Goode v Common Equity Housing Ltd - [2020] VSCA 317

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0017

LOUISE GOODE	Applicant
v
COMMON EQUITY HOUSING LIMITED	First Respondent
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	9 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 317

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PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Application for leave to appeal out of time – Application for extension of time within which to seek leave to appeal – Application for leave to appeal totally without merit – Appeal having no prospects of success – Futile to grant extension of time – Application for extension of time refused.

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REPRESENTATION	Counsel	Solicitors
For the Applicant	In Person
For the First Respondent	Ms M Isobel of counsel	Russell Kennedy
For the Second Respondent	No appearance

PRIEST JA
BEACH JA:

For some years up to and including 2016, Ms Louise Goode (‘the applicant’) was the tenant of residential premises situated in Thornbury (‘the premises’). These proceedings concern an order for possession of the premises, made against the applicant in 2016.

On 7 March 2016, the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) made an order giving Common Equity Housing Ltd (‘CEHL’) as landlord of the premises, an order for possession on the basis of non-payment of rent by the applicant. On 21 March 2016, the Tribunal heard an application by the applicant for review of the order of 7 March 2016. On that day, VCAT granted a stay of the possession order, until further order, on condition that the applicant pay the amount of rent then outstanding to CEHL. On 3 May 2016, after observing the applicant had not paid rental arrears to CEHL, the Tribunal affirmed the possession order made on 7 March 2016.

On 9 May 2016, the applicant filed an originating motion in the Trial Division of this Court seeking, amongst other things, leave to appeal, and ‘a Judicial Review of’, VCAT’s order of 3 May 2016. On 25 November 2016, after a number of hearings, that application was refused by Mukhtar AsJ, and the applicant’s originating motion was dismissed.[1]
[1]Goode v Common Equity Housing Ltd (Unreported, Supreme Court of Victoria, Mukhtar AsJ, 25 November 2016) (‘Mukhtar AsJ Reasons’).

On 4 January 2017, the applicant filed a notice of appeal from the orders of Mukhtar AsJ. That application was heard by Ginnane J on 2 May, 25 June, 5 August and 3 October 2019. On 19 December 2019, his Honour dismissed the appeal from Mukhtar AsJ.[2]
[2]Goode v Common Equity Housing Ltd [2019] VSC 841 (‘Ginnane J Reasons’).

On 24 February 2020, the applicant filed an application for leave to appeal to this Court. She also filed a written case, a list of authorities, a draft summary, a draft application book index, and an affidavit in support, affirmed by her. In her application for leave to appeal, she identified her grounds of appeal as:

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 Goode v Common Equity Housing Ltd

Details

AGLC: Goode v Common Equity Housing Ltd [2020] VSCA 317
Case: [2020] VSCA 317
Decision Date: 9 December 2020

CaseChat Overview and Summary

This case concerned an application for an extension of time to seek leave to appeal against the dismissal of an appeal from an order for possession of residential premises. The applicant, Ms Louise Goode, had been in occupation of the premises as a tenant since 1998. In 2008, there was a dispute between the applicant and the landlord of the premises, Access Common Equity Rental Cooperative Ltd, and in 2016, the landlord obtained a possession order from the Victorian Civil and Administrative Tribunal. The applicant had appealed the possession order to the Supreme Court, which was dismissed. The applicant sought leave to appeal to the Court of Appeal, but her application was out of time.

The Court of Appeal considered whether to grant an extension of time for the applicant to seek leave to appeal. The Court noted that the applicant had a history of making baseless claims, and her proposed appeal was totally without merit. The Court concluded that it would be futile to grant an extension of time, and dismissed the application. The Court also brought to an end a stay of the execution of the warrant of possession, ordered by the Court of Appeal on 10 March 2020.

The Court of Appeal's decision highlights the importance of ensuring that appeals are brought within the required time limits, and that the Court does not waste its resources on appeals that have no real prospect of success. The Court also emphasized the need for applicants to make their claims based on evidence and the law, rather than on baseless assertions.

Orders