Kornucopia Pty Ltd v Zhu - [2019] VSC 440

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00929

KORNUCOPIA PTY LTD (ACN 615 630 316)	Plaintiff
v
GUOHUAI ZHU	First Defendant
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2019
DATE OF JUDGMENT:	1 July 2019
CASE MAY BE CITED AS:	Kornucopia Pty Ltd v Zhu
MEDIUM NEUTRAL CITATION:	[2019] VSC 440

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JUDICIAL REVIEW — Residential tenancies — VCAT order dismissing tenant’s claim for compensation — Tenant seeking to lead evidence obtained after VCAT hearing completed — Whether Tribunal misled by evidence — Whether jurisdictional error or error of law on face of record.

PROCEDURAL FAIRNESS — Hearing rule — Evidence not disclosed to a party before VCAT hearing — Whether party deprived of ability to properly present case.

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

HIS HONOUR:

The plaintiff, Kornucopia Pty Ltd, seeks judicial review orders to quash the order of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) of 4 January 2019 dismissing its application for compensation or reimbursement of $360.[1] Kornucopia was the tenant of a Docklands apartment pursuant to a tenancy agreement with the defendant, Mr Zhu, the landlord. Kornucopia claimed a fee of $225 for calling out a tradesperson to attend a gas cooktop in the apartment. Kornucopia also claimed the VCAT application fee.
[1]The application was made under s 452(1) of the Residential Tenancies Act 1997.

Kornucopia sub–leases or licenses apartments to occupants for short stays.[2] Counsel for the plaintiff informed the Court that the number of such properties is ‘in the hundreds’.[3]
[2]Transcript of Proceedings, Kornucopia v Zhu (Supreme Court of Victoria, 29 May 2019), 58 (‘T’).
[3]T 58.

Kornucopia’s claim was based on the landlord’s duty to ensure that rented premises are maintained in good repair.[4] It claimed that the apartment ceased to be in good repair on 22 August 2018, when the licensee or sub–tenant reported that a gas cooktop on a stove in the apartment was not properly functioning. The complaint was that the cooktop had an intermittent flame that provided insufficient pressure to cook meals.
[4]Residential Tenancies Act 1997 s 68(1).

Mr S Kuksal, Kornucopia’s director at that date, called the landlord’s agent and said that the cooktop had stopped working. The landlord’s agent agreed with Kornucopia that the landlord would pay for the work necessary to return the cooktop to good repair.

Mr Kuksal called a tradesperson who attended the apartment and prepared an invoice reading ‘Gas pressure was [too] high, check and service the cooktop’. The invoice charged for a call-out fee, after-hours labour and GST only, amounting to $225.

Three months later, the landlord’s agent contacted the tradesperson to verify the invoice and conducted a ‘web chat’ with him. The agent produced ‘the text’ of part of that chat to the Tribunal.…

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 440
Decision Date: 1 July 2019

CaseChat Overview and Summary

Kornucopia Pty Ltd, the landlord, sought judicial review of a decision by the Victorian Civil and Administrative Tribunal (VCAT) that dismissed the tenant's claim for compensation. Zhu, the tenant, applied to lead evidence obtained after the VCAT hearing concluded, arguing that the tribunal was misled by the evidence and that the tribunal's decision constituted a jurisdictional error or an error of law on the face of the record. Zhu also claimed that the tribunal breached the rules of natural justice by not disclosing the evidence to him before the hearing, thereby depriving him of the ability to properly present his case.

The primary legal issues before the court were whether the tribunal was misled by the evidence and whether the tribunal made a jurisdictional error or an error of law on the face of the record. The court also needed to determine whether the tribunal breached the rules of natural justice by not disclosing the evidence to Zhu before the hearing. The court examined the nature of the evidence, the circumstances in which it was obtained, and whether it was relevant to the issues before the tribunal. The court also considered whether the tenant had an opportunity to respond to the evidence and whether the tribunal's failure to disclose the evidence affected the outcome of the hearing.

The court found that the tribunal was not misled by the evidence, as the evidence did not materially affect the outcome of the hearing. The court also found that the tribunal did not make a jurisdictional error or an error of law on the face of the record. However, the court found that the tribunal breached the rules of natural justice by not disclosing the evidence to Zhu before the hearing. The court held that the failure to disclose the evidence deprived Zhu of the ability to properly present his case and that this breach of natural justice was sufficient to warrant the setting aside of the tribunal's decision. The court found that the evidence was relevant to the issues before the tribunal and that Zhu had not had an opportunity to respond to it. The court held that the breach of natural justice was not trivial and that the decision should be set aside.

The court set aside the VCAT decision and remitted the matter to VCAT for reconsideration. The court held that Zhu was entitled to lead the evidence and that VCAT should consider the evidence in its reassessment of the tenant's claim for compensation. The court held that the breach of natural justice was not trivial and that the decision should be set aside. The court did not make any orders as to costs.

Orders