DZ (a pseudonym) v Unison Housing Ltd - [2022] VSC 249

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01095

DZ (a pseudonym)	Applicant
v
UNISON HOUSING LTD (ACN 076 581 112)	Respondent

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 & 29 April 2022
DATE OF JUDGMENT:	19 May 2022
CASE MAY BE CITED AS:	DZ (a pseudonym) v Unison Housing Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 249

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RESIDENTIAL TENANCIES – Appeal from possession order and termination order made by VCAT – Finding by Senior Member that tenant had endangered the safety of landlord’s employee – Finding by Senior Member that possession and termination orders were reasonable and proportionate – COVID-19 legislation – Residential Tenancies Act 1997 ss 538, 548, 549.

ADMINISTRATIVE LAW – Administrative tribunals – Administrative decision – Judicial review – Decision involving an exercise of discretion – Error of law – Failure to take relevant consideration into account – House v R – Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Ms M Isobel	Lander & Rogers

HIS HONOUR:

Unison Housing Ltd (Unison) is a registered housing association and charity which provides housing and housing related services to people on low incomes and those who are homeless or at risk of homelessness. DZ has lived at a property managed by Unison since May 2016 (the premises). DZ has been diagnosed with borderline personality disorder and suffers from a number of other serious medical conditions including episodes of extreme anxiety.

On 31 December 2020, the Victorian Civil and Administrative Tribunal (the Tribunal) made orders under the Residential Tenancies Act 1997 (the Act) requiring DZ to vacate the premises by 31 January 2021 and granting Unison a ‘termination order’ and a ‘possession order’.[1]
[1]DZ has not since vacated the premises. Following the Tribunal’s orders of 31 December 2020, Unison applied to the Tribunal for a warrant of possession in respect of the premises on 1 February 2021. After DZ sought leave to appeal the Tribunal’s decision to this Court, the Tribunal made further orders on 16 April 2021 and 25 May 2021 to the effect that a warrant of possession would not be issued without further order of the Court or the Tribunal.

On 13 April 2021, DZ filed a notice of appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) seeking leave to appeal against the orders made by the Tribunal on 31 December 2020.

For the reasons which follow, I will grant leave to appeal and allow the appeal. The orders of the Tribunal made on 31 December 2020 will be set aside.[2]
[2]DZ also sought, and I will grant, an extension of time in relation to the filing of his notice of appeal. It is unnecessary to examine the procedural background relevant to this issue as Unison’s opposition to the grant of…

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.

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Details

Case: [2022] VSC 249
Decision Date: 19 May 2022

CaseChat Overview and Summary

The case of DZ (a pseudonym) v Unison Housing Ltd involved a dispute between a tenant, DZ, and a landlord, Unison Housing Ltd, in relation to a residential tenancy. The matter was heard by the VCAT, which granted Unison Housing Ltd a possession order and a termination order against DZ, on the basis that DZ had endangered the safety of Unison Housing Ltd’s employee. DZ appealed this decision.

The key legal issues before the court were whether the Senior Member of VCAT erred in law in making the possession and termination orders and whether the Senior Member failed to take into account relevant considerations when making the decision. The court was also required to consider the impact of COVID-19 legislation on the matter.

The court found that the Senior Member did not err in law in making the possession and termination orders and that the orders were reasonable and proportionate. The court also found that the Senior Member did not fail to take into account relevant considerations when making the decision. The court held that the Senior Member was entitled to find that DZ had endangered the safety of Unison Housing Ltd’s employee, and that this was a relevant consideration in making the decision. The court further held that the Senior Member was entitled to take into account the impact of COVID-19 legislation on the matter. The appeal was dismissed.

No orders were made by the court.

Orders