JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2018
DATE OF JUDGMENT:	4 September 2018
CASE MAY BE CITED AS:	Jafarpourasr v Tancevski
MEDIUM NEUTRAL CITATION:	[2018] VSC 497

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JUDICIAL REVIEW AND APPEALS – Application by tenant under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) for leave to appeal and appeal from VCAT decision to make possession order – Landlord issued tenant with notice to vacate premises within 60 days pursuant to s 258 of Residential Tenancies Act 1997 (Vic) – Tenant disputed landlord’s entitlement to evict her – VCAT Member made possession order on basis that landlord was entitled to evict tenant – Whether Member erred in law by failing to take into account mandatory relevant considerations or misconstruing the terms of the relevant statutory provision – Whether VCAT had jurisdiction to make a possession order and, if so, whether the Member erred in law in making the possession order – Whether any failure to afford procedural fairness – Smith v Director of Housing [2005] VSC 46 (‘Smith’), applied – Consideration of application of Smith to notices to vacate – Failure to take into account mandatory relevant considerations – Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, applied – Lang v Carron Investments Pty Ltd & Anor [2016] VSC 165, referred to – Residential Tenancies Act 1997 (Vic) ss 258(1), 319(d) and 330(1) – Application for leave granted – Two out of six grounds of appeal allowed

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Cafarella	Victoria Legal Aid
For the Respondent	Ms M McDonald, real estate agent on the Respondent’s behalf, by leave

HER HONOUR:

Introduction and Background

The applicant is the tenant of rented premises at 5/13 Hyde Street, Footscray. The respondent is her landlord. In November 2017, the respondent gave the applicant written notice that she was to leave the premises within sixty days, pursuant to s 258(1) of the Residential Tenancies Act 1997 (Vic) (‘RTA’) (‘notice’). The applicant disputed the landlord’s entitlement to evict her, and the matter came before the Victorian Civil and Administrative Tribunal (‘VCAT’) on 15 February 2018. The Member determined that the respondent was entitled to evict the applicant, and made an order for possession of the property. This order has been stayed pending the hearing and determination of this application for leave to appeal.

The applicant, who suffers from a number of disabilities, is an asylum seeker from Iran and is currently on a Safe Haven Enterprise Visa (‘SHEV’), which she is required to reapply for every five years. The applicant has resided at the property since 2015.

On 3 November 2017,…

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 Jafarpourasr v Tancevski

Details

AGLC: Jafarpourasr v Tancevski [2018] VSC 497
Case: [2018] VSC 497
Decision Date: 4 September 2018

CaseChat Overview and Summary

The case of Jafarpourasr v Tancevski involves an application by a tenant, Jafarpourasr, to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The dispute centres on a possession order issued by the landlord, Tancevski, which mandated the tenant to vacate the premises within a specified period. Jafarpourasr contested the landlord’s right to evict, arguing that the VCAT Member had failed to consider certain mandatory factors or misinterpreted the statutory provisions. The tenant sought judicial review and appeal under Section 148 of the Victorian Civil and Administrative Tribunal Act 1998, challenging both the jurisdiction of VCAT to issue such an order and the procedural fairness of the tribunal's decision.

The court was tasked with determining several legal issues, including whether the VCAT Member erred in law by failing to consider mandatory relevant considerations or misconstruing the terms of the statutory provisions. Additionally, the court had to ascertain whether VCAT had the jurisdiction to issue a possession order and, if so, whether the Member’s decision was legally sound. The tenant also argued that procedural fairness was not observed during the tribunal proceedings. These issues were examined in light of relevant case law, such as Smith v Director of Housing, Minister for Aboriginal Affairs v Peko-Wallsend Ltd, and Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts.

Upon reviewing the case, the court found that the VCAT Member indeed erred in law by not taking into account mandatory considerations and misapplying the statutory terms. The court granted the application for leave to appeal and allowed two out of six grounds of appeal. It was concluded that while VCAT had jurisdiction to issue a possession order, the Member's decision was flawed due to the aforementioned errors. The court’s reasoning underscored the importance of adhering to statutory mandates and ensuring procedural fairness in administrative tribunal decisions. Consequently, the court’s final orders included the allowance of the appeal on specified grounds, providing a pathway for the tenant to seek further redress.

Orders