Expetito v Liao
[2014] VSC 50
•14 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 4929
| GABRIEL EXPETITO | Applicant/Plaintiff |
| v | |
| TERESA LIAO | Respondent/Defendant |
---
JUDGE: | LANSDOWNE AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2014 | |
DATE OF JUDGMENT: | 14 February 2014 | |
| DATE OF PUBLICATION OF WRITTEN REASONS: | 27 February 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 50 | |
---
VCAT- Leave to appeal out of time- summary dismissal – no arguable error of law – proposed questions of law in truth questions of fact – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Civil Procedure Act 2010 s63 and s7 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 r 4.05 and r 4.09
---
APPEARANCES: |
| The Plaintiff appeared in person. |
| No appearance for the Defendant. |
HER HONOUR:
The applications before me on 14 February 2014 were for leave to appeal out of time from a decision of the Victorian Civil and Administrative Tribunal (“VCAT” or “the Tribunal”)) made by Member Josephs in the Residential Tenancies List on 16 July 2013, and for substituted service of the originating motion and other documents on the respondent, Mr Expetito’s former landlord, Ms Liao. Both applications had been before me on previous occasions.
As the originating motion had not yet been served, there was on 14 February 2014 no contradictor to the application for leave to appeal out of time. Ordinarily, the hearing of that application would await service, or if necessary substituted service, of the application. Nevertheless, I considered on 14 February 2014 that it was so clear that leave to appeal could not be given, that it was appropriate to dismiss the proceeding entirely at that stage, of the Court’s own motion. I assumed for that purpose that there may be good grounds to provide for substituted service of the originating motion and other documents on the agent, rather than requiring personal service of Ms Liao, and that there may also be good grounds for extending the time within which an application for leave to appeal may be made. However, on the basis of the transcript, which is now available, I considered that it was clear beyond doubt that leave to appeal could not be granted. Accordingly, in the interests of efficient determination of the proceeding and to save further cost I dismissed the proceeding summarily of the Court’s own motion.
I gave oral reasons at that time for that course. What follows are my written reasons.
Procedural history and relevant law
Mr Expetito makes his application by originating motion and summons filed 20 September 2013. Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 provides for appeal to the Supreme Court from an order of VCAT on a question of law provided leave to appeal is given, and the application for leave to appeal is made not later than 28 days after the day of the order of the Tribunal. It follows that Mr Expetitio was approximately a month out of time in making his application. Rule 4.05 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (“the Rules”) provides for application to be made for an extension of time within which to make application for leave to appeal.
As originally filed, Mr Expetito’s application and proposed appeal were against Mr Maher Sarkis. Mr Sarkis is the real estate agent responsible for the premises, not the landlord. On the first return date of the summons I gave Mr Expetito leave to amend the documents so as to remove Mr Sarkis as respondent, and substitute the landlord, Ms Liao. I also ordered service on Ms Liao, and that Mr Expetito obtain the transcript of the hearing at VCAT and any written reasons for the order, amongst other things. On the last occasion the proceeding was before me prior to 14 February 2014, which was 4 December 2013, Mr Expetito was assisted by pro bono Counsel, as arranged by the Court, and the applications were adjourned again to obtain the transcript, and enable instructions to be given. On 14 February 2014, the transcript had been obtained, but service on Ms Liao had not occurred. Mr Expetito was not represented on 14 February 2014.
Mr Expetito’s application to VCAT in which the order complained of was made sought return of his goods, left in premises he previously had rented from Ms Liao. He noted in his application that he had been told by Consumer Affairs that his goods would be removed from the property and stored for 28 days. In fact all but some personal items were removed and disposed of. There had been previous VCAT orders made in other VCAT proceedings against Mr Expetito in relation to these premises, including an order that he vacate the premises by 23 April 2013, made 23 April 2013; and an order made 21 May 2013 dismissing Mr Expetito’s application for review of the eviction order. The order of 21 May 2013 records that his application for review was dismissed because his application was filed on 15 May 2013, which was after, by one day, the warrant had been executed. At least two previous orders for possession of the premises had been made against Mr Expetito, in 2011 and in 2012.
