Huang v Helou
[2025] VSC 212
•29 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICAL REVIEW AND APPEALS LIST
S ECI 2024 02536
| KAI HUANG | Applicant |
| v | |
| MATTHEW HELOU | First Respondent |
| and | |
| NATALIE HELOU | Second Respondent |
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JUDGE: | Finanzio J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 April 2025 |
DATE OF JUDGMENT: | 29 April 2025 |
CASE MAY BE CITED AS: | Huang v Helou |
MEDIUM NEUTRAL CITATION: | [2025] VSC 212 |
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ADMINISTRATIVE LAW — Appeal from the Victorian Civil and Administrative Tribunal (‘Tribunal’) pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) — Dispute between residential rental provider (‘landlord’) and renter (‘tenant’) following break of lease — Where Tribunal dismissed part of landlord’s claim and off-set other part as against renter’s cross-claim — Landlord’s appeal — Consideration of Tribunal’s jurisdiction under the Residential Tenancies Act 1997 (Vic) — No neglect of mandatory considerations — No failure to exercise jurisdiction — No error of law established — Leave to appeal refused.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; Residential Tenancies Act 1997 (Vic) ss 75, 210, 211, 211A, 419A, 452.
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APPEARANCES: | |
| For the Applicant | Mr Huang, in person |
| For the Respondents | Mr Helou, in person |
HIS HONOUR:
Introduction
This is an application for leave to appeal from the Victorian Civil and Administrative Tribunal (‘VCAT’) concerning a dispute between a landlord, Kai Huang (‘Applicant’) and tenants, Matthew and Natalie Helou (‘Respondents’).
In VCAT the Applicant claimed monies arising from the decision of the tenants to break the lease. The Respondents cross-claimed for reimbursement of rent paid on the basis that the property was in a poor condition. They also claimed for return of their bond in full.
It is apparent from the Tribunal’s orders that it made findings which resulted in the offset of each claim against the other, with the result that the bond monies were largely distributed to the renters, save for the Respondents being required to pay $69 to the Applicant towards the cost of reletting the property. The Applicant now seeks leave to appeal from the decision of the Tribunal.
Background
The decision of the Tribunal does not record its reasons nor does it set out detailed factual findings. Neither is there a useful recording of the proceedings before the Tribunal. The Applicant sought to obtain a transcript of the hearing, but the transcript records that intrusive background noise prevented transcription a short time after the hearing commenced.
It follows that the written record of proceedings before the Tribunal is confined to the written submissions and documents before the Tribunal (established by affidavit in these proceedings), and the orders of the Tribunal.
This Court was assisted by having all of the documents which were before VCAT at the time of the hearing.
The Applicant owns land in Manchester Street, Hawthorn (‘the property’) which he offers for rent. To assist him in that task, he engaged the services of a real estate agency, Elever Property Group, and the agent Michael Tattos (‘the agent’).
On 30 December 2022, the Respondents signed a fixed-term rental agreement to rent the premises at a rate of $800 per week. They paid a bond of $3,150 which was held by the Residential Tenancies Bond Authority (‘RTBA’). At the time, the Respondents were living in Sydney. They undertook an inspection of the property online before successfully applying to rent the property. They entered into a lease for a period of twelve months commencing on 9 January 2023, with plans to complete their move to Melbourne on 8 February 2023. The Respondents arranged for their goods to be moved to Melbourne on 17 January 2023.
On 12 January 2023 (after the tenancy had commenced), the Respondents inspected the property and identified matters of concern to them about the state of the property, such as the general cleanliness of the kitchen and the condition of the gardens. These matters were raised by text message with the agent, who sought the Respondents’ permission to enter the property to address the matters raised. The Respondents gave their permission. Later that day, they were informed by the agent that the Applicant had attended to clean inside the house.
