Quick v Lam-Ly Pty Ltd
[2019] VSCA 111
•22 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0044
| JOHN SEBASTIAN QUICK | Applicant |
| v | |
| LAM-LY PTY LTD | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2019 |
| DATE OF JUDGMENT: | 22 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 111 |
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PRACTICE AND PROCEDURE – Stay – Applicant unsuccessful at VCAT – VCAT orders stayed pending application for leave to appeal to Trial Division – Appeal to Trial Division dismissed – Application to Court of Appeal for leave to appeal from Trial Division – Subsequent granting of ex parte order by VCAT staying VCAT’s original order – Whether appropriate for VCAT to grant stay after appeal from VCAT to Trial Division dismissed – Whether applicant has arguable ground of appeal – Whether stay granted by VCAT should be continued – Stay terminated.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr I W Upjohn QC with Mr J D S Barber | Novatsis & Alexander |
BEACH JA:
This application concerns the staying of orders that were made at VCAT on 8 January 2019 and in respect of which an appeal to the Trial Division was dismissed on 12 April.
Notwithstanding that he failed at first instance in VCAT and, more particularly, that his appeal to the Trial Division had been dismissed, on 26 April, Sebastian Quick, in an application, of which no notice had been given to Lam-Ly Pty Ltd (the party in whose favour orders had been made both at VCAT and in the Trial Division), managed to persuade a deputy president of VCAT that VCAT should stay the orders that had been made against Mr Quick in the Tribunal on 8 January, pending the hearing of an application for leave to appeal to the Court of Appeal.
It is now necessary to describe in a little detail the background of the dispute between Mr Quick and Lam-Ly, and how their dispute has now arrived in this Court.
Background
On 30 September 2014, Mr Quick[1] and his former partner entered into a 12 month residential tenancy agreement, as tenants, with Lam-Ly, as landlord, over premises at 29 Morrah Street, Parkville. Thereafter, rent was paid under the agreement until 28 November 2018. No rent has been paid since that date.
[1]In an affidavit sworn on 17 May 2019, Mr Quick describes his occupation as:
‘Ex-University Teaching Assistant in Property and Finance; ex-Associate, CPA Australia; and Law Student, J. D., Melbourne University.
While there are certain factual and other issues taken by Mr Quick in this Court and to which I will return, for present purposes, the circumstances in which rent ceased to be paid may be stated briefly from the reasons for judgment of the judge who heard the appeal in the Trial Division. In summary:
(1)During an inspection of the premises on or about 15 November 2018, the agent’s representative was told by the occupants of the premises that Mr Quick was unknown to them. This led to a decision to serve a notice to vacate on Mr Quick for unauthorised subletting. A notice to vacate was sent, requiring Mr Quick to vacate by 7 December 2018 (‘the first notice’).
(2)On 26 November 2018, Mr Quick responded to the first notice by filing draft points of claim at VCAT. The draft points of claim contended that the first notice was invalid, and constituted a repudiation of the tenancy agreement. Mr Quick’s stated position at that time was that he was ‘inclined to accept the notice as a repudiation of our contractual agreement’, and also said that he was not liable for rent after 15 November 2018. The draft points of claim alleged that Mr Quick was entitled to the return of his bond in full, reimbursement of ‘shut down costs’, damages for ‘lost sub-tenants’ and ‘additional accommodation costs until the end of the term of the tenancy agreement on 29 June 2019’.
(3)Mr Quick’s application to VCAT did not proceed. It would appear that he did not pay the application fee, and VCAT denied his application for ‘fee relief’.
(4)Lam-Ly’s agent reviewed the first notice to vacate on its expiration. There was an issue between the parties as to whether the contractual arrangements between them permitted Mr Quick to sublease the premises. The dispute arose out of certain handwritten alterations made by Mr Quick to the original tenancy agreement — it being unclear (at least to Lam-Ly’s agent) whether the agent who signed the agreement affixed her signature before or after the handwritten alterations were made by Mr Quick.
(5)On 14 December 2018, Lam-Ly’s agent gave Mr Quick a second notice to vacate. This notice was based on Mr Quick’s failure to pay rent, and required Mr Quick to vacate the premises by 4 January 2019. Mr Quick did not vacate the premises, and Lam-Li commenced a proceeding in VCAT seeking possession of the premises and an order that the outstanding rent be paid.
On 8 January 2019, following a contested hearing at VCAT, Lam-Ly obtained orders that Mr Quick vacate the premises by 8 February 2019, and pay the rent that was then outstanding ($5014.74).
