Djordjevich v Peter Djeka Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03091

BETWEEN:

DAVID DJORDJEVICH	Plaintiff
v
PETER DJEKA PTY LTD (ACN 057 188 235)	Defendant
- and -
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Intervener

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2022
DATE OF JUDGMENT:	5 December 2022
CASE MAY BE CITED AS:	Djordjevich v Peter Djeka Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 732

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CO-OWNERSHIP OF LAND – Sale of co-owned land – Construction of ss 228(1) and 232 Property Law Act 1958 (Vic) – Powers of the Principal Registrar, Victorian Civil and Administrative Tribunal – Whether Principal Registrar able to perform tasks ordered by Tribunal to sell land – Whether leave to appeal should be granted – Whether Tribunal erred in ordering sale of land – Property Law Act 1958 (Vic) ss 28A, 225, 228, 232, 233, 234, 234B; Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 8(3), 32, 64, 130, 148, 157A, 157B; Limitation of Actions Act 1958 (Vic) s 5(1); Court Services Victoria Act 2014 (Vic) s 33; Victorian Civil and Administrative Tribunal Rules 2018 (Vic) r 10.01.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Levine	Maciel Pizzorno & Co
For the Defendant	Mr B Guzzo	Aniston Lawyers
For the Intervener	Mr L Brown with Ms E Smith	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

David Djordjevich seeks leave to appeal, and if leave is granted, appeals from the decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) in proceeding BP5/2018 (‘VCAT proceeding’). The proceeding in this Court is brought under s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘VCAT Act’).

Mr Djordjevich and Peter Djeka Pty Ltd (ACN 057 188 235) (‘Djeka’) are registered as the proprietors of an estate in fee simple of vacant land at 44A to 44F (both inclusive) Patterson Avenue, Keilor, being the land comprised in Certificates of Title Volume 10762 Folios 614, 615, 616, 617, 623, 624, 625, 626, 627, 628, 631 and 632 (‘the land’).

The VCAT proceeding is a claim by Djeka against Mr Djordjevich for an order for the sale of the land pursuant to the provisions of Pt IV Div 2 of the Property Law Act 1958 (Vic) (‘Act’), and the equal division of the proceeds. Mr Djordjevich opposed an order for sale and claimed that Djeka became a co-owner of the land by fraud.

On 23 February 2022, the Attorney-General for the State of Victoria was joined to the proceeding in this Court as an intervener.

The hearing

The VCAT proceeding was heard on 9-11 June 2021. There were three witnesses – Mr Krickic, the director of Djeka, Mr Djordjevich and Mr Poljakovic, a builder. They were all cross-examined. The Tribunal also had the benefit of written and oral submissions, and reserved its decision. The Tribunal made orders and published its reasons for decision on 28 July 2021.[1]
[1]Peter Djeka Pty Ltd v Djordjevich [2021] VCAT 829 (SM Walker) (‘reasons’).

The Tribunal’s decision
Sale of a half-share in the land and transfer of titles

The Tribunal was satisfied that it had jurisdiction to determine the proceeding.[2] It found that the land comprised six contiguous allotments – a main lot with a wide frontage to Patterson Avenue, and five lots to the rear of the main lot. Access from the rear lots to Patterson Avenue was through the main lot via an access road that would need to be constructed along one boundary of the main lot. On 9 July 2002, when the land was purchased by Mr Djordjevich for $280,000, there was a planning overlay which prevented the five rear lots from being developed. The overlay was subsequently removed.[3]
[2]Reasons [8].
[3]Ibid [12].

There was conflicting evidence as to the agreement in about late July 2002 by which Djeka came to be a part owner of the land. Mr Djordjevich said that he was approached by Mr Krickic after receiving an offer from Mr Poljakovic to purchase a half interest in the land for $250,000 for the purposes of jointly developing it. Mr Djordjevich said that Mr Krickic told him that he would be better off partnering with Mr Krickic, and Mr Djordjevich subsequently accepted an offer from Mr Krickic to sell a half interest in the land to Djeka for $250,000. Mr Krickic said that the price was $140,000, being half of the amount that Mr Djordjevich had paid for the land, plus an additional $10,000 for expenses, to make a total of $150,000.[4]
[4]Ibid [13]-[14].

Mr Krickic said that Djeka ultimately paid $160,000 for its half share in the land. Although $10,000 above the price of a half interest had been agreed for expenses, an additional $20,000 was paid because Mr Djordjevich said that he needed the money. Mr Krickic said that it was agreed that the costs and expenses incurred after acquisition of the land would be shared.[5] He gave evidence that he paid the purchase price of $160,000 in three instalments; $50,000 on 30 July 2002, $10,000 on 1 August 2002 and $100,000 on 13 December 2002.[6] Mr Djordjevich admitted that the first and third payments were made, but denied the alleged payment of $10,000 and claimed that $100,000 of the purchase money was still owing.[7] However, a bank statement of his company Boskar Pty Ltd showed that it received a credit of $10,000 on 1 August 2002, which was the day that Mr Krickic said that he paid that sum.[8]
[5]Ibid [20].
[6]Ibid [25].
[7]Ibid [26].
[8]Ibid [27].

The Tribunal noted that separate Certificates of Title for the land were issued on 10 November 2003. Six titles were issued to Djeka and six to Mr Djordjevich.[9]
[9]Ibid [28].

Mr Djordjevich had a very different account as to what had happened from that of Mr Krickic.[10] He denied that he knowingly transferred any of the land to Djeka and said that he was unaware that this had happened until 2016. He said that a representative of Djeka attended his home at 11:00pm one night and had him sign a number of documents. He said that he was told by this person, whom he had not previously met, that the documents were ‘Heads of Agreement’ for the partnership, and that they needed to be signed for the partnership to proceed. Mr Djordjevich said that he now assumes that these were the documents that allowed Djeka to register its interest in the land at the Land Titles Office.[11]
[10]Ibid [29]-[42].
[11]Ibid [30].

The Tribunal did not accept Mr Djordjevich’s account. It considered that since the land was previously registered in Mr Djordjevich’s name, it was likely that the titles were held by him or the solicitor who had acted for him in the original purchase. Mr Djordjevich did not offer any explanation as to how the transfers to Djeka were signed and lodged at the Land Titles Office without his knowledge, or as to how the titles came into the possession of Djeka or Mr Krickic so as to permit Djeka to proceed with registering its interest in the land.[12]
[12]Ibid [31].

The Tribunal noted that the transfers were lodged from an address which appeared to be that of the estate agency at which Mr Krickic was working at the time of the purchase. The order to register endorsed at the foot of each transfer directed that all titles issued from the dealing should be returned to the lodging party, which was Mr Krickic’s estate agency. Mr Djordjevich’s titles could only have been obtained from there. Each transfer bore Mr Djordjevich’s signature, as was acknowledged by him.[13]
[13]Ibid [32]-[33].

Each transfer transferred an undivided half share in each lot to Djeka. The consideration expressed in the transfer of a half interest in the main lot was $75,000. The consideration expressed in each of the other five transfers was $13,000. The total price of $140,000 for a half interest in each of the six lots was consistent with Mr Krickic’s evidence.[14]
[14]Ibid [34].

The Tribunal observed that a contract note was signed for each of the allotments by the parties. A contract note for one of the rear lots, lot 36, was tendered in evidence and showed a purchase price of $13,000.[15] This was again consistent with Mr Krickic’s evidence.
[15]Ibid [35].

The Tribunal therefore found Mr Djordjevich’s evidence that the price to be paid by Djeka was $250,000 and that $100,000 was still owed to the present day to be inconsistent with the forms of transfer and the contract note that he signed.[16]
[16]Ibid [36].

The Tribunal also held that Mr Djordjevich’s evidence that he thought he was signing a very different type of document was inconsistent with his execution of six transfers and contract notes, each clearly headed as such in large bold type. The Tribunal did not see how Mr Djordjevich’s evidence that he believed that he was signing a partnership agreement or documents to give effect to a partnership agreement could be correct. On Mr Djordjevich’s own evidence, and although he claimed his English was poor, he was an experienced property developer, having bought and sold numerous properties, and was familiar with buying and selling land and the forms that were used.[17]
[17]Ibid [37]-[38].

For his part, Mr Krickic denied sending anyone to Mr Djordjevich’s home with documents to sign. He said that the relevant documents were signed in his office, and that he engaged a friend, Alex Manzella, to transfer the titles.[18] He said that he asked Mr Manzella to come and give evidence but Mr Manzella refused because it was alleged that he had acted illegally. No order compelling Mr Manzella’s attendance was sought.[19]
[18]Ibid [39].
[19]Ibid [40].

The Tribunal preferred the evidence of Mr Krickic about how the transfers and contract notes came to be signed and held that Mr Djordjevich’s evidence was unlikely to be true.[20]
[20]Ibid [42].

Mr Djordjevich said that he continued to ask Mr Krickic for the balance of the money, and continued to ask Mr Krickic every month about progress, but that Mr Krickic would always find excuses and abuse him.[21] According to Mr Djordjevich, he sent a Mr Thorpe and then his brother to collect the money without success,[22] and in 2006 instructed a solicitor to negotiate an end to the partnership, but Mr Krickic would not accept his offer.[23]
[21]Ibid [43]-[44].
[22]Ibid [45].
[23]Ibid [48].

The Tribunal also preferred the evidence of Mr Krickic concerning the purchase price. It was satisfied that a purchase price of $160,000 was what was ultimately agreed upon, although a lesser sum had been agreed upon earlier.[24]
[24]Ibid [51].

Magistrates’ Court proceeding

In 2016, Mr Djordjevich issued a proceeding in the Magistrates’ Court seeking recovery from Djeka of its share of expenses incurred in respect of the land. The claim was for a total of $23,842.73, being one half of the council and water rates, land tax, mowing expenses, fencing costs and consultancy fees (‘outgoings’) said to have been incurred. The Tribunal found that when Mr Djordjevich issued the Magistrates’ Court proceeding in 2016, it was only to recover Djeka’s contribution towards expenses. There was no claim for the $100,000 said by Mr Djordjevich to be outstanding.[25] The Tribunal also held that when Mr Djordjevich recovered judgment in a sum of approximately $10,000, any rights that he had to contribution from Djeka merged in the judgment.[26]
[25]Ibid [49]-[50].
[26]Ibid [54].

