Goode v Common Equity Housing Ltd - [2019] VSC 841

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW
JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 01719

LOUISE GOODE	Appellant
v
COMMON EQUITY HOUSING LTD	First Respondent
– and –
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May, 25 June, 5 August and 3 October 2019
DATE OF JUDGMENT:	19 December 2019 (Revised)
CASE MAY BE CITED AS:	Goode v Common Equity Housing Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 841

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RESIDENTIAL TENANCIES – Possession order – Appeal from order of Associate Justice refusing leave to appeal from VCAT order and dismissing judicial review challenge to order – Finding of failure to pay rent to the landlord – Victorian Civil and Administrative Tribunal Act 1998 s 148.

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedural fairness – Whether refusal of adjournment a denial of procedural fairness.

PRACTICE AND PROCEDURE – Appeals from VCAT on questions of law – Failure to identify questions of law – Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the First Respondent	Ms M Isobel	Russell Kennedy

HIS HONOUR:

The appellant, Ms Louise Goode, appeals against orders made by an Associate Justice on 25 November 2016 refusing leave to appeal against orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) made on 3 May 2016 granting the first respondent, Common Equity Housing Ltd (‘CEHL’), possession of a property in Thornbury (‘the property’) at which Ms Goode, as a tenant, has lived for more than 25 years and dismissing her originating motion.

This is an unusual and unfortunate case where there is an impasse that has resisted all attempts to solve it. The tenant of a co-operative housing body will not and does not consider that she can or should pay the rent to the entity that VCAT has found to be the landlord, CEHL. For the last 5 years, she has been paying the rent into another entity’s bank account where it remains, now totalling in excess of $35,000.

In late March 2019, I was allocated this proceeding to hear and determine.

At the initial hearing, I sought to discover if there was some way of resolving the impasse between the parties, and requested that representatives of Access Common Equity Rental Cooperative Ltd (‘Access CERC’), being the entity to whom Ms Goode is paying rent, an authorised representative of the Director of Department of Health and Human Services and an Area Manager from that Department attend at Court on 25 June 2019, to assist in ascertaining whether the underlying issues in the proceeding could be resolved without formal hearing.

Access CERC wrote in response:

Access Common Equity Rental Co-operative Limited respectfully decline to send an authorised representative to appear at the next hearing set down for Tuesday, 25^th June, 2019.
Access CERC Limited is a small, not-for-profit, member based housing Co-operative, run entirely by volunteers. Dealing with…

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 [2019] VSC 841
Case: [2019] VSC 841
Decision Date: 19 December 2019 (Revised)

CaseChat Overview and Summary

Goode, the applicant, sought judicial review of a decision of Associate Justice who dismissed his appeal from a decision of the Victorian Civil and Administrative Tribunal (VCAT) that granted a possession order against him. The respondent, Common Equity Housing Ltd, was the landlord of the residential property in dispute. The applicant's appeal to the Supreme Court was based on the grounds that the VCAT decision was flawed and that the refusal of an adjournment was a denial of procedural fairness.

The primary issue for the Court was whether the Associate Justice was correct in finding that the applicant had failed to identify questions of law for appeal, as required by section 148 of the Victorian Civil and Administrative Tribunal Act 1998. The applicant argued that the refusal of an adjournment constituted a denial of procedural fairness, and that this was a question of law. The Court also considered whether the VCAT's refusal of an adjournment was a denial of procedural fairness.

The Court found that the applicant had failed to identify questions of law for appeal, and that the Associate Justice was correct in dismissing the appeal. The Court held that the applicant's argument that the refusal of an adjournment was a denial of procedural fairness was not a question of law, but rather a question of fact that was within the jurisdiction of VCAT. The Court further held that VCAT's refusal of an adjournment did not constitute a denial of procedural fairness, as the applicant had not demonstrated any prejudice resulting from the refusal. The Court dismissed the applicant's appeal and affirmed the decision of the Associate Justice.

The Court did not make any orders as to costs.

Orders