John Sebastian Quick v Lam-Ly Pty Ltd (ACN 084 484 300) (as trustee for the Ly Family Trust)
[2021] VSCA 30
•26 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0036
| JOHN SEBASTIAN QUICK | Applicant |
| v | |
| LAM-LY PTY LTD (ACN 084 484 300) (as trustee for the Ly Family Trust) | Respondent |
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| JUDGES: | TATE, EMERTON and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 January 2021 |
| DATE OF JUDGMENT: | 26 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 30 |
| JUDGMENT APPEALED FROM: | [2020] VCAT 212 (Judge Brimer, Vice President) |
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RESIDENTIAL TENANCIES – Notice to vacate for alleged sub-letting (First Notice) – First Notice withdrawn – Further notice to vacate for non-payment of rent (Second Notice) – Tenant claimed compensation for repudiation or disclaimer of tenancy agreement by giving of the First Notice – Tenant remained in possession of premises but refused to pay rent – Order for possession made by Victorian Civil and Administrative Tribunal (VCAT) in favour of landlord – Order for possession appealed to Supreme Court – Trial judge held no repudiation or disclaimer – Leave to appeal refused – Following refusal of leave to appeal various cases between landlord and tenant heard by VCAT including landlord’s compensation claim for failure to pay rent, tenant’s compensation claim and four other related claims – All cases brought by tenant dismissed – Directions made in relation to the landlord’s compensation claim – Quick v Lam-Ly Pty Ltd [2019] VSC 233, Quick v Lam-Ly Pty Ltd [2019] VSCA 157 – Residential Tenancies Act 1997 ss 216, 225, 246.
APPEAL – Appeal from a decision of VCAT – Orders by VCAT dismissing tenant’s applications to transfer cases, confirming Principal Registrar’s decisions and dismissing tenant’s compensation claim – No error of law established – Tenant’s claims in VCAT primarily based on contended repudiation and disclaimer rejected by Supreme Court and Court of Appeal – No basis for any further claims – Res judicata – Grounds of appeal fundamentally misconceived and failed to identify any error of law – Misguided attempt by applicant to ventilate other unrelated disputes – Application for leave to appeal refused – Sahin v NAB [2012] VSCA 317 applied – Victorian Civil and Administrative Tribunal Act 1998 ss 71, 75, 77, 148 – Supreme Court Act 1986 ss 29, 31.
PRACTICE AND PROCEDURE – Application other than for leave to appeal – Orders and relief sought misconceived – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | No appearance |
TATE JA
EMERTON JA
SIFRIS JA:
Introduction
By a residential tenancy agreement dated 11 July 2018 (‘Tenancy Agreement’), John Sebastian Quick (‘applicant’), rented a property at 29 Morrah Street, Parkville (‘Premises’) from Lam-Ly Pty Ltd (‘respondent’). Upon an inspection of the Premises in November 2018, the respondent’s agent discovered that the applicant was sub-letting the Premises. Believing this to be in breach of the Tenancy Agreement, the respondent gave the applicant notice to vacate (‘First Notice’).[1] The respondent then withdrew the First Notice. However, the applicant claimed that the respondent had repudiated the Tenancy Agreement by giving the First Notice. The applicant remained in possession of the Premises claiming adverse possession and stopped paying rent after 28 November 2018.
[1]There was a dispute between the parties as to whether the sub-letting was permitted because there were handwritten alterations on the original tenancy agreement.
The respondent’s agent gave the applicant notice to vacate for failure to pay rent on 14 December 2018 (‘Second Notice’), which required that he vacate the Premises on 4 January 2019. The applicant did not comply with the Second Notice and the respondent obtained an order for possession from the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘Tribunal’) on 8 January 2019 (‘Order for Possession’) in VCAT case R2018/44699 (‘Respondent’s Possession Claim’).
The applicant sought leave to appeal the Order for Possession essentially on the grounds that his acceptance of the respondent’s repudiation, by the giving of the First Notice, constituted a valid defence to the rent arrears and the possession claim.
On 12 April 2019, Garde J granted the applicant leave to appeal but dismissed the appeal, holding that the giving of the First Notice did not constitute a repudiation or disclaimer of the Tenancy Agreement.[2]
[2]Quick v Lam-Ly Pty Ltd [2019] VSC 233 (‘Garde J’s Reasons’).
An application for leave to appeal the decision of Garde J was refused by Niall JA on 28 June 2019.[3]
[3]Quick v Lam-Ly Pty Ltd [2019] VSCA 157 (‘Niall JA’s Reasons’).
On 30 July 2019, all occupants of the Premises were finally evicted.
However, notwithstanding the unsuccessful appeal by the applicant against the Order for Possession made in the Respondent’s Possession Claim, several cases between the parties (four commenced by the applicant and two commenced by the respondent) remained on foot and were required to be dealt with by the Tribunal. We refer to these six cases as the ‘VCAT cases’.
The VCAT cases were dealt with by Vice President Judge Brimer of the Tribunal on 20 February 2020.[4] The Tribunal held that most of the matters the subject of the VCAT cases had effectively been dealt with by Garde J and by the refusal of leave to appeal by Niall JA. Orders were made in favour of the respondent, as referred to below. The applicant seeks leave to appeal from the decisions and orders of the Tribunal.