On 17 January 2023, the Respondents attended the property to assist removalists in the delivery of their belongings. They observed a number of matters of concern to them, including: a malfunctioning stove; a back door which seemed not to close properly; a broken clothesline in the backyard with sharp edges protruding; lifted floor joinery; mould and lack of ventilation in the front room. They recorded these matters in photographs which were before the Tribunal. The Respondents said that a number of the matters raised on 12 January 2023 had not been addressed by the Applicant by the time of their visit on 17 January 2023.
On 17 January 2023 the Respondents contacted the agent, who advised them that the Applicant preferred to address the complaints himself rather than obtain professional cleaning or repair services. A short time later, the Applicant attended the property. The Respondents said that there was an exchange between the Applicant and the Respondents about the state of the property during which the Applicant offered to terminate the lease at no cost to the Respondents and to return the bond. The Respondents did not accept the proposal at that time. They said that they were in no position to move out as they were in the process of unloading all of their possessions which had just arrived from Sydney and had no alternative plan for accommodation.
The Respondents moved into the property and spent their first night (together with their two small children) on 8 February 2023. Before VCAT, the Respondents said that many of the matters that they identified as concerns on 17 January 2023 had not been addressed by the time they finally commenced occupation on 8 February 2023. By 13 February 2023, a further seven days after they had commenced occupation, and almost a month since the matters of concern about the condition of the property had been raised with the Applicant, they said no action had been taken. On 13 February 2023, they wrote to the agent advising that it was their intention to break the lease on the terms offered by the Applicant on 17 January 2023. The Respondents said that they intended to vacate the property on 19 February 2023.
On 14 February 2023, the agent responded advising that the offer made by the Applicant on 17 January 2023 was withdrawn and that if the Respondents chose to break the lease, the Applicant insisted the Respondents would be liable to pay any break lease expenses. The agent reiterated this position in a further email on 16 February 2023.
On 16 February 2023 the Respondents advised that they would be vacating the property on 19 February 2023. Later that day, the Respondents emailed the agent offering to pay the Applicant an additional two weeks’ rent toward the break lease expenses. On the following day, the Respondents made a further offer of resolution, this time offering to pay one month’s rent.
The Applicant rejected the Respondents’ offers and commenced the VCAT proceedings.
The Respondents vacated the property on 19 February 2023.
The Applicant advertised the property for rent, but at an increased rental rate of $850 per week. The Applicant re-let the property on 13 March 2023. The Applicant incurred expenses in re-letting the property during that period.
In VCAT, the Applicant sought:
(a) the repayment of a portion of the bond to cover the fees associated with the Respondents breaking the lease ($880) and water usage ($20), pursuant to s 419A of the Residential Tenancies Act 1997 (Vic) (‘RTA’);
(b) additional compensation for the loss of rent during the unrented period immediately following the lease break ($2,648) claimed pursuant to s 452 of the RTA; and so
(c) in total, the sum of $3,548.
The Respondents made a cross-claim seeking total repayment of the bond ($3,150), as well as compensation for the state of the property being equivalent to 50% of the rent already paid up to 19 February 2023, on the basis that the various repair issues that they had identified had prevented their full use and enjoyment of the property by approximately half (kitchen, laundry, one of the bedrooms, and the backyard). The total amount claimed by the Respondents (inclusive of the bond’s return) was $5,588.
VCAT decision
Following the hearing on 23 April 2024, the Tribunal made orders (‘the VCAT Orders’). Before making the orders, the Tribunal Member made what might be described as brief remarks under the heading ‘Details of unpaid rent and residential rental provider loss’, succinctly stating:
The residential rental provider has suffered the following loss or damage, taking into account where relevant, fair wear and tear, the matters set out in sections 211 and 211A of the [RTA], and any applicable Director’s Guidelines:
Letting fee and advertising costs (pro-rata) allowed at $69.00
Total residential rental provider loss proved
(with any additional claims being dismissed) $69.00
The VCAT Orders followed:
The Residential Tenancies Bond Authority must pay:
to the residential rental provider $69.00
to the renter $3081.00
The VCAT Orders made brief findings which were to the effect that the Respondents were:
(a) liable to pay the Applicant $780 (not $880) representing a pro-rata proportion of the claimed expenses incurred in reletting the property and $20 for water usage; and
(b) entitled to compensation in respect of rent already paid equivalent to a 15% (not 50%) reduction in the rent, amounting to $731.
