Kornucopia Pty Ltd v Tse - [2019] VSC 442

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01729

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
YAU WA TSE	Defendant (Respondent)

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 and 29 May 2019
DATE OF JUDGMENT:	1 July 2019
CASE MAY BE CITED AS:	Kornucopia Pty Ltd v Tse
MEDIUM NEUTRAL CITATION:	[2019] VSC 442

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ADMINISTRATIVE LAW — Residential tenancies — Application for leave to appeal VCAT orders — Application for review of possession order — Whether applicant for review had a reasonable excuse for not attending or being represented at Tribunal hearing — Whether applicant for review had a reasonable case to argue — Service of notice to vacate and notice of hearing — Test applied by Member in determining application — Member’s findings — No point in review hearing — No question of law — Leave to appeal refused — Residential Tenancies Act 1997 ss 246, 331 and 506; Victorian Civil and Administrative Tribunal Act 1998 ss 120, 140; Electronic Transactions (Victoria) Act 2000.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Preston	Tisher Liner FC
For the Defendant	Mr B Lewis (solicitor)	Brendan V Lewis

HIS HONOUR:

The applicant (‘Kornucopia’) seeks leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) made on 11 April 2019 dismissing its application for review of a possession order, and related orders made on 28 February 2019 including a warrant of possession and in respect of a Docklands apartment.[1]
[1]Tse v Kornucopia Pty Ltd [2019] VCAT 537.

Kornucopia was the tenant and the defendant, Mr Yau Wa Tse, the landlord of the apartment.

The Tribunal Member refused to grant the review of the possession order because he found that Kornucopia did not have a reasonable excuse for not attending or being represented at the hearing on 28 February 2019. He also found that it did not have a reasonable case to argue. These are matters that must be established in order for the Tribunal to exercise the discretion to grant a review.

The Tribunal Member also concluded that if, contrary to his decision, he ought to have granted a review, then he would have made a new order for possession.

Kornucopia’s proposed questions of law if leave is granted are that:

1.The notice to vacate was not served at the rented premises in accordance with the Residential Tenancies Act 1998 s 506(3)(b) in the original matter.
2.The notice to vacate was not served at the consented email address for the service of documents as stipulated in the Residential Tenancies Act 1998 s 506(3)(ba) in the original matter.
3.The notice of hearing was not served on Kornucopia Pty Ltd as required under s 140(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Legislation dealing with VCAT reviews

Section 120 of the VCAT Act provides:

120 Re-opening an order on substantive grounds
(1)A…

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 Kornucopia Pty Ltd v Tse

Details

AGLC: Kornucopia Pty Ltd v Tse [2019] VSC 442
Case: [2019] VSC 442
Decision Date: 1 July 2019

CaseChat Overview and Summary

Kornucopia Pty Ltd brought an application against Tse for leave to appeal decisions of the Victorian Civil and Administrative Tribunal (VCAT) which had dismissed Tse's application for review of a possession order. The dispute centred on whether Tse had a reasonable excuse for not attending or being represented at the Tribunal hearing, and whether Tse had a reasonable case to argue. The matter was heard in the Supreme Court of Victoria. The central legal issues revolved around the service of notices and the test applied by the VCAT Member in determining Tse's application. Specifically, the court had to consider whether the service of the notice to vacate and the notice of hearing met the requirements of the law, and whether the Member's findings were correct.

The Supreme Court examined the statutory provisions governing the service of notices under the Residential Tenancies Act 1997, the Victorian Civil and Administrative Tribunal Act 1998, and the Electronic Transactions (Victoria) Act 2000. The court found that the notices were served in accordance with the statutory requirements. The Member's assessment of Tse's application was conducted using the correct legal test, and the Member's findings were supported by the evidence. The court concluded that there was no point in conducting a review hearing, as there was no question of law involved. Consequently, the Supreme Court refused Tse's application for leave to appeal.

The Supreme Court's decision was based on the thorough examination of the statutory requirements for service of notices and the application of the correct legal test by the VCAT Member. The findings of the Member were upheld, and the court found no basis for a review hearing. The court emphasised the importance of adhering to the statutory processes in service of notices and the proper application of legal tests in such proceedings.

Orders