Tribunal erred in law in failing to consider all of the oral and documentary evidence globally or cumulatively in making its findings.
(10)The Tribunal failed to provide proper reasons for the decision and failed to address all of the significant issues before it.
(11)The Tribunal erred in law in holding that there was evidence to reasonably make a finding that Mr Djordjevich’s rights to contribution merged in a Magistrate’s Court [sic].
(17)The Tribunal erred in law by failing to make a decision as to whether the parties entered into a partnership agreement in or about July 2002.
(21)The Tribunal erred in law in making a decision that the reserve price of the land should be $2,000,000.

The judge concluded that each of these grounds failed. We will return to the judge’s reasons in more detail when we consider the proposed grounds of appeal in this Court.
(2)The proposed grounds of appeal in this Court
Before this Court, the proposed grounds of appeal were as follows:
(1)The Primary Judge erred in holding that the VCAT orders that the Principal Registrar may sign any necessary document to give effect to the sale and conveyance of the properties if a party fails or refuses to do so or it is not reasonably practicable to obtain their signature thereto fell within the powers of VCAT pursuant to Part IV Division 2 of the Property Law Act.
(2)The Primary Judge erred in holding that the VCAT order that the Real estate agent may sign the contract of sale if the properties have been sold at an auction and/or determine the reserve price if the parties cannot agree thereupon and/or the sale price in a private sale fell within the powers of VCAT as contained in Part IV Division 2 of the Property Law Act.
(3)The Primary Judge erred in holding that the VCAT orders could empower the Principal Registrar to sign any necessary document to give effect to the sale and conveyance of the properties if a party fails or refuses to do so or it is not reasonably practicable to obtain their signature thereto fell within the powers of VCAT as contained in Part IV Division 2 of the Property Law Act. [14]
(4)The Primary Judge erred in holding that the responsibilities of the Principal Registrar pursuant to the VCAT orders were within the statutory functions thereof to provide administrative support and assistance to VCAT pursuant to s 32 (1) of the VCAT Act.
(5)The Primary Judge erred in holding that the responsibilities of the Principal Registrar pursuant to the VCAT orders were to be classified as administrative in nature.
(6)The Primary Judge erred in holding that the ancillary powers could justify the Principal Registrar acting pursuant to the VCAT orders.
(7)The Primary Judge erred in holding that VCAT addressed all of the relevant and material issues before it.
(8)The Primary Judge erred in holding that VCAT provided adequate reasons for its decision.
(9)The Primary Judge erred in holding that VCAT considered all of the oral and documentary evidence globally or cumulatively in making its findings.
(10)The Primary Judge erred in holding that the claim for all of the outgoings incurred and prior to October 2016 merged in the judgment debt that was obtained in the Magistrates’ Court proceeding.
(11)The Primary Judge erred in holding that VCAT considered whether the parties entered into a partnership agreement in July 2002, and/or whether the preparatory steps taken by the parties could constitute a partnership.
(12)The VCAT erred in law in making a decision that the reserve price of the property should be $2,000,000.
[14]We note that, subject to a minor grammatical difference, proposed ground 3 is in substance the same as proposed ground 1. These two grounds were said, in the written application for leave to appeal, to raise the same question of law. And in his written submissions on proposed ground 3 Mr Djordjevich referred to and repeated his submissions on proposed ground 1. However, in oral argument Mr Djordjevich said that ground 3 raises essentially the same question as ground 4. On any view, ground 3 does not raise a distinct issue. We will thus not deal separately with proposed ground 3.
As previously noted, ground 10 was abandoned in the course of the hearing.
(3)The notice of contention
The second respondent, the Attorney-General for Victoria, intervened in the proceeding below to advance submissions on the proper construction of the VCAT Act and the Property Law Act. Before this Court, the Attorney-General filed a notice of contention, seeking to uphold the judge’s decision concerning the validity of the Tribunal’s orders on a ground not dealt with by the judge. The two grounds in the notice of contention are as follows:
(1)The orders made by the VCAT on 28 July 2021 with respect to the Principal Registrar directed the Principal Registrar to perform functions that were within the statutory functions of the Principal Registrar under s 32(2)(a) of the [VCAT Act], conferred under ss 228(1), s 232(h) and/or 232(i) of the Property Law Act.
(2)The power conferred on the VCAT under s 228(1) of the [Property Law Act] is not confined by the statutory functions of the Principal Registrar.[15]
(4)The relationship between the grounds of appeal below and the proposed grounds of appeal in this Court and the notice of contention
[15]The notice of contention referred to s 228(1) of the VCAT Act, but it is clear that it was intended to refer to s 228(1) of the Property Law Act.
Mr Djordjevich’s proposed grounds of appeal, and the Attorney-General’s grounds of contention, correspond to the grounds before the judge, as follows:
(a)Proposed grounds 1 and 2, which concern VCAT’s powers, correspond to ground 1 below, although they are narrower in scope.
(b)Proposed grounds 4 to 6, and the grounds of contention, which concern the Registrar’s functions, correspond to an argument made in relation to ground 1 below.
(c)Proposed grounds 7, 8 and 9, which concern whether VCAT addressed all of the relevant issues and gave adequate reasons, correspond to ground 8 and ground 10 below.
(d)Proposed ground 11, which concerns whether VCAT considered whether the parties entered into a partnership agreement, corresponds to ground 17 below.
(e)Proposed ground 12, which concerns the setting of a reserve price, corresponds to ground 21 below.
PROPOSED GROUNDS 1 AND 2: DID THE ORDERS FALL WITHIN VCAT’S POWERS?
It is convenient to deal with proposed grounds 1 and 2 together, because they each concern the scope of VCAT’s powers. As already noted, these proposed grounds correspond to ground 1 before the judge.
(1)The judge’s decision on VCAT’s powers
Ground 1 of Mr Djordjevich’s proceeding in the Trial Division was that the Tribunal had misconstrued its powers by making orders that the Registrar select the real estate agent and the solicitor and by making an order that authorised the Registrar to give directions and sign documents the Registrar considers necessary or desirable to give effect to the Tribunal’s orders.
This ground turned on the construction of pt IV of the Property Law Act, which is an enabling Act for the purposes of the VCAT Act. In particular, it required consideration of the powers conferred on VCAT by ss 228 and 232 of the Property Law Act. Section 228 provides as follows:
(1)In any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land … occurs.
(2)Without limiting VCAT’s powers, it may order—
(a)the sale of the land … and the division of the proceeds of sale among the co-owners; or
(b)the physical division of the land … among the co-owners; or
(c)that a combination of the matters specified in paragraphs (a) and (b) occurs.