In the result, VCAT offset the claim and the cross-claim, ordering that the RTBA pay the Applicant $69 and the Respondents $3,081 (of the $3,150 bond).
Before this Court, the substance of the Applicant’s complaint was that the Tribunal had failed to deal with, or deal properly with, his claim for compensation for the loss of rent between the period 19 February 2023 and 13 March 2023.
Supreme Court appeal
Leave to Appeal
Section 148(1) of the VCAT Act provides that a party to a proceeding before VCAT may only appeal on a question of law arising from an order of the Tribunal in the proceeding.
Section 148(2A) provides that the Court may grant an application for leave to appeal only if it is satisfied that the appeal has a ‘real prospect of success’. The term ‘real prospect of success’ has been the subject of consideration by the Court of Appeal. Nothing about this case gives rise to any controversy about the meaning of the phrase ‘real prospect of success’. It is sufficient for present purposes to proceed upon the basis that the phrase means a ‘real’ as opposed to ‘fanciful’ chance of success.[1]
[1]Kennedy v Shire of Campaspe [2015] VSCA 47, [12] (Whelan and Ferguson JA); Chopra v Department of Education and Training [2019] VSC 488, [21] (Richards J).
The Notice of Appeal
The Applicant seeks leave to appeal two aspects of the VCAT Orders:
(a) the award to the Respondents of a reduction in rent amounting to $731; and
(b) dismissal of the Applicant’s additional claim for loss of rent in the amount of $2,647.98.
The Notice of Appeal purports to rely on three questions of law:
(i) ‘Was VCAT required to consider the real estate agent was given written notice of repairs when deciding on a renter’s claim for compensation?’
(ii) ‘Was VCAT required to consider whether the real estate agent was given a reasonable opportunity to carry out the repairs when deciding on a renter’s claim for compensation?’
(iii) ‘Was VCAT required to consider loss of rent compensation when deciding on Applicant’s claim for compensation after the renter break the contract?’
In this matter, the Applicant and the Respondents are both self-represented litigants.
In Trkulja v Markovic,[2] the Court observed that:
In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.[3] In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.[4] …
The High Court has stated that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[5] Similarly, this Court has endorsed the proposition that ‘[c]oncealed in the lay rhetoric and inefficient presentation may be a just case’.[6]
[2][2015] VSCA 298 [39]–[40] (Kyrou and Kaye JJA, Ginnane AJA). See also, [41]–[44].
[3]McWhinney v Melbourne Health (2011) 31 VR 285, 293 [25], quoting Tomasevic v Travaglini (2007) 17 VR 100, 130 [141].
[4]Werden v Legal Services Board (2012) 36 VR 637, 651 [57].
[5]Neil v Nott (1994) 121 ALR 148, 150.
[6]Downes v Maxwell Richard Rhys & Co Pty Ltd (2014) 313 ALR 383, 390 [26], quoting Edwards v Allmen Engineering Pty Ltd (New South Wales Court of Appeal, Kirby P, Sheller and Powell JJA, 17 October 1995) 2.
With these observations in mind, I have attempted as best as is possible given the drafting of the Notice of Appeal, to ascertain the true nature of the complaint made in relation to the Tribunal’s decision. In the course of the hearing I was assisted by the submissions of the Applicant and his explanation of the matters which were of concern to him. From all of this it is clear that the real complaint to which the Notice of Appeal in this case is directed frames two broad attacks on the Tribunal’s decision: one which is hopeless; and one which, at first blush, may have merit, but for reasons which emerged at the hearing of this matter on 3 April 2025 must also be described as hopeless.