On 23 January 2019, Mr Quick, being dissatisfied with VCAT’s decision, filed an application for leave to appeal in the Trial Division. On 25 March 2019, on the application of Mr Quick, VCAT made orders staying the orders of 8 January and enjoining Lam-Ly from executing a warrant of possession.
On 12 April 2019, Mr Quick’s application for leave to appeal the 8 January orders was heard by Garde J. After hearing the matter, his Honour delivered judgment granting Mr Quick leave to appeal but dismissing his appeal.[2]
[2]Quick v Lam-Ly Pty Ltd [2019] VSC 233 (‘Reasons’).
On Friday 26 April 2019, Mr Quick filed an application for leave to appeal and an application for a stay in this Court. By an email sent to the parties at 2.44 pm on that day, a registry lawyer advised the parties that the application for leave to appeal and the application for a stay had been accepted for filing, and that it was proposed that the stay application would be listed for hearing on Monday 29 April 2019.
On the same afternoon, Mr Quick obtained an order from VCAT in the following terms:
1. The tenant having lodged an application for leave to appeal to the Supreme Court of Appeal, Victoria in respect of the Supreme Court determination made on 12 April 2019 and pending the determination of the application for leave to appeal the VCAT order of 08 January 2019 is stayed and the time in which the warrant of possession issued by the Principal Registrar on 25 March 2019 is to be executed is extended for the maximum time allowed.
2. Pending the hearing of the tenant’s application for leave to appeal in the Supreme Court of Victoria or other order, I order that the parties and their servants or agents be prohibited from enforcing any of the orders made on 08 January 2019 executing the warrant of possession and direct that any party may bring this order to the attention of any person including any member of Victoria Police as sufficient evidence of the prohibition against enforcement and execution.
3. Direct Principal Registrar to forward by the most expeditious means copies of this order to all parties and the Prothonotary of the Supreme Court in matter SAPCI 2019 0044 and the officer in charge of the police station specified in the warrant.
Other than perhaps to preserve the status quo pending the hearing of the application for leave to appeal in this Court, the basis for the making of the order by VCAT on 26 April 2019 is not entirely clear. Disturbingly, the order was made without notice to Lam-Ly.[3] Further, it was made without Mr Quick being required to give any undertaking as to damages or to at least secure the amount of rent then outstanding and rent payable pending the determination of the matter in this court. Additionally, the order was made by a deputy president, not the member who heard and determined the matter on 8 January. In the circumstances, it is unclear what (if any) consideration was given by the deputy president to the merits of Mr Quick’s proposed appeal to this Court.
[3]In his affidavit of 17 May 2019, Mr Quick deposed that he served [email protected] with his 26 April application to VCAT on 28 April (two days after the 26 April order was made). Further, Mr Quick deposed that ‘VCAT did not grant an ex parte hearing per se’, his application having ‘a return date of 28 May 2019:
… where I have asked for directions to mitigate, a request for a (contingent) adjustment of (purported) rent to be appended to R2018/41499/00 the repudiation proceeding, and/or a Court Trust Account where any further funds able to be directed towards mitigation might safely be held.
All of those matters being said, it is important to note that the order prohibits enforcement of VCAT’s orders made on 8 January 2019, pending the hearing of the application for leave to appeal in this Court or other order. That is, the order does not purport to determine finally Mr Quick’s entitlement to a stay pending the hearing of his application for leave to appeal in this Court. Such an order could not lawfully be made by VCAT once an appeal from it has been finally determined in the Supreme Court — whatever else one may say about the order that was in fact made on 26 April in this case.[4]
[4]In that regard, it should be noted that s 149 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) permits the Tribunal to stay the operation of any order it makes pending the determination of any appeal that may be instituted under pt 5 of the VCAT Act. An appeal from the Trial Division to this Court, however, albeit in relation to orders originally made by VCAT, is not such an appeal.
On 9 May 2019, Lam-Ly filed a notice of appeal in the Trial Division, seeking leave to appeal from VCAT’s orders made on 26 April. In its notice of appeal, Lam-Ly asserted that VCAT erred in law in:
1. staying the order for possession made on 8 January 2019 in the same proceeding, when the Tribunal had no power to do so and was functus officio;
2.enjoining execution of the warrant issued on 9 January 2019, when the Tribunal had no power to do so and was functus officio;
3.granting the said stay and injunction without giving the appellant landlord an opportunity to be heard, in particular on the questions of:
(a)whether a stay or the application for stay should be granted and whether execution of the warrant should be enjoined;
(b)whether any such stay and injunction should be subject to conditions including:
(i)the provision of an undertaking as to damages by the respondent tenant;
(ii)the provision of security in support of such an undertaking;
(iii)the provision of security for payment of the amount of outstanding rent or profits as well as the costs ordered by the Honourable Justice Garde on 12 April 2019;
4.failing to take into account relevant facts of the case, specifically, the fact that the respondent tenant’s appeal to the Supreme Court had been dismissed and reasons given.
