JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 13 September 2001
DATE OF JUDGMENT:	12 October 2001
CASE MAY BE CITED AS:	Lay v Alliswell
MEDIUM NEUTRAL CITATION:	[2001] VSC 385

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Appeal under section 148(1) Victorian Civil and Administrative Tribunal Act 1998 – an appeal by tenants against VCAT’s decision to dismiss their claims for damages and a declaration that the respondent landlord’s notice of redevelopment was invalid – where the method of rental payment in practice over months was different to that specified in the lease and the landlord subsequently re-entered the premises after a two day default in payment – where the landlord exercised its rights in an unreasonable manner - application for relief against forfeiture – whether the forfeiture was effective to determine the lease – implied term of good faith and fair dealing.

PROCEDURE – Amending the terms of questions of law in an order of a Master – reliance upon authorities that are too remote from the issue – raising an issue not dealt with in the lower court.

JURISDICTION – Whether the Supreme Court has jurisdiction to deal with claims for relief against forfeiture despite sections 34 and 35 of the Retail Tenancies Reform Act 1998.

Retail Tenancies Act 1986 – section 21
Retail Tenancies Reform Act 1998 – sections 34 and 35
Victorian Civil and Administrative Tribunal Act 1998 – sections 75(1) and 148(1)

Blair v Curran (1939) 62 CLR 464
Doherty v Murphy [1996] 2 VR 553
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Far Horizons Pty Ltd v McDonald’s Australia Ltd [2000] VSC 310
Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jam Factory Pty Ltd v Sunny Paradise Pty Ltd and Ohers [1989] VR 584
Popovski v Ericsson Australia Pty Ltd [1998] VSC 61

Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr PT Nugent	Testart Robinson
For the Respondent	Mr MDG Heaton QC with Mr JB Nunns	Kliger Partners

HER HONOUR:

Introduction

This is an appeal on questions of law pursuant to section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against two decisions of the Victorian Civil and Administrative Tribunal (“the Tribunal”) constituted by Deputy President Macnamara. Although the copy of the first decision before the Court is undated, it appears that it is accepted as having been made on 19 September 2000. The second decision is the consequential costs order made on 22 September 2000. Leave to appeal was granted by a Master on 4 December 2000.

The Master’s order sets out…

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 Lay v Alliswell Pty Ltd

Details

AGLC: Lay v Alliswell Pty Ltd [2001] VSC 385
Case: [2001] VSC 385
Decision Date: 12 October 2001

CaseChat Overview and Summary

The case of Lay v Alliswell Pty Ltd involves a dispute between tenants and their landlord, with the tenants appealing against the Victorian Civil and Administrative Tribunal’s (VCAT) dismissal of their claims for damages and a declaration that the landlord’s notice of redevelopment was invalid. The tenants had been renting premises from the landlord, but the method of rental payment in practice had deviated from the lease terms. The landlord re-entered the premises after a two-day payment default and subsequently exercised their rights in a manner considered unreasonable by the tenants. The tenants applied for relief against forfeiture, questioning whether the forfeiture was effective in terminating the lease and whether there was an implied term of good faith and fair dealing.

The legal issues before the court were multifaceted. Firstly, whether the Supreme Court had jurisdiction to hear claims for relief against forfeiture despite the provisions of sections 34 and 35 of the Retail Tenancies Reform Act 1998. Secondly, the court needed to determine if the amendment of the terms of questions of law in a Master’s order was permissible when the authorities cited were too remote from the issue at hand, and if an issue not previously addressed by the lower court could be raised. Thirdly, the court had to consider whether the forfeiture was valid and effective in terminating the lease and whether there was an implied term of good faith and fair dealing.

In addressing these issues, the court found that the Supreme Court did have jurisdiction to deal with claims for relief against forfeiture, despite the provisions in sections 34 and 35 of the Retail Tenancies Reform Act 1998. The court also held that amending the terms of questions of law in a Master’s order, relying on authorities too remote from the issue, and raising an issue not previously dealt with by the lower court were not permissible. The court further ruled that the forfeiture was effective in terminating the lease, and there was no implied term of good faith and fair dealing in this context.

The final orders of the court dismissed the appeal and affirmed VCAT’s decision, dismissing the tenants' claims for damages and the declaration regarding the notice of redevelopment. The court's ruling underscored the importance of adherence to jurisdictional constraints and the limitations on amending legal questions in appellate proceedings.

Orders