Kornucopia Pty Ltd v Zhang
[2019] VSC 439
•1 July 2019
| 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 these apartments via AirBnB and other companies. It was previously named ‘The State of Our Times Pty Ltd’, but changed its name to ‘Kornucopia Pty Ltd’ on 20 September 2017. On 13 February 2018 a new company, also named ‘The State of Our Times Pty Ltd’ was registered. Mr Shivesh Kuksal was a director of both of these companies until 19 January 2019, at which time he ceased to be director of Kornucopia and Ms Lulu Xu became a director of that company instead. Mr Kuksal remained the director of the new The State of Our Times Pty Ltd.
Each of these proceedings concerns a different property leased by Kornucopia. At the time that each of these leases was entered into the company now named Kornucopia was still named ‘The State of Our Times Pty Ltd’. To minimise confusion with the associated company currently using that name, the entity now named Kornucopia Pty Ltd will be referred to as Kornucopia throughout these reasons regardless of its name at the relevant point in time. In each of these proceedings each landlord, through their agent City Residential Real Estate (‘City’), purportedly served a notice to vacate on Kornucopia, and then later applied for a possession order in the Tribunal. The details of these proceedings are as follows:
(a) S ECI 2019 00726 (‘the First Proceeding’), in which Kornucopia had leased premises at 2307N/889 Collins Street, Docklands 3008, from Jiahua Zhang, commencing on 28 July 2017. City sent Kornucopia a notice to vacate on 18 September 2018 alleging unpaid rent of $928.40, and on 3 October made an application to VCAT for possession of the property.
(b) S ECI 2019 00729 (‘the Second Proceeding’), in which Kornucopia had leased premises at 2603N/889 Collins Street, Docklands 3008, from Jian Wang, commencing on 17 August 2017. City sent Kornucopia a notice to vacate on 18 September 2018 alleging unpaid rent of $3,385.78, and on 3 October made an application to VCAT for possession of the property.
(c) S ECI 2019 00730 (‘the Third Proceeding’), in which Kornucopia had leased premises at 1008N/889 Collins Street, Docklands 3008, from Li Lu, commencing on 24 August 2017. City sent Kornucopia a notice to vacate on 18 September 2018 alleging unpaid rent of $3,482.43, and on 3 October made an application to VCAT for possession of the property.
(d) S ECI 2019 00731 (‘the Fourth Proceeding’), in which Kornucopia had leased premises at 708N/889 Collins Street, Docklands 3008, from Haolan Men, commencing on 17 August 2017. City sent Kornucopia a notice to vacate on 18 September 2018 alleging unpaid rent of $578.97, and on 3 October made an application to VCAT for possession of the property.
(e) S ECI 2019 00732 (‘the Fifth Proceeding’), in which Kornucopia had leased premises at 1503N/889 Collins Street, Docklands 3008, from Weihong Zhu, commencing on 30 August 2017. City sent Kornucopia a notice to vacate on 18 September 2018 alleging unpaid rent of $4,177.97, and on 3 October made an application to VCAT for possession of the property.
(f) S ECI 2019 01080 (‘the Sixth Proceeding’), in which Kornucopia had leased premises at 1310N/883 Collins Street, Docklands 3008, from Wen Sheng He. The notice to vacate in this case was served via email on 18 September 2018.
Danielle Chetcuti, a Senior Property Manager at City, signed each of the above applications and requested that all of the matters be heard on the same day and by the same member, as they all concerned the same lessee. Each of the applications attached the original notice to vacate, and were served on Kornucopia via registered post to its addresses at both Collins Square Tower 4, Level 18, 727 Collins Street, Docklands VIC 3008 and to 78 Australia Wharf, Docklands VIC 3008.
On 9 February 2019, Kornucopia Pty Ltd changed its registered business address, from Collins Square Tower 4, Level 18, 727 Collins Street Docklands VIC 3008 to Unit 8/331 Ingles St, Port Melbourne VIC 3207.
The decision of the Tribunal
There were a number of interlocutory orders made by the Tribunal in the lead-up to the substantive hearing on 18 February 2019. A bundle of these orders is exhibit 1 to the affidavit of Mr D Fairweather, solicitor for each of the first defendants. The first of these orders was made on 3 January 2019, when the matters were adjourned to a date to be fixed in order to enable all matters to be heard with sufficient time.
