Lugo (A Pseudonym) v R

[2020] VSCA 7

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2019 0023

WILLIAM YEUNG	Applicant
v
SANTOSA REALTY CO PTY LTD	First Respondent
ELIZABETH ANNE POTTER	Second Respondent

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JUDGES:	TATE, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 November 2019
DATE OF JUDGMENT:	6 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 7
JUDGMENT APPEALED FROM:	[2019] VCC 10 (Judge O’Neill)

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OCCUPIER’S LIABILITY – Personal injury – Claim brought by tenant against landlord and managing real estate agent – Property not in good repair – Failure by agent to inspect property and notify landlord of obvious defects – Apportionment of liability between tortfeasors – Whether landlord delegated duty of care to agent – Whether judge erred in finding that landlord failed to take any real steps to ensure property was in good repair – Jones v Bartlett (2000) 205 CLR 166 applied – Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 and Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196 discussed - Wrongs Act 1958 ss 14A, 14B, 24(2) – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Ruskin QC with Mr S Gladman	Mills Oakley
For the First Respondent	Mr J Gorton QC with Mr C Madder	Moray Agnew
For the Second Respondent	No appearance

TATE JA
KAYE JA
NIALL JA:

TABLE OF CONTENTS

Introduction and summary.........................................................................................	1
The management agreement between Yeung and Santosa.....................................	3
The lease between Yeung and Potter.........................................................................	5
Potter’s fall on the back stairs...................................................................................	6
The proceedings in the County Court........................................................................	6
The evidence at trial.....................................................................................................	7
The judge’s reasons.......................................................................................................	10
Grounds of appeal........................................................................................................	19
Did Yeung delegate his duty of care to Santosa? (Grounds 1 and 2)....................	20
Did Yeung take real steps to keep the premises in good repair? (Grounds 3 and 4)......................................................................................................................................	28
Was it irrelevant that Yeung received rental income? (Ground 5).........................	31
Was the apportionment wrong? (Ground 6).............................................................	32
Conclusion.....................................................................................................................	34

Introduction and summary

1. On 19 May 2014, a tenant of residential premises, Ms Potter (‘Potter’), slipped at night on back stairs that were worn, slippery, unlit and had no handrail.  She fractured her right ankle.  She brought proceedings for negligence in the County Court against the owner of the premises, Mr Yeung (‘Yeung’), and the real estate agent that managed the premises, Santosa Realty Co Pty Ltd (‘Santosa’).  The judge found that Yeung and Santosa had each breached their duty of care to Potter and were liable to pay damages totalling $433,899.80.  He apportioned two-thirds of that liability to Yeung and one third to Santosa.[1] 

   [1]Potter v Yeung [2019] VCC 10 (‘Reasons’).

1. Yeung seeks leave to appeal from the apportionment of that liability.[2]

   [2]Santosa is the first respondent to the application and Potter is the second respondent.  Potter did not take an active role in the appeal and indicated she would abide by the decision of the Court.

1. Yeung…