McKinnon v Cowban
[2004] VSC 327
•23 August 2004
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
PRACTICE COURT
No. 7302 of 2004
| NORMA McKINNON | Plaintiff |
| v | |
| RON COWBAN AND VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Defendants |
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JUDGE: | OSBORN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 AUGUST 2004 | |
DATE OF RULING: | 23 AUGUST 2004 | |
CASE MAY BE CITED AS: | McKINNON v COWBAN & ANOR | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 327 | |
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Application to adjourn a summons seeking leave to appeal pursuant to s.148 of Victorian Civil and Administrative Tribunal Act 1998 – Continuing interlocutory injunction refused – Temporary stay granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Ahearne | John Di Santo |
| For the Defendants | Mr M. Mulvany | Robert Semmel |
HIS HONOUR:
Mr Ahearne who appears as counsel for the plaintiff, seeks to adjourn a summons seeking leave to appeal pursuant to s148 of the Victorian Civil and Administrative Tribunal Act 1998, and obtain a continuation of an injunction previously granted by this Court, restraining the implementation of an order of the Tribunal.
The effect of that order of the Tribunal was to require the plaintiff to vacate rented premises by 30 July 2004. Mr Ahearne both appeared for the plaintiff before the Tribunal and resides at the rented premises with the plaintiff, so that in his submissions to me he assumed the character at various points of counsel, witness and interested party.
Reasons for the decision of the Tribunal were not provided until after 22 July 2004 and indeed although there is no satisfactory affidavit evidence as to the fact, Mr Ahearne has informed the Court that they were not received until Tuesday of last week.
Affidavit material has been filed on behalf of the first respondent to the effect that the continuing uncertainty with respect to the tenancy, is adversely affecting him. He is of advanced age and suffers from a number of medical problems. He desires to sell the premises which are in dispute and to utilise the proceeds for the better accommodation of himself and his wife.
A medical report has been presented to the Court from Dr John Kenny which states that currently the first defendant and his wife live in their own home with considerable external help. They will be unable to continue living there much longer and it is expected they will require supported or hostel accommodation in the near future.
Although Mr Ahearne does not wish to proceed with his application for leave today, it appears to me that the Court should not grant a further extension of the injunction unless it is satisfied firstly that there are serious questions to be tried upon the application for leave and secondly that the balance of convenience favours the granting of the injunction. These are the considerations which affect all interlocutory injunction applications.
Mr Ahearne has passed up to the Court, a revised document summarising the grounds of appeal on which he seeks to persuade the Court the plaintiff should be entitled to proceed.
The first of these which is described as the primary ground is that it is contended the effect of s.42(2)(e) of the Transfer of Land Act (1958) precluded the landlord from making application to VCAT for an order for possession.
Section 259 of the Residential Tenancies Act (1997) provides by sub-s.1 as follows:
“A landlord may give a tenant a notice to vacate rented premises if the premises are immediately after the termination date to be sold or offered for sale with vacant possession.”
In turn s.322 of the Residential Tenancies Act provides by sub-s.1:
“A landlord may apply to the Tribunal for a possession order for rented premises if the landlord has given the tenant a notice to vacate the premises (other than a notice under section 261 or section 263).”
I do not accept that it is seriously arguable that s.42(2)(e) of the Transfer of Land Act deprives the Tribunal of jurisdiction in circumstances where it is clear the Residential Tenancies Act expressly grants that jurisdiction.
In my view, it is simply unarguable that the operation of s.259 of the Residential Tenancies Act is somehow cut down by the provision of the Transfer of Land Act referred to. What the Residential Tenancies Act, in effect, provides for, is the termination of a tenancy in specified circumstances. This outcome is governed by a specific statutory scheme and that scheme is entirely consistent with the provisions of the Transfer of Land Act.
The second ground of appeal that is put forward is that the VCAT order was wrongly based on a notice to vacate, firstly with a termination date 6 July 2004. ie. during the rental period of one month terminating 23 July 2004; secondly bearing a date antecedent to the landlord's written authorisation to the agent to issue a notice to vacate or to offer the premises for sale or sell the premises with vacant possession; and thirdly, without the landlord's own authority, or then required intention.