The second of these orders was made on 7 February 2019, adjourning the matters until 12 February in order to enable Kornucopia to attend the hearing. Kornucopia was represented by Ms Bell of counsel at this hearing, at which the Member said that there would be no further adjournments. The orders also state that:
The tenant did not tell the Tribunal that he was expected to attend a hearing at the Magistrates’ Court on the afternoon of 6 February 2019. It was the tenant’s application to stand the matter down to 12:30 so he could have his barrister and himself attend the hearing.
Ms Bell of counsel represented the tenant at the afternoon hearing. The Director of the tenant company attended the hearing in the morning.
On 12 February the Tribunal made orders holding that ’The State of Our Times Pty Ltd ACN 615 530 316 changed its name to Kornucopia Pty Ltd ACN 615 630 316 on 21 September and is the same entity’. From the record of the orders it appears that there was originally a representative of Kornucopia present, but that:
Prior to the hearing commencing the tenant’s representative was escorted from the building.
Accordingly, the Tribunal adjourned the matters until 18 February. Further, it ordered that the Principal Registrar was to:
… forward a copy of this order to the tenant company at the above registered address: Collins Square Tower 4 Level 18, 727 Collins Street, DOCKLANDS VIC 3008; to the business address at 78 Australian Wharf Docklands VIC 3008 and by email: [email protected] which will be sufficient notice of the adjournment and the new hearing date.
Accordingly, Kornucopia seems to have actively participated in the proceedings, attending at least one interlocutory hearing and attempting to attend another, before being informed by the Tribunal of the final hearing date.
According to the affidavits of Ms Xu in the first to fifth proceedings though, she was never informed about the applications for possession in the Tribunal before being made director, nor did she became aware of them at any time before possession orders were made on 18 February 2019. She said that on 18 February she reviewed the VCAT daily hearing list, saw 3 matters in which Kornucopia was named as a party, none of which were the first to fifth proceedings, and gave Mr Kuksal written authority to attend those hearings on Kornucopia’s behalf. She states that Mr Kuksal did not mention any of the possession applications to her, and that they did not discuss them or any of the other matters to which Kornucopia was a party.[1]
[1]Affidavit of Lulu Xu sworn 15 March 2019 in proceedings S ECI 2019 00726, S ECI 00729, S ECI 2019 00730, S ECI 2019 00731, S ECI 2019 00732.
In the affidavit of Ms Xu in the sixth proceeding she stated that she was not served with the application or any other documents relevant to the matter, that Kornucopia did not receive any documents from the applicants at its current business address, and that no notice to vacate was served on the rented premises. Again, she stated that she saw three matters in the VCAT list and authorised Mr Kuksal to appear on its behalf, though it is unclear whether the VCAT hearing being appealed in the sixth proceeding was one of those three matters. She stated that Mr Kuksal attended the hearing and informed the Member that neither the company nor its officer received any documentation from the applicant.
It is unclear how these statements can be reconciled with the orders, which record that Kornucopia had representatives present at one of the interlocutory proceedings in the lead up to the hearing on 18 February, and had a representative at the other until they were ‘escorted from the building’.
In each of the first to fifth proceedings the Tribunal found on 18 February 2019 that the landlord had given Kornucopia not less than 14 days’ notice to vacate in circumstances where the tenant owed at least 14 days’ rent, and that that notice had been validly served. In each of these cases the Tribunal ordered Kornucopia to vacate the property by 18 February, that the principal register at each landlord’s request issue a warrant for possession, and that amounts of unpaid rent be paid. The record of each decision states that Mr Kuksal represented the company at the hearing.
In its orders in the first proceeding the Tribunal recorded that:
The Tribunal finds that:
1.The landlord gave the tenant not less than 14 days‘ notice to vacate when the tenant owed at least 14 days’ rent.
2. The landlord is entitled to a possession order.
3.The rent, which is $2824.00 per calendar month, is paid to 31 December 2018 with $2628.00 on account and the rent owed to today is $1921.16.
4.Mr Kuksal represents the company The State of Our Times Pty Ltd but does not represent the company that is now called Kornucopia Pty Ltd.
5.Having regard to the ASIC searches presented to the Tribunal, the Tribunal finds that The State of Our Times Pty Ltd and Kornucopia Pty Ltd are the same entity.