Accordingly, leave to appeal is denied for the reasons that follow.
The Respondents’ reduction in rent
The Applicant complains that the Tribunal awarded the Respondents compensation in the form of a rent reduction (in the order of 15%, rather than the 50% claimed by the Respondents) and, in doing so, failed to consider the fact that the Respondents had not given adequate notice of their complaints about the state of the property to the Applicant, or afforded the Applicant a reasonable opportunity to address the tenants’ complaints.
To succeed in such a claim, the Applicant must establish that the Tribunal’s decision is affected by an error of law.
Ordinarily, the grounds of appeal accompanying an application for leave to appeal articulate the nature of the legal error which is said to flow from the question of law arising on the appeal.
In this case, the Applicant’s grounds of appeal do no more than recite (by quoting) provisions of the RTA. In respect of questions one and two, the grounds recite ss 75(1) and (4)(b) as follows:
75 Application to Tribunal for non-urgent repairs
(1)A renter may apply to the Tribunal for an order requiring the residential rental provider—
(a) to carry out specified non-urgent repairs if—
(i)the renter has given the residential rental provider written notice under section 74(1)(a); and
(ii)the residential rental provider has not carried out the repairs within 14 days after receiving the notice; or
(b) to comply with a report issued by the Director under section 74.
…
(4)Without limiting the matters to which the Tribunal may have regard in determining an application under subsection (1), the Tribunal must have regard to the following—
…
(b) whether the residential rental provider or that person’s agent—
(i) was notified of the repairs; and
(ii)was given a reasonable opportunity to carry out the repairs;
…
Approaching the questions of law framed by the Applicant and the grounds relied upon (which amount to no more than a recitation of the above RTA sections), it might be said that the true substance of the Applicant’s complaint is that the Tribunal made an error of law in failing to consider ss 75(1) and (4)(b) of the RTA before reaching a conclusion as to the Respondents’ entitlement to compensation; and that such a failure, amounts to an error of law when assessing the Respondents’ claim for compensation.
In the hearing, the Applicant confirmed that he was aggrieved by the fact that the Tribunal had not taken s 75 into account when assessing the tenants’ claim for compensation. Having said that, the Applicant confirmed that he had not raised the possible application of s 75 in oral argument before the Tribunal. Taking the Applicant’s point at its highest, the Applicant could only succeed on appeal if it could be said that the Tribunal was, as a matter of law, obliged to consider ss 75(1) and (4)(b) in determining whether the Respondents were entitled to compensation. In short, s 75 has little if anything to do with a renter’s ability to claim compensation in circumstances like those in the present case.
Section 75 establishes a formal framework and process through which a renter may seek to have non-urgent works carried out. In reality, it is a process which is generally used by a renter who intends to continue residing at the rented property. Section 75 has no bearing on a situation where the renter claims compensation for overpaid rent.
The Respondents’ cross-claim application to VCAT states that it seeks an order for the ‘Bond plus another order’, and that ‘[t]his [further] claim relates to Section number 419A, 452 of the [RTA]’. These same provisions were relied upon by the Applicant in his application, and cited by the Tribunal in the VCAT Orders.
Section 419A of the RTA provides as follows:
419APerson with interest in claim for bond may apply to Tribunal for bond repayment order
(1)A residential rental provider, renter or any other person who has an interest in a claim for a bond (including a previous co-renter under the residential rental agreement) may apply to the Tribunal for an order requiring the Authority to repay the bond.
(2)An application under subsection (1) must be made within 14 days after the residential rental agreement has terminated.
(3)On an application under subsection (1), the Tribunal may make an order requiring the repayment of the bond by the Authority to any party for an amount that does not exceed the amount of bond held by the Authority.