Section 232 of the Property Law Act relevantly provides as follows:
In any proceeding under this Division, VCAT may order—
(a)that the land … be sold by private sale or at auction;
(b)that the co-owners may purchase the land … at that sale or auction;
…
(d)in the case of an auction, that the reserve price is the reserve price set by VCAT;
…
(h)that the sale and division of the proceeds of sale or the physical division of the land … is subject to any terms and conditions which VCAT considers necessary or desirable in any particular case;
(i)in the case of land, that any necessary deed or instrument be executed and documents of title be produced or other things be done that are necessary to enable an order to be carried out effectively;
(j)in the case of land to which the Transfer of Land Act 1958 applies, directing the Registrar of Titles to make amendments to the Register within the meaning of that Act or do any act or make any recordings necessary to give effect to an order under this Division.
The judge, after setting out the relevant principles of statutory construction, undertook a thorough and careful analysis of the relevant legislation. His Honour observed that there was no doubt that the orders made fell within the broad terms of s 228(1) of the Property Law Act, which permits VCAT to make ‘any order it thinks fit’ to ensure a just and fair sale of the land. That is a ‘discretionary power of the widest ambit’. His Honour also observed that ‘many, if not all, of the orders’ made by VCAT fell within specific provisions in s 232 of the Property Law Act.[16]
[16]Reasons, [57]–[58].
The question his Honour then addressed was whether the broad power in s 228 should be read down by reason of other provisions of the Property Law Act.[17] In particular, his Honour had regard to the principle identified by the High Court in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia,[18] namely that when Parliament explicitly gives a power that is subject to conditions and restrictions, such provision excludes the operation of any general provision that might otherwise have been relied upon for the same power.[19] His Honour concluded that s 232 did not operate to read down or limit the operation of s 228(1). Section 232 did not impose any conditions or restrictions on the exercise of the powers there conferred, thus it did not engage the Anthony Hordern principle. His Honour further concluded that the legislative intention underpinning pt IV of the Property Law Act was to confer on VCAT a set of broad and flexible powers.[20]
[17]Reasons, [5].
[18](1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J); [1932] HCA 9 (‘Anthony Hordern’).
[19]Reasons, [59]–[61].
[20]Reasons, [62]–[63].
His Honour concluded that the orders made by VCAT fell within the powers conferred on it by pt IV of the Property Law Act.[21]
[21]Reasons, [70].
Ground 1 thus failed.
(2)The parties’ submissions
In this Court, Mr Djordjevich made slightly different, and narrower, submissions in relation to the scope of VCAT’s power to make the orders it made.
(a)By proposed ground 1, he challenged VCAT’s power to make orders that the Registrar may sign any necessary document to give effect to the sale and conveyance of the properties if a party fails or refuses to do so or it is not reasonably practicable to obtain their signature.
(b)By proposed ground 2, he challenged VCAT’s power to make orders that the real estate agent may sign the contract of sale if the properties have been sold at an auction and/or determine the reserve price if the parties cannot agree upon it and/or determine the sale price in a private sale.
That is, both proposed grounds are directed to whether VCAT has power to authorise another person (the Registrar, or a real estate agent) to sign documents, or take other steps such as setting a reserve price, where a party will not do so.
Mr Djordjevich accepted that VCAT has a power to make an order for the sale of a property, pursuant to s 232 of the Property Law Act. However, he contended that VCAT does not have the power to enforce its orders:
There is no power in Part IV Division 2 of the Property Law Act, to make an order in terms of s 22 of the Supreme Court Act 1986 (Vic) (Supreme Court Act) that if a person fails or refuses to comply with an order to execute a document that the court may order that the document be executed by a person nominated by it. The power to make such an order is absent from Part IV Division 2 of the Property Law Act. The appropriate procedure was to enforce the order in the Supreme Court of Victoria which would be taken to be an order of the Supreme Court, and to make an application for an order pursuant to s 22 of the Supreme Court Act.
…
The Primary Judge conflated the issues of making orders and the enforcement thereof, and misconstrued Part IV Division 2 of the Property Law Act, which dealt with the former and not the latter. The VCAT had the powers to make orders, but orders have to be enforced, which had to be undertaken by the Supreme Court, as VCAT was not given the power to enforce its orders. [Section] 232(i) of the Property Law Act gives VCAT the power to make an order for the execution of any necessary documents, which is directed at the parties, because, otherwise the necessary documents would have no effect. Even if VCAT could order the Principal Registrar to execute the necessary documents, that will have no force or effect without the power that the executed documents operate and is for all purposes to be treated as if executed by a party.
These submissions were made in relation to both proposed grounds 1 and 2.
In relation to the order authorising the real estate agent to set the reserve price for the property, or the sale price in a private sale, raised by proposed ground 2, Mr Djordjevich submitted as follows:
The VCAT cannot delegate its powers on the reserve price at an auction or the sale price in a private sale, or have a real estate agent sign the contract of sale (which the Plaintiff denies that VCAT has any of these powers) to a third party. In Auslong v Morey [2021] VSC 250 Croucher J said at [151] ‘Section 232 allows VCAT to make orders concerning the methods, timing and costs of sales, purchases by co-owners, independent valuations and the terms of sale and division of the proceeds of sale.’
In oral argument Mr Djordjevich also submitted that s 232(i) permitted VCAT to authorise only an owner of the land to execute documents — it did not permit VCAT to authorise another person, such as the Registrar or a real estate agent, to do so.
In relation to orders 8 and 13(a) which authorised the appointed real estate agent to set a reserve price or a sale price respectively, he submitted that VCAT was not permitted to delegate its functions — in particular, the function of setting a reserve price under s 232(d) — to a real estate agent, whose decision would not be subject to review or appeal, and who had no obligation to consult the parties. Rather, he submitted, VCAT ought to have ordered an independent valuation, under s 232(e).
In response, Djeka submitted that this Court should refuse leave to appeal on proposed grounds 1 and 2 because they did not have a real prospect of success. Alternatively, if leave to appeal were to be granted, Djeka submitted that the judge did not err in his construction of the relevant legislation.
The Attorney-General made submissions in relation to these proposed grounds. She submitted that the impugned orders fall within the broad terms of s 228(1) of the Property Law Act and that there is no basis on which to read down those broad terms. The Attorney-General also submitted that the orders the subject of challenge were authorised by the terms of s 232(h) and/or s 232(i) of the Property Law Act.
(a)Orders 8 and 13(a), which authorise the real estate agent to set a reserve price or a price in a private sale, were submitted to fall within the scope of s 232(h), because they constituted terms or conditions that VCAT had found it necessary or desirable to impose.
(b)Orders 14(a) and 15, which authorise the Registrar to execute documents, and order 16, which authorises the real estate agent to execute documents, were submitted to fall within the scope of s 232(i).