[4]Lam-Ly Pty Ltd v Quick (Residential Tenancies) [2020] VCAT 212 (‘Tribunal’s Reasons’).
For the reasons set out hereunder, leave to appeal is refused.
The facts[5]
[5]We have taken the facts, which are uncontroversial, from Garde J’s Reasons, [3]–[21].
On 30 September 2014, the applicant and his former partner entered into a 12 month residential tenancy agreement for the Premises (‘2014 Tenancy Agreement’). Clause 13 of the 2014 Tenancy Agreement provided that the applicant and his former partner would occupy the Premises during the term of the agreement, and that any change in the persons occupying the Premises must be immediately reported to the agent. The 2014 Tenancy Agreement was signed by the applicant, his ex-partner and the property manager of the agent.
On 1 October 2014, two different versions of a collateral agreement were signed by the tenants and the agent (‘addenda’). The first version confirmed that the applicant and his ex-partner were the head tenants, would source co-tenants and have them apply to live at the Premises. The selected co-tenants would become co-tenants of the Premises subject to the respondent’s approval. The second version of the collateral agreement differs from the first version in that it contains a condition requiring copies of the co-tenants’ application forms to be supplied to the respondent, but makes no reference to the need for co-tenants to be approved. Garde J held that it was not possible to tell on the evidence which version of the collateral agreement applies, or is the later version.
On 11 July 2018, the applicant signed the Tenancy Agreement as sole tenant. The Tenancy Agreement was in the required form. However, handwritten alterations were made to a number of sections of the Tenancy Agreement to the effect that the sections were modified by the 2014 Tenancy Agreement, addenda and by use. The handwritten alterations to the Tenancy Agreement were initialled by the applicant, but not by the agent.
Garde J held that it was unclear on the evidence whether the agent’s manager who signed the Tenancy Agreement affixed her signature before or after the handwritten alterations were made, or whether she noticed that alterations had been made, although ultimately this does not matter. There is also uncertainty as to whether the respondent’s approval was required for co-tenants as a result of the two inconsistent addenda. There was no evidence of past practice.
During a property inspection of the Premises on or about 15 November 2018, the agent’s representative was told by the occupants of the Premises that the applicant was unknown to them. This led to the decision to serve a notice to vacate on the applicant for unauthorised sub-letting. The agent served a notice to vacate (being the First Notice) on the applicant on the basis that the applicant had been sub-letting the Premises without the respondent’s consent. The First Notice was given under s 253 of the Residential Tenancies Act 1997 (‘RTA Act’).[6] It was sent by registered post and received by the applicant on 20 November 2018. The First Notice required the applicant to vacate on 7 December 2018.
[6]This section has the heading ‘Assignment or sub-letting without consent’ and reads:
(1)A landlord may give a tenant a notice to vacate rented premises if the tenant has assigned or sub‑let or purported to assign or sub-let the whole or any part of the premises without the landlord's consent.
(2)The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.
On 26 November 2018, the applicant responded by filing draft points of claim with VCAT. The draft points of claim contended that the First Notice:
(a) was invalid; and
(b) constituted a repudiation of the Tenancy Agreement.
The applicant stated that he was ‘inclined to accept the notice as a repudiation of our contractual agreement’, and said that he was not liable for rent after 15 November 2018.
The draft points of claim alleged that the tenant was entitled to:
(c) the return of his property bond in full;
(d) reimbursement for shutdown costs;
(e) damages for lost sub-tenants; and
(f) additional accommodation costs until the end of the term of the Tenancy Agreement on 29 June 2019.
The application was given VCAT case number R2018/41499 (‘Applicant’s Compensation Claim’). The applicant did not pay the application fee and sought fee relief. The VACT registry decided on 29 November 2018 that fee relief should be denied. As the applicant did not pay the application fee, his case stalled and did not progress further.
It is common ground that the applicant ceased paying rent from 29 November 2018, and has not paid rent since.
The agent reviewed the First Notice on its expiration, deciding that it should be withdrawn in view of the applicant’s handwritten alterations to the Tenancy Agreement, and the uncertainty as to what was agreed.
On 14 December 2018, the agent served a second notice to vacate (being the Second Notice) on the applicant based on his failure to pay rent. The specified termination date was 4 January 2019. The agent then commenced the Respondent’s Possession Claim based on the non-payment of rent under s 246 of the RTA Act.[7]
[7]This section has the heading ‘Non-payment of rent’ and reads:
(1)A landlord may give a tenant a notice to vacate rented premises if the tenant owes at least 14 days rent to the landlord.
(2)The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.
The Respondent’s Possession Claim came on for hearing on 8 January 2019. The applicant did not dispute that the rent was 14 days overdue on the day that the Second Notice was given, and contended that he was not obliged to pay rent at all.
During the VCAT hearing, the applicant stated that:
(g) he was still in possession of the Premises;
(h) he was not personally living at the Premises;
(i) there were other people, sub-tenants, living at the Premises; and
(j) he still had personal property at the Premises.
The applicant sought to defend the claim for possession, on the basis that:
(k) he had accepted the respondent’s repudiation of the Tenancy Agreement;
(l) he had moved out of the Premises personally but had continued to sub-let the Premises short term;
(m) the common law of repudiation supplemented the provisions of the RTA Act; and
(n) the result was that he was entitled to remain in adverse possession without payment of rent.
