Douglas v Nelson - [2024] VSC 116

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 05559

STEPHEN ROSS DOUGLAS and PHILLIP DOUGLAS	Applicants
- and -
SIMON NELSON	Respondent
- and -
KEITH CHARLES HARFFEY	Intervenor

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2024
DATE OF JUDGMENT:	18 March 2024
CASE MAY BE CITED AS:	Douglas v Nelson
MEDIUM NEUTRAL CITATION:	[2024] VSC 116

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ADMINISTRATIVE LAW — Application for leave to appeal — Eviction order made by VCAT under Residential Tenancies Act1997 (Vic) to allow sale of land by Trustee in Bankruptcy — Refusal by VCAT to reopen hearing on substantive grounds — No reasonable excuse for non‑appearance — No reasonable case to argue — Trustee in Bankruptcy as legal owner — Warrant of Possession — Pre‑existing warrant issued in the Federal Court — Futility of appeal — No real prospect of success — Leave to appeal refused — Costs order against applicants and intervenor — Residential Tenancies Act 1997 (Vic) ss 322(1), 91ZZB; Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 120, 148; Bankruptcy Act 1966 (Cth) ss 58(1), 116.

PRACTICE AND PROCEDURE — Application to intervene in proceeding — Supreme Court (GeneralCivil Procedure) Rules 2015 r 9.06 — Conditional leave to intervene granted — Adverse conduct of intervening party — Cost consequences.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr Stephen Ross Douglas on his own behalf and on behalf of the second applicant
For the Respondent	Mr L Freckelton of Counsel	Baker Jones, Lawyers
For the Intervenor	Mr Keith-charles Harffey, on his own behalf

HER HONOUR:

By Notice of Appeal filed on 20 November 2023 the applicants, Stephen Ross Douglas and Phillip Douglas, sought leave to appeal the order made by the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) on 6 November 2023 refusing their application to reopen and rehear an application in the residential tenancies jurisdiction. The application for leave is made pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’).

The substantive application before the Tribunal was one issued by the respondent, Simon Nelson, who is the registered proprietor of Lot 1, Walker Street, Koo Wee Rup (the ‘Property’). The respondent is the sole proprietor of the estate in fee simple of the Property as the Trustee in Bankruptcy of the estate of the first applicant.[1] The application was made to the Tribunal under the Residential Tenancies Act 1997 (Vic) (‘RT Act’) to obtain possession of the Property to enable its sale.
[1]Affidavit of David Alan Baker sworn 13 December 2023 (‘Baker affidavit’) [4] Exhibit DAB 1/1–2.

The applicants did not appear at the Tribunal hearing on 8 September 2023 and the Tribunal made orders granting the respondent’s application. The Tribunal directed the issue of a Warrant of Possession in the event the applicants did not vacate by 22 September 2023.

Pursuant to s 120 of the VCAT Act the applicants…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Douglas v Nelson

Details

AGLC: Douglas v Nelson [2024] VSC 116
Case: [2024] VSC 116
Decision Date: 18 March 2024

CaseChat Overview and Summary

In the matter of Douglas v Nelson, the applicants sought leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) that allowed the sale of their property by the Trustee in Bankruptcy. The dispute centred on the validity of an eviction order issued under the Residential Tenancies Act 1997 (Vic), which enabled the Trustee to sell the property to facilitate the payment of debts owed by the applicants. The Supreme Court was tasked with determining whether the applicants had a reasonable excuse for not appearing at the VCAT hearing and whether there was a reasonable case to argue on appeal.

The primary legal issues before the court were whether the applicants had a reasonable excuse for their non-appearance at the VCAT hearing and whether there was a reasonable case to argue on appeal. Additionally, the court had to consider the futility of the appeal given the existing warrant of possession issued by the Federal Court and the implications of the Trustee in Bankruptcy's status as the legal owner of the property.

The court found that the applicants had no reasonable excuse for their non-appearance at the VCAT hearing, as they had been served with the necessary documents and had the means to attend. Furthermore, the court determined that there was no reasonable case to argue on appeal due to the futility of the appeal and the existing warrant of possession. Consequently, the court refused the applicants' application for leave to appeal and ordered them to pay costs. Additionally, an intervenor who had been granted conditional leave to intervene but whose conduct was deemed adverse was also ordered to pay costs.

The court's decision emphasised the importance of appearing at hearings and the consequences of failing to do so, particularly in matters involving the sale of property by a Trustee in Bankruptcy. The ruling also highlighted the limited circumstances under which leave to appeal may be granted and the stringent criteria that must be met.

Orders