Section 452 of the RTA relevantly provides:
452 General applications to the Tribunal
(1)A residential rental provider or a renter under a residential rental agreement may apply to the Tribunal if—
(a) a dispute has arisen under the residential rental agreement; or
(b)there has been a breach of the residential rental agreement or of the provisions of this Act relating to the residential rental agreement.
…
(8)The provisions of this section are in addition to all other rights and powers under this Act.
(9)Without limiting the matters which the Tribunal may consider, the Tribunal must consider the Director’s guidelines in determining an application under this section.
Neither the VCAT claim nor the orders make specific reference to Part 5 of the RTA which is headed ‘Compensation and Compliance’. Section 210(1) of Part 5 provides:
Application to Tribunal for compensation order on other grounds
(1)A party to a residential rental agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the residential rental agreement of compensation for loss or damage suffered by the applicant because—
(a)the other party failed to comply with the residential rental agreement or that party’s duties under this Act relating to the residential rental agreement; or
(b)the applicant has paid to the other party more than the applicant is required to pay in accordance with this Act or the residential rental agreement.
It appears from the structure of the RTA that claims for compensation of the kind made by the Respondents for rent already paid would not come within s 419A, which is concerned with a claim in respect of bond monies. The Respondents’ claim for a return of rent already paid appears to have been made by the Respondents under s 452 of the RTA. Section 452 is the ‘general disputes’ provision. It is not necessary in this case to decide whether a claim for compensation can be brought separately under s 452. Even if the claim had been wrongly brought citing s 452 as the source of the Tribunal’s power, it would have been open for the Tribunal to consider the matter within the statutory powers available to it to address the substance of the claim. It is apparent that this is, in fact, what the Tribunal did by its reference to ss 211 and 211A, which set out the factors that the Tribunal may consider in assessing whether or not compensation should be awarded.
Irrespective of the source of the power to make an award of compensation, (whether brought under ss 210 or 452), it is clear that:
(a) the Tribunal has the power to award compensation of the type claimed by the Respondents; and
(b) there is no provision of the RTA which establishes consideration of s 75 a mandatory requirement in the assessment of a claim for compensation
Sections 211 and 211A of the RTA, being the provisions most explicitly relevant to the assessment of compensation, make no reference to s 75.
The reliance placed by the Applicant upon the matters specified in s 75(4) — including the requirements placed upon tenants availing themselves of s 75 to provide notice of the need for non-urgent repairs and for the tenant to give a reasonable opportunity for the Applicant to carry out the repairs — apply explicitly to applications made under s 75(1), and not to any other claim.
There is no interpretation of the statutory framework taken as a whole that would render consideration or assessment of compensation claims like those made by the Respondents subject to or conditional upon invocation by the renter of the process set out in s 75.
In this case, the Tribunal had sufficient evidence before it of the matters necessary to form a view as to the nature and scope of the Respondents’ compensation claim. The conclusions reached by the Tribunal fell well within the scope of its discretion. The Tribunal had evidence and submissions before it as to the nature of the complaints made, which formed the basis of the compensation claimed by the Respondents. The claim was not framed as a failure to repair, rather it was framed as a loss of enjoyment of the property. The Tribunal had sufficient evidence before it to make an evaluative judgement as to whether compensation should be paid. The proposed Notice of Appeal does not disclose (even on the most beneficial reading) an error of law which could disturb the Tribunal’s decision.
The Applicant’s claim for loss of rent
In the VCAT hearing, the Applicant sought compensation for loss of rent occasioned by the Respondents’ early termination of the lease as part of the break lease costs. Clause 73(4) of the rental agreement confers a right to claim lost rent upon the Applicant, where the renter decides to vacate the property before the end of the lease. The clause provides:
73. Rental Provider Expenses
If the Renter decides to vacate the Premises during the term of this Agreement for whatever reason, the Renter shall be responsible for reimbursing to the Rental Provider or Elever Property Group the following costs:
1. A pro rata letting fee;
2. Marketing costs as incurred by Elever Property Group;
3. National tenancy database checks on each applicant or as required;
4.The continued payment of Rental until the first to occur of the Premises being relet or the current term of this Agreement expiring;
5.If the Premises are relet at a lower Rental, the Renter must pay to the Rental Provider any difference or shortfall as required for the unexpired portion of the term of this agreement subject to legal requirements.