No partnership

The Tribunal held that there was no evidence that the parties had carried on any business in common with a view to profit. All that appeared was co-ownership of land, and a sharing of some expenses. The Tribunal was not satisfied that the relationship between the parties amounted to a partnership.[27]
[27]Ibid [61].

No fraud

The Tribunal rejected a claim by Mr Djordjevich that the registration of Djeka’s interest in the land was procured by fraud.[28]
[28]Ibid [64].

Outgoings

As to outgoings, statements of contributions and receipts were provided by both parties listing amounts claimed to have been paid in relation to the land. Most of the alleged payments were made many years ago and would be statute barred if recovery was sought by civil action. The Tribunal considered that there should not be any adjustment of rights by reason of such payments.[29]
[29]Ibid [65], [67], referring to Sutherland v Corkill [2011] VCAT 709, [37]-[39] (SM Walker).

As to Djeka’s claims for outgoings, the Tribunal considered that the evidence was wholly unsatisfactory. The Tribunal was not prepared to order contribution or make an adjustment of rights in favour of Djeka.[30]
[30]Ibid [70].

Mr Djordjevich’s statement of contributions and receipts was a long list of payments commencing in 2002. The Tribunal declined to make an order for contribution or adjustment of rights in favour of Mr Djordjevich as:

(a) most of the amounts claimed were statute barred; and
(b)all of the outgoings listed were incurred before 6 October 2016, being the date when Mr Djordjevich issued the Magistrates’ Court proceeding. As a result, the claim in respect of them had merged in the judgment obtained in that proceeding.[31]
[31]Ibid [71]-[73].

Orders

The Tribunal made orders (‘the orders’) as follows:

1.[Omitted].
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 14(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 [sic] 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)      [Djeka]: One half
(B)      [Mr Djordjevich]: 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.[Omitted].
18.[Omitted].

Relevant provisions

The liability of a co-owner to account is set out in s 28A of the Act:

(1)A co-owner is liable, in respect of the receipt by him or her of more than his or her just or proportionate share according to his or her interest in the property, to account to any other co-owner of the property.
(2)In this section, “co-owner” means a joint tenant, whether at law or in equity, or a tenant in common, whether at law or in equity, of any property.

Pt IV Div 2 of the Act contains the Tribunal’s powers in relation to co-owned land. Section 225 provides:

(1)A co-owner of land … may apply to VCAT for an order or orders under this Division to be made in respect of that land …
(2)An application under this section may request—
(a)the sale of the land … and the division of the proceeds among the co-owners; or
(b)the physical division of the land … among the co-owners; or
(c)a combination of the matters specified in paragraphs (a) and (b).

(3)A person who makes an application under subsection (1) must give notice of the application to the holder of a security interest over the land … to which the application relates.

Sections 228 and 232 set out the orders that the Tribunal can make in a proceeding under Div 2.

Section 228 provides:

(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 provides:

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;
(c)in the case of a private sale, that the sale be at fair market price as determined by an independent valuer;
(d)in the case of an auction, that the reserve price is the reserve price set by VCAT;
(e)that an independent valuation of the land … take place;
(f)that a sale is to be completed within a specified time;
(g)that the costs of the sale be met—
(i)by one or more of the co-owners; or
(ii)from the proceeds of the sale;

(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.

Section 233 empowers the Tribunal to make orders as to compensation and accounting, as follows:

(1)In any proceeding under this Division, VCAT may order—
(a)that compensation or reimbursement be paid or made by a co‑owner to another co‑owner or other co‑owners;
(b)that one or more co-owners account to the other co-owners in accordance with section 28A;
(c)that an adjustment be made to a co‑owner’s interest in the land … to take account of amounts payable by co‑owners to each other during the period of the co-ownership.

(2)In determining whether to make an order under subsection (1), VCAT must take into account the following—
(a)any amount that a co-owner has reasonably spent in improving the land …;
(b)any costs reasonably incurred by a co‑owner in the maintenance or insurance of the land …;
(c)the payment by a co-owner of more than that co-owner’s proportionate share of rates (in the case of land), mortgage repayments, purchase money, instalments or other outgoings in respect of that land … for which all the co-owners are liable;
(d)damage caused by the unreasonable use of the land … by a co-owner;
(e)in the case of land, whether or not a co‑owner who has occupied the land should pay an amount equivalent to rent to a co‑owner who did not occupy the land;
…

(3)VCAT must not make an order requiring a co‑owner who has occupied the land to pay an amount equivalent to rent to a co-owner who did not occupy the land unless—
(a)the co-owner who has occupied the land is seeking compensation, reimbursement or an accounting for money expended by the co‑owner who has occupied the land in relation to the land; or
(b)the co-owner claiming an amount equivalent to rent has been excluded from occupation of the land; or
(c)the co-owner claiming an amount equivalent to rent has suffered a detriment because it was not practicable for that co-owner to occupy the land with the other co-owner.

…
(5)This section applies despite any law or rule to the contrary.

Pt IV Div 3 empowers the Tribunal to make orders for accounting between co-owners of land. Section 234 provides:

(1)A co-owner of land … may apply to VCAT for an order under this Division to be made for an accounting in accordance with section 28A.
(2)An application under this section may be made whether or not an application is made under Division 2.

Section 234B sets out the orders that the Tribunal may make in a proceeding under Pt IV Div 3. It provides:

(1)In any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair accounting of amounts received by co-owners in respect of the land … occurs.
(2)Without limiting VCAT’s powers, it may—
(a)order a co-owner who has received more than the share of rent or other payments from a third party in respect of the land or goods to which that co‑owner is entitled to account for that rent or other payments to the other co‑owners; and
(b)make any order it considers just and fair for the purposes of an accounting by a co-owner who has received more than that co-owner’s just and proportionate share to the other co‑owners of the land …

Various provisions of the VCAT Act are also relevant to the grounds of appeal. Section 8(3) of the VCAT Act provides:

(3)The Tribunal consists of—
(a)a President; and
(b)the Vice Presidents, Deputy Presidents, senior members and ordinary members; and
(c)the principal registrar and registrars referred to in section 32.

Section 30 of the VCAT Act vests the management of the administrative affairs of the Tribunal in the President and Vice Presidents in these terms:

(1)Subject to this Act and the rules, the President and the Vice Presidents are to direct the business of the Tribunal.
(2)The President and the Vice Presidents are responsible for the management of the administrative affairs of the Tribunal.
(3)The President and the Vice Presidents may determine the places and times for sittings of the Tribunal.
(4)In carrying out functions under this section, a Vice President is subject to the direction of the President.

Section 32 provides for the employment of the Principal Registrar, registrars and staff. It is as follows:

(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.

Section 64 of the VCAT Act provides for the constitution of the Tribunal when hearing a proceeding:

(1)Subject to the rules, the Tribunal is to be constituted for the purposes of any particular proceeding by 1, 2, 3, 4 or 5 members.
Note
The rules may provide for the Tribunal to be constituted by the principal registrar for performing certain functions—see section 157A. If so, a registrar may also perform those functions—see section 32(3).
(2)If the Tribunal is to be constituted at a proceeding—
(a)by one member only, that member must be an Australian lawyer; and
(b)by more than one member, at least one must be an Australian lawyer.

(3)The President determines how the Tribunal is to be constituted for the purposes of each proceeding.
(4)If a provision of this Act, the rules or an enabling enactment provides that a power of the Tribunal is exercisable by any member, then any member of the Tribunal may exercise that power in a proceeding despite any provision of this Act or an enabling enactment that requires the Tribunal to be constituted in a particular way for the purposes of the proceeding.
…
(5)If a provision of this Act, the rules or an enabling enactment provides that a power of the Tribunal is exercisable by the principal registrar, then the principal registrar may exercise that power in a proceeding despite any provision of this Act or an enabling enactment that requires the Tribunal to be constituted in a particular way for the purposes of the proceeding.

Section 130 provides that the Tribunal may make orders and conditions subject to conditions or further orders, and is in these terms:

(1)A power of the Tribunal to make an order or other decision includes a power to make the order or decision subject to any conditions or further orders that the Tribunal thinks fit.
(2)Conditions or further orders may include—
…
(e)a condition or order necessary or desirable to give effect to an order or other decision.

Section 157A of the VCAT Act provides for certain functions of the Tribunal to be performed by the Principal Registrar and is in these terms:

(1)Rules under section 157 may include rules for or with respect to the functions of the Tribunal that may be performed by the Tribunal constituted by the principal registrar.
(2)Rules referred to in subsection (1) cannot provide for the Tribunal constituted by the principal registrar to make any orders finally disposing of a proceeding, other than orders made with the consent of all parties to the proceeding.
…
(4)In making rules referred to in subsection (1), the Rules Committee must consider whether the function is of a kind that ought to be performed by the Tribunal constituted by one or more members rather than the principal registrar.
(5)Rules referred to in subsection (1)—
(a)must specify whether the principal registrar may delegate the function under section 32A; and
(b)may specify the person or class of person to whom the function may be delegated under that section.

Section 157B provides for decisions of the Tribunal constituted by the Principal Registrar to be reviewed by a member of the Tribunal, and is in these terms:

(1)The Tribunal constituted by any member may review a decision made by the Tribunal constituted by the principal registrar.
(2)A review may be conducted under this section at the request of a party or on the Tribunal’s own initiative.
(3)A review under this section is to be conducted as a hearing de novo and nothing in Division 3 of Part 3 applies to the review.

The Tribunal has made rules under the VCAT Act. The current rules are the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (‘Rules’).

The Tribunal also has a Chief Executive Officer. At all relevant times, the Principal Registrar and the Chief Executive Officer have been the same person. The functions and powers of the Tribunal’s Chief Executive Officer are set out in s 33 of the Court Services Victoria Act 2014 (Vic) (‘CSV Act’), which provides:

(1)The functions of a Court Chief Executive Officer include—
(a)the management of the administrative support services of the relevant jurisdiction, including providing support to the head of the relevant jurisdiction; and
(b)ensuring that appropriate administration and support services are provided to the relevant jurisdiction and thereby contributing to the management and administration of the operations of Court Services Victoria.

