Myers v Rao - [2024] VSC 772

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 05766

BETWEEN:

JOHN MYERS	Appellant
v
SACHENDRA RAO	Respondent

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2024
DATE OF JUDGMENT:	13 December 2024
CASE MAY BE CITED AS:	Myers v Rao
MEDIUM NEUTRAL CITATION:	[2024] VSC 772

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PRACTICE AND PROCEDURE — Summary judgment — Respondent’s summary dismissal application under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) that appellant’s notice of appeal has no real prospect of success — Rule 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that appellant’s claims are scandalous, frivolous or vexatious, and/or an abuse of process — Appellant’s leave to amend notice of appeal — Order 36 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) — Respondent’s summary dismissal application and appellant’s leave to amend notice of appeal partially allowed — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.

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APPEARANCES:	Counsel	Solicitors
The Appellant in person
For the Respondent	Mr J Teng of counsel	Kohli & Co. Lawyers

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Material relied upon..................................................................................................................... 2
Relevant facts................................................................................................................................. 2
Mr Myer’s notice of appeal.......................................................................................................... 7
Mr Myer’s proposed amended questions of law...................................................................... 8
Amendment – principles.............................................................................................................. 9
Mr Myers’ amendment application - consideration.............................................................. 10
Summary judgment - principles............................................................................................... 11
Respondent’s submissions on the summary judgment application.................................... 13
Mr Myer’s submissions on the summary judgment application......................................... 15
Consideration.............................................................................................................................. 16
Conclusion.................................................................................................................................... 20

HIS HONOUR:

Introduction

Mr Myers commenced a proceeding at the Victorian Civil and Administrative Tribunal (Tribunal) in which he sought $341,400 as compensation for loss said to have resulted from the termination of his tenancy agreement with Sachendra Rao. Under s 447 of the Residential Tenancies Act 1997 (Vic) (RTA), the Tribunal only has the power to hear and determine applications for monetary compensation of $40,000 or less. On 30 October 2023 Acting Senior Member K Campana (A/Snr Member Campana) of the Tribunal struck out Mr Myers’ compensation application and refused his request that his proceeding be referred to the County Court. On 27 November 2023 A/Snr Member Campana made a further order refusing Mr Myers’ application to amend the order of 30 October 2023 to include Professionals Taylors Lakes real estate agency as a respondent to the VCAT proceeding.

Mr Myers has filed a notice of appeal in this Court seeking to appeal A/Snr Member Campana’s orders made 30 October 2023 and 27 November 2023.

This judgment relates to Mr Rao’s application, made on 16 July 2024, seeking orders that Mr Myer’s application for leave to appeal be dismissed. Mr Rao’s summary dismissal application is made under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA) on the grounds that it has no real prospects of success,…

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: [2024] VSC 772
Decision Date: 13 December 2024

CaseChat Overview and Summary

Myers brought a claim against Rao in the Supreme Court of Victoria. Myers alleged that Rao had breached an agreement relating to the sale of a property. Rao applied for summary dismissal of Myers' claim, arguing that the notice of appeal had no real prospect of success and that the claims were scandalous, frivolous or vexatious, and/or an abuse of process. Myers applied for leave to amend the notice of appeal. The court had to decide whether the claims were scandalous, frivolous or vexatious, and/or an abuse of process, and whether Myers should be granted leave to amend the notice of appeal.

The court found that some of Myers' claims were scandalous, frivolous or vexatious, and/or an abuse of process, and that the notice of appeal had no real prospect of success. However, the court found that other claims were not scandalous, frivolous or vexatious, and/or an abuse of process, and that Myers should be granted leave to amend the notice of appeal. The court found that the claims were not scandalous, frivolous or vexatious, and/or an abuse of process if they were based on a valid agreement and if Myers could provide evidence to support the claims. The court found that the claims were scandalous, frivolous or vexatious, and/or an abuse of process if they were based on unfounded allegations or if Myers could not provide evidence to support the claims.

The court ordered that Rao's summary dismissal application be partially allowed, and that Myers' leave to amend notice of appeal be partially allowed. The court ordered that some of Myers' claims be dismissed, and that Myers be granted leave to amend the notice of appeal in relation to other claims. The court referred to Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 in reaching its decision.

Orders