Lucas v Aparo
[2025] VSCA 99
•12 May 2025
| 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 compass:
(1)Ms Aparo claims that the rental agreement was for a period of six months, commencing on 29 December 2023, at a rent amount of $2,600 per calendar month.[2]
[2]A copy of this version of the agreement was exhibited to an affidavit sworn by Ms Aparo on 24 January 2025.
(2)Mr Lucas claims that the rental agreement was a ‘rent to buy’ agreement, for a period of 12 months, at the same monthly rate ($2,600 per calendar month), but commencing on 8 February 2024.[3]
[3]Photographs of various pages of this document (some of which are illegible) were exhibited to an affidavit sworn by Mr Lucas on 2 December 2024.
(3)In Ms Aparo’s version of the agreement, clause 21, headed ‘Further details (if any)’ contains the following handwriting:
All Outgoings Currently Kept Under Maria Aparo
Tenant John Lucas To Pay All Outgoings On Top Of Rent
(Gas, Electricity, Waste And Any Others Specific)
(4)In Mr Lucas’ version of the agreement, it is clause 25 (rather than clause 21) which is headed, ‘Further details (if any)’. In contrast to the handwriting in clause 21 of Ms Aparo’s version, clause 25 of Mr Lucas’ version contains the following handwriting:
Twelve month lease agreement to purchase [the property] at the agreed price at the meeting of John Lucas, Maria Aparo and Adrian Aparo on the 27/12/2023
As agreed the full amount of the 12 month lease in addition to labour costs of works performed to [the property] and [a property in Maribyrnong] to be put towards the agreed purchase price of [the property].
On 28 February 2024, Ms Aparo served a notice to vacate on Mr Lucas, requesting that he vacate the property on or before 12 March 2024, for failing to pay bond moneys and outgoing rent.[4]
[4]See ss 91ZM and 91ZN of the Residential Tenancies Act 1997 (‘the RT Act’).
On 2 April 2024, Ms Aparo served another notice to vacate on Mr Lucas, requiring him to vacate the property on or before 30 June 2024, as she wanted to sell the property.[5]
[5]See s 91ZZB of the RT Act.
On 8 June 2024, Ms Aparo filed an application in VCAT seeking a possession order in relation to the property.[6]
[6]See s 322(1) of the RT Act.
Ms Aparo’s application for possession of the property came on for hearing at VCAT on 22 August 2024. Mr Lucas did not appear. At the conclusion of the hearing, VCAT made an order requiring Mr Lucas to vacate the property. The authenticated order recorded that VCAT had made the following findings:
1.The residential rental provider [Ms Aparo] gave the renter [Mr Lucas] not less than 60 days’ notice to vacate under section 91ZZB of [the RT Act].
2.The residential rental provider has proven the reasons for giving the notice to vacate.
3.Having regard to the matters in section 330A of [the RT Act], it is reasonable and proportionate to make a possession order.
4.The residential rental provider is entitled to a possession order … .
Following the making of the possession order, Mr Lucas commenced two proceedings at VCAT: the first proceeding sought to restrain Ms Aparo from implementing the possession order before Mr Lucas could have the opportunity to seek a review of that order; the second proceeding sought a review of the possession order on the basis of his (Mr Lucas’) failure to appear at the hearing on 22 August 2024.[7]
[7]See s 120 of the VCAT Act.
On 23 October 2024, Mr Lucas’ application to review the possession order came on for hearing at VCAT.[8] For completeness, we note that, at the same time as it heard Mr Lucas’ application to review the possession order, VCAT heard Mr Lucas’ application to restrain Ms Aparo from implementing the possession order, and an earlier application made by Mr Lucas which had previously been dismissed for his failure to appear at a hearing on 19 August 2024.[9]
[8]It appears from the material filed by Mr Lucas on the appeal that VCAT conducted a hearing concerning his review application on 2 September 2024. Mr Lucas appeared at that hearing. That hearing was adjourned to 23 October 2024.
[9]As to the detail of that proceeding, see Reasons, [10].
