Herrington v Lawrence - [2019] VSC 319

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01146

SAMUEL HERRINGTON	Appellant
v
CHRISTOPHER LAWRENCE	Respondent

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JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2019
DATE OF JUDGMENT:	14 May 2019
CASE MAY BE CITED AS:	Herrington v Lawrence
MEDIUM NEUTRAL CITATION:	[2019] VSC 319

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JUDICIAL REVIEW – Application for leave to appeal decision of VCAT – Whether identified error of law – Whether real or significant argument that error exists – Whether grant of leave just in all the circumstances - Supreme Court (Miscellaneous Civil Procedure) Rules 2018 r 4.08(8) considered - Secretary of the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 referred to.

RES JUDICATA – Cause of action estoppel – Issue estoppel – Anshun estoppel – Previous proceedings before VCAT issued under incorrect legislative provisions – Previous proceedings dismissed as being issued under incorrect provisions – Whether final determination on the merits – Whether unreasonable not to raise correct cause of action – Residential Tenancies Act 1997 ss 259, 322, 325, 344 considered – Henderson v Henderson (1843) 3 Hare 115; 67 ER 319; Jackson v Goldsmith (1950) 81 CLR 446; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Re AWB Limited (No 10); ASIC v Lindberg (2009) 76 ACSR 181; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; LPD Holdings (Aust) Pty Ltd v Russells (a firm) [2017] QSC 45 referred to.

CIVIL PROCEDURE – Application for leave to amend notice of appeal – Application made at hearing of appeal – Whether prejudice to respondent – AON Risk Services v Australian National University (2009) 239 CLR 175 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person	-
For the Respondent	Ms V Bell	Brand Partners Commercial Lawyers

HER HONOUR:

What is this case about?

This matter has come before me by way of notice of appeal from a decision of Member Good of the Victorian Civil and Administrative Tribunal (‘VCAT’) dated 19 March 2019, and by way of summons for leave to appeal dated 26 March 2019.

In essence, the substance of the dispute is one of a residential tenancy concerning a property situated at 206/33 Claremont Street, South Yarra (the ‘Property’). The Appellant, Mr Herrington, resides in the Property, which is owned by the Respondent, Mr Lawrence. A twelve month fixed term tenancy agreement was entered into between the parties on 25 August 2017. The fixed term tenancy having come to an end, Mr Lawrence, by his agents, sought to regain possession of the Property as he wanted to sell it. To that end a notice to vacate the Property was served on Mr Herrington on 16 November 2018 (the ‘Notice to Vacate’). The Notice to Vacate required Mr Herrington to vacate the Property by 22 January 2019. This was resisted by Mr Herrington, who still remains in possession…

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 Herrington v Lawrence

Details

AGLC: Herrington v Lawrence [2019] VSC 319
Case: [2019] VSC 319
Decision Date: 14 May 2019

CaseChat Overview and Summary

In the matter of Herrington v Lawrence, the applicant, Herrington, sought leave to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT) in relation to a dispute regarding residential tenancy. The court was tasked with determining whether the identified legal errors warranted the grant of leave to appeal and whether the decision to dismiss the appeal was just in all the circumstances. Additionally, the court considered whether an estoppel prevented the applicant from raising the issue of the cause of action.

The primary legal issue before the court was whether the applicant could appeal a decision made by VCAT based on alleged errors of law. The court had to determine if there was a real and significant argument that an error of law existed and if the grant of leave to appeal would be just in all the circumstances. Furthermore, the court examined whether an estoppel, specifically cause of action estoppel and issue estoppel, prevented the applicant from challenging the decision of VCAT.

In reaching its decision, the court considered relevant legal principles and authorities. The court examined the Supreme Court (Miscellaneous Civil Procedure) Rules 2018 and the case of Secretary of the Department of Premier and Cabinet v Hulls. It was determined that there was no real or significant argument that an error of law existed, and therefore, leave to appeal was not granted. The court also assessed the principles of res judicata and estoppel by examining cases such as Henderson v Henderson, Jackson v Goldsmith, Port of Melbourne Authority v Anshun Pty Ltd, Re AWB Limited (No 10); ASIC v Lindberg, Tomlinson v Ramsey Food Processing Pty Ltd, and LPD Holdings (Aust) Pty Ltd v Russells (a firm). The court found that an estoppel did not prevent the applicant from challenging the decision of VCAT.

The court made an order dismissing the application for leave to appeal and to amend the notice of appeal. The court found that the applicant had not demonstrated that there was a real or significant argument that an error of law existed. Additionally, the court determined that it would not be just in all the circumstances to grant leave to appeal. Furthermore, the court held that an estoppel did not prevent the applicant from challenging the decision of VCAT.

Orders