The order of the Tribunal which Mr Expetito now seeks to appeal dismissed his application made pursuant to s 397 of the Residential Tenancies Act 1997. Section 397 provides as follows:
397 What if goods or documents are wrongfully retained?
If an owner of premises wrongfully retains and refuses to give up goods or personal documents left behind, the former tenant, former resident, former site tenant or a person who has a lawful right to those goods or documents may apply to the Tribunal for an order for the return of the goods or personal documents or for compensation or both.
That section is found within Part 9 of that Act, which Part stipulates what a landlord must do if a tenant leaves goods in the rented premises after vacating them. There are different regimes for personal documents, and for other goods left behind. Section 380 provides that a landlord must take reasonable care of any personal documents left behind for 90 days and must take reasonable steps to notify the former tenant when and from where the personal documents may be collected. Section 386 provides that a landlord must store other goods that have been left behind for not less than 28 days. There are, however, some exceptions. The relevant exception in this case follows from the combined effect of s 386(1) and s 384(2). The effect of those provisions is that a landlord may remove and destroy or dispose of goods left behind within the 28 day period even if those goods have monetary value, if:
the total estimated cost of the removal, storage and sale of all those goods combined is greater than the total monetary value of all those goods combined. (part of s 384(2))
Section 385 of the Residential Tenancies Act allows a landlord to request the Director of Consumer Affairs (who acts through the officers of the Department) to given an opinion as to whether goods may be removed and destroyed or disposed of under s 384. The documents filed by Mr Expetito show that that is what occurred here. Exhibited to his affidavit sworn 27 November 2013 is an inspection report dated 30 May 2013 apparently signed by three officers of the Department of Consumer Affairs listing goods found in the premises (including a television, audio equipment, 3 piece lounge suite, desks, refrigerator, kitchen equipment, dining table, two double bed mattresses with frames, and two wardrobes). The inspection report gives an estimated value for all the goods of $1000 and total estimated cost of removal, storage, advertising and sale of $3000. It expresses the opinion that all of those goods may accordingly be removed for destruction and disposal with the exception of personal documents and photographs.
The order that Mr Expetito seeks to appeal, which dismissed his application pursuant to s 397, records findings as follows:
1. The landlord/owner has returned to the tenant all personal documents from the rented premises.
2. The landlord/owner has disposed of the tenant’s goods from the rented premises in compliance with the Residential Tenancies Act 1997 on the basis of a report from the Director of Consumer Affairs dated 30 May 2013.
Grounds of appeal
Mr Expetito’s originating motion states that he seeks to appeal the order dismissing his application for compensation “because my belongings were disposed of without my consent and the landlord acted within the 28 days that my belongings would be removed.” He asks “Why was I evicted from the premises without notice to vacate? And why would they dispose my belongings before the moving period of 28 days elapsed?” He adds in the originating motion that he is “appealing late” because he was seeking legal advice and was also depressed and homeless.
The proposed notice of appeal essentially repeats these matters. Under the heading “Questions of Law” Mr Expetito poses the following three questions:
1. What proof does the defendant have to say my documents were handed to me entirely?
2. How can the defendant disposed my belongings before the 28 days notice?
3. How can the case be dismissed?
Discussion
The transcript shows that Mr Sarkis gave evidence that he gave access to Mr Expetito on 15 May 2013 (the day after execution of the warrant i.e. eviction) to the premises so that he could remove his goods, but Mr Expetito retook possession. Mr Sarkis gave evidence that he contacted the Department of Consumer Affairs. Inspectors attended the premises (having previously contacted Mr Expetito- which is conceded in Mr Expetito’s application) and authorised disposal of all goods with the exception of personal documents and photographs. Mr Expetito did not attend at that inspection. Subsequently, Mr Sarkis received letters from a solicitor on behalf of Mr Expetito. He also made arrangements for Mr Expetito to receive his personal documents. Mr Expetito disputed that he had received his passport and other types of documents he identified. Evidence was also called on behalf of the landlord from Ms Tutuncu, an employee of Mr Sarkis. Her evidence was that she gave Mr Expetito his personal mail and photographs and all other personal documents she had found at the premises. She said there was no passport or documents of the description identified by Mr Expetito.