6.The Tribunal finds that there has been proper service to the tenant and they have been served with the notice to vacate, the application and notice of hearing.
7. The bond is $2824.00.
The Tribunal orders and directs that:
1. The tenant must vacate the rented premises by 18 February 2019.
2.The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 18 August 2019).
3. The tenant shall now pay the landlord rent owed of $1921.16.
Warning to tenant: if you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.
Note:Mr Kuksal stated that he could not wait for the decision of the Tribunal as he had to be elsewhere. He had provided all the information. He stated he will collect the decisions at a later date from the Tribunal.
…[2]
[2]Exhibit 1 to Affidavit of Lulu Xu sworn 15 March 2019 in proceeding S ECI 2019 00726.
The orders in the second to fifth proceedings are substantially similar. In each of them the Tribunal’s first finding is that ‘The landlord gave the tenant not less than 14 days‘ notice to vacate when the tenant owed at least 14 days’ rent.’ There are some obvious differences as well, such as in the names of the parties and addresses of the properties, the amount of rent owing and bond. There are sometimes more substantive differences in how they deal with the question of notice. The orders in the second proceeding replace findings [4] and [5] set out above with the following:
4. Mr Kuksal is the representative of The State of Our Times Pty Ltd.
5.The representative of The State of Our Times confirmed that the landlord served the notice to vacate and application on the registered address of The State of Our Times Pty Ltd, however the accounting company did not forward this to the directors of Kornucopia Pty Ltd. This is proper service under the VCAT rules and the Tribunal finds that the tenant has been properly served with the notice to vacate and application.[3]
[3]Exhibit 1 to Affidavit of Lulu Xu sworn 15 March 2019 in proceeding S ECI 2019 00729.
In the orders in the third and fifth proceedings the Tribunal found that:
There has been proper service on the respondent tenant known as The State of Our Times now known as Kornucopia Pty Ltd.[4]
[4]Exhibit 1 to Affidavit of Lulu Xu sworn 15 March 2019 in proceeding S ECI 2019 00729 and in proceeding S ECI 2019 00732.
In the fourth proceeding it found only that:
[Mr Kuksal] was the director of the company when it was served with the notice to vacate and application to the Tribunal.[5]
[5]Exhibit 1 to Affidavit of Lulu Xu sworn 15 March 2019 in proceeding S ECI 2019 00731.
While the exhibited decision in the sixth proceeding is undated, the affidavit of Ms Xu in that proceeding indicates that the hearing in that matter also took place on 18 February 2019. It is unclear from the order whether this hearing was before the same member as in the other five proceedings, but this seems likely, as on 12 February the Member adjourned the sixth proceeding with the first to fifth proceedings to 18 February. The Tribunal noted that Mr Kuksal represented the company and made the same findings as above, though it found that no rent was currently owing with respect to the property. It then ordered Kornucopia to vacate the property by 2 March 2019, and ordered the principal registrar, at the landlord’s request, to issue a warrant for possession.
The orders in the sixth proceeding mention only by implication in the statement that ‘the landlord gave the tenant not less than 14 days’ notice’.
Notices of Appeal
Kornucopia filed proposed notices of appeal in the first to fifth proceedings on 21 February 2019, and in the sixth proceeding on 15 March 2019. Kornucopia raised two questions of law. In all proceedings it asked:
Did the Learned Member err in making the orders, ostensibly under s 330 of the Residential Tenancies Act 1997 (Vic), in circumstances in which notice to vacate had not been given to the tenant, namely, Kornucopia Pty Ltd, in accordance with s 506(3)?
In the first to the fifth proceedings, but not the sixth proceeding, it raised an additional question:
Further or alternatively, did the Learned Member err in making the orders in circumstances in which the appellant did not have proper notice of the hearing on 18 February 2019 and was thereby denied procedural fairness?
However, this additional question was not pursued at the hearing.[6]
[6]Transcript of Proceedings, Kornucopia Pty Ltd v Zhang & Ors. (Supreme Court of Victoria), 72.
In each proceeding Kornucopia sought the following orders:
1. An order that the appeal be allowed.
2.An order setting aside the order of [the Member] dated 18 February 2019 and substituting for that order an order that the first respondent’s application be dismissed.