VCAT conducted an informal mediation between the parties with the object of resolving the case. It was not successful. The Respondent’s Possession Claim then fell to be decided by the Tribunal. The Tribunal made the Order for Possession.
In oral reasons for decision, the Tribunal recorded that:
(o) the applicant was currently letting the Premises;
(p) there was no dispute that the rent was $3,911 per calendar month and that it was paid until 28 November 2018;
(q) the outstanding rent as at the date of the hearing was $5,014.74;
(r) the applicant claimed that he was not liable for rent after 15 November 2018 for the reasons that he gave; and
(s) the applicant contended that the service of the First Notice amounted to a repudiation and that he had accepted that repudiation by making his application to VCAT [the Applicant’s Compensation Claim] .
The Tribunal then held:
(t) section 216 of the RTA Act provides that a tenancy agreement does not terminate, and must not be terminated, except in accordance with the RTA Act;[8]
[8]This section has the heading ‘Termination of tenancy agreement’ and reads:
Despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.
(u) termination of residential tenancies is dealt with according to the provisions of the RTA Act;
(v) the Tenancy Agreement had not been terminated by the applicant in a manner authorised by the RTA Act, and the respondent had not withdrawn the obligation to pay rent under the Tenancy Agreement;
(w) the respondent had given the applicant the notice to vacate for arrears of rent in accordance with the requirements of the RTA Act; and
(x) the respondent was entitled to a possession order under s 246 of the RTA Act.
As a result, the Tribunal ordered the applicant to vacate the Premises by 8 February 2019 and gave consequential relief to the respondent.
Decision of Garde J
The applicant sought leave to appeal the Order for Possession. The application was heard by Garde J of the Trial Division on 12 April 2019.
In his reasons, Garde J identified the following three issues raised by the applicant in his notice of appeal:[9]
[9]Garde J’s Reasons [22].
(y) whether the applicant’s acceptance of the respondent’s repudiation of the Tenancy Agreement was a valid defence to rent arrears;
(z) whether the monthly rent was in arrears having regard to the service of the First Notice and the applicant’s claim for damages [the Applicant’s Compensation Claim]; and
(aa) whether possession should have been granted by the Tribunal.
By his grounds of appeal, the applicant sought to establish that he had a valid defence to the application for possession, that the Tribunal misunderstood the effect of s 216 of the RTA Act and that the common law of repudiation applied to residential tenancies.[10]
[10]Ibid [23].
Garde J affirmed the Tribunal’s finding that s 216 of the RTA Act provides, in substance, for the termination of residential tenancy agreements to be governed only by a statutory code found in certain provisions of the RTA Act, and not by the general law of contract unless adopted by the code.[11] Accordingly, his Honour held that the RTA Act overrode the common law principles of repudiation on which the applicant relied.[12]
[11]Ibid [30].
[12]Ibid [44].
His Honour also considered whether the Tenancy Agreement had come to an end by disclaimer by the landlord under s 225 of the RTA Act,[13] despite the argument not having been raised before the Tribunal.
[13]This section has the heading ‘Termination by disclaimer’ and reads:
A tenancy agreement may terminate by disclaimer (for example, on repudiation of the agreement by the tenant accepted by the landlord).
Ultimately, Garde J concluded that the respondent did not repudiate or disclaim the Tenancy Agreement.[14] As his Honour put it:
These facts do not establish disclaimer or repudiation. Quite the contrary! They establish that the landlord, through the agent, was seeking to uphold its rights under the tenancy agreement. There was no renunciation or denial of the tenancy agreement or the relationship of landlord and tenant. When the handwritten alterations and the confusion as to the addenda were identified, the landlord withdrew the first notice. It was not at any stage seeking to disclaim or repudiate the tenancy agreement but rather to uphold it and to act in conformity with it. The second notice was in conformity with the rights of the parties under the tenancy agreement and the Act.
The tenant’s claim of repudiation inevitably fails because the facts do not establish repudiation of the tenancy agreement by the landlord. Although the tenant did not argue disclaimer before the Tribunal, the result would have been the same if he had. There was no disclaimer, whether unilateral or bilateral, by the owner.
The tenancy agreement continued on foot until terminated by the landlord following service of the second notice. The tenant did not vacate, and the first notice was withdrawn. The rent payable under the tenancy agreement was not paid and continued to accrue, and the landlord was entitled to, and did terminate the tenancy agreement. The tenant had no defence to the claim for possession under the second notice.[15]
[14]Garde J’s Reasons [58].
[15]Ibid [60]–[62].
His Honour was satisfied that the requirements for a possession order were met and found no error in the Tribunal’s decision to make such an order.[16] Leave to appeal was granted, but the appeal dismissed.[17]
[16]Ibid [66].
[17]Ibid [70].
Decision of Niall JA
The applicant sought leave to appeal the decision of Garde J. That application was heard by Niall JA of the Court of Appeal on 24 June 2019.[18]
[18]The application followed the decision of Beach JA to lift a stay of the Order for Possession and to dissolve the consequential injunction on the basis that his Honour was not persuaded that the applicant had any arguable ground of appeal from the orders made by Garde J: Quick v Lam-Ly Pty Ltd [2019] VSCA 111.