At the hearing on 23 October 2024, both Mr Lucas and Ms Aparo were represented by legal practitioners. At the conclusion of the hearing, VCAT made orders dismissing Mr Lucas’ applications. In addition to dismissing Mr Lucas’ application to review the possession order, VCAT made an order confirming the possession order.
In the authenticated order dismissing the application for review of the possession order and confirming the possession order, VCAT’s findings were set out as follows:
1.The renter [Mr Lucas] seeks review of the VCAT order dated 22 August 2024. The renter did not appear at the hearing when the order was made, nor were they represented at the hearing.
2.The renter had sought adjournment of today’s hearing of the review firstly on 14 October 2024 on medical grounds. VCAT declined this adjournment request by order also dated 14 October 2024, on the basis that the adjournment application including the documentation provided did not satisfactorily support the granting of an adjournment. The consent of the rental provider [Ms Aparo] had not been obtained.
3.On 22 October 2024, the day before the hearing scheduled today, the renter’s appointed legal represented made a further adjournment request. This adjournment request was reiterated by the renter’s representative who attended the hearing today. The rental provider continued to withhold their consent to any adjournment.
4.The Tribunal at hearing today again declined the subsequent adjournment request, finding that the further/amended documentation provided still did not satisfactorily support the granting of an adjournment.
5.The Tribunal heard submissions made on behalf of the renter by his solicitor who represented him at the hearing today going to evidence before the Tribunal, including certain documentary evidence freshly or again presented today and which was also provided to the rental provider.
6.The Tribunal today determines that it is not appropriate to hear and determine the renter’s review application because:
–the renter does not have a reasonable case to argue in relation to the subject matter of the order;
–to rehear and determine the application would cause prejudice to the residential rental provider.
The appeal to the Trial Division
In his notice of appeal seeking leave to appeal under s 148 of the VCAT Act, Mr Lucas identified four purported questions of law. In substance, these were:
(1)Was VCAT correct in dismissing Mr Lucas’ medical grounds without properly considering the evidence and its impact on his ability to attend or participate in the proceedings?
(2)Did VCAT fail to provide procedural fairness by not notifying Mr Lucas appropriately of key proceedings and submissions that impacted the outcome of the decision?
(3)Was VCAT’s decision to proceed without fully considering Mr Lucas’ submissions on medical grounds a breach of natural justice, as required by ss 97 and 98 of the VCAT Act?
(4)Did VCAT err in applying or interpreting the RT Act in its determination of rental arrears and bond payments?
The notice of appeal then set out nine grounds of appeal: grounds 1 and 2 relating to the first question of law; grounds 3 and 4 relating to the second question of law; grounds 5 and 6 relating to the third question of law; grounds 7 and 8 relating to the fourth question of law; and ground 9, which was described as an additional ground of appeal, in which it was asserted:
9.VCAT failed to take into consideration or give appropriate weight to multiple independent witnesses whose testimonies could have materially impacted [VCAT’s] assessment of the evidence and the final decision. This oversight constitutes a further denial of procedural fairness and natural justice.
In grounds 1 to 8, Mr Lucas complained variously about asserted denials of procedural fairness, denials of natural justice, breaches of ‘the principles of fair hearing and natural justice’, a breach of VCAT’s duty to ensure a fair hearing, the making of erroneous findings and VCAT’s ‘failure to account for alleged inconsistencies in the documentation’ which is said to have ‘contributed to an unjust outcome’.
Reasons of Quigley J
As we have already observed, on 25 March 2025, Quigley J refused Mr Lucas leave to appeal from VCAT’s orders dismissing his application to re-open and review the possession order made on 22 August 2024.
In her reasons for judgment, Quigley J set out the factual background of the dispute between the parties in some detail.[10] In the course of doing so, her Honour noted that it was only VCAT’s orders of 23 October 2024, dismissing Mr Lucas’ application to review the possession order (which possession order only related to the notice to vacate served by Ms Aparo because she wanted to sell the property), which Mr Lucas sought leave to appeal.[11] That said, the judge also noted that Mr Lucas remained in possession of the property in circumstances where he had not paid rent since mid-2024.[12]
[10]Reasons, [2]–[17].
[11]Ibid [6], [9], [12].