3. An order that the first respondent pay the appellant’s costs of this appeal.
4. Such further or other orders or directions as the Court sees fit.
Service of notices to vacate
Kornucopia denied that the service by each first defendant of each notice to vacate was effective, or that there was any material before the Tribunal to show that it could have been effective, and argued that the Tribunal therefore erred in making the orders that it did.
The provisions of the Residential Tenancies Act 1997 (Vic) (‘the RT Act’) relevant to the effectiveness of service, as at 18 September 2018, were as follows:
246 Non-payment of rent
(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.
330Order of Tribunal
(1)The Tribunal must make a possession order requiring a tenant, resident or site tenant to vacate rented premises, a room and rooming house or a building, a site or a caravan on the day specified in the order if the Tribunal is satisfied—
(a)in the case of an application where notice to vacate has been given, that—
(i)the landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee was entitled to give the notice; and
(ii)the notice has not been withdrawn; and
(b) in the case of an application where a notice of intention to vacate has been given by a tenant, resident or site tenant, that the landlord, rooming house owner, caravan park owner, caravan owner or site owner acted reasonably by relying on the notice of intention to vacate; and
(c)that the landlord, rooming house owner, caravan park owner, caravan owner, site owner, person entitled to give a notice to vacate under section 289A or mortgagee has complied with section 72 of the Victorian Civil and Administrative Tribunal Act 1998 ; and
(d) that the tenant, resident or site tenant is still in possession of the rented premises, room, building, site or caravan after the termination date specified in the notice to vacate or notice of intention to vacate; and
(e) that any resident who is entitled to a period of notice under section 289A has been given the required notice.
506 Service of documents
(1)Subject to this section, a notice or other document to be served on or given to a person under this Act must be served or given—
(a) by delivering it personally to the person; or
(b)by leaving it at the person's usual or last known place of residence or business with a person apparently over the age of 16 years and apparently residing or employed at that place; or
(c)by sending it to the person by post addressed to the person's usual or last known place of residence or business; or
(d) if the person is a corporation—
(i)by sending it by post to the registered office in Victoria of the corporation; or
(ii)by giving it to a person who is an officer of the corporation who is authorised to accept service of notices and who is employed at the registered office of the corporation; or
(da)by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000; or
(e) in the manner ordered by the Tribunal.
(2)In the case of a notice or other document to be served on or given to a landlord, in addition to the methods set out in subsection (1), a notice or document may be served or given—
(a)by delivering it to the landlord or to the landlord's agent or to the person who usually collects the rent; or
(b) by sending it by post addressed—
(i)to the landlord at the landlord's address for service of documents; or
(ii)to the landlord's agent at the agent's usual place of business; or
(c)by giving it to a person employed in the office of the landlord's agent.
…
(3) A notice to vacate given under Part 6 must be given—
(a)by delivering it personally to the tenant, resident or site tenant; or
(b)by sending the notice by registered post addressed to the tenant, resident or site tenant at the rented premises, room, site or Part 4A site; or
(ba)by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000; or
(c) in the manner ordered by the Tribunal.
Relevantly for the determination of this case, the Electronic Transactions (Victoria) Act 2000 (‘the ET Act’) provides that:
8Writing
(1)If, by or under a law of this jurisdiction, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where—
(a)at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b)the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
Consent is defined in s 3 of the ET Act to include ‘consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with’.
The VCAT Act provides that:
72 Notification of commencement
(1) An applicant must serve a copy of an application or referral, within the time specified by the rules—
(a) on each other party; and
(b) on any other person entitled to notice of the application under this Act, the enabling enactment or the rules; and
(c) on any person that the Tribunal directs be given notice of the proceeding.
(2) Subsection (1) does not apply if—
(a) the principal registrar undertakes service on behalf of the applicant; or
(b) a member makes an order under subsection (3).
(3) A member who is an Australian lawyer may make an order that service under subsection (1) be dispensed with if he or she is satisfied—
(a) that the applicant has made all reasonable attempts to serve a person, but has been unsuccessful; or
(b) that the making and hearing of an application or referral without notice to a person would not cause injustice.
(4) An order under subsection (3) may be made on the application of the applicant or at the member's own initiative.