In his application for leave to appeal and written case, the applicant identified a range of proposed grounds of appeal in relation to both Garde J’s decision and the hearing before the Tribunal.[19]
[19]See Niall JA’s Reasons at [30].
The applicant’s fundamental submission was that Garde J had incorrectly dismissed the case for repudiation and disclaimer against the respondent.[20] The applicant maintained that by reason of the respondent’s repudiation or disclaimer of the Tenancy Agreement, he had a right to possession with respect to the Premises, and was not required to pay rent.
[20]Ibid [31].
Niall JA observed that the applicant’s argument that the Tenancy Agreement had been terminated by his acceptance of the respondent’s repudiation ‘did not provide a promising foundation to resist a possession order, given that he remained in possession and stopped paying rent.’[21] His Honour held that the Tribunal, because of s 216 of the RTA Act, correctly rejected the applicant’s submission that the Tenancy Agreement had been brought to an end by common law principles of repudiation, and so the applicant’s argument based on those common law contractual principles was ‘untenable’.[22]
[21]Ibid [38].
[22]Ibid [39].
In respect of the submission that the Tenancy Agreement was terminated by disclaimer under s 225 of the RTA Act, Niall JA identified two ‘insuperable obstacles’.[23] First, it was not a matter raised before the Tribunal. Further, had disclaimer been raised, the respondent may have met the case on a number of bases, including the fact that the applicant’s remaining in possession of the Premises was entirely inconsistent with the applicant accepting the respondent’s putative disclaimer of the Tenancy Agreement.[24] The applicant’s argument was ‘devoid of merit’ and it followed that there was no error of law by the Tribunal in not dealing with disclaimer.[25] Second, the respondent did not disclaim the Tenancy Agreement. Niall JA held that Garde J correctly found that the service of the First Notice did not constitute a disclaimer as it was an exercise of a statutory, not contractual, power and was not an unambiguous denial of the existence of the estate or interest in land.[26] Niall JA found no arguable error in Garde J’s conclusion that there was no disclaimer by the respondent.[27]
[23]Ibid [40].
[24]Ibid [45]–[48].
[25]Ibid [49]–[50].
[26]Ibid [59]–[60].
[27]Ibid [62].
Niall JA also found no merit in the applicant’s submission that s 29 of the Supreme Court Act 1986 (‘SC Act’)[28] applied to VCAT, with the effect that the Tribunal was obliged to hear and determine, as far as possible, all matters in dispute between the parties finally and completely and avoid a multiplicity of proceedings, as VCAT is not a court for the purposes of the SC Act.[29] His Honour also found no denial of procedural fairness by the Tribunal or Garde J in hearing the Respondent’s Possession Claim before the Applicant’s Compensation Claim.[30]
[28]This section provides for law and equity to be concurrently administered and provides that every court must exercise its jurisdiction to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined and multiplicity of proceedings is avoided.
[29]Niall JA’s Reasons [69].
[30]Ibid [68]–[71].
Accordingly, his Honour held that there was ‘no coherent basis’ for the applicant to resist the possession order and that Garde J was correct in his conclusion that there was no legal error in the Tribunal’s determination that the conditions for the making of a possession order on the basis of the notice to vacate for non-payment of rent were satisfied.[31] Leave to appeal was refused. The applicant did not seek special leave to appeal to the High Court of Australia.
[31]Ibid [72]–[73].
However, this was not the end of the dispute between the applicant and the respondent. Several cases between the parties remained to be dealt with by the Tribunal.
The VCAT cases and decisions of the Tribunal
As referred to above, the respondent and the applicant were parties to the (six) VCAT cases, which included the Respondent’s Possession Claim and the Applicant’s Compensation Claim. The VCAT cases were heard and determined by Vice President Judge Brimer of the Tribunal on 20 February 2020.
Case R2018/41499 — Applicant’s Compensation Claim
The background to the Applicant’s Compensation Claim is set out at paragraphs 15 to 18 above. Following Niall JA’s decision, the applicant renewed his compensation claim, which had been adjourned pending resolution of the Respondent’s Possession Claim. The applicant then made an application under s 77(1) of the Victorian Civil And Administrative Tribunal Act 1998 (‘VCAT Act’) to have the matter transferred to the Magistrates’ Court of Victoria, where the applicant had commenced proceedings against the real estate agents.[32]
[32]This section has the heading ‘More appropriate forum’ and reads:
(1) At any time, the Tribunal may make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject-matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court of any other person or body.
…
(3)If the Tribunal makes an order under subsection (1), it may refer the matter to the relevant tribunal, court, person or body if it considers it appropriate to do so.
Amongst other things, the applicant contended that the Applicant’s Compensation Claim, based on repudiation of the Tenancy Agreement by the respondent, had not been heard and was mischaracterised in the Supreme Court. He contended that the basic law of contract applied to the Tenancy Agreement and the issue needed to be considered by the Tribunal, and that questions of law had not been determined and facts not found. The applicant also sought to rely on disclaimer under s 225 of the RTA. The ‘gravamen’ of the applicant’s position was that there was evidence of bad faith that was not before the Tribunal or the Supreme Court and he sought to rely on material filed in other cases (to which the respondent was not a party) in relation to alleged conspiratorial conduct by the applicant’s former associates and the real estate agents.[33]
[33]Tribunal’s Reasons [29].