Lam-Ly has now brought an application in this Court seeking to have the stay (and consequential injunction) granted by VCAT brought to an end. Its application for leave to appeal to the Trial Division has been adjourned, pending the resolution of its application to this Court..
In dismissing his appeal, Garde J summarised Mr Quick’s defence to Lam-Ly’s claim for possession as follows:
·on 20 November 2018, Lam-Ly served a notice to vacate which was invalid and constituted a repudiation of the tenancy agreement, which repudiation Mr Quick accepted;
·Mr Quick had moved out of the premises personally, but had continued to sublet the premises ‘short term’;
·the common law of repudiation supplemented the provisions of the Residential Tenancies Act 1997 (‘the Act’); and
·‘The result was that [Mr Quick] was entitled to remain in adverse possession without payment of rent’.[5]
[5]Reasons [17].
In making its order of 8 January 2019, VCAT held that the tenancy agreement had not been terminated by Mr Quick in a manner authorised by the Act, and Lam-Ly ‘had not withdrawn the obligation to pay rent under the tenancy agreement’.[6]
[6]Ibid [20].
In his reasons for judgment, Garde J identified the substance of the issues raised by Mr Quick in his appeal from VCAT’s order of 8 January as being:
·whether Mr Quick’s prior acceptance of Lam-Ly’s repudiation of the lease was a valid defence to rent arrears;
·whether the monthly rent was in arrears having regard to the service of the notice to vacate on 20 November 2019; and
·whether possession should have been granted by VCAT.[7]
[7]Ibid [22].
Ultimately, Garde J concluded that Lam-Ly did not disclaim or repudiate the tenancy agreement.[8] As his honour put it:
These facts do not establish disclaimer or repudiation. Quite the contrary! They establish that the landlord, through the agent, was seeking to uphold its rights under the tenancy agreement. There was no renunciation or denial of the tenancy agreement or the relationship of landlord and tenant. When the handwritten alterations and the confusion as to the addenda were identified, the landlord withdrew the first notice. It was not at any stage seeking to disclaim or repudiate the tenancy agreement but rather to uphold it and to act in conformity with it. The second notice, was in conformity with the rights of the parties under the tenancy agreement and the Act.
The tenant’s claim of repudiation inevitably fails because the facts do not establish repudiation of the tenancy agreement by the landlord. Although the tenant did not argue disclaimer before the Tribunal, the result would have been the same if he had. There was no disclaimer, whether unilateral or bilateral, by the owner.
The tenancy agreement continued on foot until terminated by the landlord following service of the second notice. The tenant did not vacate, and the first notice was withdrawn. The rent payable under the tenancy agreement was not paid and continued to accrue, and the landlord was entitled to, and did terminate the tenancy agreement. The tenant had no defence to the claim for possession under the second notice.[9]
[8]Ibid [58].
[9]Ibid [60]–[62].
Mr Quick’s complaints in this Court
In his application for leave to appeal and written case, the applicant identifies 11 grounds of appeal in relation to his proceeding before Garde J (numbered S0–S10) and six grounds of appeal in relation to the hearing at VCAT on 8 January (numbered V1–V6). The applicant’s grounds of appeal are:
S0.An ad-hoc re-creation of Pont with respect to the common law which may amount to misfeasance.
S1.Failure to admit a valid legal defence.
S2.Omission without consideration of a valid legal defence.
S3.Failure to heed relevant common law.
S4.Breach of natural justice and procedural fairness as alleged.
S5.Improper failure to grant adjournment and/or discovery and/or procedural relief as against Respondent’s submission of affidavits of 22nd March 2019.
S6.Erroneous and partial admission and adoption of fact not before the tribunal without consideration of contrary evidence and in violation of plain rules of the law of evidence. Erroneous Construction of ‘Question of Law’ on Appeal.
S7.Erroneous consideration of New South Wales law without relevant consideration of Superior Authority.
S8.Therefore, an erroneous Order of Possession Granted.
S9.Therefore, an erroneous award of legal costs.
S10.Therefore, a corollary erroneous calculation of landlord’s compensation for rent arrears.