140 Service
(1) For the purposes of this Act, a notice, order or other document may be served on or given to a person—
…
(b) if the person is a company incorporated under the Corporations Act—
(i) by delivering it personally to the registered office of the company; or
(ii) by sending it by post, facsimile or other electronic transmission to the registered office of the company; or
(iii) in any other way that service of documents may be effected on a body corporate; or
It was agreed between the parties that each notice to vacate was issued pursuant to s 246 of the RT Act and that each of these notices was sent via both registered and ordinary post to the registered business address of Kornucopia at the time, as well as by email to Kornucopia’s then-solicitors.
Evidence as to this and other email communication between the parties is largely contained in the exhibits to the affidavit of Danielle Chetcuti sworn 22 May 2019. Exhibit 1 to this affidavit is an email sent at 6:58pm on 17 September 2018 from Ms Passarelli, of Madgwicks Lawyers, the firm representing Kornucopia at the time, attaching unknown contents with the subject line ‘Dispute with City Residential Real Estate Pty Ltd and Kornucopia Pty Ltd…’. Also contained in exhibit 1 is a reply to that email, sent by Ms Chetcuti on 18 September 2018 attaching ‘further notices to vacate’. This reply constituted the email service of the notices to vacate that are the subject of this decision, as can be seen in the fact the addresses of the properties in the attached notices to vacate match the addresses of the properties in each of these proceedings.
Exhibit 2 is an email from Mr Kuksal to Ms Passarelli, sent at 2:27pm on 18 September 2018 and copying in Ms Chetcuti. The subject line indicates that the email concerns a property at 811N/889 Collins Street, Docklands 3008, which is not the subject of any of these proceedings. In it Mr Kuksal writes that:
Thanks for advising me regarding the VCAT scheduled hearing for the matter concerning the aforementioned property tomorrow.
During the last hearing, the Tribunal member who heard the case had advised Danielle to send all the documents pertaining to previous applications concerning the property (the decisions for which were set aside) to your address so I may have access to them.
I have been awaiting receipt of those documents. Have you received them?
…
Exhibit 3 is a further email from Ms Chetcuti to Ms Passarelli on 25 September 2018, in which Ms Chetcuti writes that:
Please see attached further Notices to Vacate that were yesterday sent by registered post to your client to, Collins Square Tower 4 address and we [are] now also emailing these to you as per your client’s instructions.
When questioned in cross examination regarding this email, Mr Kuksal gave evidence that he had never given City instructions to serve notices to vacate through email on Madgwicks Lawyers and that, in fact, he had specifically instructed Madgwicks Lawyers not to receive such documents due to the legal expenses that such receipt would incur. While Ms Xu had sometimes also dealt with real estate agents, he had consulted with her and she had not given any such instructions to City either. He stated that the rest of Kornucopia’s staff were operational only, and none of them would have communicated with, or been authorised to make representations to, real estate agents about service.
Exhibit 4 is a further email from Ms Passarelli to Ms Chetcuti which was sent on 16 October 2018, attaching a letter sent by email only, in which she demanded:
… that you promptly provide us access to all Lease Agreements, Bond Lodgement receipts, financial payment information and any other records that you currently have on file for Shivesh Kuksal or any of the or any of the Companies under his management which currently or have in the past leased properties (‘’Relevant Properties’) that were under the management of your agency.
…
Given that your agency and/or its agents are currently pursuing a number of business and personal actions against Shivesh Kuksal, we need you to provide this information to us by no later than close of business tomorrow.
Plaintiff’s submissions
Kornucopia submitted that the relevant notice provisions were those contained in s 506(3) of the RT Act. Where a notice to vacate was served it was insufficient to comply with the more general requirements of s 506(1), or the notice provisions at ss 72 and 140 of the VCAT Act.
Further, Kornucopia submitted that none of s 506(3)(a), (3)(b) or (3)(c) applied to the notices to vacate sent in these cases, as they had been sent by registered post rather than delivered personally, were addressed to the registered business address of Kornucopia rather than any of the rented premises, and were not sent pursuant to any orders of the Tribunal. That left only s 506(3)(ba) – by electronic communication in accordance with the ETA – as a method by which the notices might have been correctly served, as they were also sent via email to Kornucopia’s then solicitors.