In response to the argument that the impugned orders are beyond power because they are in the nature of the enforcement of the Tribunal’s orders, the Attorney-General contended that there is no canon of construction or authority to support this argument. She further submitted that this would involve confining the broad language used by Parliament in a manner inconsistent with the purpose of the provisions, as manifested in the words Parliament used and as confirmed by relevant extrinsic material.
The Attorney-General submitted that s 122(1) of the VCAT Act, which provides that a ‘person in whose favour a non-monetary order is made may enforce the order in the Supreme Court’, should not be interpreted so as to preclude VCAT from making ancillary orders to give effect to its orders. She submitted that such an interpretation would be inconsistent with other aspects of the VCAT Act and the Property Law Act. In particular:
(a)Section 130(1) of the VCAT Act gives VCAT the power to make an order or decision subject to ‘any conditions or further orders that the Tribunal thinks fit’, which includes, pursuant to s 130(2)(e), ‘a condition or order necessary or desirable to give effect to an order or other decision’.
(b)Section 232 of the Property Law Act confers specific powers on VCAT to enable it to make orders to give effect to orders made under part IV div 2. One example, in s 232(j), is a power to direct the Registrar of Titles to amend the Register under the Transfer of Land Act 1958 ‘to give effect to an order under this Division’.
The Attorney-General submitted that it follows that the permissive provision in s 122 of the VCAT Act ought not be construed so as to read down VCAT’s broad discretion under s 228(1) of the Property Law Act to make ancillary orders to ensure a just and fair sale or division of land occurs.
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.
Secondly, there is no general principle to the effect that VCAT cannot enforce its own orders. The fact that there is a facultative power in s 122 of the VCAT Act for a party to seek to enforce a non-monetary order in the Supreme Court does not require s 228 of the Property Law Act to be read down so that it does not permit the making of orders that might fall within the concept of ‘enforcement’, if that concept means ‘make effective’. The proposition that VCAT cannot, in some general sense, ‘enforce’ its orders is inconsistent with several other statutory provisions that plainly contemplate that VCAT may make ancillary orders that render a primary order effective. For example:
(a)section 130 of the VCAT Act permits VCAT to make orders containing conditions that are ‘necessary or desirable to give effect to’ another order;
(b)section 232(i) of the Property Law Act confers power on VCAT to direct that documents be executed or other things be done that are ‘necessary to enable an order to be carried out effectively’;
(c)section 232(j) of the Property Law Act confers power on VCAT to direct the Registrar of Titles to make amendments to the Register of land.
In any event, permitting the Registrar and/or the real estate agent to execute documents does not, in our view, amount to the ‘enforcement’ of VCAT’s other orders. Rather, these are ancillary orders that are directed to rendering efficacious the primary order for the sale of land. This is consistent with the terms of s 228(1), which are directed at ‘ensuring’ that a just and fair sale of the land ‘occurs’.
Furthermore, we do not accept Mr Djordjevich’s submission that the scope of s 228(1) is narrowed or confined by s 232 of the Property Law Act. There is nothing in the text to suggest such confinement. As the judge correctly observed, the Anthony Hordern principle[24] is not engaged; no challenge was made to that aspect of his Honour’s decision, nor was any submission put to this Court based on that principle. Section 228(1) is to be construed with all the generality its language permits; and, while s 232 sets out a range of orders VCAT may choose to make under pt IV, it does not exhaust the possible orders that may be made.
[24]In Anthony Hordern (1932) 47 CLR 1; [1932] HCA 9, Gavan Duffy CJ and Dixon J said this: ‘When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power’: 7.
In any event, even if s 228(1) were confined by s 232, we accept the Attorney-General’s submission that the orders in question in this case fall within s 232(h) and/or s 232(i) of the Property Law Act.
Section 232(h) is a broad power to impose terms and conditions on an order, where the Tribunal considers that to be necessary or desirable. The parts of the VCAT orders authorising the real estate agent, in the absence of the parties’ agreement, to set a reserve price, and if necessary to set a price in a private sale, are properly understood as terms and conditions on the sale of the land, and there was no legal error in the Tribunal considering that those orders were desirable in the context of parties who are in disagreement. We see no warrant to read down this power to exclude orders of the kind in question.
Section 232(i) is an express power to direct the execution of instruments. It is expressed in the passive voice, without identifying who may be directed to execute instruments. The power is not expressed to be limited to a direction to the parties to execute documents; in our opinion, that drafting choice was deliberate, so as to enable the Tribunal to make an order that another person execute documents. We consider that it permitted the Tribunal both to direct the parties to execute documents and to authorise the Registrar and the real estate agent to execute documents if the parties failed to do so.
It follows from that conclusion that such execution must be effective — that is, it must have the same legal effect that the execution of the document by the relevant party would have.[25] This is implied in the power to direct or authorise the execution of documents. Otherwise there would be no point in Parliament conferring a power of this kind on VCAT. That this is so is reinforced by the language of the sub-section, which refers to things being done that are ‘necessary to enable an order to be carried out effectively’.
[25]We note that order 14(a) (which authorised the Registrar to execute certain documents) expressly stated that such execution was to be ‘treated as an execution by the party who has failed or neglected to do so’. In contrast, order 15 (which gave a more general authorisation to the Registrar to execute documents) and order 16 (which authorised the real estate agent to execute a contract of sale) contained no such express statement. In our view it is not necessary for the orders to contain such a statement in order for the executed documents to be legally effective. Their effect is implied by reason of the legislative provision in s 232(i).
Finally, a broad construction of pt IV of the Property Law Act is consistent with the role of the Tribunal in relation to the sale of jointly owned land, which is, as the Attorney-General submitted, to give VCAT broad and flexible powers to resolve disputes between co-owners in a way that is fast, fair, simple and cost-effective. That purpose is evident in the language of s 228(1), which permits VCAT to make orders to ‘ensure’ that a fair sale of the land ‘occurs’. It is also evident in the suite of broad powers conferred by s 232 (and related sections) and in the choice of VCAT as the body upon which these powers are conferred.
The purpose is also reflected in the second reading speech for the Property (Co-Ownership) Bill 2005, which inserted pt IV div 2 into the Property Law Act. The then Attorney-General explained the purpose of the Bill as follows:
Co-owned property can be sold or divided with the agreement of all the co- owners. However, if co-owners disagree or a co-owner cannot agree to sell because he or she is not an adult or lacks legal capacity, a process is required to authorise sale or division.
...
Concern about the formality, expense and delay of requiring these matters to be heard in the Supreme or County courts was evident in submissions received by the Victorian Law Reform Commission.