(2)In performing his or her functions, a Court Chief Executive Officer is responsible to, and must comply with any directions given by—
(a)the head of the relevant jurisdiction in relation to the operation of that jurisdiction; and
(b)the Chief Executive Officer in relation to all other matters.[32]
[32]The Tribunal is a jurisdiction for the purposes of the CSV Act; see s 3 definitions of ‘Court Chief Executive Officer’ and ‘head of a jurisdiction’.

The Court’s role

Parties to proceedings in the Tribunal may seek leave to appeal and if leave is granted, may appeal to this Court on a question of law from an order of the Tribunal.[33] Under s 148(2A) of the VCAT Act, leave to appeal can be granted only if the Court is satisfied that the appeal has a real prospect of success.
[33]VCAT Act s 148.

Mr Djordjevich relied on 21 grounds of appeal. Most of the grounds sought to challenge evidentiary findings of the Tribunal. Only grounds 1, 2 and 19 directly raised legal issues. I will consider the grounds relied on by Mr Djordjevich in turn. Djeka objected to most of the grounds on the basis that they concerned matters of fact and did not show an error on a question of law that arose in the VCAT proceeding. The grounds as stated below are re-expressed to reflect the terminology used in these reasons.

Grounds 1 and 2
1.The Tribunal misconstrued its powers pursuant to Pt IV of the 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.

Submissions

Mr Djordjevich submitted in substance that:

(a) the Tribunal is a creature of statute and does not have inherent powers;
(b)the powers conferred on the Tribunal by ss 232 and 233 of the Act are exercisable by one or more members of the Tribunal, and not by the Principal Registrar;
(c)the powers given to the Principal Registrar under ss 32, 32A, 64(5) and 157A of the VCAT Act and under r 10.01 of the Rules do not authorise the orders made by the Tribunal;
(d)there was no power for the Tribunal to make an order that the Principal Registrar give directions in relation to the sale;
(e)the purpose of s 232 of the Act would be frustrated if the Principal Registrar could make directions for sale as the parties would be denied natural justice; and
(f)the appropriate order would have been to allow the parties to apply to the Tribunal for directions.

Djeka submitted in substance that:

(a)the orders of the Tribunal are within the broad terms of s 228(1) of the Act;
(b)section 232 of the Act illustrates orders that the Tribunal can make but does not limit the scope of s 228(1);
(c)section 232 of the Act confers discretionary powers on the Tribunal but does not impose conditions or restrictions on the exercise of those powers;
(d)the purpose of Pt IV Div 2 of the Act is to confer flexible remedies to effectively and efficiently address the issues that arise in co-ownership disputes;

(e) in any event, s 232(d) empowers the Tribunal to set a reserve price;
(f)there is no requirement for the functions of the Principal Registrar to be conferred expressly by or under the relevant Act – they may be implied under generally expressed provisions such as ss 228(1) and 232 of the Act; and
(g)the word ‘necessary’ in ss 232(h) and (i) should be construed as meaning ‘reasonably required’ rather than ‘essential’.

The Attorney-General submitted in substance that:

(a)the correct interpretation of ss 228(1) and 232 of the Act is that s 232 illustrates certain orders that the Tribunal may make under Pt IV without limiting the scope of s 228(1);
(b)the plain terms of s 232 confer open-textured discretionary powers on the Tribunal but do not specify the mode in which any particular power shall be exercised nor impose conditions or restrictions on the exercise of the powers;
(c)the exercise of power under s 228(1) in accordance with its terms does not circumvent constraints on the Tribunal’s powers as conferred by Parliament through s 232;
(d)the purpose of Pt IV Div 2 of the Act is to provide the Tribunal with the power to provide flexible remedies to address the issues that arise in co-ownership disputes effectively and efficiently;
(e)each of the orders is within the Tribunal’s power under s 228(1) of the Act;
(f)the functions of the Principal Registrar can be conferred expressly or impliedly within generally expressed provisions such as ss 228(1) and 232;
(g)sections 232(h) and (i) of the Act should be construed so that the word ‘necessary’ is understood to mean ‘reasonably required’ rather than ‘essential’, while the word ‘desirable’ is even broader, and includes something that is ‘advisable’;
(h)there is no denial of procedural fairness if the Principal Registrar gives directions for sale, as the relevant decision that affects the rights or interests of the parties is the decision that the property be sold;
(i)that decision is made by the Tribunal after a hearing at which the parties have the opportunity to make submission and adduce evidence; and
(j)the Principal Registrar can afford procedural fairness by inviting the parties to provide material such as affidavits and submissions before any decision is made.

Principles of statutory construction

Before considering the parties’ submissions in detail, it is convenient to summarise the principles of statutory construction, which are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ said:

... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[34]

[34](1998) 194 CLR 355, 384 (citations omitted).

The plurality of the High Court emphasised the importance of text, context and purpose in SZTAL v Minister for Immigration and Border Protection:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[35]

[35](2017) 262 CLR 362, 368 (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).

In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:

... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[36]

[36](1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).

The orders

The orders were comprehensive.[37] They provided for the Principal Registrar to perform various functions in the event that there was a need to do so. The need could arise if there was an intransigent or uncooperative party, or if the parties were at loggerheads. The underlying intent of the orders as they involved the Principal Registrar was to ensure that the Tribunal’s decision was carried into effect, and was not frustrated by an intransigent or unwilling party.
[37]See paragraph [27] above.

The responsibilities given to the Principal Registrar under the orders were:

(a)in the event that the parties had not agreed in writing on a real estate agent by a specified date, to select and give any necessary direction to the real estate agent. Each party was invited to submit the name or names of a real estate agent to the Principal Registrar who would consider such submissions but not be bound by them (Condition 4);
(b)in the event that the parties had not agreed in writing on the identity of a solicitor by a specified date, to select and give any necessary direction to the solicitor. Each party was invited to submit the name or names of a solicitor to the Principal Registrar who would consider such submissions but not be bound by them (Condition 7);
(c)following the sale of the land, and in the event that any of the parties refused or neglected to sign a necessary document to give effect to the sale and conveyance of the land (including the transfer of land) within 72 hours of receiving written notice to do so from the solicitor, or if in the opinion of the solicitor it was not practicable to make the necessary request of a party, the Principal Registrar could sign the necessary document which would in all respects be treated as an execution by the party who had failed or neglected to do so (Condition 14(a)); and
(d)give such directions and execute such documents as may in [her] opinion be necessary or desirable to give effect to the orders (Condition 15).

Construction of Pt IV Div 2 of the Act

Part IV of the Act is an enabling enactment for the purposes of the VCAT Act. It confers original jurisdiction on the Tribunal. Section 44 of the VCAT Act provides that in exercising its original jurisdiction, the Tribunal has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under the VCAT Act, the regulations and the Rules. The term ‘function’ is very widely defined in s 3 of the VCAT Act to include jurisdiction, power, duty and authority. It is well-established that the Tribunal only has the jurisdiction conferred on it by statute and does not have any inherent jurisdiction.[38] Any powers exercised by the Tribunal must have a statutory source. While Pt IV applies to goods as well as land, I am only concerned with land.
[38]Director of Housing v Sudi (2011) 33 VR 559, 564 (Warren CJ), 584 (Weinberg JA); R v Perkins [2002] VSCA 132, [16] (Vincent JA, Phillips CJ and Chernov JA agreeing).

Part IV of the Act follows a familiar pattern for enabling enactments. Division 1 deals with preliminary matters including definitions. The term ‘co-owner’ is defined in s 222 of the Act to include a person who has an interest in land with one or more other persons as joint tenants or tenants in common. Division 2 confers wide ranging jurisdiction and powers on the Tribunal to make orders for the sale or division of co-owned land. Division 3 confers jurisdiction and powers on the Tribunal to make orders for the accounting of rent and other amounts received in relation to co-owned property. Division 4 deals with matters of jurisdiction, while Div 5 authorises the making of regulations to give effect to Pt IV.

Within Pt IV Div 2, s 225 provides for applications to be made to the Tribunal by co-owners for the sale, division or both sale and division of co-owned land. Sections 228–233 confer wide jurisdiction and extensive powers on the Tribunal to make orders in relation to co-owned property. Section 228(1) of the Act confers jurisdiction on the Tribunal to make any order it thinks fit to ensure that a just and fair sale or division of land occurs. The jurisdiction is expressed in a very broad and general form. It is a discretionary power of the widest ambit.

There is no doubt that the orders fell within the broad jurisdiction conferred by s 228(1) of the Act. The issue then arises whether the breadth of s 228(1) should be read down or is limited by any other provision of Div 2. Section 232 lists orders that the Tribunal may make in a proceeding under Div 2. They include the power to fix a reserve price in the case of an auction,[39] and to order that the sale and division of the proceeds of sale is subject to any terms and conditions which the Tribunal considers necessary and desirable in any particular case.[40] They also include the power to order that any necessary deed or instrument be executed and that documents of title be produced or other things be done that are necessary to enable an order to be carried out effectively.[41] It is apparent that many, if not all, of the orders in the present case could also be supported under s 232.
[39]Act s 232(d).
[40]Ibid s 232(h).
[41]Ibid s 232(i).

Should s 228(1) of the Act be read down?

In Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, Gavan Duffy CJ and Dixon J said:

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.[42]

[42](1932) 47 CLR 1, 7 (‘Anthony Hordern’).

Likewise, in R v Wallis; Ex parte Employers Association of Wool Selling Brokers, Dixon J said:

…an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.[43]

[43](1949) 78 CLR 529, 550.

In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, Gummow and Hayne JJ reviewed Anthony Hordern and later cases. Their Honours held that for the principle stated in Anthony Hordern to apply, it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.[44]
[44](2006) 228 CLR 566, 589.

