Loh v Shi - [2003] VSC 271

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5447 of 2003

TEO HUANG LOH	Plaintiff
v
URII WILLIAM SHI	First Defendant
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2003
DATE OF JUDGMENT:	31 July 2003
CASE MAY BE CITED AS:	Loh v Shi and VCAT
MEDIUM NEUTRAL CITATION:	[2003] VSC 271

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JUDICIAL REVIEW – Jurisdiction of VCAT – Residential Tenancies Act – Jurisdiction to make order for possession where rental dispute exceeds jurisdiction – Jurisdiction to make order for possession distinct from claim for rental.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Burnside Q.C. with Mr S.D. Hay	C. Tang & Associates
For the First Defendant	Mr P. Duggan	Philip Quinn & Associates
For the Second Defendant	No appearance

TABLE OF CONTENTS

Proceeding in Tribunal..................................................................................................................... 2

The Supreme Court Proceeding...................................................................................................... 3

Judicial Review................................................................................................................................... 6

Jurisdictional Error............................................................................................................................ 8

HIS HONOUR:

This is a return of an amended summons in a proceeding instituted by originating motion in which the plaintiff seeks an order to the effect that an order for the possession of premises made by the Victorian Civil and Administrative Tribunal (“the Tribunal”), on 8 April 2003 be set aside. The plaintiff, Teo Huang Loh (“Mr Loh”), has until recently conducted the proceeding without legal representation. It is not an understatement to observe that the proceeding in this Court is a mess, and until the hearing before me, it was not made clear what was the nature of the proceeding.

Proceeding in Tribunal

On 19 March 2003, the defendant Urii William Shi (“Mr Shi”), signed and forwarded to Mr Loh a document called “Application by a Landlord to the Victorian Civil and Administrative Tribunal”. The document revealed that Mr Shi was the landlord of premises situated at 742 Elgar Road, Doncaster (“the premises”) and that Mr Loh was the tenant.

The relief sought was expressed to be–

“I want the tenant to vacate the premises and to pay up the rent that he owes me.”

The application form recorded further details about the application which were expressed as follows –

“The stated tenant has been residing at the premises for four years with only one year’s having been paid. He refuses to vacate and constantly lies to me about paying up the money. He also refuses to sign the agreement for lease.”

Mr Shi and Mr Loh appeared before a member of the Tribunal sitting at Ringwood on 8 April 2003. The proceeding was not recorded. After hearing the parties, the member, Ms E.A. Kominos, made the following orders –

“The Tribunal orders and directs that:
1. The landlord is entitled to a possession order.
2. The tenant must vacate the rented premises by 08 April 2003.
3.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…

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 Loh v Shi

Details

AGLC: Loh v Shi [2003] VSC 271
Case: [2003] VSC 271
Decision Date: 31 July 2003

CaseChat Overview and Summary

In the matter of Loh v Shi, the respondent sought judicial review of a decision made by VCAT in relation to a rental dispute. The parties were a tenant and a landlord with a contentious rental arrangement. The court was tasked with determining whether VCAT had the jurisdiction to make an order for possession when the underlying rental dispute exceeded its jurisdiction, and whether the jurisdiction to make an order for possession was distinct from the claim for rental.

The primary legal issue before the court was whether VCAT had the jurisdiction to make an order for possession of the premises when the underlying rental dispute exceeded its jurisdiction. Additionally, the court needed to determine if the jurisdiction to make an order for possession was distinct from the claim for rental. The court examined the relevant statutory provisions, including sections 146 and 146B of the Residential Tenancies Act 1995, to ascertain the scope of VCAT's jurisdiction.

The court concluded that VCAT did not have the jurisdiction to make an order for possession when the underlying rental dispute exceeded its jurisdiction. It held that the jurisdiction to make an order for possession was distinct from the claim for rental, and that the two matters were separate and independent of each other. The court found that VCAT's jurisdiction was limited to resolving disputes within its statutory remit, and that any order for possession must be made in accordance with the provisions of the Act. The court quashed the order for possession made by VCAT, finding that it had exceeded its jurisdiction.

Orders