Gautham v Panwar - [2021] VSC 157

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04663

PUSHPINDER GAUTHAM	Appellant
v
LAKSH PANWAR	First Respondent
YOGENDER RAWAT	Second Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2021
DATE OF JUDGMENT:	25 March 2021
CASE MAY BE CITED AS:	Gautham v Panwar
MEDIUM NEUTRAL CITATION:	[2021] VSC 157

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RESIDENTIAL TENANCIES – COVID-19 legislation – Appeal from possession orders made by VCAT under COVID-19 temporary measures – Whether Member had regard to mandatory considerations – Findings of fact – Whether notice of termination of lease
required – Residential Tenancies Act1997 ss 317, 319, 538, 544, 548, 549.

ADMINISTRATIVE LAW – Tribunals – Natural Justice – Self represented litigant – Finding adverse to party – No opportunity given to cross-examine witnesses – natural justice not afforded – Victorian Civil and Administrative Tribunal Act 1998 s 102.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondents	No appearance

HIS HONOUR:

Mr Pushpinder Gautham applies for leave to appeal orders of the Victorian Civil and Administrative Tribunal granting the respondents possession of the room that he was renting in a house in Ringwood. For the reasons that follow, I grant leave to appeal and allow the appeal.

The respondents successfully applied to VCAT for an order under s 549 of the Residential Tenancies Act 1997 (‘RT Act’) terminating a tenancy agreement for the lease of the room. The second respondent, Mr Yogender Rawat owns the house and his nephew, Mr Laksh Panwar, the first respondent, leased it from him and, as sublessor, leased the room to Mr Gautham, who also had the right to use shared facilities. I will refer to Mr Rawat and Mr Panwar as the landlords as they both applied in that capacity to VCAT for the possession order. The landlords notified the Court through their solicitors that they would not be appearing at the hearing and ‘are happy with any decision that the Court makes.’ Be that as it may, the Court cannot set aside a decision of VCAT unless it is persuaded that the Tribunal’s order involved a material error of law that affects its decision.

Background

On or around 16 February 2020, Mr Panwar made a verbal agreement with the appellant, Mr Gautham, to sublease a room in the house for monthly rent of $700. Mr Panwar also subleased a room to Mr Rai.

On 2 June 2020, Mr Rawat sent a Letter of Eviction to Mr Gautham, citing a failure to pay rent for the previous two months as the cause for the eviction.[1] On 5 June, Mr Gautham wrote to Mr Rawat explaining that he requested the first month of unpaid rent be taken from his bond and that he offered to pay $500 for the second month, despite being unemployed. He referred to the COVID-19 Omnibus (Emergency Measures) Act 2020 (‘Omnibus Act’) and that it applied to his tenancy…

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 Gautham v Panwar

Details

AGLC: Gautham v Panwar [2021] VSC 157
Case: [2021] VSC 157
Decision Date: 25 March 2021

CaseChat Overview and Summary

The case of Gautham v Panwar involved a dispute over a residential tenancy in Victoria, which was brought before the Court of Appeal. The original decision was made by the Victorian Civil and Administrative Tribunal (VCAT), which granted possession orders to the landlord under temporary measures implemented due to COVID-19. The tenant, Gautham, sought to appeal the VCAT decision, arguing that the tribunal had not properly considered mandatory factors and had failed to afford natural justice by not allowing cross-examination of witnesses.

The court had to determine whether VCAT had correctly applied the mandatory considerations set out in the Residential Tenancies Act 1997 and whether the tribunal's process was fair and adhered to natural justice principles. Specifically, the court examined whether the tribunal had appropriately considered the temporary legislative measures and whether it was necessary for the landlord to provide notice of termination of the lease. The tenant also argued that the process did not allow for natural justice because the self-represented tenant was not given the opportunity to cross-examine witnesses.

The Court of Appeal found that VCAT had not adequately considered the statutory factors and that the process did not comply with natural justice. The court held that the tribunal's failure to allow cross-examination of witnesses was a significant procedural error, particularly in the context of a self-represented party. Consequently, the court quashed the VCAT decision and remitted the matter back to VCAT for rehearing, ensuring that the statutory considerations were properly addressed and natural justice was observed.

The court's final orders included the quashing of the VCAT decision and the direction that the matter be remitted to VCAT for a new hearing. The court emphasised that VCAT must ensure the proper application of the statutory factors and that the process allows for natural justice, including the opportunity for cross-examination where appropriate.

Orders