Kornucopia Pty Ltd v Zhang - [2019] VSC 439

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00726

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
JIAHUA ZHANG	First defendant (First Respondent)
- and -
THE STATE OF OUR TIMES PTY LTD (ACN 624 399 382)	Second defendant (Second Respondent)

S ECI 2019 00729

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
JIAN WANG	First defendant (First Respondent)
- and -
THE STATE OF OUR TIMES PTY LTD (ACN 624 399 382)	Second defendant (Second Respondent)

S ECI 2019 00730

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
LIN LU	First defendant (First Respondent)
- and -
THE STATE OF OUR TIMES PTY LTD (ACN 624 399 382)	Second defendant (Second Respondent)

S ECI 2019 00731

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
HAOLAN MEN	First defendant (First Respondent)
- and -
THE STATE OF OUR TIMES PTY LTD (ACN 624 399 382)	Second defendant (Second Respondent)

S ECI 2019 00732

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
WEIHONG ZHU	First defendant (First Respondent)
- and -
THE STATE OF OUR TIMES PTY LTD (ACN 624 399 382)	Second defendant (Second Respondent)

S ECI 2019 01080

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff (Applicant)
v
WEN SHENG HE	Defendant (Respondent)

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2019
DATE OF JUDGMENT:	1 July 2019
CASE MAY BE CITED AS:	Kornucopia Pty Ltd v Zhang & Ors.
MEDIUM NEUTRAL CITATION:	[2019] VSC 439

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ADMINISTRATIVE LAW — Residential tenancies — Possession orders made by Victorian Civil and Administrative Tribunal — Application for leave to appeal by tenant — Whether notices to vacate properly served — Whether inferred consent to receiving notices electronically — Whether leave to appeal should be granted — Objection to service not raised in Tribunal proceedings — Leave to appeal refused — Residential Tenancies Act 1997 ss 246, 330, 506; Electronic Transactions Act 2000 (Vic) s 8; Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Preston	Tisher Liner FC Law
For the Defendant	Mr S Brnovic	Fairweather Legal Pty Ltd

HIS HONOUR:

These six matters all arise out of applications for leave to appeal brought by the plaintiff, Kornucopia Pty Ltd (‘Kornucopia’), under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), against orders for possession made by a member of Victorian Civil and Administrative Tribunal (‘the Tribunal’) in favour of each first respondent in each of the above proceedings. These six matters all concern the same legal question in respect of each respondent, being whether the notice to vacate in each was validly served. The six proceedings were together. These reasons for judgment are the reasons for judgment in all six proceedings.

Procedural History

Kornucopia leases dozens, even hundreds of apartments in the Docklands area, then sub-leases or licences…

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 Zhang

Details

AGLC: Kornucopia Pty Ltd v Zhang [2019] VSC 439
Case: [2019] VSC 439
Decision Date: 1 July 2019

CaseChat Overview and Summary

In the matter of Kornucopia Pty Ltd v Zhang, the case concerned the validity of possession orders issued by the Victorian Civil and Administrative Tribunal against a tenant. The tenant, Zhang, sought leave to appeal the tribunal's decision, arguing that the notices to vacate were not properly served and that there was no consent to receive such notices electronically. The court was required to decide whether Zhang's objections to the service of notices could be considered despite not being raised in the tribunal proceedings and whether the tribunal had erred in its determination of the service of notices.

The court considered whether the objections to the service of notices could be entertained despite not being raised in the tribunal proceedings. It noted that objections to service generally needed to be raised promptly and that failure to do so could result in the objection being deemed waived. The court also examined whether there was inferred consent to receiving notices electronically, taking into account relevant statutes such as the Residential Tenancies Act 1997 and the Electronic Transactions Act 2000 (Vic). After reviewing the evidence and applicable law, the court concluded that Zhang had not demonstrated a sufficient basis to infer consent to electronic service and that the objections were indeed waived due to not being raised in the tribunal.

Based on the reasoning above, the court decided that the objections to the service of notices were not valid, and consequently, the tribunal's determination that the notices were properly served stood. As a result, the court refused Zhang's application for leave to appeal the tribunal's possession orders. The decision underscored the importance of timely objection to service and adherence to statutory provisions regarding electronic communication in tenancy disputes.

Orders