Fabuliving Pty Ltd v Lucisano - [2020] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S ECI 2019 05345

FABULIVING PTY LTD (ACN 630 732 124)	Plaintiff
v
FRANCESCO LUCISANO	Defendant

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2020
DATE OF JUDGMENT:	16 June 2020; Reasons provided 23 June 2020
CASE MAY BE CITED AS:	Fabuliving Pty Ltd v Lucisano
MEDIUM NEUTRAL CITATION:	[2020] VSC 369
JUDGMENT APPEALED FROM:	Order of 20 January 2020 (Caporale JR)

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LAND – Recovery of possession – Appeal from decision of Judicial Registrar - Dispute between operator of short-stay apartments and person who has ceased making payments – Protracted litigation in Victorian Civil and Administrative Tribunal - Whether summary procedure for recovery of land under Order 53 of Supreme Court (General Civil Procedure Rules) 2015 available or appropriate – Whether defendant had been a licensee or tenant - Unsatisfactory evidence - Appeal allowed - Proceeding to continue as if it had commenced as a writ with expedited trial date.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Robinson, a solicitor	Robinson Gill Lawyers
For the Defendant	Mr B Clemens, a solicitor	Clemens Haskin Legal

HER HONOUR:

Introduction

By originating motion filed 26 November 2019, the plaintiff commenced an action for the recovery of land at 108/802 Elgar Road, Doncaster, Victoria, 3108 (Vol 11872 Fol 724) (the property) pursuant to Order 53 of the Supreme Court (General Civil Procedure) Rules 2015.

This application was referred to Judicial Registrar Caporale for hearing and determination.

The critical issue in dispute between the parties was whether the defendant had been ‘a licensee’ or, rather, a tenant. This was because the jurisdiction under Order 53 could only apply if the defendant had been a licensee.

The Judicial Registrar determined that the defendant had been a licensee based on certain orders made by the Victorian Civil and Administrative Tribunal (VCAT) of 11 June 2019. He thereby granted the plaintiff’s application to recover possession under Order 53.

The defendant filed a notice of appeal dated 2 February 2020, which appeal constitutes a hearing de novo.[1]
[1]Supreme Court (General Civil Procedure) Rules 2015 r 84.05(4).

Various matters were raised by both sides. However, the key issue at the hearing was whether the summary procedure for recovery of land under Order 53 was available or appropriate, and, if not, what orders should be made in relation to the proceeding.

On the day of the hearing I determined that the Order 53 procedure was not available, but that the matter should continue as if it had commenced by writ, and be set down for an expedited hearing. Given the associated urgency, I made orders on that day to ensure an early trial date, with reasons to be delivered subsequently. The reasons are now provided, below.

Factual narrative

A large part of the chronology in the case was not disputed though, as will be seen below, there was a deficiency in the…

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 Fabuliving Pty Ltd v Lucisano

Details

AGLC: Fabuliving Pty Ltd v Lucisano [2020] VSC 369
Case: [2020] VSC 369
Decision Date: 16 June 2020; Reasons provided 23 June 2020

CaseChat Overview and Summary

Fabuliving Pty Ltd, the owner of short-stay apartments, sought the return of possession from the defendant, Mr Lucisano, who had ceased making payments. The dispute originated in the Victorian Civil and Administrative Tribunal but was transferred to the Supreme Court under Order 53 of the Supreme Court (General Civil Procedure Rules) 2015. The appeal before the court was against the decision of a Judicial Registrar who declined to apply the summary procedure for recovery of land, finding that the defendant had been a licensee rather than a tenant. The Registrar's decision hinged on the unsatisfactory quality of the evidence presented by the plaintiff.

The legal issues before the court were whether the summary procedure under Order 53 was available and appropriate in this case and whether the defendant had been a licensee or tenant. The court needed to determine if the Registrar's decision to proceed with the unsatisfactory evidence was correct. The primary focus was on the quality and sufficiency of the evidence presented by the plaintiff to establish the defendant's status and the applicability of the summary procedure in this context.

The court found that the Registrar had erred in declining to apply the summary procedure under Order 53. The evidence provided by the plaintiff was indeed unsatisfactory, but the court held that the summary procedure was still available and appropriate in this case. The court allowed the appeal, finding that the proceeding would continue as if it had commenced as a writ, with an expedited trial date. This decision highlighted the importance of adequate evidence in proceedings concerning the recovery of land and the availability of summary procedures under specific circumstances.

Orders