In the present case, there is good reason to conclude that the words of s 232 do not operate to read down or limit the scope of the jurisdiction and powers conferred on the Tribunal by s 228(1). Firstly, both ss 228(1) and 232 make general conferrals of power on the Tribunal. Both expressly apply to ‘any proceeding’ under Div 2. Secondly, the intended generality of s 228(1) is confirmed by s 228(2), which itself commences with the words ‘Without limiting VCAT’s powers’. Thirdly, the powers to make orders listed in s 232 are set out in an open and unqualified manner. Section 232 does not specify the mode in which any particular power should be exercised or impose conditions or restrictions on the exercise of the powers conferred. Fourthly, it cannot be said that the exercise of the power in s 228(1) in accordance with its terms will avoid or circumvent constraints on the Tribunal’s powers imposed by Parliament through s 232. Fifthly, the powers granted to the Tribunal under s 232 may be contrasted with those granted to the Tribunal under s 233, which deals with compensation and reimbursement of co-owners. Sub-sections 233(3) and (4) do impose restrictions on the orders that the Tribunal may make. There is plainly more scope for the application of the Anthony Hordern principle of construction in this context rather than in the present one, where no restrictions are imposed on the powers in s 232.

Finally, it is plain that Parliament intended the powers conferred on the Tribunal under Pt IV Div 2 to be broad and flexible. There is no sign that the powers conferred on the Tribunal for the determination of disputes in its co-ownership jurisdiction were intended to be limited or circumscribed.

Second reading speech

The broad and flexible powers and remedies intended for the Tribunal under Pt IV Div 2 were made very clear in the second reading speech for the Property (Co-Ownership) Bill 2005 (Vic), where the Attorney-General said:

This bill implements a number of recommendations contained in the Victorian Law Reform Commission’s report on Disputes Between Co-owners. The bill will improve access to justice by co-owners of land … by introducing simple and less expensive processes for the resolution of disputes between co-owners.
...
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. Concerns were also raised about the relevance of part IV. Part IV is based on English partition laws passed in the 16^th century. The laws were amended in the 19^th century to give the court power to order sale of the land in limited circumstances. The language of the legislation is now archaic.
…
The bill provides VCAT with the power to provide flexible remedies to address the issues that arise in these disputes. VCAT will have a broad discretion to determine whether the co-owned property is sold or divided. In line with the recommendations of the Victorian Law Reform Commission, the sale of co-owned property will be the primary remedy ordered by VCAT but VCAT also has the power to order division of land if it is just and fair. In addition VCAT will have power to make orders relating to payment of compensation and accounting between co-owners.[45]

[45]Victoria, Parliamentary Debates, Legislative Assembly, Property (Co Ownership) Bill Second Reading Speech, 14 September 2005, 878-879 (Rob Hulls, Attorney-General).

The second reading speech makes it plain that the underlying intention of the bill was to provide the Tribunal with the flexible remedies necessary to address the issues that arise in co-ownership disputes. The Tribunal was intended to have a broad discretion to make orders for the sale or division of property, with the sale of property to be the primary remedy ordered. This would ‘improve access to justice’ and give rise to ‘simple and less expensive processes’.

These statements and indications point to a broader, rather than more restricted, construction of the powers conferred on the Tribunal under Pt IV Div 2 of the Act.

In his submissions, Mr Djordjevich referred to the decision of Croucher J in Auslong v Morey,[46] who described s 232 as allowing the Tribunal 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. His Honour referred to the list of powers conferred by s 232 and also to the other provisions of Pt IV Div 2 including s 228. There is nothing in the passage cited by Mr Djordjevich that imposes any limitation or restriction on the power of the Tribunal under s 228(1) when the words of that provision are construed in accordance with their ordinary meaning.
[46][2021] VSC 250, [151].

Alternative submission

Djeka and the Attorney-General alternatively submitted that the orders were also supported by the powers contained in ss 232(h) and (i) of the Act. Section 232(h) empowers the Tribunal to order that the sale and division of the proceeds of sale be subject to any terms and conditions which it considers necessary or desirable in any particular case. Section 232(i) authorises the Tribunal to order that any necessary 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. The expression ‘other things be done that are necessary to enable an order to be carried out effectively’ is of wide purport.

I accept the submission by Djeka and the Attorney-General that it is appropriate in the circumstances to construe the word ‘necessary’ where found in ss 232(h) and (i) as meaning ‘reasonably required’ or ‘legally ancillary’ rather than ‘essential’.[47] I also accept the submission that the word ‘desirable’ should be construed as having a wider meaning than the word ‘necessary’ and would in its ordinary meaning extend to something that was ‘advisable’.[48]
[47]Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 452 (Gaudron, Gummow and Callinan JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, 172 (Kiefel CJ).
[48]Macquarie Dictionary (online at 22 November 2022) ‘desirable’ (def 3).

Conclusion

For the reasons that I have stated, I conclude that the orders fell within the powers of the Tribunal as contained in Pt IV Div 2 of the Act.

Powers of the Principal Registrar

Mr Djordjevich advanced a second submission in support of grounds 1 and 2, namely that the functions required of the Principal Registrar by the orders fell outside the powers of the Principal Registrar as found in the VCAT Act and the Rules. As a result, he submitted that the Tribunal had erred on a question of law. Djeka and the Attorney-General submitted that the Principal Registrar had the power to perform the responsibilities given under the orders.

The functions and powers given to the Principal Registrar by the VCAT Act and enabling enactments may be classified into four main categories:

(a) administrative functions and powers;

(b) statutory functions and powers conferred on the Principal Registrar by the VCAT Act, other Acts and the Rules;

(c) Tribunal member functions and powers that may be exercised by the Principal Registrar; and

(d) implied or incidental powers.

I will deal with each of these in turn.

Administrative functions and powers

Part 2 Div 4 of the VCAT Act is headed ‘Administration’ and allocates administrative functions to the President and Vice Presidents of the Tribunal, and also to the Principal Registrar, registrars and staff of the Tribunal. Section 30(1) provides that the President and Vice Presidents are to direct the business of the Tribunal. Section 30(2) provides that the President and Vice Presidents are responsible for the management of the administrative affairs of the Tribunal.

Section 32(1) provides for assistance in the administration of the Tribunal to be provided by the Principal Registrar as well as by registrars and other staff as necessary.

The administrative functions of the Principal Registrar are well illustrated in the Court of Appeal decision of R v Perkins.[49]The decision arose in the context of an allegation that a person had been guilty of contempt of the Tribunal. Under s 137(1) of the VCAT Act, a person who is alleged to have engaged in any of the conduct specified in that provision may be arrested and brought before the Tribunal. If found guilty of contempt, the person may be penalised by imprisonment or fine. The VCAT Act did not contain any machinery provisions as to how charges of contempt under s 137 were to be initiated or prosecuted.
[49][2002] VSCA 132.

The Court of Appeal held that:

Section 32 provides that assistance in the administration of the Victorian Civil and Administrative Tribunal is to be provided by a Principal Registrar, a Chief Executive Officer and supporting registrars and staff. Some such structure would seem to be essential if the body is to perform its various functions properly and efficiently. A range of administrative matters may well require attention in the proper handling of an allegation that a person has been guilty of contempt of the Tribunal. These would include the provision of formal notification of the fact and substance of an allegation to the alleged contemnor, the arrangements necessary to enable a hearing to proceed and possibly the provision of notification to witnesses. Clearly, it would be highly desirable in most situations that the Tribunal dealing with an allegation of contempt has the assistance of counsel. These tasks would reasonably be undertaken by the Principal Registrar. Their performance would not involve any delegation of the function or powers of the Tribunal as was suggested in argument on behalf of the applicant. The Principal Registrar cannot, in performing functions of this kind, including the securing of counsel to assist the Tribunal, which are at least incidental if not crucial to the conduct of a proper hearing, be viewed as a party seeking to appear before it in accordance with ss.59 and 60, but as carrying out their role in a legally permissible and entirely appropriate fashion.[50]

[50]Ibid [23] (Vincent JA, Phillips CJ and Chernov JA agreeing).

The provision of administrative assistance to the Tribunal by the Principal Registrar is a general responsibility, and is not confined to contempt proceedings. Section 32(1) is not so limited. The performance of administrative functions by the Principal Registrar is just as necessary in other jurisdictions of the Tribunal. As will be seen below, I have come to the conclusion that the tasks required of the Principal Registrar in the VCAT proceeding were fundamentally administrative in character and fell within the powers of the Principal Registrar under s 32(1) of the VCAT Act.

It is not necessary to consider the effect of s 33 of the CSV Act which confers administrative support functions on the Chief Executive Officer who is also the Principal Registrar.

Statutory functions conferred on the Principal Registrar by the VCAT Act, other Acts and the Rules

Section 32(2) of the VCAT Act provides for the Principal Registrar to have the functions conferred by or under the VCAT Act, any other Act and the Rules.

There are many legislative provisions which confer a very wide range of functions on the Principal Registrar. Under the VCAT Act, the Principal Registrar has the power to reject certain applications,[51] give assistance to participants and potential participants in a proceeding,[52] provide certificates as to the contents of the register,[53] nominate persons to conduct mediations and compulsory conferences,[54] refer planning proceedings for decision by the Governor in Council when called in by the Minister for Planning,[55] reduce, waive, postpone, remit or refund fees payable under the VCAT Act or regulations in certain circumstances,[56] maintain and keep open for inspection the register of proceedings,[57] issue witness summonses,[58] maintain the Tribunal’s files,[59] exercise certain delegated functions of the President or Vice Presidents,[60] and give notice of hearings to each party and other persons.[61] Numerous enabling Acts also confer additional functions on the Principal Registrar.[62]
[51]VCAT Act s 71.
[52]Ibid s 32AA.
[53]Ibid s 145.
[54]Ibid ss 83, 88; Sch 1, cls 52(3), 90, 105.
[55]Ibid Sch 1, cl 58(4)(b).
[56]Ibid s 132.
[57]Ibid s 144.
[58]Ibid s 104.
[59]Ibid s 146.
[60]Ibid s 33.
[61]Ibid s 99.
[62]See, for example: Residential Tenancies Act 1997 (Vic); Guardianship and Administration Act 2019 (Vic); Planning and Environment Act 1987 (Vic); Fisheries Act 1995 (Vic); Land Acquisition and Compensation Act 1986 (Vic); Vexatious Proceedings Act 2014 (Vic); Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic); Development Victoria Act 2003 (Vic); Valuation of Land Act 1960 (Vic); Credit (Administration) Act 1984 (Vic).