The Tribunal was satisfied that the high threshold required to dismiss the claim had been met.[34] The Tribunal held that the basis of the Applicant’s Compensation Claim (being repudiation or disclaimer of the Tenancy Agreement) had been determined by the Tribunal adversely to the applicant and upheld in the Supreme Court and the Court of Appeal and, as such, the claim against the respondent had ‘no proper basis’ and was ‘bound to fail’.[35] The Tribunal also accepted the respondent’s submission that there ought be finality and considered that it would be ‘unfair and unjustifiably oppressive to permit [the applicant] to revisit the dispute, the matters of substance already having been determined’ and would be an ‘abuse of process’.[36]
[34]Ibid [33].
[35]Ibid [34].
[36]Ibid [37].
Given that the Tribunal acceded to the respondent’s application for dismissal under s 75(1) of the VCAT Act, there was nothing to consider in respect of the applicant’s s 77(1) application in that case.[37]
[37]Ibid [38].
Case R2018 / 44699 — Respondent’s Possession Claim
The applicant also made an application under s 77(1) of the VCAT Act in this case. The Tribunal held that the case was at an end, the Tribunal having made the Order for Possession in January 2019, the applicant’s appeals against the order having been dismissed and the warrant for possession having been executed.[38] The Tribunal found nothing more to consider and dismissed the application.[39]
[38]Ibid [40].
[39]Ibid [41].
Case R2019 / 16154 — Trust Account Case
This case was lodged by the applicant on 28 April 2019 seeking an order that a trust account be set up ‘for purported rent in dispute’ and/or ‘an application for adjustment of rent following bad faith breach and misleading/deceptive conduct and/or crimes’. The case was withdrawn and orders made to that effect on 28 May 2019.
Despite this, the applicant made a further s 77(1) application. The Tribunal held that as the case could not be re-instated there was nothing to consider.[40] The application was dismissed.
[40]Ibid [42], citing Kataria v Gold Sea Pty Ltd [2003] VCAT 506.
Case R2019 / 23939 — Case 23939
This case was commenced by the applicant on 9 July 2019 and contained a number of claims, including that the warrant issued in the Respondent’s Possession Claim to enforce the Order for Possession should be cancelled ‘given new evidence and wilful deception of VCAT in these matters’, an application for discovery and a request that the Applicant’s Compensation Claim be heard with case R2019/17650, being a claim by the applicant against the landlord of premises in Brighton (‘Vranesic Case’).
This case was the subject of applications by the applicant under both ss 77(1) and 71(2) of the VCAT Act.[41] By the application under s 71(2), the applicant sought review of the Principal Registrar’s rejection of his various applications in the case.
[41]This latter section has the heading ‘Principal registrar or the Tribunal may reject certain applications’ and reads:
(1)Unless otherwise provided for in the rules, the principal registrar may reject an application that—
(a)is made by a person not entitled to make it; or
(b)is lodged after the expiry of the period specified in the enabling enactment; or
(c)does not otherwise comply with this Act, the regulations or the rules.
(2)If the principal registrar rejects an application, the applicant may require the principal registrar to refer the application to the Tribunal for review of the rejection.
….
(5)On a referral under subsection (2), the Tribunal must review the rejection and may—
(a) confirm the rejection; or
(b)order the principal registrar to accept the application.
…
The Tribunal confirmed the decision of the Principal Registrar. The Respondent’s Possession Claim was at an end, the Tribunal had already made directions in the Vranesic Case for points of claim to be filed in that proceeding, the applicant would have the opportunity to address matters ‘by way of defence’ to the Respondent’s Compensation Claim (discussed below) and the Court of Appeal had determined that s 29 of the SC Act did not apply to VCAT.[42] The Tribunal confirmed the Principal Registrar’s decision under s 71(5) of the VCAT Act and, accordingly, there was nothing to consider in respect of the s 77(1) application, which was dismissed.[43]
[42]Tribunal’s Reasons [48].
[43]Ibid [49]–[50].
Case R2019 / 27671 — Respondent’s Compensation Claim
This claim was commenced by the respondent on 12 August 2019 for compensation under ss 417 and 210 of the RTA Act. The applicant made an application under s 77(1) of the VCAT Act for the case to be transferred to the Magistrates’ Court. The applicant’s concern was that VCAT did not have jurisdiction to deal with the claim in respect of his allegations of conspiracy by the agents involving theft, cybercrime and fraud.
The Tribunal held that the RTA conferred jurisdiction on VCAT to hear and determine applications for compensation under the RTA and was the appropriate forum to do so.[44] The application was dismissed.
[44]Ibid [53].
Case R2019 / 38003 — Misleading and Deceptive Conduct and Fraud Claim
In this case, the applicant claimed a right to rescind the Tenancy Agreement given misleading and deceptive conduct and fraud ‘under the ACL and the common law’.[45] The applicant made an application under s 71(2) of the VCAT Act for review of the Principal Registrar’s rejection of the claim on the basis that the case raised the same issues previously raised in the other cases and that any additional case law, legislation or any application for equitable relief should be raised in those cases.
[45]Ibid [56].
The Tribunal noted that orders had been made in the Respondent’s Compensation Claim permitting the applicant to serve submissions and evidence, the matters concerning possession of the Premises and termination of the Tenancy Agreement had been determined, directions had been made in the Vranesic Case and the Respondent’s Possession Claim was at an end.[46] The Tribunal confirmed the decision of the Principal Registrar.[47]
[46]Ibid [58].
