Myers v Satheeskumar (Appeal from VCAT) - [2023] VSC 747

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 04660

JOHN MYERS	Applicant/Appellant
v
KATHUSIYAN SATHEESKUMAR	Respondent

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2023
DATE OF JUDGMENT:	13 December 2023
CASE MAY BE CITED AS:	Myers v Satheeskumar (Appeal from VCAT)
MEDIUM NEUTRAL CITATION:	[2023] VSC 747

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ADMINISTRATIVE LAW — Application for extension of time and leave to appeal from decision of VCAT — Interlocutory decision of VCAT striking out part of application — Error of law in interpretation of applicable provision — Decision striking out part of application set aside — Matters to be taken into account on further conduct of proceeding by VCAT — Potential relevance of related Supreme Court proceeding — Victorian Civil and Administrative Tribunal Act 1998 s 148 — Residential Tenancies Act 1997 s 91V — Family Violence Protection Act 2008 ss 5, 8 — Personal Safety Intervention Orders Act 2010 s 4.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Appellant	The plaintiff appeared in person (via audio-visual link)
For the Respondent	No appearance

HIS HONOUR:

This case arose from subletting arrangements in a share house. What are the standing requirements for an application to the Victorian Civil and Administrative Tribunal (VCAT) for variation of a head residential rental agreement and a sub-residential rental agreement based on an interim personal safety intervention order applying between residents at the rented premises?

Introduction

This was an application for an extension of time in which to apply for leave to appeal, an application for leave to appeal, and an appeal, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

As is clear from the appellant’s notice of appeal dated 16 September 2023 and filed on 4 October 2023, the order the subject of the applications and appeal was an order on 24 August 2023 in VCAT case R2023/25011, striking out part of the appellant’s application relating to s 91V of the Residential Tenancies Act 1997 (RTA), and ‘for this particular part only’. The question of law identified in the notice of appeal was in two parts and was as follows:

1. For an application under s 91V of the RTA, does the perpetrator of that violence have to be another renter named in the rental agreement? Answer: No.
2. Can a sub-renter be considered as to be an occupant to the existing residential rental agreement and be eligible to make an application under s 91V? Answer: Yes.

The factual background relevant to the resolution of this two-part question of law can be stated briefly.[1]
[1]The Court received into evidence the affidavit of Mr Myers affirmed 21 September 2023 and filed 4 October 2023, together with its 117 pages of exhibits, but not the 14 video files also referred to in it.

On 3 July 2023, Mr Myers entered into a residential rental agreement in standard form with the…

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: [2023] VSC 747
Decision Date: 13 December 2023

CaseChat Overview and Summary

The matter of Myers v Satheeskumar involved an appeal against an interlocutory decision of the Victorian Civil and Administrative Tribunal (VCAT). The applicant, Myers, sought an extension of time and leave to appeal from a decision of VCAT that had struck out part of the applicant's application. The legal issues before the court included whether the VCAT had erred in law when it interpreted the applicable provisions and whether the decision to strike out part of the application should be set aside. The court was also required to consider what matters should be taken into account on the further conduct of the proceeding by VCAT, including the potential relevance of related Supreme Court proceedings.

The court found that there had been an error of law in the VCAT's interpretation of the applicable provisions, leading to the decision to set aside the interlocutory decision that had struck out part of the application. The court held that the VCAT had not correctly applied the provisions of the Residential Tenancies Act 1997, the Family Violence Protection Act 2008, and the Personal Safety Intervention Orders Act 2010. The court also noted that the potential relevance of related Supreme Court proceedings should be considered by VCAT when further conducting the proceeding. The court ultimately found that the VCAT's decision to strike out part of the application was flawed and should be set aside.

The court ordered that the decision striking out part of the applicant's application be set aside and that the matter be remitted to VCAT for further consideration. The court also noted that VCAT should take into account the potential relevance of related Supreme Court proceedings when further conducting the proceeding. The court did not make any orders regarding the extension of time or leave to appeal, as these matters were to be considered by VCAT in light of the court's decision.

Orders