JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2024
DATE OF JUDGMENT:	13 December 2024
CASE MAY BE CITED AS:	Myers v Lim & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 770

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RESIDENTIAL TENANCIES – First respondent owner of premises – Second respondent was tenant – Sub-letting between second respondent and applicant – Second respondent vacated premises and applicant thereafter claimed to be ‘renter’, not ‘occupant’ – Whether first respondent ‘consented’ – Proceedings variously commenced in the Victorian Civil and Administrative Tribunal (‘VCAT’) – Proceedings returned before VCAT – Orders made by VCAT member, particularly that the first respondent was ‘entitled to a possession order’ – Application for leave to appeal on questions of law – Restricted jurisdiction of the Court – Applicant applied for a stay of possession order – Stay refused – Applicant no longer in the premises – Applicant discontinued proceeding against first respondent – Stance adopted by applicant – Importance of context – Whether applicant’s statements and material are reliable – Extent to which any of the purported questions of law arise – Almost entirely questions of fact – Whether applicant materially denied natural justice – Whether real prospects of success demonstrated – Whether leave to appeal ought be granted – Futility – Whether proper exercise of judicial power – Victorian Civil andAdministrative Tribunal Act 1998 (Vic), s 148 – Residential Tenancies Act 1997 (Vic), ss 81, 82, 91R, 91S and 346 – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7, Roberts v Harkness (2018) 57 VR 334, Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, Chopra v Department of Education and Training [2019] VSC 488, Bashour v ANZ[2020] VSC 478, Anderson v Sharpe [2024] VSCA 166, considered – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent
For the Second Respondent	No appearance

HIS HONOUR:

A. Introduction

For several years, the applicant seems to have been an active litigant in the Victorian Civil and Administrative Tribunal (‘VCAT’). He has also had proceedings in the Supreme Court and Court of Appeal.[1]
[1]The applicant referred to aspects of his history of litigation in the course of oral argument. He said that he has had ’50 hearings at VCAT over the past five years’ and that he had to have hearings ‘continually’: Transcript (‘T’) 5 and 18. He referred particularly to a recent decision of VCAT, which he provided to the Court (Myers v Grimison (Residential Tenancies) [2024] VCAT 335 (‘Grimison

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.

Continue reading Myers v Lim

Details

AGLC: Myers v Lim [2024] VSC 770
Case: [2024] VSC 770
Decision Date: 13 December 2024

CaseChat Overview and Summary

Myers v Lim involved the first respondent, the owner of a residential property, and the second respondent, who was the tenant of the premises. The applicant, who was sub-letting from the second respondent, claimed to be a ‘renter’ rather than an ‘occupant’ after the second respondent vacated the property. The central issue was whether the first respondent had consented to the sub-letting arrangement. Various proceedings were initiated in the Victorian Civil and Administrative Tribunal (VCAT), and the matter was returned to VCAT for further determination. VCAT ruled that the first respondent was entitled to a possession order, which the applicant sought to appeal on questions of law.

The legal issues before the court included the restricted jurisdiction of the Court, the applicant’s application for a stay of the possession order, and the applicant's stance after vacating the premises and discontinuing the proceeding against the first respondent. The court considered the reliability of the applicant’s statements and the extent to which any questions of law arose from the facts of the case. Additionally, the court examined whether the applicant had materially denied natural justice, whether there were real prospects of success in the appeal, and whether leave to appeal should be granted. The court also considered whether the exercise of judicial power was proper and whether the appeal was futile.

The court concluded that the applicant had not demonstrated real prospects of success and that the appeal was largely based on factual issues rather than legal questions. The applicant had not materially denied natural justice and the exercise of judicial power was proper. Consequently, the appeal was dismissed, and the stay application was refused. The court found that the appeal was largely futile and that the applicant's statements and material were not reliable. The court also determined that the applicant had not demonstrated a real prospect of success in the appeal.

Orders