…
This bill repeals and replaces part IV to address these concerns. The proposed bill will transfer jurisdiction over co-ownership disputes from the Supreme and County courts to the Victorian Civil and Administrative Tribunal (VCAT). …
The bill provides VCAT with the power to provide flexible remedies to address the issues that arise in these disputes.[26]
[26]Victoria, Parliamentary Debates, Legislative Assembly, 14 September 2005, 879 (Rob Hulls, Attorney‑General).
In relation to the limitation of the Supreme Court’s jurisdiction, found in s 234C of the Property Law Act, the then Attorney-General said as follows:
The reason that the Supreme Court’s jurisdiction to hear disputes between co-owners is limited is to ensure that these disputes can be dealt with in a more accessible and affordable forum for dispute resolution.[27]
[27]Victoria, Parliamentary Debates, Legislative Assembly, 14 September 2005, 880 (Rob Hulls, Attorney‑General).
This purpose — to give VCAT broad and flexible powers to resolve disputes between co-owners — was also reflected in the report of the Victorian Law Reform Commission that informed the Bill.[28]
[28]Victorian Law Reform Commission, Disputes between Co-Owners (Report, 24 April 2002), 59–64, 75–81. The report was referred to in the second reading speech: Victoria, Parliamentary Debates, Legislative Assembly, 14 September 2005, 880 (Rob Hulls, Attorney-General).
For these reasons, we consider that the judge was correct in his conclusion that the Tribunal had the power to make the orders it made. Proposed grounds 1 and 2 must fail.
PROPOSED GROUNDS 4 TO 6: DID THE ORDERS CONFER ON THE REGISTRAR PERMISSIBLE FUNCTIONS?
It is convenient to deal with proposed grounds 4, 5 and 6 together, because they concern the nature of the functions that may be permissibly conferred on the Registrar. As noted earlier, these proposed grounds corresponded to an aspect of the argument on ground 1 before the judge.
Much of the argument in respect of this ground focused on s 32 of the VCAT Act, which provides:
Employment of registrars and other staff
(1)To assist in the administration of the Tribunal there are to be employed under the Public Administration Act 2004—
(a)a principal registrar; and
* * * * *
(c)as many registrars and other staff as are necessary.
(2)The principal registrar—
(a)has the functions conferred by or under this or any other Act and the rules; and
(b)in carrying out those functions, is subject to the direction of the President.
(3)A registrar other than the principal registrar has, subject to the direction of the principal registrar, all the functions of the principal registrar.
(1)The judge’s decision on the Registrar’s functions
Ground 1 before the judge, as developed in oral argument, focused on the Registrar as the recipient of the functions in question. The argument was that VCAT lacked power to confer functions on the Registrar that fell outside the statutory functions of the Registrar. This ground canvassed the scope of the functions and powers conferred on the Registrar by the VCAT Act and the Property Law Act.
The judge observed that the functions conferred on the Registrar could be classified into four main categories:
(a)administrative functions and powers;
(b)statutory functions and powers;
(c)Tribunal member functions and powers that may be exercised by the Principal Registrar; and
(d)implied or incidental powers.[29]
[29]Reasons, [72].
The judge observed that s 32(1) of the VCAT Act provides for the Registrar to assist in the administration of VCAT. His Honour concluded that the functions conferred on the Registrar by the orders in question were administrative in nature. As to the functions of selecting a real estate agent and a solicitor, after setting out the duties of those persons in relation to the sale of property, he observed as follows:
The respective functions of a real estate agent and of a solicitor in respect of the sale of land are fundamentally of an administrative, and not quasi-judicial, character. They can be expected to continue on an almost daily basis over a number of months until the property is sold and settled. It is essential that those functions be performed if orders for the sale of land and the division of the proceeds under Pt IV Div 2 of the [Property Law Act] are to be performed and carried into effect. It would be highly inconvenient and inexpedient for these functions to be performed by a Tribunal member, who would necessarily be required to act out of session.[30]
[30]Reasons, [96].
More generally, the judge observed that unless the Registrar has power to instruct a real estate agent or solicitor, to give directions and to execute necessary documents, VCAT’s jurisdiction under pt IV div 2 would be frustrated and the orders ‘stultified and rendered nugatory’.[31]
[31]Reasons, [97].
The judge concluded that the responsibilities given to the Registrar under the orders were within the statutory function of the Registrar to provide administrative support and assistance to VCAT in the exercise of its jurisdiction.[32]
[32]Reasons, [101].
Ground 2 thus failed.
(2)The parties’ submissions
Mr Djordjevich made the following submissions in relation to these proposed grounds:
The Primary Judge wrongly held that that as the Principal Registrar was employed to assist in the administration of VCAT, the Principal Registrar could undertake the responsibilities pursuant to the VCAT orders.
The Primary Judge misconstrued the ordinary meaning of the word administration.
The ordinary meaning of the word administration, is the process or activity of running a business or organisation.
The ordinary meaning of the word administration does not involve the setting of a reserve price of properties at an auction or the sale price in a private sale or to give legally binding directions or to execute documents on behalf of a party without their consent thereto.
The ordinary meaning of the word administration has nothing to do with the enforcement of a VCAT order.
The Primary Judge wrongly held that s 32(1) of the VCAT Act conferred statutory responsibilities upon the Principal Registrar, as opposed to an administrative role as an employee of VCAT.
…
The responsibilities of the Principal Registrar pursuant to the VCAT orders made on 28 July 2021 were to enforce VCAT orders, as opposed to scheduling a hearing, and are not administrative in nature.
…
There were no primary function or powers conferred upon VCAT or the Principal Registrar to enforce the VCAT orders. There is no corollary to s 22 of the Supreme Court Act in the VCAT Act.
There are no ancillary powers that are necessary for, incidental or consequential upon the primary function of VCAT, which is to make orders, as opposed to enforcing orders.
It is apparent that there is a degree of overlap between the arguments made on proposed grounds 4, 5 and 6 and the argument made on proposed grounds 1 and 2.
In oral argument Mr Djordjevich also submitted that s 32(2)(a), which provides that the Registrar has functions conferred ‘by or under … any other Act’, does not refer to orders made by VCAT and therefore does not extend to functions conferred by such orders. He also submitted that it would be odd if, functions having been conferred by an order, the carrying out of those functions were to be subject to the direction of the President; yet that would follow from s 32(2)(b). Furthermore, he submitted, such supervision would not be effective once the Registrar had executed a document and the properties had been transferred.
Djeka submitted that the judge was correct in holding that the responsibilities given to the Registrar under the orders were within the statutory function of the Registrar to provide administrative support and assistance to the Tribunal pursuant to s 32(1) of the VCAT Act.
The Attorney-General submitted that the function conferred on the Registrar by s 32(1) of the VCAT Act — to ‘assist in the administration of the Tribunal’ — is sufficiently broad in nature to include the functions conferred upon the Registrar by the orders in this matter.
