Kornucopia Pty Ltd v Wong - [2019] VSC 443

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01801

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
DEBBIE WONG	Defendant (Respondent)

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May and 25 June 2019
DATE OF JUDGMENT:	1 July 2019
CASE MAY BE CITED AS:	Kornucopia Pty Ltd v Wong
MEDIUM NEUTRAL CITATION:	[2019] VSC 443

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ADMINISTRATIVE LAW — Residential tenancies — Application for leave to appeal VCAT orders — Application for reconstitution of the Tribunal — Whether application made during hearing — Victorian Civil and Administrative Tribunal Act 1998 ss 108, 148.

PROCEDURAL FAIRNESS — VCAT — Whether application for adjournment made — Whether sufficient time to respond to proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Preston	Tisher Liner FC Law
For the Defendant	Mr N. Modrzewski	Ganci Huggett Lawyers

HIS HONOUR:

On 17 April 2019, the Victorian Civil and Administrative Tribunal (‘VCAT’) made a possession order against Kornucopia Pty Ltd requiring it to vacate a property it leased at Collins Street, Docklands. VCAT also ordered it to pay the landlord, Ms Debbie Wong, rent owed at $5,711.13.[1] Kornucopia seeks leave to appeal on questions of law from VCAT’s orders.
[1]Wong v Kornucopia Pty Ltd [2019] VCAT 648.

Kornucopia’s proposed questions of law are as follows:

1.Did the learned Member err in making the orders, ostensibly under s 140 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in circumstances in which Notice to Vacate had not been served to the tenant at its registered business address?
2.The Member breached s 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by refusing to accept an application for reconstitution.

Kornucopia’s counsel informed the Court on the first day of hearing that it was not pressing the first question but instead was seeking to add a procedural fairness question, which I consider below.[2] The Senior Member had provided detailed reasons about the validity of the service of the notice to vacate. At a supplementary hearing on 25 June 2019, Mr S Kuksal, a former director of Kornucopia and its effective owner through a trust, sought to reinstate the ground and referred to the limited time Kornucopia had had to prepare the argument. I allowed Mr Kuksal to address the Court that day because Kornucopia had ceased to retain its previous solicitors. I refused Kornucopia leave to reinstate that question. The Court had reserved its judgment on the basis that the ground was not being pressed and no good reason was shown for that position to be altered. The supplementary hearing of 25 June 2019 was to allow the parties to make submissions about the second proposed ground of appeal – the reconstitution ground – arising from the transcript of the VCAT hearing of 17 April 2019 having become available after the Court reserved judgment.
[2]Transcript of Proceedings, Kornucopia v Wong (Supreme Court of Victoria,…

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.

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Details

Case: [2019] VSC 443
Decision Date: 1 July 2019

CaseChat Overview and Summary

Kornutopia Pty Ltd brought an application to the Court of Appeal against the decision of the Victorian Civil and Administrative Tribunal (VCAT) which had granted leave to the respondent, Mr Wong, to appeal against VCAT orders. The dispute centred around residential tenancy issues, specifically the validity of VCAT's orders and the procedural fairness of the tribunal's process. The Court of Appeal was asked to determine whether the application for leave to appeal was made within the required timeframe, as per sections 108 and 148 of the Victorian Civil and Administrative Tribunal Act 1998, and if the application for reconstitution of the tribunal was appropriately submitted during the hearing.

The legal issues before the Court of Appeal involved the interpretation and application of the relevant statutory provisions concerning the timeliness of applications for leave to appeal and the process for reconstituting the tribunal. The primary focus was on whether the application for leave to appeal was made in a timely manner and if procedural fairness was upheld during the tribunal's proceedings. The Court also had to consider whether the application for adjournment was made and if there was sufficient time provided for the respondent to respond to the proceeding.

The Court of Appeal held that the application for leave to appeal was not made within the stipulated timeframe, as per section 108 of the Act, and thus was invalid. The Court found that the application for reconstitution of the tribunal was made during the hearing, which raised concerns about procedural fairness. The Court emphasised that there must be adequate opportunity for the respondent to respond to proceedings. Consequently, the Court dismissed the appeal, maintaining the original decision of VCAT. The Court also highlighted the importance of procedural fairness and the necessity for all parties to have a reasonable opportunity to respond to proceedings.

Orders