Taking a generous view of the written materials filed by the Applicant in this Court, they frame the complaint as a failure by the Tribunal to deal with a substantial part of the Applicant’s claim.
The third question of law is framed as follows:
Was VCAT required to consider loss of rent compensation when deciding on a landlord’s claim for compensation after the renter break the contract?
The third question of law in the Notice of Appeal, together with the Applicant’s description of the part of the order being appealed give the impression that this is at the core of the Applicant’s complaint.
If made out, a failure of this kind would be an error of law. In AVC Operations Pty Ltd v Maribyrnong City Council[7], Harris J cited a long line of authority, and observed that:[8]
A failure by a decision maker to respond to a substantial, clearly articulated argument relying on established facts is recognised to be a legal error, being a constructive failure to exercise jurisdiction or a failure of procedural fairness.[9]
[7][2024] VSC 683.
[8]Ibid [45].
[9]Citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] (Gummow and Callinan JJ, Hayne J agreeing at 1102 [95]); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 435–6 [13] (Bell, Gageler and Keane JJ), 463 [105] (Nettle and Gordon JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 600 [27] (Kiefel CJ, Keane, Gordon and Steward JJ), 627 [105] (Gleeson J); Victorian Workcover Authority v Jamali [2023] VSCA 240, [92] (Beach JA, J Forrest and Tsalamandris AJJA).
In the hearing before this Court, the Applicant confirmed that his complaint was made on the basis that the Tribunal’s decision had not addressed the claim for lost rent.
On the contrary, it is clear that the Tribunal expressly considered all claims and dismissed the Applicant’s claim for rent.
First, in the section of the VCAT Orders containing the principal findings of the Tribunal, the heading (‘Details of unpaid rent and residential rental provider loss’)[10] reveals that the Tribunal was concerned with and had addressed the Applicant’s claim for rent.
[10]Emphasis added.
Second, the final sentence of that section in the VCAT Orders makes clear that the Tribunal was allowing a claim for the letting fee and advertising costs to be paid from the bond in the amount of $69, but had offset the Applicant’s proved loss against the Respondents’ claims. This is evident from the reference in the Orders to $69 being the ‘[t]otal residential rental provider loss proved (with any additional claims being dismissed)’.[11] Contrary to the Applicant’s submissions, it is clear from these passages that the Tribunal did, in fact, turn its mind to the Applicant’s claim for rent. There is no suggestion of there being insufficient evidence before the Tribunal to do so. Indeed, the Applicant agreed before me that his claim was fully debated in the Tribunal; his complaint was that the Tribunal had failed to address the claim. Properly understood, the VCAT Orders contradict that submission.
[11]Emphasis added.
Third, it was common ground that the Applicant’s claim for loss of rent was the subject of evidence and argument before the Tribunal. The Respondents (who were also self-represented litigants) filed submissions in this Court which addressed the arguments that had been advanced below. They did not address, in writing, the questions of law sought to be advanced by the Applicant. In addressing the Applicant’s oral submissions in this Court, the Respondents (through the First Respondent) informed me that the Tribunal had actively considered the Applicant’s claim for lost rent, and it was their understanding that the Tribunal had dismissed the Applicant’s claim for lost rent. According to the Respondents, the Tribunal considered the claim for loss of rent and, in doing so, had regard to the Applicant’s decision to advertise and relet the property at an increased rent.
The Tribunal was required to consider a range of matters in assessing the claim for lost rent, including s 211A(3)(b) of the RTA, which states:
(3)In calculating an amount of compensation payable on an application under section 210 or 210B for early termination of a residential rental agreement by the renter ... the Tribunal must —
...