Under the Rules, the Principal Registrar has many and diverse functions including adjourning or withdrawing a proceeding by consent,[63] entering proceedings in lists and transferring proceedings from one list to another,[64] serving proceedings in some circumstances,[65] authenticating orders,[66] and giving notices of compulsory conferences, mediation and hearings.[67]
[63]Rules r 4.31.
[64]Ibid r 2.08.
[65]Ibid r 7.03.
[66]Ibid r 4.22.
[67]Ibid rr 4.16, 4.17, 4.18.

Tribunal member functions that may be exercised by the Principal Registrar

In 2014, the VCAT Act was amended to permit the Rules to confer on the Principal Registrar a new range of functions that could previously only be undertaken by a member of the Tribunal.[68] Section 8(3) of the VCAT Act was newly inserted, which defines the constitution of the Tribunal and expressly refers to the Principal Registrar and registrars. Section 157A(1) was introduced to permit the Tribunal to make rules for or with respect to the functions of the Tribunal that may be performed by the Principal Registrar. The functions of the Tribunal that can be performed by the Principal Registrar do not include orders finally disposing of a proceeding, other than orders made with the consent of all parties to a proceeding. Decisions of the Principal Registrar made under rules enacted under s 157A are subject to de novo review by a member of the Tribunal acting at the request of a party or on the Tribunal’s own initiative.[69]
[68]Victorian Civil and Administrative Tribunal Amendment Act 2014 (Vic).
[69]VCAT Act s 157B.

Rule 10.01 of the Rules was subsequently introduced and authorises the Principal Registrar to perform a wide range of functions formerly only able to be exercised by a member. These functions include:

(a)striking out a proceeding with a right to apply for reinstatement in various circumstances;

(b) reinstatement of a proceeding in particular circumstances;
(c)determining applications for adjournment or withdrawal of a proceeding in specified circumstances;

(d) determining applications for a change of venue;
(e)consideration of requests for a hearing by telephone, video link or other system of telecommunication;
(f)determining consent applications for an adjournment of some types of hearings;
(g)abridging time or determining consent applications for extensions of time; and
(h)various other functions in the Residential Tenancies Division and the Human Rights Division of the Tribunal.

Implied or incidental powers

It is well-established that where a statute expressly confers a power, function or duty upon a person or a body, any unexpressed ancillary power which is necessary for, incidental to or consequential upon the exercise of the primary power or function or discharge of the duty may be implied.[70] These apply to the Principal Registrar just as much as to any other statutory officer. However, a power will only be implied where it is necessary for the performance of the relevant statutory function.[71] The scope of any implied or incidental power is limited to ‘that which is of the essence of’ the exercise of the relevant statutory power.[72] As observed by Finkelstein J in AA Pty Ltd v Australian Crime Commission:

Under the common law, where a statutory function is conferred upon a person there will (when it is necessary) be implied a power to do what is necessary for the performance of that function. It is not sufficient for the power to be desirable. The power must be necessary in the sense that without it the statutory function will not achieve its purpose.[73]

[70]See Attorney-General v Directors of the Great Eastern Railway Co (1880) 5 App Cas 473, 478 (Lord Selborne LC), 481 (Lord Blackburn); Small v Smith (1884) 10 App Cas 119, 129 (Lord Selborne LC); Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561, 574 (Dixon CJ, Williams, Webb and Taylor JJ); R v Gough; Ex parte Australasian Meat Industry Employees’ Union (1965) 114 CLR 394, 416 (Windeyer J), 422 (Owen J); Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77, 83 (Lockhart J); Johns v Connor (1992) 35 FCR 1, 10 (Lockhart J); Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, 443-444 (French J); Johns v Australian Securities Commission (1993) 178 CLR 408, 428-429 (Brennan J); Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25, 35 (Mildren J, Martin CJ agreeing); Nguyen v Minister for Health and Ageing [2002] FCA 1241, [64] (Weinberg J); Akumah v Hackney London Borough Council [2005] 1 WLR 985, 993-994 (Lord Carswell); Ward v Metropolitan Police Commissioner [2005] 2 WLR 1114, 1121-1122 (Baroness Hale of Richmond); Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, 40 (French CJ); Pegasus Building Pty Ltd v Curlis [2018] VSC 484, [51]-[54] (Cameron J).

[71]Ward v Metropolitan Police Commissioner [2005] 2 WLR 1114, 1122 (Baroness Hale of Richmond); Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2014) 227 FCR 1, 55 (Middleton J).

[72]Fenton v Hampton (1858) 11 Moo PC 347, 360 (Fleming CJ), cited with approval in Trolly, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of New South Wales (1905) 2 CLR 509, 523-524 (O’Connor J); Egan v Willis (1998) 195 CLR 424, 468 (McHugh J); Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108, 128 (Gray and North JJ); Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, 40 [48] (French CJ).

[73](2005) 219 ALR 666, 669 (reversed on other grounds in Australian Crime Commission v AA Pty Ltd (2006) 149 FCR 540) (citations omitted).

The relevant test has been described as ‘not one of absolute necessity on the one hand or mere convenience on the other, but whether the thing objected to is reasonably incidental to carrying out a statutory object.’[74] In Sloane v Minister for Immigration, Local Government and Ethnic Affairs, French J explained the inquiry to be undertaken by a court in determining whether an implied or incidental power exists in the following terms:

The question whether some power, right or duty is to be implied into a statute will depend upon the construction of the provisions under consideration having regard to their purpose and context and other traces of the convenient phantom of legislative intention.[75]

[74]Deuchar v Gas Light and Coke Co [1924] 1 Ch 422, 435 (Astbury J), cited with approval in Civic Co-operative Permanent Building Society Ltd v Registrar of Co-operative Societies and Agents (1974) 24 FLR 430, 437 (Franki J), in turn cited with approval in Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) 67 LGRA 238, 241 (Morling and Wilcox JJ).

[75](1992) 37 FCR 429, 443.

There are many cases in which an officer exercising statutory powers or functions has been found to possess implied or incidental powers necessary for the performance of their statutory functions. In Dunkel v Deputy Commissioner of Taxation, Sheppard J found that the power to engage counsel was incidental to and consequential upon the Commissioner’s power to conduct an examination under s 264 of the Income Tax Assessment Act 1936 (Cth).[76]
[76](1990) 27 FCR 524, 528-529.

In Australian Securities Commission v Bell, the Full Federal Court considered whether an inspector of the Australian Securities Commission, in the course of conducting an investigation into the affairs of a company under the Australian Securities Commission Act 1989 (Cth), had the incidental power to take measures to control the conduct of the examination.[77] In Johns v Connor, Lockhart J considered whether the Australian Securities Commission and its officers possessed certain implied or incidental powers in the context of carrying out investigations and examinations under the same Act.[78] In both cases, the existence of the relevant implied or incidental powers was confirmed.
[77](1991) 32 FCR 517, 529-530 (Sheppard J, Burchett J agreeing).
[78](1992) 35 FCR 1, 10.

In Commissioner of NSW Police v Deputy State Coroner for NSW, Hamill J considered an application for judicial review of a decision of a deputy state coroner to refuse to make non-publication, suppression and other protective orders in respect of the whole or parts of a New South Wales police policy document in the context of coronial proceedings under the Coroners Act 2009 (NSW). Hamill J accepted the existence of the necessary implied or incidental powers on the part of the coroner.[79]
[79][2021] NSWSC 398, [78].

In Nguyen v Minister for Health and Ageing,[80] Weinberg J considered an application for judicial review of a decision by the Minister for Health and Ageing to revoke the applicant’s designation as an ‘approved pharmacist’ under s 133(2)(b) of the National Health Act 1953 (Cth). Citing Attorney-General v Directors of the Great Eastern Railway Co,[81] Weinberg J found there to be ‘no reason, in principle, why the power to grant a permission or approval should not be construed as containing within it the implicit power to sever, or partially revoke that permission or approval’.[82]
[80][2002] FCA 1241.
[81](1880) 5 App Cas 473.
[82]Nguyen v Minister for Health and Ageing [2002] FCA 1241, [65]-[67].

In Comptroller-General of Customs v Kawasaki Motors Pty Ltd, Beaumont J found that a statutory power held by the Comptroller-General of Customs to make commercial tariff concession orders carried with it an implied power to revoke such orders, including to make and revoke a revocation order.[83]
[83](1991) 32 FCR 219, 224-225.

There are significant limitations on the implied or incidental powers of a statutory officer. The conferral of statutory powers is said to carry with it only those powers that are ‘necessary’ for, ‘incidental’ to, or ‘consequential’ on the exercise of the power granted. Formulations of the principle tend to be restrictive as to the extent of statutory powers where private rights may be affected.[84]
[84]Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108, 127-128 [37]-[38] (Gray and North JJ).

Likewise in Morgan v Commissioner of Police, Johnson J considered that the adoption by the Commissioner of a gatekeeping or screening role in relation to the committee assessing police promotion applications was inconsistent with the statutory scheme established for the review of applications for promotion.[85]
[85][2012] NSWSC 1141, [152]-[155].

Analysis

The responsibilities given to the Principal Registrar by the orders included the power to select and direct a real estate agent in the event that the parties could not agree to do so. The duties of a real estate agent in relation to the sale of property might ordinarily be expected to include:

(a) obtaining an authority to act;

(b) listing the property for sale to the public;

(c) giving advice on market conditions and changes;

(d) preparing advertising brochures and conducting inspections;

(e) advertising the property, including by social media and digital marketing;

(f) screening buyers;

(g) conducting inspections of the property by prospective buyers;

(h) nominating an auctioneer, and conducting an auction;

(i) negotiating prices and conditions with possible purchasers;

(j) preparing a sale note;

(k) receiving deposit monies into the agent’s trust account; and

(l) providing information to, and responding to, the vendor’s solicitor.