However, there was no evidence of any express consent to receiving the information electronically. Accordingly, each landlord had to establish that consent to receiving each notice to vacate electronically could reasonably be inferred from Kornucopia’s conduct, in accordance with the definition of ‘consent’ in s 3 of the ET Act. Kornucopia identified this as the main issue at large between the parties.
Kornucopia took the Court to two decisions of the Tribunal which it stated were relevant to the determination of this issue,[7] and drew a number of principles from them. First, it argued that consent had to be inferred in each particular proceeding individually, that consent to electronic communication in one particular matter did not mean that electronic communication was consented to in other matters between those same parties. Secondly, it argued that the ETA required more than inferred consent to receiving electronic communications in general, but rather required that consent be inferred with regard to the specific kind of information in question. Thirdly, it argued that that the relevant time for establishing inferred consent was at the time the notices to vacate were served, and that conduct occurring after that point in time should not bear on the question of inferred consent.
[7]Dimov v Cagorski [2017] VCAT 1055; Bedwell v Wantirna Park Estate Pty Ltd [2018] VCAT 34.
Kornucopia submitted that the material in the Chetcuti affidavit was insufficient to establish any such inferred consent. It was unclear in exhibit 1 which particular property was the subject of the dispute in the email sent by Ms Passarelli on 17 September 2018, nor what was attached. This was the only evidence that predated that service, so was the only evidence as to inferred consent. However, the defendants made further submissions on the other emails which I will summarise below.
Mr Kuksal’s email in exhibit 2 concerned a property not the subject of any of these disputes. Therefore, according to the principles Kornucopia derived from Dimov v Cagorski,[8] any consent inferred from it would not apply to any of the matters in this dispute, which concerned different properties from the hundreds of properties leased by Kornucopia. Further, it concerned information different in kind to a notice to vacate.
[8][2017] VCAT 1055.
The email in exhibit 3 also concerned properties not the subject of this dispute, and it was therefore impossible to draw conclusions about the properties in this dispute from it.
Exhibit 4 contained a request by lawyers for information held about their client, in the ordinary course of establishing what legal rights might be pursued. Even if it concerned any of the properties currently in dispute, Kornucopia submitted that this did not rise to the level of inferring consent to receive a notice to vacate in the same manner a month earlier.
While the matters in the Chetcuti affidavit might indicate there was some degree of electronic communication to which Mr Kuksal was a party, it went no further than that, and there was no basis for inferring consent to receiving a notice to vacate electronically. To infer that there had been some sort of actual consent on the basis of its contents was pure speculation. The defendants had to establish that consent, whether express or inferred, and there was no material sufficient to do so. Therefore, as there was no inferred consent, and no other way in which s 506(3) might have been complied with, there was no basis upon which the Tribunal could have made the possession orders that it did.
Kornucopia also submitted that in the absence of any reasons for decision, the Tribunal must have been satisfied that the notice was validly served in compliance with the RT Act. It submitted, however, that there was no material before the Tribunal upon which it could have possibly reached that conclusion, as the Chetcuti affidavit contained what scant evidence of electronic communication existed in the case, and that was only filed four days before the hearing in this Court, well after the hearing in the Tribunal. This would also be sufficient to make out an error of law.
When asked whether this objection to service was raised in the Tribunal proceedings, counsel for Kornucopia stated that he was instructed that it was, but accepted that he could point to nothing in the material to confirm those instructions. The first day of hearing in this Court took place on a Monday, and he was invited by the Court to provide evidence on resumption of the hearing, on the Wednesday morning, which demonstrated that Kornucopia had raised in the Tribunal the issue of consent to electronic service, or had even raised the issue of the notices to vacate not being served at the residential addresses.[9] No such evidence was provided, nor were any further submissions on this point made. Counsel submitted that any failure to raise this issue in the Tribunal would not be material in any event. Where as a matter of law a procedure needed to be complied with, and it was not, any failure to raise the point could not rectify that failure to comply.
[9]T 148.
Defendants’ submissions
The defendants agreed that the issues between the parties were confined to the existence of inferred consent by the plaintiff to receiving electronic communications. However, they argued that consent to receiving the notices to vacate electronically could readily be inferred from the contents of the exhibits to the Chetcuti affidavit.
They drew the Court’s attention to exhibit 2, in which Mr Kuksal emailed both Ms Passarelli and Ms Chetcuti stating that:
During the last hearing, the Tribunal member who heard the case had advised Danielle to send all the documents pertaining to previous applications concerning the property (the decisions for which were set aside) to your address so I may have access to them.