[47]Ibid [59].
The application for leave to appeal
There are 17 proposed grounds of appeal effectively traversing, but not specifically engaging with, the Tribunal’s decisions in the VCAT cases. The proposed grounds of appeal generally do not address the Tribunal’s disposition of the relevant VCAT case, the basis of such disposition and do not raise any legal error in relation to such disposition, although some of the proposed grounds relate to a specific application or case.
Moreover, the proposed grounds of appeal, so far as they may properly be considered to constitute grounds of appeal, have for the most part already been dealt with and decided in substance by Garde J and the appeal process from his Honour’s decision has been exhausted. Having been dealt with by the Court, those issues are res judicata and may not be revisited.
It is tolerably clear from the reasons of Garde J (as affirmed by Niall JA) that a critical issue in the appeal from the decision in the Respondent’s Possession Claim was the legal consequences that flowed from the giving and withdrawal of the First Notice. Both Garde J and Niall JA held that the applicant’s purported acceptance of the respondent’s alleged repudiation of the Tenancy Agreement was no defence to the Respondent’s Possession Claim and did not entitle the applicant to remain in possession of the Premises without paying rent. Accordingly, the order of the Tribunal was properly made. At paragraphs [61]–[62] of his written reasons, Niall JA said:
The respondent, by serving the first notice, even if it was given in bad faith, was not denying the existence of the estate or interest in land, but was putting in place steps to have it terminated by the Tribunal.
There was no arguable error in the judge’s conclusion that there was no disclaimer on the part of the respondent and there was no foundation for the applicant’s reliance on s 225 of the Act.
Having found no repudiation or disclaimer arising out of the First Notice, Niall JA held that the applicant was not entitled to remain in possession of the Premises without paying rent. The First Notice did not provide a legal basis for rent to be withheld. This substantive determination, which has not been successfully appealed, while made in the Respondent’s Possession Claim, had far reaching consequences for the VCAT cases, as set out below.
Case R2018/41499 — Applicant’s Compensation Claim. This claim by the applicant was underpinned entirely by his repudiation or disclaimer argument. That argument having been rejected, the claim had no basis and the Tribunal was entirely justified in summarily dismissing the case pursuant to s 75(1) of the VCAT Act.
Case R2018/44699 — Respondent’s Possession Claim. The case ended with the Tribunal making the Order for Possession and, following the unsuccessful appeal, a warrant for possession was issued on 30 July 2019. The Tribunal was correct in its determination that ‘[t]here is therefore nothing to consider in respect of [the applicant’s] application under s 77 of the VCAT Act.’[48]
[48]Ibid [41].
Case R2019/23939 — Case 23939. On review, the Tribunal confirmed the Principal Registrar’s decision under s 71(1) of the VCAT Act to reject the application that the applicant was seeking to file. Insofar as the complaint sought to be agitated in this case related to the warrant issued in the Respondent’s Possession Claim, that case was at an end.
Case R2019/27671 — Respondent’s Compensation Claim. The applicant having failed, without any justification, to pay arrears in rent and vacate the Premises, this claim for compensation by the respondent remains on foot and directions for the filing and service of submissions and evidence have been made.
Case R2019/38003 — Misleading and Deceptive Conduct and Fraud Claim. On review, the Tribunal confirmed the decision of the Principal Registrar to reject the application under s 71(2) of the VCAT Act for reasons including that the matters of the possession of the Premises and termination of the Tenancy Agreement had been determined by the Court and the Respondent’s Possession Claim was at an end.
Before dealing specifically with each proposed ground of appeal, we make the following general observations.
First, the proposed grounds of appeal are unstructured and fail to adequately articulate or sufficiently identify an error of law with regard to a particular VCAT case or application. As a consequence, it is difficult to relate the proposed grounds to the findings and decisions of the Tribunal.
Secondly, and not unrelated to the first point, the proposed grounds, read as a whole and in some cases individually, evidence a misguided desire on the part of the applicant to ventilate other — unrelated — disputes in this appeal. Issues of theft and fraud in other unrelated matters and proceedings (even if they raise a common question of law) are irrelevant to the decisions from which leave to appeal is sought.
To this end, the applicant sought leave in this Court to rely on numerous additional documents provided a short time before the application for leave to appeal was heard. We have read the documents. For most part, the documents consist of correspondence and VCAT materials that relate to the applicant’s issues in respect of other tenancies at other properties (in particular, the Vranesic Case). These documents are not relevant to our consideration of any questions of law raised in the appeals from the decisions of the Tribunal in the VCAT cases. It is not necessary to formally rule on their admissibility.[49]
[49]In his oral submissions, the applicant raised a concern that judicial officers of the Tribunal and this Court may not have read various documents he had provided and so could not properly comprehend and understand his case. We consider that the concern is misplaced. From the various decisions, it is evident that full and proper consideration has been given to all of the decisions made by the Tribunal and in this Court. All decisions have properly been based on the issues in the respective cases. Rather, it is the applicant that has failed to appreciate that neither the Tribunal nor this Court provides an unrestricted and unlimited opportunity to engage in an unstructured litany of complaints and assertions that go well beyond the issues in the particular case.