(b)determine the amount of compensation for loss of rent (if any) by taking into account what loss could reasonably have been mitigated by the residential rental provider ... by promptly reletting the rented premises[.]
It was open to the Tribunal to conclude that the Applicant’s decision to seek a higher rent than that which had been paid by the Respondents would have made the property harder to more promptly relet.
According to the Respondents, the Tribunal also took into account in the course of the hearing before it that, once relet at a higher rate, the Applicant would receive an additional $50 per week in rent under the new lease, than he would have received under the old lease. I understand from the Respondents that the Tribunal took these matters into account in assessing the Applicant’s claim.
Although this summary of the Tribunal’s consideration of the Applicant’s claim for lost rent was not explicit on the written materials before me, if correct, it answers the suggestion that the Tribunal failed to consider a substantial argument advanced by the Applicant.
In reply, the Applicant agreed that the Tribunal did, in fact, address the claim for loss of rent in the way described by the Respondents.
There is no transcript of the proceeding, and no affidavit evidence was filed before the hearing as to the exchanges between the Tribunal and the parties. That said, I see no reason to ignore the frank oral submissions made before me about what transpired at the hearing, and the honest concessions given by the Applicant.
Even if there were a conflict between the Applicant and the Respondents as to what transpired, given the absence of a transcript or any fair and practicable method of resolving a material conflict between the parties as to the course of proceedings, the usual rule (though arbitrary) is to adopt the version of events which supports the decision of the Tribunal.[12]
[12]Old Hume Truck and Car Repairs Pty Ltd v Million Miles Pty Ltd [2023] VSC 551, [7] (John Dixon J), citing Buzatu v Vournazos [1970] VR 476 (Newton J), which was also cited in Klopper v Image Inspirations Pty Ltd (Supreme Court of Victoria, Nathan J, 18 October 1995); Emer v Queen Victoria Women’s Centre Trust [1999] VSC 115; Keirl v Kelson [2004] VSC 224. The authorities make clear that where a material dispute as to the course of proceedings arises, the court may write to the court or tribunal below with the knowledge of the parties, inviting the magistrate or tribunal member to resolve conflicts in the version of events. As the parties before me substantially agree as to what transpired below, this course of action was not necessary.
It is clear to me, on the materials and submissions made to this Court, that the Tribunal made no error of law. The VCAT Orders make specific reference to s 211A in the assessment of the unpaid rent claim. There was sufficient material before the Tribunal to consider whether any part of the claim was made out.
The only inference that can be drawn from the VCAT Orders is that the Tribunal determined that it was not prepared to make an award of compensation for the amount claimed by the Applicant. Contrary to the complaint made by the Applicant, the Tribunal considered and rejected the claim.
It is apparent from the VCAT Orders that the Tribunal directed itself to the relevant statutory provisions. It is apparent from the submissions before me, and the written material before the Tribunal, that there was sufficient factual material before the Tribunal for it to conclude that the claim should be dismissed. There is no basis upon which it could be concluded that the Tribunal’s decision was not reasonably open in the Wednesbury sense.
The Applicant sought to argue that it was improper, and an error of law, for the Tribunal to take into account the additional rent to be obtained under the new lease, when assessing compensation payable by the Respondents for breaking the previous lease. The argument was advanced in reply, and without proper notice. Leaving that to one side, the argument is without merit. The task of the Tribunal on a claim of the kind made by the Applicant is to assess the landlord’s loss. The RTA makes clear that the landlord has a duty to mitigate that loss. If a landlord is successful in mitigating the loss (either wholly or in part) including by securing a higher rental in a new lease, it follows that the loss of rent claim may be reduced. The Act permits the Tribunal to take into account other factors in determining whether or not the claim should be allowed.
As none of the Applicant’s proposed grounds of appeal have any prospect of success, the application for leave to appeal is dismissed.
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