Quick v Lam-Ly Pty Ltd - [2019] VSCA 157

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0044

JOHN SEBASTIAN QUICK	Applicant
v
LAM-LY PTY LTD (ACN 084 484 300) (as trustee of the Ly Family Trust)	Respondent

---

JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 June 2019
DATE OF JUDGMENT:	28 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 157
JUDGMENT APPEALED FROM:	[2019] VSC 233 (Garde J)

---

RESIDENTIAL TENANCIES – Appeal of a decision of Victorian Civil and Administrative Tribunal – Notice to vacate – Non-payment of rent – Repudiation – Disclaimer – Termination by landlord – No error on a question of law – Application for leave to appeal refused – Pont v Connolly-Bishop [2018] NSWCATAP 160 considered – Residential Tenancies Act 1997 ss 39, 216, 219, 221, 225, 322, 330, 334, 342 – Victorian Civil and Administrative Tribunal Act 1998 s 148.

PRACTICE AND PROCEDURE – Leave to appeal –‘Real prospect of success’ test for leave to appeal in civil matters – Court may only grant leave where appeal has a ‘real’ as opposed to ‘fanciful’ chance of success – Supreme Court Act 1986 ss 14A, 14C.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr I W Upjohn QC with Mr J D S Barber	Novatsis & Alexander

NIALL JA:

Introduction and summary

The applicant was a tenant of residential premises under a tenancy agreement governed by the Residential Tenancies Act1997 (‘the Act’). He sub-let the premises. The landlord issued a notice to vacate based on unauthorised sub-letting. The applicant issued a proceeding in the Victorian Civil and Administrative Tribunal (‘Tribunal’) seeking relief in relation to the notice and stopped paying rent. The landlord issued a notice to vacate based on the admitted non-payment of rent and then applied to the Tribunal for a possession order. The applicant claimed to be entitled to remain in the premises without paying rent on the basis of adverse possession and said that the tenancy agreement had been terminated by the landlord’s repudiation. The Tribunal made the possession order. A judge in the Supreme Court Trial Division dismissed an appeal from that order. In this Court, the applicant sought leave to appeal from that order.[1]
[1]The leave application has been referred to me for hearing under r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015.

In my view, there is no reason to doubt the correctness of the decision of the judge. An appeal would enjoy no prosects of success and, accordingly, I would refuse leave to appeal.

The facts

On 30 September 2014, the applicant and his former partner entered into a 12 month residential tenancy agreement (as tenants) with the respondent (as landlord) for the premises at 29 Morrah Street, Parkville (‘the premises’) (‘2014 tenancy agreement’). The agreement was signed by the applicant, his ex-partner and the property manager of the agent.

On 11 July 2018, the applicant signed a second residential tenancy agreement to lease the premises as sole tenant (‘the tenancy…

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 Quick v Lam-Ly Pty Ltd

Details

AGLC: Quick v Lam-Ly Pty Ltd [2019] VSCA 157
Case: [2019] VSCA 157
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case of Quick v Lam-Ly Pty Ltd involved an appeal by the respondent, Lam-Ly Pty Ltd, against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that had ruled in favour of the applicant, Quick, in a residential tenancy dispute. The central issue was whether the landlord, Lam-Ly, had lawfully terminated the lease due to the tenant's non-payment of rent and whether the disclaimer of a notice to vacate was valid. The appeal was heard in the Supreme Court of Victoria.

The primary legal issues the court had to decide were whether the disclaimer of the notice to vacate was effective and if the landlord had correctly followed the statutory procedure under the Residential Tenancies Act 1997 to terminate the lease due to non-payment of rent. The court had to interpret relevant sections of the Act and determine if there was a genuine dispute warranting an appeal.

The court found that there was no error on a question of law in VCAT's decision and that the appeal did not have a real prospect of success. The disclaimer of the notice to vacate was considered ineffective, and the landlord had not correctly followed the statutory requirements for termination. The court cited Pont v Connolly-Bishop [2018] NSWCATAP 160 as analogous, reinforcing the position that the appeal lacked merit. Consequently, the court refused the application for leave to appeal, upholding VCAT's decision.

As a result of the refusal of leave to appeal, VCAT's decision remained in place, affirming the applicant's position in the tenancy dispute.

Orders