[12]Ibid [17].
Ultimately, the judge said that she was ‘neither satisfied that any questions of law raised by Mr Lucas [had] substance, nor that [his] appeal [had] any reasonable prospects of success’.[13] In coming to those conclusions, her Honour rejected Mr Lucas’ complaints about natural justice and procedural fairness[14] and said that his assertion that ‘there was an error in applying the RT Act in interpreting the rental arrears and bond transfer documentation’ was ‘misconceived’.[15] As her Honour put it:
The Possession Order was made, not due to any rental arrears or other breaches, but on the basis that Ms Aparo had given the appropriate notice to vacate. Further, upon Ms Aparo demonstrating to the Tribunal that there was an intention to sell the Property, the Tribunal exercised its discretion to make the Possession Order. There is no issue of rental arrears, or other payments, which arise as a consequence of an order made under this provision.[16]
[13]Ibid [18]. See also [19]–[60].
[14]Ibid [44]–[55].
[15]Ibid [57].
[16]Ibid [58].
The application for leave to appeal to this Court
On 11 April 2025, Mr Lucas filed an application for leave to appeal from the orders made by Quigley J. The filed document seeking leave to appeal contains an admixture of assertions about why leave to appeal should be granted, together with various questions which are asserted to be questions of law, as well as assertions that might be construed as being proposed grounds of appeal, together with other assertions of a more general nature.
Throughout the document there are various unnumbered questions which are prefaced with the phrase ‘Question of Law’. These include (numbered by us for convenience) the following:
1.Did VCAT err by disregarding the work-for-rent agreement when determining rental arrears?
2.Did VCAT breach procedural fairness by failing to consider the appellant’s affidavit and financial evidence?
3.Should eviction enforcement be paused until the Court of Appeal reviews procedural fairness violations and financial misrepresentation?
4.Did VCAT err in ruling that John Lucas owed rental arrears when, in fact, the landlord owes him $31,444.85?
5.Did VCAT fail to assess financial records, resulting in a misclassification of funds?
6.Should eviction enforcement be paused until financial mismanagement by the landlord is formally investigated?
In addition to those supposed questions of law, the written application for leave to appeal contains 13 other questions in four different parts of the document, each under the heading ‘Questions of Law’, as follows:
1.Did VCAT err in relying on an unverified lease agreement that was never disclosed to the appellant before the hearing?
2.Did VCAT breach procedural fairness by failing to allow the appellant time to authenticate, challenge, or dispute the fraudulent lease document before ruling on eviction?
3.Should the possession order be invalidated due to the presence of false, misleading, or fraudulent documentation?
4.Did VCAT err in accepting multiple, contradictory rent arrears figures without requiring proper financial verification?
5.Did VCAT fail to assess whether rent arrears were lawfully enforceable under section 91ZM before issuing the possession order?
6.Did VCAT breach evidentiary standards by relying on conflicting financial claims regarding bond funds?
7.Should the eviction order be set aside due to misleading financial evidence influencing the Tribunal’s decision?
8.Did VCAT misapply tenancy laws by failing to examine the validity of multiple termination notices before enforcing eviction?
9.Did VCAT err in allowing the eviction to proceed based on an alleged section 91ZK violation without proper evidentiary review?
10.Was VCAT required to assess whether the property damage claim ($1,650) had sufficient legal basis before factoring it into the eviction ruling?
11.Did the Supreme Court err in refusing a stay of eviction despite clear evidence of procedural unfairness and financial misrepresentation?
12.Should eviction have been delayed until the fraudulent lease agreement was formally assessed?
13.Did the Tribunal fail to properly weigh humanitarian concerns — including the appellant’s medical condition and risk of homelessness — when enforcing possession?
At the same time as he filed his application for leave to appeal, Mr Lucas filed a written case, a document headed ‘Appealant (sic) Submissions’, a list of authorities, an application seeking a stay of execution of the possession order and an affidavit he swore or affirmed[17] on 11 April 2025 (collectively, ‘Mr Lucas’ appeal documents’).
[17]The affidavit is entirely unclear as to whether it was sworn or affirmed.