Likewise, the duties of a solicitor acting in the sale of land might ordinarily be expected to include:

(a)preparing a statement under s 32 of the Sale of Land Act 1962 (Vic);
(b)obtaining necessary certificates and statements from statutory authorities for a s 32 statement;
(c)drawing and settling the proposed contract of sale, including general and special conditions of sale;
(d)conducting negotiations with prospective purchasers and their solicitors;
(e)attending to the execution of the contract of sale;
(f)preparing a settlement statement and attending settlement;
(g)holding the deposit and purchase monies in the solicitor’s trust account;
(h)attending to the discharge of mortgages and encumbrances and the removal of caveats;
(i)lodging documents for registration with the Land Titles Office; and
(j)giving legal advice concerning the sale.

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 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.

The Principal Registrar is called on by the orders to select and instruct a real estate agent or solicitor only in the event that the parties themselves do not do so. There may be an intransigent or unwilling party, or a party intent on frustrating the Tribunal’s jurisdiction and process. The parties may be at loggerheads and unable to agree. Unless the Principal Registrar has power to instruct a real estate agent or solicitor, give directions and execute necessary documents in these circumstances, the Tribunal’s jurisdiction under Pt IV Div 2 will be frustrated and the Tribunal’s orders stultified and rendered nugatory.

This would be the antithesis of Parliament’s intention that the Tribunal be given flexible remedies to address the issues that arise in co-ownership disputes. It would not ‘improve access to justice’ or result in more ‘simple and less expensive processes’ than those involved in a proceeding in a court.

Mr Djordjevich submitted that if the orders were frustrated, the VCAT proceeding could be referred to the Supreme Court, which had the necessary powers. I reject this submission. There is no provision in Pt IV Div 2 of the Act by which this could be done. Even if a way to do this could be found, such a process would be cumbersome, beset with delays and very expensive. It is extremely unlikely that such a significant limitation on the Tribunal’s power to act in co-ownership disputes was contemplated by Parliament when Pt IV Div 2 was enacted. Such a restriction would substantially detract from Parliament’s purpose in conferring jurisdiction on the Tribunal to resolve co-ownership disputes.

Under the orders, there was little risk of a denial of natural justice or procedural fairness. Before the Principal Registrar could appoint a real estate agent, instruct a solicitor or sign a document, the orders required the Principal Registrar to give the parties an opportunity to do so or to make submissions. The orders contemplated that procedural fairness would be rendered by the Principal Registrar.

Conclusion

For the reasons I have given, the responsibilities given to the Principal Registrar under the orders are within the statutory function of the Principal Registrar to provide administrative support and assistance to the Tribunal in the exercise of its jurisdiction and functions under s 32(1) of the VCAT Act.

Ground 1 fails.

Ground 2

Ground 2 contended that the Principal Registrar’s responsibilities to give directions under the orders are outside the terms of the rules made pursuant to s 157A of the VCAT Act. Whilst it is correct that the Principal Registrar’s responsibilities under the orders do fall outside the powers contained in r 10.01 of the Rules, the Principal Registrar has the power and duty of providing administrative assistance and support to the Tribunal under s 32(1) of the VCAT Act. I find that the orders fall within the Principal Registrar’s administrative powers.

Ground 2 fails.

Ground 3
The Tribunal erred in law by failing to make a decision as to Mr Djordjevich’s capacity to read English in 2002/2003.

Mr Djordjevich submitted that he claimed that the contracts of sale and transfers of the land in 2002 and 2003 were unconscionable and that the Tribunal erred in law in failing to sufficiently address his inability to read or write English at that time.

Djeka submitted that:

(a) Mr Djordjevich was seeking to have the Court revisit all the evidence with the object that the Court might come to a different conclusion;

(b) the allegations of fraud and unconscionability were never properly pleaded or particularised;

(c) there was no evidence of the special disadvantage that Mr Djordjevich allegedly suffered; and

(d) the Tribunal had dealt properly with the issue in the circumstances.

Analysis

As I have said, the parties advanced very different versions of the facts that gave rise to the sale and transfer of a half interest in the land to Djeka. Djeka’s version was set out in further amended points of claim dated 6 September 2019. Mr Djordjevich’s version was set out in points of defence filed 20 February 2020. The points of defence alleged in particular that Mr Djordjevich was new to Australia and had very limited command of English at that time.

In an outline of submissions filed with the Tribunal on 8 July 2021, Mr Djordjevich alleged that Djeka took advantage of his inability to read English and misled him as to the nature of the documents that he was signing. He also claimed that Djeka was not a co-owner of the land on the basis that it became registered as such by fraud.

The principal area of factual dispute before the Tribunal was as to the facts leading up to the sale of a half share in the land to Djeka and the resulting transfers of land. The Tribunal considered Mr Krickic’s evidence to be more probable and rejected that of Mr Djordjevich, which it held was unlikely to be true.[86]
[86]Reasons [42].

In its reasons, the Tribunal explained why it preferred Mr Krickic’s evidence to that of Mr Djordjevich. The main reasons were:

(a) Mr Krickic’s evidence that he paid $160,000 in three instalments on three specific dates was admitted by Mr Djordjevich as to two dates and supported by a bank statement of Mr Djordjevich’s company as to the third date.

(b) On Mr Djordjevich’s version of events, the land should not have been transferred at all because $100,000 was still unpaid. Given that he signed all of the transfers, this was unlikely to be true.

(c) The consideration stated in the transfers was consistent with Mr Krickic’s evidence.

(d) Mr Djordjevich or his solicitor held the titles to the land and must have produced them in order for the transfers of land to be registered. The titles would not have been produced for the transfers to be registered if $100,000 was still owing, as claimed by Mr Djordjevich.

(e) A contract note was signed by the parties for one of the rear allotments for consideration of $13,000. This was again consistent with Mr Krickic’s evidence of the purchase price, and inconsistent with Mr Djordjevich’s evidence that the total amount payable was $250,000.

(f) Mr Djordjevich’s evidence that he thought he was signing partnership documents was unlikely to be true, given that the transfers and contract notes were clearly headed as such in large bold type.

(g) Mr Djordjevich claimed that his English was poor. However, he was an experienced property developer who had bought and sold numerous properties and was familiar with the forms that were used.

(h) In 2016, Mr Djordjevich issued a proceeding in the Magistrates’ Court against Djeka to recover Djeka’s contribution towards expenses. If $100,000 had been owing on the sale of the land at that time, it would have been claimed. It was not claimed at all. In 2016, it was unlikely to have been Mr Djordjevich’s position that $100,000 was still owed by Djeka on the purchase of the land.[87]

[87]Ibid [25]-[27], [29]-[42].

The assessment of the evidence was a matter of fact for the Tribunal. It is obvious that there were persuasive reasons why the Tribunal should have accepted Mr Krickic’s evidence and rejected that of Mr Djordjevich. The Tribunal accepted that Mr Djordjevich sold a half share in the land to Djeka for half the price he had paid for the land plus an additional $20,000 for expenses. The Tribunal did not accept Mr Djordjevich’s evidence that he did not know that he was signing transfers of land and instead thought he was signing partnership documents. The Tribunal did not accept that Mr Djordjevich was misled or that he was subject to any special disadvantage by reason of his limited ability to speak English. It rejected his version of events entirely. Mr Djordjevich’s claims of fraud and unconscionability failed on the evidence.

I am satisfied that the Tribunal did consider the extent to which Mr Djordjevich understood English in 2002 and 2003, and took into account the extent to which he might have suffered any disadvantage or disability as a consequence of his limited capacity to read or write English. It was not persuaded that Mr Djordjevich did suffer any material disadvantage or disability, for the reasons it gave. It had the great advantage of hearing Mr Djordjevich and the other witnesses give evidence and be cross-examined. The problems with Mr Djordjevich’s evidence were basic. The Tribunal did not accept that his limited ability to speak English had any significance as far as the sale of the land or the execution of the transfers were concerned. Mr Djordjevich understood what he was doing when he sold a half share in the land to Djeka. Djeka did not obtain any advantage for which it had not given good consideration.

All of these matters were matters of fact for the Tribunal to determine. There was no error on a question of law as alleged in ground 3.

Ground 3 fails.

Ground 4
The Tribunal erred in law in holding that there was evidence to reasonably make a finding that Mr Djordjevich signed six contracts of sale of the land.

Mr Djordjevich submitted that there was insufficient evidence to reasonably make a finding that he signed six contract notes for the sale of the land. The six signed contract notes were not in evidence. The only contract note adduced in evidence was the contract note for one of the rear allotments, lot 36. Djeka submitted that the Tribunal properly dealt with the signing of the six contract notes in its reasons.

Analysis

The Tribunal found that a contract note was signed for each of the six allotments.[88] The contract note for lot 36 was tendered in evidence and the Tribunal inferred from the evidence that similar contract notes were signed for the other lots. The transactions occurred almost 20 years ago, and it was not surprising that contract notes for the other lots could not be produced.
[88]Ibid [35].

The issue has little significance, as the transfers of land were tendered in evidence and were admitted to be signed by Mr Djordjevich. They independently showed the consideration paid for each lot, which the Tribunal accepted. The consideration shown in the transfers totalled $140,000, as Mr Krickic said.

The Tribunal reviewed the contract note for lot 36, the transfers of land, the certificates of title and all of the documentation. It heard the witnesses as to what had happened. It determined that there were originally six contract notes for the sale of the land.

The issue was one of fact for the Tribunal. There was no error by the Tribunal on a question of law.

Ground 4 fails.

Ground 5
The Tribunal erred in law in holding that there was evidence upon which it could reasonably make a finding that the duplicate certificates of title had been provided to the Land Titles Office to affect [sic] the transfer thereof.

Mr Djordjevich submitted that there was no evidence as to the manner in which the land had been transferred, save that it had been done by Djeka or its agent. Djeka submitted that the Tribunal had properly addressed the matter.

Analysis

The transfers were endorsed with an order to register at the foot of each document together with a direction that all titles to be issued from the dealing should be returned to the lodging party, which was Mr Krickic’s estate agency. In accordance with normal conveyancing procedure, it was reasonable and appropriate for the Tribunal to infer that the duplicate certificates of title were lodged with the transfers at the Land Titles Office. Without both documents, the new certificates of title would not have been issued. The transfers were signed by Mr Djordjevich and accepted as such by the Land Titles Office.

