Lucas v Aparo - [2025] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2025 0044

JOHN LUCAS	Applicant
v
MARIO APARO	First Respondent
ADRIAN APARO	Second Respondent

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JUDGES:	BEACH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2025
DATE OF JUDGMENT:	12 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 99
JUDGMENT APPEALED FROM:	[2025] VSC 138 (Quigley J)

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LANDLORD AND TENANT – Residential rental agreement – Order for possession made by VCAT after notice to vacate given on basis that owner wanted to sell property – Application by tenant to review possession order refused by VCAT – Application for leave to appeal VCAT’s orders refused by primary judge – Applicant seeking leave to appeal primary judge’s refusal to grant leave to appeal VCAT’s orders – Proposed appeal having no real prospect of success – Application for leave to appeal refused.

Victorian Civil and Administrative Tribunal Act 1998, s 148; Supreme Court Act 1986, s 14C.

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Counsel
Applicant:		In person
Respondents:		In person
Solicitors
Applicant:
Respondents:

BEACH JA
WALKER JA:

Pursuant to a residential rental agreement, the duration and terms of which are in dispute, John Lucas currently occupies a residential property which is owned by Maria Aparo (‘the property’). The property is in Taylors Lakes.
Ms Aparo sent Mr Lucas a notice to vacate, however he did not do so. Ms Aparo then instituted a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’), seeking an order requiring Mr Lucas to vacate the property (‘possession order’). VCAT made a possession order on 22 August 2024, at the conclusion of a hearing at which Mr Lucas did not appear.
On 23 October 2024, VCAT dismissed an application made by Mr Lucas to review and re-open the possession order pursuant to s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).
On 31 October 2024, Mr Lucas filed a notice of appeal in the Trial Division seeking leave to appeal under s 148 of the VCAT Act against VCAT’s order dismissing his application for review of the possession order.
On 25 March 2025, following a hearing on 14 March 2025, Quigley J made orders dismissing Mr Lucas’ application for leave to appeal from VCAT’s order dismissing his application for review of the possession order.[1]
[1]Lucas v Aparo [2025] VSC 138 (‘Reasons’).
The applicant now seeks leave to appeal from the orders of Quigley J. In addition, he seeks an order which would have the effect of continuing orders which currently stay the execution of the possession order. In essence, he seeks an order staying execution pending the hearing and determination of his application for leave to appeal (and any appeal, if leave is granted).
For the reasons given below, the application for leave to appeal must be refused, and Mr Lucas is not entitled to any further stay of execution of the possession order.

Background

The dispute as to the duration and terms of the residential rental agreement can be stated in short…

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: [2025] VSCA 99
Decision Date: 12 May 2025

CaseChat Overview and Summary

Lucas, the tenant, brought an application against Aparo, the property owner, following an order by the Victorian Civil and Administrative Tribunal (VCAT) for possession of residential premises. The order was made after notice to vacate was given on the basis that Aparo wished to sell the property. Lucas sought to review VCAT’s possession order, however, this application was dismissed by VCAT. Lucas subsequently sought leave to appeal the VCAT orders, which was refused by the primary judge. Lucas now applies for leave to appeal the primary judge's refusal of leave to appeal the VCAT orders.

The central legal issue was whether the proposed appeal had a real prospect of success. The court needed to determine whether the primary judge’s decision was correct, considering the circumstances and the legal framework under which VCAT and the Supreme Court operate. The relevant statutes were the Victorian Civil and Administrative Tribunal Act 1998 and the Supreme Court Act 1986.

The court examined the legal principles governing appeals from VCAT and the criteria for granting leave to appeal. It concluded that the primary judge correctly exercised their discretion in refusing leave to appeal, as the appeal did not present a real prospect of success. The reasoning involved a detailed analysis of the evidence and submissions presented to VCAT and the primary judge. The court held that the primary judge's decision was well-founded and that the appeal would not succeed on the merits. Consequently, the application for leave to appeal was dismissed.

No further orders were made beyond the refusal of leave to appeal.

Orders