Thirdly, and fundamentally, many of the proposed grounds, albeit poorly articulated, raise issues that have already been judicially determined, as the Tribunal correctly identified in its reasons.
Fourthly, to the extent that the proposed grounds relate to procedural matters, they have no effect on the substantive matters and determination of each of the VCAT cases. None of the suggested procedural matters has caused any prejudice to the applicant.
Finally, some of the proposed grounds are no more than commentary and are not directed to any identified error of law made by the Tribunal.
With these general observations of the proposed grounds of appeal, we will proceed to briefly deal with each proposed ground as set out by the applicant in his application for leave to appeal dated 20 April 2020.
Proposed grounds of appeal
Proposed Ground 1 – Failure to consider R2018 / 41499 (as ‘urgent’) and that claim as it is made out
This ground concerns the Applicant’s Compensation Claim. Niall JA determined that the applicant was not denied procedural fairness by the Tribunal or Garde J hearing the Respondent’s Possession Claim first.[50] As discussed, the Applicant’s Compensation Claim was found to have no proper basis because it was (wrongly) underpinned by the (purported) acceptance of the (purported) repudiation. As we have emphasised, Niall JA affirmed the conclusion of Garde J that the First Notice did not amount to a repudiation, or a disclaimer, of the Tenancy Agreement, and it did not provide a legal basis for rent to be withheld. This was a critical finding that was not appealed by the applicant. The applicant had no right to remain in possession of the Premises without paying rent and no basis on which to assert adverse possession.
[50]Niall JA’s Reasons [68]–[71].
The Applicant’s Compensation Claim was therefore fundamentally misconceived and he has suffered no loss as a result of this case not having been dealt with as a matter of urgency.
Proposed Ground 2 – Charge of abuse of process
In summarily dismissing the Applicant’s Compensation Claim, the Tribunal held that it would be an abuse of process for the applicant to revisit the dispute about the purported repudiation of the Tenancy Agreement, the matters of substance having been determined.[51] The proposed ground does not identify any error in this decision. Rather, the applicant’s position appears to be that he intends to continue to use process, such as discovery, to obtain relief. However, no relief is available and the proposed ground is misconceived.
[51]Tribunal’s Reasons [37].
Proposed Ground 3 – Mis-characterisation [sic] of R2018 / 41499 et al
The Applicant’s Compensation Claim and the other VCAT cases were disposed of on the basis of Garde J’s findings in respect of the respondent’s purported repudiation of the Tenancy Agreement. The applicant contends that the VCAT cases need to be reconsidered in light of other facts, in particular, alleged impropriety by the real estate agents. However, as emphasised above, the substantive determination, namely, that there was no repudiation or disclaimer by the respondent arising out of the First Notice and the applicant was therefore not entitled to remain in possession of the Premises without paying rent has not been successfully appealed. In our opinion that is the end of the matter. Any contention that this Court should make findings of fact in relation to the real estate agents’ conduct is misconceived and does not give rise to an arguable ground of appeal.
Proposed Ground 4 – Misapplication of res judicata; mis-identification [sic] / malappropriation [sic] of unadjudicated [sic] issues of law and material fact
We repeat our comments in relation to proposed ground 3. Findings of fact have been made and issues of law determined and not overturned on appeal. Res judicata applies to prevent the applicant from pursuing these matters further.[52]
[52]Sahin v NAB [2012] VSCA 317, [68]–[78] (Warren CJ).
Proposed Ground 5 – Interpretation of the Judgment of Justice Niall
This application for leave to appeal against the decision of Tribunal is not the correct vehicle by which to take issue with the decision of Niall JA. If that was to be done, it needed to be by way of an application for special leave to appeal to the High Court of Australia. There is no error in the Tribunal’s application of his Honour’s judgment.
Proposed Ground 6 – Application of s 31, Supreme Court Act
The application of s 31 of the SC Act[53] was not raised before the Tribunal, Garde J or Niall JA and cannot, without leave, be raised for the first time on appeal. In any event, s 31 applies to inferior courts with equity jurisdiction in Victoria and VCAT is not a court for the purposes of the SC Act. The ground is fundamentally misconceived.
[53]This section has the heading ‘Power of inferior courts with equity jurisdiction’. It provides that every inferior court which has jurisdiction in equity or at law and in equity has power to grant relief in like cases and is to give effect to grounds of defence or counter-claim, equitable or legal, in as full a manner as in the like case.
Proposed Ground 7 – Application of s 77, (mis)(re)-characterisation [sic] of my position under s 77
Section 77(1) of the VCAT Act permits the Tribunal to strike out all or any part of a proceeding if it considers there to be a more appropriate forum to deal with the subject-matter of the proceeding and to refer the matter to the relevant person, court, tribunal or body. The proposed ground does not identify or particularise any error of law in relation to the Tribunal’s exercise of discretion to dismiss the applicant’s s 77(1) applications.
Proposed Ground 8 – The context of the s77 application vis-a-vis ss 29, 31 Supreme Court Act
Again, this proposed ground does not particularise any error of law. In general terms, ss 29 and 31 of the SC Act provide for the concurrent administration of law and equity in courts exercising jurisdiction in Victoria and the power of inferior courts with equity jurisdiction. VCAT is not a court for the purposes of the SC Act. It appears that the applicant considers that these sections provide the basis for VCAT to grant him general equitable relief. They do not.
