Liu v Tang - [2022] VSC 243

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04409

YAN LIU	Applicant
v
HUY PHENG TANG	Respondent

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2022
DATE OF JUDGMENT:	18 May 2022
CASE MAY BE CITED AS:	Liu v Tang
MEDIUM NEUTRAL CITATION:	[2022] VSC 243 (First Revision 23 May 2022)

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APPEAL – Appeal from Victorian Civil and Administrative Tribunal – Residential tenancies – Whether tribunal erred in making possession order – Notice to vacate for non-payment of rent – Whether notice to vacate valid – Notice to vacate included rental arrears during COVID-19 ‘emergency period’ – Notice to vacate issued during COVID-19 ‘transition period – Appeal allowed – Markiewicz v Crnjac [2021] VSCA 290.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Litigant in person
For the Respondent	Litigant in person

HIS HONOUR:

A. Introduction

Mr Liu, the applicant, leased residential premises in Maidstone from Mr Tang, the respondent. Mr Liu fell behind in his rent payments during the COVID-19 pandemic. Mr Liu visited China, and could not return for more than a year, during which time he ceased paying rent, or at least the rent that was owing under the terms of the written agreement. On his return, Mr Liu moved back into the premises, but did not pay the rent that was owing under the terms of the written agreement. Mr Tang took steps to recover possession of the premises. On 25 October 2021, the Victorian Civil and Administrative Tribunal (‘VCAT‘) ordered that Mr Liu vacate the premises by 25 October 2021, that Mr Liu pay rent owing of $29,055, and that the registrar of VCAT issue a warrant of possession at the request of Mr Tang made after 23 November 2021. Mr Liu seeks leave to appeal against those orders. Any appeal is limited to an appeal on a question of law.[1]
[1]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1).

B. The notice to vacate and amount ordered included amounts not then payable

The immediately-relevant starting point of Mr Tang’s efforts to recover possession of the property was a notice to vacate[2] he served on Mr Liu for the non-payment of rent.[3] The notice to vacate was dated 8 July 2021, posted on 9 July 2021, and asserted that Mr Liu owed $22,901 in rental arrears for the period since 9 April 2020. Some rent had been paid irregularly, but this was the balance said then to be outstanding. The notice to vacate asked that Mr Liu vacate the premises by 31 July 2021, but provided, in accordance with the statutory requirements, that if the rent was paid in full before that date then the notice to vacate would have no effect. Mr Liu did not pay the rent referred to in the notice to vacate, and on 3 August 2021 Mr Tang commenced a proceeding in VCAT for an order for possession. The proceeding…

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 Liu v Tang

Details

AGLC: Liu v Tang [2022] VSC 243
Case: [2022] VSC 243
Decision Date: 18 May 2022

CaseChat Overview and Summary

Liu, the respondent, appealed a decision of the Victorian Civil and Administrative Tribunal (VCAT) against Tang, the appellant. The appeal related to a dispute concerning a residential tenancy, specifically whether VCAT erred in making a possession order in favour of Tang. The order was made after Liu, the tenant, failed to pay rent, leading Tang, the landlord, to issue a notice to vacate due to non-payment of rent. The dispute centred on the validity of the notice to vacate, particularly whether it was permissible for Tang to include rental arrears during the COVID-19 ‘emergency period’ in the notice, and whether the notice was validly issued during the COVID-19 ‘transition period’.

The central legal issues the court had to address were whether VCAT correctly interpreted the relevant residential tenancy legislation in relation to the notice to vacate and whether the notice was validly issued during the COVID-19 ‘transition period’. The court had to consider the statutory framework governing residential tenancies in Victoria and the impact of the COVID-19 emergency on these laws. Specifically, it had to determine whether Tang’s inclusion of rental arrears accrued during the COVID-19 emergency period in the notice to vacate complied with statutory requirements, and whether the notice was validly issued under the transitional arrangements introduced during the pandemic.

In examining these issues, the court found that VCAT had erred in its interpretation of the statutory provisions. It held that Tang’s inclusion of rental arrears during the COVID-19 emergency period in the notice to vacate was not in accordance with the legislative provisions designed to protect tenants during the pandemic. Furthermore, the court found that VCAT did not adequately consider the transitional legislative provisions that applied during the COVID-19 pandemic when making its decision. The court held that these errors constituted a failure by VCAT to properly apply the law, leading to an unjust outcome for Liu. As a result, the appeal was allowed, and the decision of VCAT was quashed.

The final orders of the court were that the appeal be allowed, the decision of VCAT be quashed, and the matter be remitted to VCAT for rehearing in accordance with the law as interpreted by the court.

Orders