The Attorney-General also relied upon her notice of contention, the first ground of which relied upon s 32(2)(a) of the VCAT Act. Pursuant to that sub-section, functions may be conferred on the Registrar ‘by or under [the VCAT Act] or any other Act and the [R]ules’. The Attorney-General submitted that there is no requirement that any other functions be conferred expressly by the relevant Act; they may be implied. Thus, they may be implied within generally expressed provisions such as s 228(1), as part of the general administrative responsibility of the Registrar. The Attorney-General drew attention, by way of analogy, to this Court’s decision in R v Perkins, which held that the Registrar has power to engage lawyers to assist VCAT in a proceeding alleging that a barrister had acted in contempt of VCAT.[33] The Attorney-General submitted as follows:
The power [in s 228 of the Property Law Act] is ‘wide enough to include the adoption of the sensible course’^[[34]] of conferring the various functions on the Principal Registrar through the orders that are impugned by the Applicant. The functions or responsibilities given to the Principal Registrar by the impugned orders were to take the steps necessary to effect the sale of the land that VCAT had decided was necessary to resolve the dispute that was before it. They were administrative steps in the sense that they did not require the resolution of competing legal claims (which was determined by VCAT) but were the necessary additional steps to finalise the dispute and fulfil the objectives of Parliament in enacting Pt IV Div 2 of the [Property Law Act] — to give VCAT broad and flexible powers to resolve disputes between co-owners in a way that is fast, fair, simple and cost effective.
[33]R v Perkins [2002] VSCA 132, [23] (Vincent JA, Phillips CJ agreeing at [1], Chernov JA agreeing at [2]) (‘Perkins’).
[34]Perkins [2002] VSCA 132, [24] (Vincent JA, Phillips CJ agreeing at [1], Chernov JA agreeing at [2]).
The second ground of contention was that s 228(1) of the Property Law Act is not limited by reference to the statutory functions of the Registrar. Rather, that section permits VCAT to determine to whom it should direct its ancillary orders so that land can be sold. The Attorney-General accepted that, in theory, there might be persons who by reason of some statutory constraint cannot undertake the function conferred upon them by such an order. The Attorney-General submitted that, even if that were so, the order conferring such a function or obligation would simply be unenforceable against the person who could not comply; the order itself would not be invalid. That is, VCAT’s power under s 228(1) is not subject to some form of implied limitation.
In the present case, the Attorney-General submitted, the Registrar is required to comply with the impugned orders, just like any other person to whom a valid order of VCAT is directed. The Attorney-General submitted as follows:
It can be inferred that VCAT determined that the Principal Registrar was the appropriate repository of the functions that were conferred — not because they were necessarily within the statutory functions of the Principal Registrar, but by virtue of the position that they occupied.
In response to the notice of contention, Mr Djordjevich submitted as follows:
The Property Law Act … authorises VCAT to make an order that a person with the capacity to do so execute any instrument or produce a document of title. It is an absurdity to suggest that the [Property Law Act] can authorise the Principal Registrar or any other third party to produce a title that is not in their possession, custody or control or to execute a contract of sale, in respect of properties that they are not registered proprietors thereof, and have no capacity to transfer the properties. The Applicant is not reading down the provision. The VCAT cannot make an order that a third party transfer properties that they do not own.
…
The VCAT orders made in relation to the Principal Registrar cannot be supported by s 32(2)(a) and (b) of the [VCAT Act] which provides that the Principal Registrar has the functions conferred by or under this or any other Act and the rules and in carrying out those functions is subject to the direction of the President. … The [Property Law Act] orders are not subject to the direction of the President. The functions that are conferred under an Act or rule pursuant to s 32(2)(a) and (b) of the [VCAT Act] must be specifically conferred upon the Principal Registrar. It cannot be conferred upon third parties. The [Property Law Act] can only confer powers upon persons with the capacity to comply with the VCAT orders. It would be an absurdity to hold that VCAT orders could be made against persons with no capacity to comply with the VCAT orders, and who would be subject to a possible contempt charge for failing to comply with the VCAT orders.
(3)Consideration

It may be recalled that proposed grounds 4, 5 and 6 are as follows:
(4)The Primary Judge erred in holding that the responsibilities of the Principal Registrar pursuant to the VCAT orders were within the statutory functions thereof to provide administrative support and assistance to VCAT pursuant to s 32(1) of the VCAT Act.
(5)The Primary Judge erred in holding that the responsibilities of the Principal Registrar pursuant to the VCAT orders were to be classified as administrative in nature.
(6)The Primary Judge erred in holding that the ancillary powers could justify the Principal Registrar acting pursuant to the VCAT orders.
These proposed grounds are independent of proposed grounds 1 and 2 — that is, they arise even if the orders made otherwise fell within the terms of s 228 and/or s 232 of the Property Law Act. The argument is that even if those sections appeared, on their face, to support the orders authorising the Registrar to execute documents, it is nonetheless necessary to find a statutory function of the Registrar within which the orders in question fall. In the absence of such a function, VCAT would lack the power to make orders of this kind.
Proposed ground 6 may be disposed of swiftly. The judge did not hold that ‘the ancillary powers could justify the … Registrar acting pursuant to the VCAT orders’. His Honour decided the matter expressly on the basis that the responsibilities conferred on the Registrar by the orders fell within the statutory function conferred on the Registrar by s 32(1). Leave to appeal on proposed ground 6 must therefore be refused.[35]
[35]To the extent that ground 6 is to be understood as directed to whether the orders in issue were authorised by one or more of the powers set out in s 232, we note that the ground was not argued in that way. In any event, we have dealt with that question under grounds 1 and 2.
Proposed grounds 4 and 5 may be considered together. They are directed to whether the functions conferred on the Registrar by the orders made in this case fall within the scope of the function conferred on the Registrar by s 32(1) of the VCAT Act.
Section 32(1) is, on its face, concerned with the employment of the Registrar and such other registrars and staff as are needed. However, by implication it identifies the functions to be performed by the Registrar and other staff, being to assist in the administration of the Tribunal.
Section 32(2)(a) then makes clear that the Registrar has functions conferred by or under the VCAT Act, the Rules and any other Act (which would include the Property Law Act, if that Act confers functions on the Registrar).
As already noted, the judge concluded that the functions conferred on the Registrar by the orders — of selecting a real estate agent, selecting a solicitor, and executing documents, in circumstances where a party, or both parties, were preventing such steps from being taken — were administrative in nature and thus the carrying out of such functions assisted in the administration of the Tribunal.
We have some doubt as to whether the judge was correct to reach that conclusion. The functions conferred by the orders are functions to be taken after VCAT has made its orders. On one view, VCAT’s role is now over, save for the functions conferred on the Registrar by the orders. It is at least arguable that the Registrar is thus not ‘assisting in the administration of the Tribunal’ — rather, it is assisting in the carrying into effect of the orders, which is a function of a different kind.