Proposed Ground 9 – Repeated failure to adjudicate (interlocutory) applications.
As referred to above, Niall JA found no denial of procedural fairness by VCAT or Garde J in hearing the Respondent’s Possession Claim before the Applicant’s Compensation Case. The other cases commenced by the applicant against the respondent were disposed of by the Tribunal and any interlocutory disputes in those cases, such as in relation to discovery, were no longer relevant or needing to be resolved. Further, it has not been demonstrated that any interlocutory step would have had any impact on the substantive determination of the issues in the Respondent’s Possession Claim or the other VCAT cases.
Proposed Ground 10 – Failure to adjudicate misconduct and/or illegal manipulations of proceedings
Proposed ground 10 appears to be directed at the conduct of the real estate agents, who were not party to any of the VCAT cases. In hearing and determining the VCAT cases, the Tribunal had jurisdiction to determine the issues between the parties. There is no general obligation on the Tribunal or the Supreme Court to adjudicate on allegations of misconduct or illegal conduct involving non-parties.
Proposed Ground 11 – Failure to determine extant issues still present in un-adjudicated (interlocutory) applications.
Proposed ground 11 repeats a combination of proposed grounds 9 and 10. We repeat our comments in respect of those grounds.
Proposed Ground 12 – Implicit determination of unresolved matters of fact such as the tenancy of 29 Morrah and the effect of (needless) issue and execution of a warrant of possession
This proposed ground identifies no error of law by the Tribunal. It appears instead to take issue with findings of fact, it is not clear by whom. The warrant was a consequence of the Order for Possession made in the Respondent’s Possession Claim. That proceeding is at an end.
Proposed Ground 13 – The unclear effect of the ex-post (after July 30th) reasons for decision given by DP Proctor in the context of R2019 / 23939, the s 77 application, et al
We disagree that the decision of Deputy President Proctor of VCAT to grant the warrant for possession had an unclear effect on the applicant’s s 77(1) application in Case 23939. To the extent that the applicant’s claims in Case 23939 related to the warrant, they could go no further as the Respondent’s Possession Claim is at an end.
Proposed Ground 14 – Aspects of claims that have been brushed aside
This is a reiteration of earlier grounds. We refer to our reasons above.
Proposed Ground 15 – Repeated failure to consider equitable set-off as first introduced by Mr UpJohn, ineffective assistance of counsel in this context, subsequent reference...
There was no repeated failure by the Tribunal or this Court to consider equitable set-off. Garde J determined, and Niall JA affirmed, that the purported acceptance by the applicant of the alleged repudiation by the respondent was no defence to the Respondent’s Possession Claim and did not entitle the applicant to remain in possession of the Premises without paying rent. The result is that the arrears of rent owed did not amount to loss. In any event, VCAT has no general equitable jurisdiction and may only grant specified forms of equitable relief.
Proposed Ground 16 – Failure to acknowledge key unresolved acknowledge aspects of claim
This is a further reiteration of various earlier grounds and we again refer to our reasons above.
Proposed Ground 17 – The enduring presence of fraud, the alternative of equitable rescission for fraud, failure to consider clear pleadings of fraud, failure to properly construe all pleaded instances of fraud
As with proposed ground 10, proposed ground 17 appears to be directed at wider fraud alleged against the real estate agents. The existence of any such fraud does not affect the substantive determination by Garde J in respect of the Tenancy Agreement and, for the reasons we have given, cannot be relevant to the decisions of the Tribunal in the VCAT cases.
Disposition
In our opinion, for the reasons given, none of the proposed grounds of appeal is arguable and leave to appeal is refused.
Application other than for leave to appeal
The applicant also filed an application other than for leave to appeal dated 5 June 2020 seeking over 20 orders. We make the same general observations in respect of this application and the orders sought therein as made above at paragraphs 69 to 74 in respect of the proposed grounds of appeal. The orders sought are not repeated below in full, however were listed under the following headings:
(bb) ‘Legal Representation’;
(cc) ‘Any Further Proceedings at VCAT – Ex Ante and Ongoing Unheard Breaches’;
(dd) ‘Delay of Service of Sealed Appeal’;
(ee) ‘Previously Unheard Interlocutory Applications’;
(ff) ‘New Information Regarding Fraud and/or Conspiracy to Pervert the Course of Justice’;
(gg) ‘Disposition of Victoria Police under a Society with Purported Rule of Law’;
(hh) ‘Unheard Applications and (Contingent?) Prayer for Relief from Defects in Past Judgments and/or Ineffective Assistance of Counsel’; and
(ii) ‘Funding Arrangement, Litigation on a Proper Basis, Ongoing Conspiracy over Stolen Effects and Information’.
These matters, purportedly directed to specific relief apart from the application for leave to appeal, were not specifically addressed in the applicant’s oral submissions. However, they form part of the applicant’s unstructured and wide ranging general complaint. There is no proper, relevant or appropriate application before the Court. The matters raised have either been dealt with (for example (b), (d), (g)) or are self-evidently irrelevant to any of the issues or applications in the various VCAT cases between the parties (for example (a), (c), (e), (f), (h)),[54] for the reasons set out above. The orders and relief sought are misconceived. The application other than for leave to appeal must be dismissed.
[54]No point was taken that the application for leave to appeal was filed out of time.
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