The issue was one of fact for the Tribunal. There was no error by the Tribunal on a question of law.

Ground 5 fails.

Ground 6
The Tribunal erred in law in holding there was an onus on Mr Djordjevich to prove the manner in which the transfer of titles had been affected [sic].

Mr Djordjevich contended that the Tribunal had placed an onus on him to explain the manner in which the transfers were effected. Djeka submitted that the Tribunal’s approach was correct.

Analysis

The Tribunal did not hold that there was an onus on Mr Djordjevich to prove the manner in which the transfer of titles of the land was effected. Rather, the Tribunal pointed out that the new titles could not have been issued without the production of the existing titles, which was done through Mr Krickic’s estate agency. Mr Djordjevich offered no explanation as to how his titles had been made available and were lodged with the transfers that he had signed at the Land Titles Office.[89] This was one of the reasons the Tribunal considered that Mr Djordjevich’s evidence as to what had happened should not be accepted.
[89]Ibid [31].

The issue was one of fact for the Tribunal. There was no error on a question of law.

Ground 6 fails.

Ground 7
The Tribunal erred in law by failing to take into account and make a finding upon Mr Djordjevich’s claim that the remainder of the purchase money in the sum of $100,000 could not be recovered in legal proceedings because it was statute barred.

Mr Djordjevich submitted that the Tribunal erred when it held that his claim for the outstanding $100,000 alleged to be payable by Djeka for the land was statute barred. Djeka submitted that there was no error of law, as it was open to the Tribunal to make the findings it did.

Analysis

Mr Djordjevich gave evidence that the sale price for a half interest in the land was $250,000. He said that only $150,000 was paid and that Djeka failed to pay the remaining $100,000. The limitation period for a claim for damages based on a breach of contract is six years.[90] Mr Djordjevich’s evidence was that his English was limited in 2002 and 2003. He gave no evidence that he had any comprehension or understanding of limitation periods. He acknowledged that the transfers were signed by him and new titles were issued by the Land Titles Office. He advanced no explanation as to how the transfers were done and the titles transferred. He did not give evidence that he ever sent a letter of demand, instructed solicitors, or brought a proceeding to recover the outstanding $100,000 but found he could not do so because of the expiration of the applicable limitation period. The Tribunal did not accept his evidence as to what had happened, and accepted the account of Mr Krickic.
[90]Limitation of Actions Act 1958 (Vic) s 5(1)(a).

The issue was one of fact for the Tribunal. There was no error on a question of law.

Ground 7 fails.

Grounds 8 and 9
The Tribunal erred in law in failing to consider all of the oral and documentary evidence globally or cumulatively in making its findings.
The Tribunal erred in law in considering in isolation Mr Krickic’s specific evidence that Mr Djordjevich signed all of the contracts of sale and the transfers of sale in Mr Krickic’s office.

Mr Djordjevich submitted that the Tribunal did not consider the evidence as a whole or its cumulative effect, and made findings of fact in isolation.

Analysis

Grounds 8 and 9 are misconceived. The Tribunal had before it the evidence of the witnesses, and the documentary evidence. There is no sign that the Tribunal disregarded or overlooked any part of the evidence in making the findings that it did. There is no indication that the Tribunal failed to take into account any of the evidence or submissions before it.

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.

The Tribunal rejected Mr Djordjevich’s account that someone attended on him at his home with documents to sign. It accepted Mr Krickic’s evidence that he engaged a friend, Alex Manzella, to transfer the titles and that the documents were signed in his office at the real estate agency at which he was working at the relevant time.

The issues were matters of fact for the Tribunal. The Tribunal made no error on a question of law.

Grounds 8 and 9 fail.

Ground 10
The Tribunal failed to provide proper reasons for the decision and failed to address all of the significant issues before it.

Mr Djordjevich submitted that the Tribunal failed to address or provide proper reasons on the following issues:

(a) the claim for unconscionable conduct;

(b) Mr Djordjevich’s capacity to read and understand English;

(c) the claim for fraud;

(d) the signing of the transfers of land and the contract notes;

(e) that six contract notes were signed; and

(f) that Mr Djordjevich’s right to contribution merged in the Magistrates’ Court judgment.

Analysis

The Tribunal held that Mr Djordjevich’s evidence was unlikely to be true.[91] It rejected his claim that the registration of Djeka’s interest in the land was procured by fraud.[92] It accepted Mr Krickic’s evidence as to how the contract notes and transfers came to be signed.[93] The Tribunal held that Mr Djordjevich was an experienced property developer, having bought and sold numerous properties. The Tribunal also held that he was very familiar with buying and selling land, and the forms that were used.[94]
[91]Reasons [42].
[92]Ibid [64].
[93]Ibid [42].
[94]Ibid [38].

The Tribunal rejected the factual basis which underpinned Mr Djordjevich’s case. The Tribunal did address the matters now raised by Mr Djordjevich by rejecting his evidence and accepting Djeka’s evidence.

There was no error on a question of law as alleged in ground 10.

Ground 10 fails.

Ground 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].

Analysis

Ground 11 is misstated. I shall take it as referring to the Magistrates’ Court judgment.

In proceeding F12568341 in the Magistrates’ Court at Sunshine, Mr Djordjevich claimed against Djeka for one half of the outgoings that he had incurred in relation to the land. Djeka defended the proceeding. The complaint is dated 6 October 2016, and the notice of defence 24 November 2016. The Tribunal found that Mr Djordjevich recovered an order from the Magistrates’ Court of approximately $10,000 as Djeka’s contribution to outgoings incurred in relation to the land.[95] The Tribunal held that the claims for outgoings incurred before that date merged in the judgment.[96]
[95]Ibid [72].
[96]Ibid [73].

In Tomlinson v Ramsey Food Processing Pty Ltd, the plurality of the High Court described the rendering of a judgment as quelling the controversy between the persons involved in the proceeding. The rights and obligations in controversy between those persons cease to have an independent existence, and merge in the final judgment giving rise to res judicata in the strict sense.[97]
[97](2015) 256 CLR 507, 516 (French CJ, Bell, Gageler and Keane JJ).

In Clayton v Bant, Edelman J said that a court order replicates the prior right with added consequences such as enforcement mechanisms, and the prior right ‘has no longer an independent existence’.[98]
[98](2020) 272 CLR 1, 25 .

The Tribunal was correct when it held that the claims for outgoings incurred in and prior to October 2016 merged in the judgment debt obtained in the Magistrates’ Court proceeding. They no longer had any independent existence, and could not be claimed a second time in another proceeding.[99]
[99]Blair v Curran (1939) 62 CLR 464, 532 (Dixon J); Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, 510 (Deane, Toohey and Gaudron JJ). See also, K R Handley, Spencer Bower and Handley: Res Judicata (LexisNexis, 4^th ed, 2009) [8.01]-[8.02].

With the exception of the issue of merger by judgment, the issues raised under this ground were matters of fact for the Tribunal. The outgoings claimed by Mr Djordjevich were all claimed by him in the Magistrates’ Court proceeding, and merged in the judgment obtained in that proceeding.

There was no error on a question of law as alleged in ground 11.

Ground 11 fails.

Ground 12
The Tribunal erred in law by failing to make a decision as to whether Djeka had unconscionably taken advantage of Mr Djordjevich’s inability to properly read English in having the transfers of land and contracts of sale executed.

Analysis

The Tribunal heard and considered Mr Djordjevich’s claim that Djeka had unconscionably taken advantage of his inability to properly read English. The Tribunal did not accept Mr Djordjevich’s evidence and preferred that of Mr Krickic, who said that he had paid Mr Djordjevich half of the price that Mr Djordjevich had paid to purchase the land plus an additional $20,000 for expenses. There was nothing unconscionable about such a transaction, which was at or above market value as established by the price that Mr Djordjevich had paid for the land in July 2002.

The Tribunal did not accept Mr Djordjevich’s evidence as to the agreement between him and Djeka or as to how the contract notes and transfers of land came to be signed.

The issue was a matter of fact for the Tribunal. There was no error on a question of law by the Tribunal as alleged in ground 12.

Ground 12 fails.

Grounds 13 and 14
The Tribunal erred in law in failing to take into account the failure of Djeka to call Alex Manzella in making a finding as to the capacity of Mr Djordjevich to read English in 2002/2003.
The Tribunal erred in law in applying the incorrect onus of proof in assessing the parties’ evidence by failing to properly take into account Djeka’s failure to call Alex Manzella.

Mr Djordjevich submitted that the Tribunal erred in law in failing to take into account the failure of Djeka to call Mr Manzella to give evidence. He also submitted that no proper explanation was provided for the failure to call Mr Manzella, and that there was a basis for drawing a Jones v Dunkel inference against Djeka.[100] Djeka submitted that the Tribunal did not err in what it said about the absence of Mr Manzella.
[100](1959) 101 CLR 298.

Analysis

The Tribunal is not bound by the rules of evidence,[101] and the rule in Jones v Dunkel has no direct application to it.[102]
[101]VCAT Act s 98(1)(b).
[102]Maund v Racing Victoria Ltd [2016] VSCA 132, [55] (Maxwell P, Ashley and Kaye JJA).

The Tribunal gave consideration to the non-appearance of Mr Manzella despite being subpoenaed by Djeka. It observed that Mr Krickic said that he had asked Mr Manzella to come and give evidence but that he refused because it was alleged that he had acted illegally. No order compelling his attendance was sought.[103]
[103]Reasons [40].

The Tribunal took into account Mr Manzella’s absence when it made findings as to the evidence. The Tribunal held that ‘despite the absence of Mr Manzella’, it preferred the evidence of Mr Krickic about how the contract notes and transfers came to be signed.[104] I have set out its reasons for doing so above.[105]
[104]Ibid [42].
[105]See paragraph [110] above.

The Tribunal did not apply an incorrect onus of proof in assessing the failure to call Mr Manzella. The weight to be given to the evidence of the various witnesses was a matter for the Tribunal to assess. The Tribunal made its assessment of the evidence given in the proceeding, preferring the evidence given by Mr Krickic to that of Mr Djordjevich despite the absence of Mr Manzella. It was open to the Tribunal to make such an assessment of the evidence. The Tribunal’s reasons for doing so were clear and cogent. The weight to be given to the absence of Mr Manzella as a witness was a matter for the Tribunal to assess.