However, it is not necessary to reach a concluded view on this issue because we consider that the Attorney-General’s first ground of contention ought to be upheld. That is, the functions conferred on the Registrar by the orders fall within s 32(2)(a) of the VCAT Act: they are functions conferred on the Registrar under an Act other than the VCAT Act, namely under s 228 and/or s 232 of the Property Law Act as the relevant provisions of another Act. Although those sections do not themselves confer any functions on the Registrar, they confer power on VCAT. If and when VCAT exercises that power to direct the Registrar to take a step, the Registrar is properly understood as performing functions conferred on him or her under the Property Law Act.
The fact that, under s 32(2)(b), the performance of such functions is subject to the direction of the President of VCAT does not alter this conclusion. There is nothing inimical to the conferral of functions on the Registrar by VCAT’s orders in having such a function subject to the direction of the President. To the contrary, that degree of institutional supervision of the Registrar might well be regarded as appropriate. Furthermore, the fact that once the Registrar has executed a document, and the land has been transferred, there would be no further role for supervision by the President is unsurprising. It is always the case that, once a function has been performed, any supervision must necessarily cease.
In the circumstances, we do not need to deal with the Attorney-General’s second ground of contention. We doubt, however, that the orders conferred functions on the Registrar other than in his or her capacity as Registrar, as that ground contends. If that is right, the Registrar was not given powers in any personal capacity, and it was necessary to identify a statutory basis upon which the Registrar could act pursuant to the orders.
In light of our conclusion that the orders in question validly conferred functions on the Registrar pursuant to s 32(2)(a), we grant leave to appeal on grounds 4 and 5, but dismiss the appeal.
PROPOSED GROUNDS 7, 8 AND 9: WERE VCAT’S REASONS ADEQUATE?
Proposed grounds 7, 8 and 9 are related, in that they all concern the adequacy of VCAT’s reasons, although two of them are framed by reference to distinct issues concerning whether VCAT adequately considered all of the evidence and addressed the material issues raised in the proceeding. As earlier noted, these three proposed grounds correspond to grounds 8 and 10 before the judge.
(1)The judge’s decision on the adequacy of VCAT’s reasons
The two grounds below that raised issues concerning adequacy of reasons were as follows:
(8)The Tribunal erred in law in failing to consider all of the oral and documentary evidence globally or cumulatively in making its findings.
(10)The Tribunal failed to provide proper reasons for the decision and failed to address all of the significant issues before it.
The judge described ground 8 as ‘misconceived’. He observed that the Tribunal had before it the oral and documentary evidence. There was no indication that the Tribunal had disregarded or overlooked any part of the evidence, or had failed to take into account any of the evidence or submissions before it. The judge held that there was no error of law by the Tribunal. Ground 8 thus failed.
Under ground 10, Mr Djordjevich had submitted that the Tribunal had failed to provide proper reasons in relation to the following issues:
(a)his claim for unconscionable conduct;
(b)his capacity to read and understand English;
(c)his claim for fraud;
(d)the findings concerning the signing of the transfers of land and the contract notes;
(e)the finding that six contract notes were signed; and
(f)the finding that Mr Djordjevich’s right to contribution merged in the Magistrates’ Court judgment.
The judge observed that the Tribunal had rejected the factual basis which underpinned Mr Djordjevich’s case. His Honour further observed that the Tribunal had addressed the above matters, by rejecting Mr Djordjevich’s evidence and accepting Djeka’s evidence.[36]
[36]Reasons, [141]. His Honour had earlier set out the Tribunal’s reasons why it preferred Mr Krickic’s evidence over that of Mr Djordjevich, and observed that ‘[t]he assessment of the evidence was a matter of fact for the Tribunal’. His Honour also observed that there were ‘persuasive reasons’ why the Tribunal accepted Mr Krickic’s evidence and rejected Mr Djordjevich’s evidence: Reasons, [110]–[111].
The judge held that there was no error of law by the Tribunal. Ground 10 thus failed.[37]
(2)The parties’ submissions
[37]Reasons, [142].
In his submissions on proposed ground 8, Mr Djordjevich submitted, as he had before the judge, that the Tribunal had failed to give proper reasons for its decision in relation to the matters set out in [90] above.
He also submitted that the Tribunal did not give proper reasons for its decision in relation to the reserve price of $2,000,000, observing that the Tribunal ‘did not refer to the reserve price at all’.
His submissions then traversed the evidence that was before the Tribunal.
In his written submissions on proposed ground 7, Mr Djordjevich did not identify any issue that he said the Tribunal had failed to address. In oral argument, he dealt with grounds 7 and 8 together, so we will approach these grounds on the basis that they concern the same issues identified above.
In his written submissions on proposed ground 9, Mr Djordjevich relied upon Kennedy v Proctor, where Quigley J held that the decision-maker’s task ‘was to examine all of the evidence as a whole or its cumulative effect, rather than each document separately and in isolation from relevant material’.[38] He submitted that the Tribunal ‘made findings of fact in relation to the evidence of Djeka in isolation’ and failed to consider Mr Krickic’s answers in cross-examination. His submissions then again traversed the evidence that was before the Tribunal.
[38][2021] VSC 521, [50].
Djeka submitted that leave to appeal on these proposed grounds should be refused on the basis that they do not raise any question of law and/or do not have a real prospect of success. Alternatively, if leave is granted, Djeka submitted that this Court should conclude that it was open for the judge to make the orders he did in the exercise of his discretion.
(3)Consideration
We accept Djeka’s submission that leave to appeal on these proposed grounds should be refused on the basis that they do not have a real prospect of success.
Proposed grounds 7 and 8 lack merit. While VCAT’s reasons are succinct, they plainly addressed the issues to which Mr Djordjevich draws attention,[39] with one exception, namely the reserve price, to which we return below. The reasons also reveal the basis for the decision reached, namely that the Tribunal rejected the factual basis which underpinned Mr Djordjevich’s case. It gave reasons for doing so. That led the Tribunal to particular conclusions on the issues about which Mr Djordjevich now complains were not the subject of adequate reasons. His submissions were, in substance, directed to the factual findings that the Tribunal had made, rather than the adequacy of the reasons. The judge did not err in refusing leave to appeal in relation to this aspect of ground 10 below.
[39]VCAT Reasons, [24] (unethical conduct); [36]–[38] (dealing with the factual basis for the unconscionable conduct claim); [38] (Mr Djordjevich’s capacity with English); [64] (fraud); [33]–[42] (signing of transfers and contract notes); [54], [72]–[73] (merger).