They submitted that the following inferences could be drawn from the above: first, that there had been a Tribunal hearing prior to 18 September 2018 at which the question of the service of notices to vacate had been raised; second, that Mr Kuksal had asked his solicitors whether they had received the notices; and third, that Mr Kuksal had consented to receiving further notices to vacate through his solicitors. counsel said that there was nothing in the email to indicate that there had been no consent to receiving notices in this way.
It was put to counsel that this might indicate mere acquiescence to the Tribunal’s orders, or an expectation that once made they would be followed. Counsel responded that such acceptance ought to amount to at least passive consent and that, moreover, when considered in the broader context, it indicated that actual consent had been given by Mr Kuksal to receiving such communications electronically at this earlier Tribunal hearing.
Secondly, they drew the Court to exhibit 3, in which Ms Chetcuti wrote ‘Please see attached further notices to vacate that … we are now emailing these to you as per your client's instructions.’ The defendants submitted that the Court could infer from this email that Kornucopia had instructed its solicitors to receive such notices via email, that Ms Chetcuti was doing so on either an explicit instruction from the plaintiff’s solicitors or an understanding that instructions were so given.
Thirdly, the defendants relied on exhibit 4, the letter from Kornucopia’s solicitors demanding the provision of broad classes of documents. They argued that the terms of that letter would also have included any outstanding notices to vacate. They also said that the letter provided only a return email address, indicating that such documents were to be provided via email.
Regarding the Tribunal decisions relied upon by Kornucopia, they submitted that this was not a case where there was merely general electronic communication. Rather, emails in the Chetcuti affidavit referred specifically to and attached notices to vacate.
Fourthly, the defendants submitted that nothing in any of the interlocutory orders exhibited to the Fairweather affidavit indicated that any issue had ever been taken with the effectiveness of service. Nor, they submitted, was this issue agitated at the Tribunal at the hearing on 18 February. Nor was there any issue with the mode of service in the affidavit of Ms Xu, which instead focused on the fact that the notices to vacate were addressed to The State of Our Times Pty Ltd instead of Kornucopia Pty Ltd. In fact, the first time Kornucopia had raised the current issue regarding service was at the commencement of the hearing in this Court.[10]
[10]T 144. The plaintiff did not file written submissions in which this issue might have been raised.
The defendants submitted that this long period of silence should lead the Court to infer that Kornucopia had in fact consented at the relevant time to receiving notices to vacate via email. If there had not been consent at the time of service, they argued, such a point would have been raised long before now. Alternatively, they submitted that this long period of acquiescence should weigh against Kornucopia in the Court’s exercise of its discretion to grant a remedy.
Analysis
Should leave to appeal under s 148 be granted?
Leave to appeal from orders of the Tribunal is not by right and must be granted under s 148. The grant of leave is in the Court’s discretion. Summarising the considerations at play when exercising that discretion, the Court in Department of Premier and Cabinet v Hulls[11] stated that:
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset, it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines. When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[12]
[11][1999] 3 VR 331.
[12]Ibid, 337.
Matter not raised below
There is no evidence that the matter of electronic service was raised in the Tribunal proceedings, nor that it was raised by Kornucopia at any point before the commenc ement of the hearing in this Court. None of the findings listed in the orders made by the Tribunal in these proceedings mention the ET Act, nor do they reference any findings of inferred consent or otherwise, as one would have expected had the matter been raised before the Tribunal. Nor do any of the interlocutory orders exhibited to the Fairweather affidavit mention electronic service. It was the position of counsel for the defendants that the first time such an issue had been raised was in the hearing before this Court. Kornucopia was given opportunity to prove otherwise but did not do so.
Mr S Kuksal, the effective beneficial owner of Kornucopia, was authorised by Ms Xu to represent it at three other Tribunal hearings involving Kornucopia on 18 February 2019. Some of the Tribunal orders in these six proceedings state that he represented the company ‘The State of Our Times Pty Ltd but [did] not represent the company that is now called Kornucopia Pty Ltd.’ The Tribunal Member found that the two companies were the same entity. Mr Kuksal did not provide any evidence that any point about electronic service was raised before the Tribunal.