There was no error on a question of law by the Tribunal as alleged in grounds 13 and 14.

Grounds 13 and 14 fail.

Ground 15
The Tribunal denied Mr Djordjevich natural justice by failing to permit the parties an oral hearing to make submissions.

The Tribunal conducted a three day hearing of the proceeding. The parties subsequently submitted detailed written closing submissions. In his closing submissions, after the proceeding had been reserved for decision, Mr Djordjevich requested a further hearing of two hours for counsel to make further oral submissions.

Analysis

Under s 98(1)(a) of the VCAT Act, the Tribunal is bound by the rules of natural justice. In my view, the hearing provided by the Tribunal amply complied with the requirements of natural justice. The parties were given every opportunity to call witnesses and present their cases on the issues. It was a matter for the parties to call evidence and make submissions on the matters they wished to present. The Tribunal was under no obligation of procedural fairness to conduct a second hearing to receive further oral submissions in addition to written closing submissions. There would have been additional delays and listing difficulties in doing so, as well as significantly higher costs.

There was no error on a question of law by the Tribunal as alleged in ground 15.

Ground 15 fails.

Ground 16
The Tribunal erred in law in holding there was evidence to reasonably make an inference against Mr Djordjevich in respect of the alleged failure to call his solicitor to give evidence.

In its reasons, the Tribunal observed that it was likely that the titles to the land were held by Mr Djordjevich or his solicitor following the purchase of the land on 9 July 2002 in his sole name.[106] The Tribunal also observed that the titles must have come into the possession of Djeka or Mr Krickic in order that they could be lodged for registration, and that Mr Djordjevich offered no explanation as to how this was done. The Tribunal then observed that Mr Djordjevich’s solicitor was not called.[107]
[106]Reasons [11], [31].
[107]Ibid [31].

Mr Djordjevich submitted that his solicitor in 2002/2003 would be unlikely to have any recollection of the issue, unlikely to have kept his file and unable to give probative evidence. Djeka submitted that the Tribunal made no error of law in making such an observation.

Analysis

Mr Djordjevich’s submission is a submission on a matter of fact for the Tribunal, which had the task of considering the evidence. The fact remains that no satisfactory explanation was given by Mr Djordjevich as to how the duplicate certificates of title to the land came into the possession of Djeka or Mr Krickic and thereby enabled the transfers of the land to proceed.

There was no error on a question of law by the Tribunal as alleged in ground 16.

Ground 16 fails.

Grounds 17 and 20
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 Tribunal erred in law in failing to identify the relevant legal test in determining whether the parties entered into a partnership agreement in July 2002.

Mr Djordjevich contended that there was a partnership between Djeka and Mr Djordjevich, with the result that the Tribunal had no jurisdiction to hear the proceeding under ss 234C(2)(c) and (3) of the Act.

The Tribunal held:

A partnership is defined in s.5 of the Partnership Act as follows:
“(1) Partnership is the relation which subsists between persons carrying on a business in common with a view of profit and includes an incorporated limited partnership within the meaning of Part 5.”

There is no evidence that the parties carried on any business in common with a view to profit. It does not appear that they did anything in common. All that appears is a co-ownership of the Land and a sharing of expenses. Indeed, it seems from the contribution claims now made that many of these were not shared.
The mere fact that they owned the Land as tenants in common is insufficient to create a partnership (Partnership Act s.6; see also Jafari v 23 Developments Pty Ltd [2018] VSC 404).
I am not satisfied that the relationship between the parties amounted to a partnership.[108]

[108]Ibid [60]-[63].

Mr Djordjevich submitted that for there to be a partnership it was sufficient that preparatory steps be undertaken, such as the purchase of a property and the transfer of titles.[109]
[109]Citing Khan v Miah [2000] 1 WLR 2123, 2127-2128 (Lord Millett).

Analysis

Section 6 of the Partnership Act 1958 (Vic) sets out various rules to which regard is to be had in determining whether a partnership does or does not exist. Section 6(1) provides that:

Joint tenancy, tenancy in common, joint property, common property or part ownership does not of itself create a partnership as to anything so held or owned whether the tenants or owners do or do not share any profits made by the use thereof.

In Jafari v 23 Developments Pty Ltd, the Court of Appeal held that regard must be had to the parties’ ‘contractual arrangements’ as a whole, as well as the admissible surrounding circumstances from which their true intention is to be ascertained. The true characterisation of the parties’ relationship does not boil down to giving primacy to a single factor or to the label that they have adopted.[110]
[110][2019] VSCA 201, [153]-[154], [158] (Whelan and Niall JJA and Sifris AJA).

The Tribunal found on the facts that there was no partnership between Djeka and Mr Djordjevich. There was no evidence that they carried on any business in common with a view to profit. It did not appear that they did anything in common. All that appeared was co-ownership of land and a sharing of expenses. From the contribution claims, it seemed that many of the expenses were not shared.[111]
[111]Reasons [59]-[63].

The Tribunal’s finding that there was no partnership was amply supported by the evidence before it. Despite the passage of almost 20 years, there were no meetings of the suggested partners, and at best only intermittent communication between them. The suggested partnership had no income at any time. It did not supply goods and services to customers. It had no business or recurrent activities. There was no partnership bank account, assets, debts or liabilities. The suggested partnership did not prepare books of account or financial statements, instruct accountants or submit tax returns.

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.

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.

There was no error of law by the Tribunal as alleged in grounds 17 and 20.

Grounds 17 and 20 fail.

Grounds 18 and 19
The Tribunal erred in law in taking into account, in determining whether to make adjustments pursuant to s 233 of the Act, that a portion of the contributions were statute barred.

The Tribunal erred in law in failing to identify the relevant legal test that there should be no adjustments made pursuant to s 233 of the Act in respect of Mr Djordjevich’s contributions that a portion thereof, were statute barred [sic].

Mr Djordjevich submitted that the Tribunal is empowered to allow compensation or reimbursement for outgoings and expenses under s 233(2) of the Act, even though more than six years have elapsed since the outgoings and expenses were incurred.

Analysis

The Tribunal gave two reasons why Mr Djordjevich’s statement of contributions and receipts extending back to 2002 did not give rise to an order for contribution or an adjustment of rights. The first was that the amounts were statute barred. The second was that the claim with respect to the amounts said to have been incurred prior to the issuing of the Magistrates’ Court proceeding was merged in the judgment of that court.[112]
[112]Ibid [71]-[73].

Mr Djordjevich challenged the Tribunal’s finding that the amounts were statute barred. I accept his submission that claims for contribution or reimbursement under ss 228 and 233 of the Act are not actions founded on contract and are not subject to the limitation period specified in s 5(1)(a) of the Limitation of Actions Act 1958 (Vic). Claims under ss 228 and 233 are statutory claims and may arise whenever the Tribunal makes an order for the sale or division of land under Pt IV Div 2 of the Act. In my view, the Tribunal erred in law when it held that Mr Djordjevich’s claims for contribution or adjustment of outgoings and expenses were statute barred.

As Kaye J said in Tien v Pho:

… it is clear, from its express terms, that s 233 authorises the Tribunal, on an application under Part 4, to make an adjustment to a co-owner’s existing interest in land or goods by taking account (inter alia) amounts paid, and costs incurred, by a co-owner in respect of the property which exceed that co-owner’s proportionate share of those costs or payments. Such an adjustment must, necessarily, involve an alteration of the parties’ rights and interests at common law and in equity. The issue is placed further beyond doubt by s 233(5), which provides that s 233 “… applies despite any law or rule to the contrary”.
Thus, on its clear terms, s 233 authorised the Senior Member to make an adjustment to the respective interests of the plaintiff and the defendant to take into account (inter alia) the payment by the defendant of more than his proportionate share of the mortgage repayments in respect of the property.[113]

[113][2014] VSC 391, [23]-[24].

The conclusion that I have reached that claims under s 233 are not subject to the limitation period of six years contained in s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) is made doubly clear by s 233(5) of the Act, which provides that s 233 applies ‘despite any law or rule to the contrary’.

Although in my view the Tribunal erred in law in this respect, this does not alter the result reached by the Tribunal that no allowance could be made for the outgoings claimed by Mr Djordjevich, as such claims had merged in the Magistrates’ Court judgment obtained by Mr Djordjevich. This is correct for the reasons set out above.[114] It would be double dipping for Mr Djordjevich to have the benefit of the Magistrates’ Court judgment, and to additionally claim the same outgoings under s 233 of the Act.
[114]See paragraphs [145]-[149] above.

For these reasons, grounds 18 and 19 must fail.

Ground 21
The Tribunal erred in law in making a decision that the reserve price of the land should be $2,000,000.

Mr Djordjevich submitted that the market appraisal tendered in evidence showing a value for the land of between $2,300,000 and $2,500,000 was out of date, and significantly more than the reserve price fixed by the Tribunal of $2,000,000. Djeka submitted that the reserve price was appropriate and a matter for the Tribunal to decide in its discretion.

Analysis

The reserve price was not an issue of controversy at the Tribunal hearing. The parties did not call valuation evidence and made no submissions as to the reserve price of the land. The Tribunal was left to do the best it could on the limited evidence available. The only evidence was a market appraisal dated 12 August 2019 that the value of the properties was between $2,300,000 and $2,500,000.

The Tribunal is an expert Tribunal, and it was a matter for the Tribunal to determine the reserve price on the evidence it had before it. The fact that the reasons of the Tribunal do not refer to the reserve price fixed in the order is not surprising, having regard to the absence of submissions or evidence from the parties on the matter.

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.[115] The Tribunal was entitled to use its own judgement as to the reserve price and to fix the reserve price in the orders.
[115]Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59] (Osborn J).

The Tribunal made no error on a question of law as alleged in ground 21.

Ground 21 fails.

Conclusion

I will grant leave to appeal on grounds 1, 18 and 19. Leave to appeal is refused on all other grounds. The appeal in relation to grounds 1, 18 and 19 is dismissed.

[2022] VSC 732

5 December 2022