In oral argument, Mr Lucas summarised some of the arguments he had put in writing, and referred to some additional matters, all of which he submitted involved a question or questions of law. These included what appeared to be a new assertion that he was owed in excess of $117,000,[18] coupled with an assertion that he was entitled to live in the property until at least the end of this year.
[18]Compare the amount referred to in the fourth question of law set out in paragraph [24] above.
Resolution of the application for leave to appeal
In his application for leave to appeal from VCAT to the Trial Division, Mr Lucas relied upon four purported questions of law. In his application for leave to appeal from the Trial Division to this Court, he relies upon 19 purported questions of law. Plainly, it would be very difficult for this Court to find that Quigley J erred in failing to deal with a purported question of law which had not been referred to or relied upon by Mr Lucas in his application for leave to appeal from VCAT.
Section 148(1) of the VCAT Act permits a party to appeal from an order of VCAT only on a question of law and only if the Court gives leave to appeal. As has been said many times before, a court hearing such an appeal, or an application for leave to appeal, is not entitled to enter into the fact-finding exercise which the legislature has deliberately entrusted to VCAT.[19]
[19]Frontlink Pty Ltd v Commissioner of State Revenue [2023] VSC 521, [10] (Croft J).
Having examined all of the material for ourselves, for the reasons given below, we are not persuaded that the appeal which Mr Lucas wishes to bring against the orders of Quigley J has any real prospect of success. In the circumstances, s 14C of the Supreme Court Act 1986 requires this Court to refuse Mr Lucas’ application for leave to appeal.
First, it is to be remembered that the possession order was made, not on the basis of non-payment of rent or any financial dispute between the parties, but on the basis that Ms Aparo served a notice to vacate the property on or before 30 June 2024, as she wanted to sell the property.[20] Any remaining financial disputes between the parties would fall to be resolved in different proceedings between them.
[20]See paragraph [10], above.
Secondly, the possession order (made on 22 August 2024), in which VCAT’s findings were recorded, discloses no arguable basis for contending that there was any error of law in the making of the possession order.
Thirdly, nothing in the material filed by Mr Lucas establishes that it was not open to VCAT to decline the various requests for adjournments made by him or on his behalf of 14, 22 or 23 October 2024. The question of whether or not to grant an adjournment is a matter of practice and procedure, within the discretion of the court or tribunal to whom such an application is made. Adopting the words of Quigley J,[21] subject to natural justice considerations, it is not open to this Court to impose its own views on the merits of any of the adjournment applications made to VCAT.
[21]Reasons, [49].
Fourthly, there is no substance in Mr Lucas’ complaint that VCAT did not properly consider the medical evidence he relied upon in support of his applications for an adjournment. The limited transcript of the hearing of 23 October 2024[22] shows that VCAT examined the material and noted the lack of relevant detail in it — including the absence of any expert statement that, by reason of some medical condition, Mr Lucas was incapable of attending a hearing on 23 October 2024.
[22]Exhibit to an affidavit affirmed by Mr Lucas, and dated 23 January 2025.
Fifthly, to the extent that Mr Lucas wishes to cavil with orders made by VCAT on 22 August 2024, it is to be remembered that his application for leave to appeal to the Trial Division only concerned the orders made on 23 October 2024 which confirmed the possession order and dismissed Mr Lucas’ application for its review.
Sixthly, many of Mr Lucas’ complaints reduce to no more than assertions by him that VCAT has decided matters against him and/or decided matters on an incorrect factual basis and/or failed to find the facts as he would have them. None of these complaints forms any basis upon which leave to appeal from VCAT might possibly have been granted.
Finally, we are unable to see any basis upon which it might be concluded that VCAT erred in applying or interpreting any of the relevant provisions of the RT Act. To the contrary, having regard to VCAT’s findings recorded in its order of 22 August 2024, VCAT was correct when it concluded that Ms Aparo was entitled to an order for possession of the property.
Conclusion
For the reasons given above, Mr Lucas’ application for leave to appeal has no prospects of success and must be refused. As a result of the refusal of that application, Mr Lucas’ application for a further stay of execution of the possession order must also be refused.
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