Insofar as these grounds are intended to re-agitate the argument based on s.42(2)(e) of the Transfer of Land Act, I have already dealt with them. Insofar as they go to the giving of notice as a matter of fact, it is apparent from the Tribunal's reasons for decision that the period of notice given, was 62 days and that the period of notice required by the Residential Tenancies Act is 60 days.
Insofar as the grounds go to the existence of the intention to sell referred to in s259(1) it is apparent that there was evidence before the Tribunal as to the landlord's intention. Firstly it was said at the hearing on 7 July 2004 by the agent that a previous notice to vacate had been served on the tenant on 4 February 2004 and that due to some uncertainty as to whether this notice had been properly served, this notice was withdrawn and the notice in issue in the current proceedings was subsequently issued.
Secondly, the agent asserted to the Tribunal that the reason for the giving of the notice was the one stated in the section.
Thirdly the Tribunal's reasons recite what then happened as follows. Mr Ahearne submitted that the landlord did not genuinely intend to sell the premises. The applicant's representative was requested then by the Tribunal to provide further proof of intention to sell the property immediately upon the premises being vacated. A letter from the landlord stating his intention to sell was offered but deemed insufficient proof. The matter was adjourned in order for the landlord to obtain and present to the Tribunal, sufficient evidence of intention to sell immediately upon the premises being vacated.
At the subsequent hearing on 22 July 2004, the landlord's representative provided an exclusive sale authority signed by the landlord. This was found to be sufficient evidence of intention. The Tribunal found that the landlord had proved the ground for giving the notice.
The documents referred to in the Tribunal's decision are not before the Court nor is any purportedly comprehensive account of the evidence which was given to the Tribunal. In these circumstances the plaintiff’s contentions must be judged against the Tribunal’s reasons. In my view, the Tribunal's reasons do not disclose an error of law. It is apparent it formed the view on the basis of the material before it, that the requisite intention had been established in accordance with s.259. The question for the Tribunal was whether the relevant intention had been established. It was not required to be satisfied as to the existence of particular documentation evidencing the intention at a particular date but of the ultimate fact of such intention.
The next ground advanced on behalf of the plaintiff was that the Tribunal was wrong to refuse a stay of its order on the basis that it would be harsh and unconscionable in all the circumstances to require the plaintiff to vacate the premises within 21 days.
Insofar as this is the concern, it is apparent that the 21 days in issue have now elapsed and even if I were of the view that the Tribunal had erred in its discretion, it seems to me that this could not be regarded as a vitiating error in relation to the decision.
It follows that I am not persuaded that Mr Ahearne has identified serious questions to be tried. It seems to me that when this matter has previously come before the Court, the Court has not had the benefit of the Tribunal's written reasons and has been faced rather with a situation where Mr Ahearne put his side of the case, but the Tribunal's reasons for dismissing the arguments put by Mr Ahearne were not satisfactorily in evidence. Now that they are in evidence, it is apparent there is no seriously arguable basis on which they can be impugned.
In addition, I must consider the balance of convenience. On the one hand it is apparent that at best a technical defect might be identified in the procedures adopted by the first respondent. There is no doubt that he does, in fact, desire to sell his premises and I am satisfied on the material before me that the ongoing uncertainty as to the state of the plaintiff’s occupancy, is a matter of some hardship to him.
Mr Ahearne submits that if Ms McKinnon were required to vacate the premises, she would need time to pack and need the opportunity to find alternative premises. He further submits that this is a difficult task after six years of tenancy particularly given the fact that she is of advanced age and suffers herself from health difficulties.
There is no particularly satisfactory affidavit evidence demonstrating ongoing hardship in these respects and it seems to me that at best, they would do no more than justify some stay of a modest length just as they were said by Mr Ahearne to justify a stay when the matter was before the Tribunal.
In my view, the proper course is to refuse the application for interlocutory injunction, but Mr Ahearne is still entitled to have his application for leave to appeal finally determined on a later date and I will invite him to suggest a date on which that application might be heard if he so desires and I will also hear him as to any temporary stay which I might grant as distinct from an on-going injunction, with respect to the Tribunal's order, for reasons of hardship. What do you say?
