JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2022
DATE OF JUDGMENT:	12 May 2022
CASE MAY BE CITED AS:	Heng Yang Developments Pty Ltd v Red Earth Developments (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 231 (First Revision 20 May 2022)

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ADMINISTRATIVE LAW – Appeal from a decision of the Victorian Civil and Administrative Tribunal (‘Tribunal’) – Where applicant sought to set aside default judgment for a second time – Where leave required to apply to set aside default judgment for a second time – Where Tribunal asked to only determine leave application not substantive application – Where Tribunal refused leave to apply to set aside default judgment – Whether Tribunal erred by not considering new evidence – Whether Tribunal erred by considering substantive application rather than leave application.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Costello QC and Mr A Burnett	Align Law Group
For the Respondent	Mr J A Silver	Wainwright Ryan Eid Lawyers

TABLE OF CONTENTS

A. Introduction................................................................................................................................... 1

B. The background to the failed (first) application to set aside the default judgment....... 1

C. The initial application under s 120........................................................................................... 4

D. The application for leave to bring a second application under s 120 of the Act............. 7

E. Did the Senior Member err in law in dismissing the application for leave to bring a second application under s 120 of the Act?........................................................................................... 7

E.1Heng Yang’s additional material........................................................................................ 7
E.2The test for the grant of leave............................................................................................ 11
E.3The decision of the senior member – and whether it was attended with legal error 13

F. Disposition................................................................................................................................... 15

HIS HONOUR:

A. Introduction

Heng Yang Developments Pty Ltd (‘Heng Yang’), the applicant, engaged Red Earth Developments (Aust) Pty Ltd (‘Red Earth’), the respondent, to build two dwellings on a block in Eaglemont. Disputes arose between them. Red Earth commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) and, when Heng Yang failed to file points of defence in time, obtained a default determination against Heng Yang (‘the default judgment’). Heng Yang unsuccessfully applied to have the default judgment set aside. It wanted to apply for a second time to have the default judgment set aside. Under the Victorian Civil and Administrative Tribunal Rules 2018 (‘the Rules’), Heng Yang needed the leave of the Tribunal to bring a second application. On 8 January 2021, the Tribunal refused to grant it that leave. Heng Yang has now applied to this Court under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the Act’) for leave to appeal against the decision of the Tribunal to deny it leave to bring a second application to set aside the default judgment. It was agreed that I…

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.

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Details

AGLC: Heng Yang Developments Pty Ltd v Red Earth Developments (Aust) Pty Ltd [2022] VSC 231
Case: [2022] VSC 231
Decision Date: 12 May 2022

CaseChat Overview and Summary

Heng Yang Developments Pty Ltd, the applicant, sought to appeal a decision made by the Victorian Civil and Administrative Tribunal, which had refused to set aside a default judgment for a second time. The respondent, Red Earth Developments (Aust) Pty Ltd, opposed the application. The dispute revolved around the interpretation and application of the law regarding the setting aside of default judgments and the procedural requirements for making such applications.

The court was required to determine whether the Tribunal had erred in its decision to refuse the application to set aside the default judgment for a second time. This included assessing whether the Tribunal had failed to consider new evidence presented by the applicant and whether it had erred by considering the substantive application rather than the leave application. The court was also required to consider whether the Tribunal's decision was in accordance with the relevant statutory provisions and case law.

In its reasoning, the court held that the Tribunal had not erred in its decision to refuse the application to set aside the default judgment for a second time. The court found that the Tribunal had considered the new evidence presented by the applicant and had properly assessed its relevance and weight. The court also held that the Tribunal had not erred by considering the substantive application rather than the leave application, as the applicant had failed to demonstrate that it had satisfied the criteria for leave to apply. The court found that the Tribunal's decision was in accordance with the relevant statutory provisions and case law.

The court dismissed the appeal and upheld the decision of the Tribunal. The final orders included that the costs of the appeal be paid by the applicant to the respondent within 28 days.

Orders