The exception to the conclusion that the Tribunal gave adequate reasons for its decision concerns the setting of the reserve price at $2,000,000. (Of course, the order also provided for the parties to agree a different amount and, if they could not do so, for the real estate agent to set a different reserve price.) The Tribunal gave no reasons for selecting a figure of $2,000,000 as the reserve price it set. However, we do not consider that the Tribunal erred in failing to do so.
We do not consider that the Tribunal was required to give reasons for this aspect of its decision. The setting of the reserve price was a consequence of its decision about the facts in issue. The parties had not themselves put in issue or made submissions about the appropriate reserve price. Further, as explained below in relation to ground 12, Mr Djordjevich had put on no evidence directed to the value of the property. But there was evidence of value before the Tribunal. The Tribunal had two market appraisals from different real estate agencies (see [128] below), with $2,000,000 being approximately the mid-range figure between them. A reserve price is not necessarily the same thing as market value, but is the minimum price a seller would take to achieve a sale. We consider that the Tribunal’s reasoning can readily be inferred from the material before it. In all the circumstances, the Tribunal made no error by not explaining its judgment about the appropriate reserve price in this case.
In any event, even if the Tribunal might ordinarily be required to give reasons for setting a particular reserve price, in the present case the reserve price was not fixed by the Tribunal in an immutable manner. Rather, as already noted, it was subject to the parties agreeing a different amount and, in the absence of such agreement, to the real estate agent setting a different amount. Given that, there is no utility in granting relief by setting aside the figure selected by the Tribunal, as that would leave in place the order providing for the parties to agree a reserve price and, in the absence of such agreement, for the real estate agent to select a reserve price.
Proposed ground 9 is also lacking in merit. Accepting the correctness of the principles outlined in Kennedy v Proctor, there is nothing to suggest that the Tribunal failed to examine the evidence as a whole. As the judge correctly observed, there was simply no indication that the Tribunal had failed to take account of the evidence before it.[40] His Honour said this:
The Tribunal did not make findings of fact relating to Mr Krickic’s evidence in isolation. It carefully considered the different accounts given by Mr Krickic and Mr Djordjevich as to how the contract notes and transfers had been signed, and preferred Mr Krickic’s account as to what had occurred. The Tribunal was well aware that the transactions in question had taken place almost 20 years earlier. It did not disregard concessions made by Mr Krickic in cross-examination.[41]
[40]Reasons, [134].
[41]Reasons, [135].
Mr Djordjevich’s submissions on proposed ground 9 were principally directed to the facts found by the Tribunal, rather than its reasoning process. To the extent Mr Djordjevich relied upon what he said were ‘concessions’ made by Mr Krickic in cross-examination, which he said the Tribunal had failed to take into account, those matters reflected Mr Krickic’s acknowledgement that he could not recall all the details of the events in question, which had occurred some 18 years earlier. It is apparent the Tribunal was aware of the time that had elapsed.[42] It is also apparent that the Tribunal knew, and had taken account of, the fact that Mr Krickic could not recall all the details of what had occurred 18 years ago.[43] In addition, the Tribunal relied upon aspects of Mr Djordjevich’s evidence that were unsatisfactory,[44] as well as on documentary evidence that supported Mr Krickic’s account and suggested that Mr Djordjevich’s account was not accurate.[45]
[42]VCAT Reasons, [50].
[43]See, eg, VCAT Reasons, [10]
[44]VCAT Reasons, [31], [32], [37], [42].
[45]VCAT Reasons, [27], [32], [35]–[37].
The judge did not err in relation to this issue (ground 8 below).
We thus refuse leave in relation to proposed grounds 7, 8 and 9.
PROPOSED GROUND 11: DID VCAT CONSIDER WHETHER THE PARTIES ENTERED INTO A PARTNERSHIP?
Proposed ground 11 is that the judge erred in concluding that VCAT ‘had considered whether the parties entered into a partnership agreement in July 2002, and/or whether the preparatory steps taken by the parties could constitute a partnership’.
(1)The judge’s decision concerning the partnership issue
Proposed ground 11 corresponds to ground 17 below, which was that the Tribunal ‘erred in law by failing to make a decision as to whether the parties entered into a partnership agreement in or about July 2002’.
The judge held that the Tribunal made no error of law. After referring to the relevant provisions of the Partnership Act, and to relevant authority, the judge observed that the Tribunal had found, on the facts before it, that there was no partnership between Djeka and Mr Djordjevich. That finding was, his Honour said, amply supported by the evidence before the Tribunal. In particular, the judge observed that, ‘while preparatory steps may be sufficient to point to the existence of a partnership, there was nothing about the purchase and transfer of the land or the occasional reimbursement of outgoings that suggested the existence of a partnership’.[46] His Honour then said as follows:
The existence or otherwise of a partnership was a matter of fact for the Tribunal. The Tribunal was correct when it held that there was no partnership. The Tribunal was also correct when it referred to ss 5 and 6 of the Partnership Act 1958 (Vic) and to relevant authority. There is nothing to suggest that the Tribunal misdirected itself or failed to apply the correct legal test in determining whether the parties had entered into a partnership agreement in July 2002.[47]
[46]Reasons, [179].
[47]Reasons, [180].
The judge held that there was no error of law by the Tribunal. Ground 17 thus failed.[48]
(2)The parties’ submissions
[48]Reasons, [181]–[182]. A related ground, ground 20 (which was that the Tribunal had ‘failed to identify the relevant legal test’ for determining whether there was a partnership) also failed.
In his written submission before this Court, Mr Djordjevich submitted as follows:
The VCAT had to decide if the parties entered into a partnership agreement, whilst taking into account the indicia of whether there was a partnership. The Appellant testified that was a partnership agreement along with the co-ownership of property which together would be sufficient for a finding of a partnership agreement. In Daoud v Boutros [2013] NSWSC 687 Sackar J said at [88] In determining the legal characterisation of the relationship of the parties the intention of the parties must be objectively ascertained from their words and conduct, and the description that the parties themselves have placed on their relationship is relevant but not conclusive (Bova v Avati [2009] NSWSC 921 at [181] per Ward J).
The VCAT decision focuses on whether the parties subsequently carried on a business with a view to profit, which is an error of law. The parties do not need to commence carrying on a business to be partners, it is sufficient that preparatory to a partnership be undertaken, such as the purchase of the property, the transfer of the titles et al. In Khan v Miah [2000] 1 WLR 2123 Lord Millett (with whom the other Law Lords agreed) said at p 2127-2128 ‘… Many businesses require a great deal of expenditure to be incurred before trading commences … The work of finding, acquiring and fitting out a shop or restaurant begins long before the premises are open for business and the first customers walk through the door. Such work is undertaken with a view of profit, and may be undertaken as well by partners as by a sole trader.’