MR MULVANY: Your Honour could I indicate to you sir, that I object to you taking this course and I reiterate sir that the only application that I came along to Court to resist today and was briefed to resist was the application in the summons of 4 August. I believed that the Court was in fact adjudicating on the leave to appeal issue today. Now if this is not resolved today, my clients can't confidently proceed to sell and the whole point of the VCAT order is stultified as far as they are concerned. Mr Ahearne did not tell Your Honour this morning that he was seeking an adjournment of this summons.
OSBORN J:I did understand him to say that. I did understand him to be saying that what he wanted was more time to consider the reasons. I did understand that
Mr Mulvany.
MR MULVANY: Well with respect, Your Honour, I didn't understand that and if that was the situation, then the whole matter could have perhaps gone over but I would have resisted the injunction aspect of it, furiously.
OSBORN J:Well you have won on the injunction Mr Mulvany.
MR MULVANY: Yes Your Honour, but well, in my respectful submission, Your Honour, it is blatantly clear now that there is no viable ground of appeal and that's the matter which follows logically from your decision. Be that as it may Your Honour, I believe that I'm entitled to feel misled because the only application before the Court was this application by summons. I was aware of no future application and Your Honour I oppose the matter being kept on foot and I respectfully submit Your Honour that Mr Ahearne has had the reasons for sufficient time to assess them and nothing could possibly have changed, as a result of his reading of them, and therefore Your Honour to keep the matter alive serves no purpose and is merely vexatious as far as my clients are concerned. What would be the point of - the practical reality is my clients can't do anything until they are laid to rest, the notion that there are grounds for appeal. What would happen if my clients go ahead after a short stay and start advertising the property for sale, they are going to incur expenses and with respect, two inconsistent courses of conduct. What happens if the matter is brought before Master Wheeler in four weeks time and Master Wheeler decides, yes, there is grounds for leave to appeal.
OSBORN J:They won't be there in four weeks time, you won't have any tenants. Mr Ahearne may want to argue - - -
MR MULVANY: I take Your Honour's point. Well I've said everything I want to say, Your Honour. I would submit Your Honour that costs follow the event in terms of the injunction application.
OSBORN J:Well Mr Ahearne, you have heard what I have said. I am not prepared to give you an injunction, but I have said that if you wish to have your summons seeking leave to appeal further adjourned because you say you haven't had long enough to consider the written reasons, I'm prepared to give you that.
MR AHEARNE: Yes Your Honour. You asked me, I think, invited me to suggest a time.
OSBORN J:Yes.
MR AHEARNE: I suggest the time at the end of the rental period which would be 23 of next month because the obligations, sir, as we see it, to pay rental and that has been done. Some of it was rejected for the last month, I think, on the decision of
Mr Costello and sent back some money, a cheque indeed, which has been sent to Mr Cowban himself, but won't be negotiated or used because we say that - I looked into the Estate Agents Act in this regard, we say that it can't be rejected, we would be concurring in a non-compliance with the Estate Agents Act as to the agent's treatment of trust monies. I have in mind a particular provision in that regard, so we sent that cheque, not to be negotiated, to Mr Cowban, saying well we paid that rental as rental and in view of the agent's attitude, we are sending it back here so we have paid the $825 and we are not going to be party to an improper treatment in his trust account or of monies in his trust account by the agent. We have done that in good faith and I think - so the next thing to do, Your Honour, would be to get another month's rental and even if it turns out to be - improper to something in the end - - -
OSBORN J:Well Mr Ahearne, I am not giving you an injunction pending that adjournment. Do you say I should stay the summons for some short period, as a matter of hardship to your client?
MR AHEARNE: yes, Your Honour I said that short period was just the additional month to the end of the rental period and in that time, I was suggesting that there's no great hardship for a little bit longer stay with the assurance in his mind, Mr Cowban's mind that things are coming to an end pretty soon.
OSBORN J:Well I am not prepared to stay the Tribunal's order for longer than a further seven days.