…
V1.Failure to admit a valid defence.
V2.Failure to heed relevant section of statute.
V3.Failure to heed the common law of repudiation.
V4.Therefore, an erroneous Order of Possession Granted.
V5.Therefore, an erroneous calculation of landlord’s compensation.
V6.Breach of natural justice (added before hearing of appeal).
The reference to Pont in the applicant’s ground S0 is a reference to Pont v Connolly-Bishop,[10] a decision of an appeal panel of the New South Wales Civil and Administrative Tribunal.[11] On p 13 of his application for leave, when dealing with ground S7, the applicant stated:
It was therefore quite surprising to read and believe that the actual case of Pont rather than the fairy-tale version Justice Garde has had to concoct affirms my entire case![12]
[10][2018] NSWCATAP 160 (‘Pont’).
[11]Principal Member K Rosser and Senior Member J Lucy.
[12]Garde J’s treatment of Pont is to be found at Reasons [56]–[58].
In his application for leave to appeal and written case, the applicant makes numerous complaints about the decisions that have been given against him, and the handling of the matter both at VCAT and in the Trial Division.
The applicant’s application for leave to appeal and written case make a number of assertions that Garde J failed to heed relevant authority.[13] The applicant also asserted that there has been ‘a rather grave mishandling of the law’.[14] While Pont was obviously a case that the applicant contended that Garde J ‘mishandled’, the principal authorities that the applicant asserted were critical and were overlooked were W G Clark (Properties) Ltd v Dupre Properties Ltd,[15] Re Willmott Forests Ltd[16] and Willmott Growers Group Inc v Willmott Forests Ltd.[17]
[13]See for example, applicant’s written case [18].
[14]Ibid [1].
[15][1992] Ch 297 (‘Dupre’).
[16](2012) 36 VR 472 (‘Re Willmott’), and in particular at 487 [73] wherein Redlich JA cited Dupre.
[17](2013) 251 CLR 592 (‘Willmott Growers’), and in particular at 597 [8].
In addition to his complaints about the judge’s failure to heed authority and the ‘grave mishandling of the law’, the applicant also contended that:
There are in this matter genuine questions of law appropriate at the level of this honourable Supreme Court of Appeal which are ripe for clarification and are relevant for both this Court and the High Court of Australia.[18]
[18]Application for leave to appeal p A6.
The heart of the applicant’s argument, however, appears at [22] of his written case, in which he contends:
I assert that following receipt of the Notice to Vacate of 16-11-2018 it was and remains my right to accept the breach of the covenant of non-derogation/abrogation from the grant of exclusive possession (Wilmott [2013] HCA 51 [8]) and the corresponding (at least contingent) disclaimer of the right to receive rent and the right to continue to receive rent under the lease agreement as-was as giving rise to a corresponding common law right as in Dupre to disclaim e.g. at least a part of my lease agreement via a legal claim without, pending a resolution to my claim and the administration of justice thereby, disclaiming my underlying leasehold-demise! This allows the question of ‘unequivocal acceptance of repudiation’ to be put to one side in favour of a more-critical analysis of who is disclaiming what and when.[19]
[19]Emphasis in original.
Stay application principles
The principles governing the grant of a stay are well settled.[20]
[20]See generally, Scarborough v Lew’s Junction Stores Pty Ltd [1963] VR 129; Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653 (‘Cellante’); Maher v Commonwealth Bank of Australia [2008] VSCA 122 (‘Maher’); Loftus v Australia and New Zealand Banking Group Limited [2016] VSCA 114 (‘Loftus’); He v Huang [2017] VSCA 102 (‘He’); Uren v Uren [2017] VSCA 300 (‘Uren’).
Order 64 the Supreme Court (General Civil Procedure) Rules 2015 is entitled ‘Appeals and applications to the Court of Appeal’. Rule 64.39 provides:
Except so far as the Court of Appeal otherwise orders-
(a)an application for leave to appeal or appeal shall not operate as a stay of execution or of proceedings under the decision appealed from; and
(b)no intermediate act or step shall be invalidated.
In deciding whether to order a stay of execution, the court has a wide discretion and is required to take into account all of the circumstances of the case.[21] The party applying for a stay bears the onus of demonstrating that a stay is justified.[22] Ordinarily, a successful party is entitled to the benefit (or fruits) of the judgment and the presumption that the judgment is correct.[23]
[21]Maher [2008] VSCA 122 [23].
[22]Maher [2008] VSCA 122 [20]; Loftus [2016] VSCA 114 [7].