On the basis of this evidence, and the inspection report from the Consumer Affairs inspectors, Member Josephs concluded that the landlord had acted in accordance with the Residential Tenancies Act, and was permitted to dispose of the goods although they had not been kept for 28 days. The Tribunal specifically found that all personal documents found at the premises had been returned to Mr Expetito.
It is clear both from the transcript and from the documents he has filed in these proceedings that Mr Expetito does not agree with these findings of fact, and the conclusions of law reached on the basis of them. What Mr Expetito must show, however, to obtain leave to appeal, is an arguable question of law arising from the order sought to be appealed. Although he has couched his proposed notice of appeal as raising questions of law, his objections appear in truth to be objections to the findings of fact arrived at by the Tribunal. The law is very clear- if the value of the goods in question is less than the estimated costs of removal, storage and sale then the landlord is entitled to dispose of them and is not required to store them. There was evidence before the Tribunal by way of the inspection report that the value of the goods was less than the cost of the removal, storage and sale. Mr Expetito’s evidence was to the contrary- he said that he had spent more than $15,000 on the house. The Tribunal was, however, entitled to reach a conclusion by accepting the evidence of the inspectors, rather than that of Mr Expetito. It is in the very nature of judicial and quasi-judicial proceedings that the tribunal of fact will often be required to reach a decision as to which evidence to accept, in preference to other evidence. A grievance with such a decision does not usually give rise to a question of law, and there is nothing in Mr Expetito’s filed documents to suggest that it does so in this case. Appeal from an order of the Tribunal is only available in respect of an error of law, and in my view it is not arguable that the Tribunal made an error of law in accepting the evidence contained in the inspection report in relation to the goods other than the personal documents. Leave to appeal could not be given in respect of that finding.
In relation to the personal documents, there was also a conflict of evidence. Mr Expetito’s evidence was to the effect that there were other personal items at the premises that should have been stored and returned to him, and were not. The evidence of Mr Sarkis and Ms Tutuncu was to the contrary. The Tribunal had to decide which evidence to accept as part of its function in determining the application. Even if in fact the Tribunal was wrong in accepting the evidence of Ms Tutuncu and Mr Sarkis over that of Mr Expetito, that is not an error of law in respect of which an appeal can lie unless in doing so the Tribunal applied the wrong legal test, or made some other legal error. Nothing to that effect is shown in Mr Expetito’s documents or in the transcript.
Mr Expetito has raised whether he was discriminated against by the Tribunal. I have scrutinised the transcript carefully, and I do not consider that there is anything to suggest that the Tribunal treated him in any way unfairly or discriminated against him. Indeed, when Mr Expetito contested the reasons the Tribunal gave, the Member made further enquiry of Ms Tutuncu to ensure that his or her findings were correct. This suggests to me that the Member was concerned to ensure a fair hearing.
Mr Expetito has also raised before me why the tenancy was terminated, as it seems from the transcript he also sought to do before the Tribunal. The application before the Tribunal that gave rise to the order the subject of this proposed appeal concerned the disposal of goods. It did not concern the eviction, and so nor can this proceeding. The eviction was the subject of the earlier order of 23 April 2013 and the application for review of that order.
Conclusion
In my view, for the reasons set out above leave to appeal should be refused. This will bring to an end the proceeding. In so doing I exercise the power conferred on me by r 4.09 of the Rules to refuse an application for leave to appeal because the applicant does not have a prima facie case on appeal. I also exercise the power conferred on me by s 63 of the Civil Procedure Act 2010 to give summary judgment where a claim has no real prospect of success. I am conscious that summary judgment must not be given lightly and must not be given if there is any real question to be tried. I consider that in this case it is so clear that leave to appeal could not be granted that the proceeding should be brought to an end of the Court’s own motion, without the need for a contradictor and at this early stage. To do so is consistent with, and indeed required by, the obligations imposed on a Court pursuant to s 7 of the Civil Procedure Act 2010 to “facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”.
0
0
0