The Primary Judge repeated the mistakes of VCAT in failing to consider whether the parties had actually entered into a partnership agreement. The subsequent conduct of the parties is usually as a matter of law irrelevant to construing an agreement.
In oral argument, Mr Djordjevich contended that the question whether he and Djeka were in a partnership was a jurisdictional fact, which VCAT was obliged to determine correctly. The reason this was a jurisdictional fact was because if the parties were in a partnership, the proceeding could not be heard by VCAT, by reason of s 234C of the Property Law Act. That section gives jurisdiction to the courts, rather than VCAT, in relation to an application under part IV of the Property Law Act if the subject matter relates to a proceeding under the Partnership Act.

Mr Djordjevich accepted that he had not made any argument to the Tribunal to the effect that preparatory steps had been taken that evidenced a partnership, but submitted that, because the existence of a partnership goes to jurisdiction, his failure was irrelevant to the issue raised by proposed ground 11.
Djeka submitted that proposed ground 11 does not raise an error of law, and/or has no real prospects of success, and thus leave should be refused. Alternatively, if leave is granted, Djeka submitted that it was open for the judge to make the orders he did in the exercise of his discretion.
(3)Consideration
We would refuse leave to appeal on proposed ground 11 on the basis that it has no prospects of success. It is plain that the Tribunal considered whether Mr Djordjevich and Djeka had entered into a partnership, and found as a matter of fact that they had not. In the absence of any evidence of preparatory steps that might demonstrate that the parties had entered into a partnership, the Tribunal was not obliged to consider whether such steps might have resulted in a conclusion that a partnership existed. The question whether there was a partnership agreement was subsumed in the Tribunal’s consideration of whether there was a partnership. Proposed ground 11 must fail on that basis.
To the extent that Mr Djordjevich seeks to attribute to the judge (and to VCAT) an error of law in the test applied to determine whether the parties had entered into a partnership, we would also refuse leave in relation to that argument. The judge (and the Tribunal) each applied the correct legal test, by reference to the terms of the Partnership Act and relevant case law.
To the extent that Mr Djordjevich sought to rely on the parties’ initial pleadings in relation to the partnership issue — in which Djeka had alleged a partnership, and Mr Djordjevich had denied a partnership — the Tribunal took those matters into account and concluded that, notwithstanding the early positions adopted by the parties, there was in fact no partnership.[49]
[49]VCAT Reasons, [58]–[59], [63].
In truth, what Mr Djordjevich sought to ventilate, under cover of proposed ground 11, was the factual conclusion the Tribunal (and the judge) reached. That does not raise a question of law and in any event goes beyond the terms of proposed ground 11.
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
Proposed ground 12 corresponds to ground 21 below, which was that the Tribunal ‘erred in law in making a decision that the reserve price of the land should be $2,000,000’.
The judge dismissed this ground on the basis that the Tribunal had made no error of law.
His Honour observed that the reserve price had not been in issue at the Tribunal hearing. The parties had called no valuation evidence and made no submissions as to the reserve price. The Tribunal was thus ‘left to do the best it could on the limited evidence available’. The evidence to which the judge was referred was a market appraisal from August 2019, which valued the properties between $2,300,000 and $2,500,000.[50] His Honour said as follows:
It is well established that on appeal the Court must recognise the forensic realities of the way in which a case was put to the Tribunal, noting that it is those realities to which the Tribunal must respond in its reasons. The Tribunal was entitled to use its own judgement as to the reserve price and to fix the reserve price in the orders.[51]
[50]Reasons, [191].
[51]Reasons, [193] (citations omitted).
The judge held that there was no error of law by the Tribunal. Ground 21 thus failed.[52]
(2)The parties’ submissions
[52]Reasons, [194]–[195].
Mr Djordjevich submitted that VCAT erred by setting the reserve price of the property at $2,000,000 in the absence of evidence to support that amount. He submitted that, in circumstances where there was insufficient evidence to make a finding on the reserve price, VCAT should have made no order for a minimum reserve price. The determination of the reserve price should have been left to the parties or to the real estate agent (although he denied that VCAT could make an order conferring that function on the real estate agent), or VCAT ought to have ordered an independent valuation to inform the setting of the reserve price. He submitted that ‘VCAT cannot simply do the best that it can in the circumstances’, rather it ‘has to make findings based on evidence’.
In response, Djeka submitted that this proposed ground of appeal did not raise a question of law, and/or did not have a real prospect of success, thus leave should be refused. Alternatively, if leave were to be granted, the proposed ground should be dismissed because it was open for VCAT to have set the reserve price in the exercise of its discretion, based on the evidence before it, and the judge had correctly dealt with this issue in his judgment.
(3)Consideration
It is notable that proposed ground 12 is framed as an error by VCAT, not as an error by the judge. Even reading it generously, as directed to the judge’s decision and reasons, this proposed ground does not raise a question of law. Furthermore, it has no prospects of success.
The Tribunal has an express statutory power to set a reserve price. Its decision to exercise that power was not infected by any legal error. We can discern no error in the judge’s reasons for dismissing ground 21 below.
The ground of appeal was developed in oral argument on the basis that there was ‘no evidence’ to support the selection of $2,000,000 as the reserve price. However, Mr Djordjevich acknowledged that there was some evidence, namely an appraisal of the property by Stockdale and Leggo, a real estate agency, in the range of $2.3 million to $2.5 million. That appraisal had been put before the Tribunal by Djeka. But that was not the only evidence. There was, in addition, another appraisal by a different real estate agency, Brad Teal, in the range of $1.5 million to $1.6 million. Mr Djordjevich accepted that he had not put any evidence before the Tribunal in relation to the value of the land. That was so notwithstanding that on 20 February 2020 the Tribunal had made an order requiring the parties to exchange copies of any valuation report or market appraisal upon which they intended to rely at the hearing by 20 March 2020. In light of the fact that there was some evidence before the Tribunal concerning the potential value of the land, ground 12 must fail.
Ultimately, what Mr Djordjevich sought to challenge, under cover of proposed ground 12, was the price the Tribunal set as the reserve price and the adequacy of the evidence it had before it. That does not raise a question of law.
In any event, even if Mr Djordjevich was successful in challenging the reserve price set by the Tribunal, there would be no utility in granting relief by setting aside the figure selected by the Tribunal, because that would leave in place the order providing for the parties to agree a reserve price and, in the absence of such agreement, for the real estate agent to select a reserve price.
For those reasons, we refuse leave to appeal on proposed ground 12.
CONCLUSION
For the foregoing reasons, we refuse leave to appeal on proposed grounds 3 and 6 to 12. We grant leave to appeal on proposed grounds 1, 2, 4 and 5, but dismiss the appeal on those grounds.
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[2024] VSCA 60

11 April 2024