The affidavits of Ms Xu did not raise the issue of consent to receiving electronic communications. Rather, her affidavits focused primarily on the fact that the notices to vacate and applications for possession orders were addressed to ‘The State of Our Times Pty Ltd’ instead of ‘Kornucopia Pty Ltd’. While this is by no means conclusive, one would expect, if a matter had been raised in the Tribunal, and was to be raised as the central point of appeal to this Court, that the affidavit in support of that appeal would address that matter of the argument about electronic service at the Tribunal, but it does not.
Kornucopia bears the onus of proof, and there is no evidence that the electronic service point was raised before the Tribunal.
The issue raised for the Member’s determination was whether service on The State of Our Times Pty Ltd was service on Kornucopia, and no challenge is now made to his finding on that issue. The Member was not asked to consider the question of whether electronic service had occurred in accordance with s 506(3)(ba) of the RT Act. If it had been raised, the Member would have been required to make findings about facts relevant to that issue, but because it was not and because of the way the cases were argued before him, the question of law which Kornucopia seeks to argue does not arise.
Accordingly, to grant leave in these circumstances would be to grant leave on a matter not raised before the Tribunal. A similar situation faced this Court in the case of Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority,[13] in which Robson J decided that:
… Dura says that there was no requirement for domestic builders warranty insurance because the Domestic Building Contracts Act 1995 does not apply to developers. Dura says that therefore, the only insurance which was required was commercial insurance (structural defects) and the evidence was that such a policy was in place. Further, Dura says that even if domestic builders warranty insurance was required, Dura would not have been operating illegally because the old FAI policy is deemed to comply with the 1998 Ministerial Order, and therefore did comply.
This ground was not raised by Dura before the Associate Justice, nor before the Tribunal. The Tribunal was only obliged to determine the issues before it and Dura did not seek to pursue these arguments below. As mentioned above, VMIA sought to support its contention that the ambiguity in the various documents issuing from FAI should be resolved in favour of conformity with the scheme. I do not consider that leave to appeal should be given when the matters were not raised before the Tribunal nor before the Associate Justice.
I dismiss the application for leave to appeal on this question.[14]
[13][2012] VSC 114.
[14]Ibid [70]-[72].
Similarly, in Domburg v Nurses Board of Victoria[15] Ashley J held that:
The Tribunal found, by reference to the meaning given to the phrase "of a serious nature" by Kellam, J. (as President of VCAT) in Parr v. The Nurses Board, supra, that the unprofessional conduct of the Appellant was of such a nature.
According to the Tribunal's reasons "The applicant did not seek to challenge (that) meaning". Before me, counsel for the Appellant did not dispute the accuracy of that statement. For that reason alone, it was at least inappropriate to grant the Appellant leave to appeal in terms that permitted her to raise a supposed misdirection by the Tribunal concerning the meaning which was to be ascribed to the pertinent phrase.[16]
[15][2000] VSC 369.
[16]Ibid [47]-[48].
More recently, in Dirckze v Holmesglen Institute,[17] Derham AsJ decided that:
It is clear to me from a review of the evidence and the transcript, combined with the history of the proceeding that there is no denial of procedural fairness to the plaintiff. I am of the view that the learned Member afforded assistance to the plaintiff that was proportionate in the circumstances.
Further, the plaintiff did not seek to argue in the Tribunal that there should be no reliance on, or no weight given to, the Report where the plaintiffs evidence was to the contrary without him having the opportunity to cross-examine Ms Gec. As the issue was not raised in any way in the hearing before the Member, when it could have been, it is not available as a ground of appeal in this Court.[18]
[17][2016] VSC 385.
[18]Ibid [45]-[46].
I agree. The only question of law raised in this Court, which was pressed was on a point not raised in the Tribunal decision under challenge. To allow it to be raised now would be inappropriate, and leave to appeal should therefore be refused.
Additionally, given the foregoing, it is unclear how the Tribunal could have been in error in its orders. It was under no obligation to decide matters which were never put, and indeed could only have decided the matter on the basis of those submissions before it. There can be no error in failing to decide a point that was never raised. The Tribunal’s jurisdiction cannot be challenged on points which involve, at least in part, matters of fact never raised before it.
Conclusion
Leave to appeal is refused in each of the six proceedings, and each of the six proceedings is dismissed.
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