MR AHEARNE: Seven days from now?
MR MULVANY: Your Honour I could seek instructions that we won't take any step to enforce it within that period. It might be a convenient way of doing it.
OSBORN J:Yes. Well you have heard what I have said Mr Ahearne?
MR AHEARNE: Yes sir.
OSBORN J:That's what I propose to do. I am prepared to further adjourn your summons seeking leave to appeal if you want more time to consider the written decision. I have already ruled that in my view the grounds that you put up don't raise a serious question, but if you want it adjourned for another month, you can have it adjourned for another month, but in the interim, Ms McKinnon is going to have to get out of the premises.
MR MULVANY; Your Honour I have instructions to indicate that no step will be taken to enforce the order within the next seven days and if Your Honour requires it in the form of an undertaking, I have instructions to give the undertaking.
OSBORN J:Yes.
MR AHEARNE: I am not sure, Your Honour, what just fell from the Bench as to the alternative length of stay that you suggested.
OSBORN J:I suggested seven days, as a matter of hardship, effectively, I accept that your client is aged and also suffers from health difficulties, but Mr Mulvany has undertaken that nothing would be done to enforce VCAT's order for a period of seven days and that undertaking appears to me to be satisfactory.
MR AHEARNE: So it is Hobson's choice, is it sir? I've misunderstood you, I thought you were offering - inviting me to make an alternative suggestion as to the time limits as to stay. I misunderstood Your Honour apparently. If you are saying that's Hobson's choice, nothing more comes from the Bench, well what can I say sir, I am left speechless.
MR MULVANY: I indicated to Your Honour, I applied for costs on the injunction application.
OSBORN J:Mr Ahearne?
MR AHEARNE: Yes Your Honour.
OSBORN J:I had better put this to you again. You understand what I have done is to dismiss your application for interlocutory injunction. I haven't dismissed your summons. It is technically still on foot. I have said that I am prepared to adjourn in and you have asked me to adjourn it until 23 September; is that right?
MR AHEARNE: Yes, if Your Honour pleases.
OSBORN J:But you understand that the effect of my order is that once the first defendant's undertaking not to enforce the order of VCAT for the period of seven days expires, that Ms McKinnon will have to give up the premises.
MR AHEARNE: Give up?
OSBORN J:Vacant possession will have to be given within seven days. That's the effect of the orders that I propose to make.
MR AHEARNE: I am not undertaking that, we tried to do that, but I understand that no attempt will be made on the part of the landlord to issue a warrant within that seven days. That's the effect of it as I understand it, Your Honour.
OSBORN J:Yes.
MR AHEARNE: To what date do you adjourn the matter sir?
OSBORN J:Well I am prepared to adjourn it, if you want it adjourned to 23 September you can have the summons adjourned to that date, but what is going to happen in the meantime is that the landlord is going to take possession, it is a matter for you as to whether you want to press on on the 23rd. That's the date you've chosen.
MR AHEARNE: Yes, well I think I'll choose that date Your Honour because intervening circumstances may well be such that something emerges not presently foreseen sir.
OSBORN J:Yes.
MR AHEARNE: May it please Your Honour.
OSBORN J:Upon the first defendant, by his counsel undertaking not to enforce, within the period of seven days, the order of the Victorian Civil and Administrative Tribunal requiring the plaintiff to vacate the rented premises at Unit 4, 2/4 First Street, Blackrock. I order that the oral application for a further stay of the Tribunal's order by way of interlocutory injunction is dismissed. I further order that the plaintiff's summons, seeking leave to appeal, pursuant to s.148 of the Victorian and Civil Administrative Tribunal Act is adjourned to 23 September 2004. I order that the plaintiff pay the first defendant's costs of today.
MR AHEARNE: Costs of today did Your Honour say?
OSBORN J:Yes. Do you want to say something?
MR AHEARNE: Does Your Honour fix them or order them to be taxed?
OSBORN J:Either they be agreed or they will have to be taxed.
MR AHEARNE: Yes, I understand sir.
OSBORN J:Gentlemen you can leave the Bar table.
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