Lucas v Aparo - [2025] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2024 05828

John Lucas	Applicant
v
Maria Aparo	First Respondent
-and-
Adrian Aparo	Second Respondent

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2025
DATE OF JUDGMENT:	25 March 2025
CASE MAY BE CITED AS:	Lucas v Aparo
MEDIUM NEUTRAL CITATION:	[2025] VSC 138

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ADMINISTRATIVE LAW — Appeal from the Victorian Civil and Administrative Tribunal (‘Tribunal’) pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) —Dispute between residential rental provider and renter — Where possession order made by Tribunal — Where renter sought review by the Tribunal to reopen the proceedings for possession order — Where application for review dismissed — Decision to dismiss review application appealed by renter to the Supreme Court of Victoria — Questions of procedural fairness — Consideration of Tribunal’s jurisdiction under the Residential Tenancies Act 1997 (Vic) — No real prospect of success established — Leave refused — Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98(1), 120, 148 — Residential Tenancies Act 1997 (Vic) ss 91ZZB, 322(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondents	In person

HER HONOUR:

INTRODUCTION

By this proceeding, the applicant, John Lucas, seeks leave to appeal the decision of the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) made on 23 October 2024, pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’).

Mr Lucas rented premises at 4 Preston Place, Taylors Lakes, Victoria (the ‘Property’), from the first respondent, Maria Aparo. The duration and terms of the residential rental agreement are in dispute.

Ms Aparo claims that the rental agreement was for a period of six months, with a rent amount of $2,600 per calendar month, with the date of agreement and the start date as 29 December 2023.[1]
[1]A copy of the residential rental agreement is in Exhibit MA‑1 of the Affidavit of Maria Aparo (filed 24 January 2025 in S ECI 2024 05828, Supreme Court of Victoria).

Mr Lucas claims the rental agreement was a ‘rent to buy’ agreement, for a period of 12 months, at the same monthly rate, and was dated 8 February 2024.[2]
[2]Photographs of the residential rental agreement is in Exhibit A of the Affidavit of John Lucas (filed 4 December 2024 in S ECI 2024 05828, Supreme Court of Victoria). Whilst most pages in the affidavit are illegible, one photograph shows a handwritten notation in cl 25 of the standard form agreement referring to a ’12 month lease agreement to purchase’ the Property.

On 28 February 2024, Ms Aparo served a notice to vacate on Mr Lucas, requesting that he vacate on or before 13 March 2024, for failing to pay bond monies and outgoing rent.

On 2 April 2024, Ms Aparo served another notice to vacate on Mr Lucas, requiring him to vacate on or before 30 June…

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] VSC 138
Decision Date: 25 March 2025

CaseChat Overview and Summary

Lucas commenced proceedings in the Supreme Court of Victoria to appeal a decision made by the Victorian Civil and Administrative Tribunal (Tribunal) in a dispute between a residential rental provider and a renter. The Tribunal had previously made a possession order against the renter, and the renter subsequently sought a review to reopen the proceedings for the possession order. The Tribunal dismissed the application for review, leading the renter to appeal the Tribunal's decision to the Supreme Court.

The primary legal issues for the Supreme Court to determine were whether the Tribunal had jurisdiction to review the possession order and whether the Tribunal's decision to dismiss the review application was fair and just. The court needed to assess whether the Tribunal had acted within its jurisdiction under the Residential Tenancies Act 1997 (Vic) and whether there had been any procedural unfairness in the way the Tribunal handled the review application.

The Supreme Court held that the Tribunal did have jurisdiction to review the possession order under the Act. However, the court found that the renter had not demonstrated a real prospect of success in the review application. The Supreme Court further determined that the Tribunal had not acted unfairly in dismissing the review application. Consequently, the appeal was dismissed, and the Tribunal's decision to refuse the review application was upheld. The Supreme Court also declined to grant leave to appeal to the Court of Appeal.

Orders