[23]Maher [2008] VSCA 122 [20].
As has been said many times before, the power to order a stay will generally not be exercised unless the party seeking the same demonstrates special or exceptional circumstances.[24]
[24]Cellante [1991] 2 VR 653, 656; He [2017] VSCA 102 [49]–[51].
Special circumstances may be found to exist where the applicant is able to demonstrate that there is a real risk that it will not be possible to restore the applicant substantially to his or her former position if the judgment against the applicant is executed before the conclusion of the appeal.[25] However, the prospect that the appeal may be rendered nugatory must be balanced against a principal that the successful party is entitled to the fruits of its judgment.[26]
[25]Loftus [2016] VSCA 114 [7].
[26]Maher [2008] VSCA 122 [27]; Uren [2017] VSCA 300 [50].
In order to justify the grant of a stay, an applicant should also demonstrate that there is at least an arguable ground of appeal. That said, ordinarily, the court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied upon in the application for leave to appeal. In such a case, unless there is no arguable ground of appeal, or the appeal is not bona fide, the court ordinarily will focus on matters relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.[27]
[27]Loftus [2016] VSCA 114 [8]; Uren [2017] VSCA 300 [51].
Consideration
The material filed in this Court by Mr Quick discloses a plethora of complaints he has in relation to the conduct of the proceedings to which he is a party, both in VCAT and the Trial Division. Mr Quick’s preferred position in relation to a stay appears to be that, having lost in the Trial Division, he should now be permitted to re-agitate various issues at VCAT, including the question of whether the orders made in VCAT on 8 January 2019 should be stayed. In support of his contentions, Mr Quick relied upon s 29 of the Supreme Court Act 1986, which requires courts to exercise their jurisdiction in every proceeding:
as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided.
As is recognised by the terms of the VCAT order made on 26 April, however, it is this Court which ultimately decides whether or not orders, made in proceedings which are the subject of an application for leave to appeal to this Court, should be the subject of a stay. To hold otherwise would countenance the possibility of the parties going back and forth between the tribunal that first heard the matter and the court to which there is an avenue of appeal – with the concomitant possibility of the tribunal staying the effect of orders made on appeal, in circumstances where the court to which there was an appeal might not be prepared to make an order to like effect.
Mr Quick’s attempts to re-engage VCAT’s jurisdiction must be rejected. The question now is whether, in all the circumstances, he has established that a stay of the orders already made against him in VCAT on 8 January 2019 (and upheld in the Trial Division on 12 April 2019) should continue. That is a matter for this Court. Contrary to Mr Quick’s submissions, the course he has adopted (and continues to propose), far from avoiding the multiplicity of proceedings referred to in s 29 of the Supreme Court Act 1986, has brought about the creation of unnecessary additional proceedings both at VCAT and in the Trial Division.
In its application to have the VCAT orders of 26 April brought to an end, Lam-Ly also sought an order in this Court that it be granted leave to appeal from those orders. Section 148 of the VCAT Act, however, provides that an appeal from an order of the Tribunal, constituted other than by the President or a Vice-President, is to the Trial Division, and not this Court. The order of 26 April was made by a deputy president, not the President or a Vice President. There is thus no occasion for this Court to hear an application for leave to appeal from the 26 April orders.[28]
[28]Noting that no order has been made under s 17B(2) of the Supreme Court Act 1986.
That said, the issue of whether the stay (and injunction) granted by VCAT on 26 April until the hearing of the application for leave to appeal from the orders of Garde J ‘or other order’ is a matter properly before, and for, this Court. Further, it is a matter to be determined in accordance with the principles governing stay applications to which I have already referred.
The present application is not the hearing of Mr Quick’s application for leave to appeal to this Court from the orders of Garde J. The questions currently before this Court are whether Mr Quick has established that he has at least an arguable ground of appeal and, more particularly, whether there are circumstances justifying the granting of a stay or, perhaps more precisely, the continuation of the stay ordered by VCAT on 26 April.
Mr Quick’s case is that Lam-Ly disclaimed the lease, entitling him to remain in occupation without paying any rent until the lease is validly terminated (in oral argument, Mr Quick accepted that this may be indefinitely). Mr Quick has not persuaded me that that claim has any merit. There is no authority which supports Mr Quick’s claim to be entitled to ‘adversely possess’ the premises in the circumstance of this case.
Specifically, I am not persuaded that any of the authorities relied upon by Mr Quick support his claim to an entitlement to ‘remain in adverse possession without payment of rent’.[29] In particular, I am not persuaded that any of Dupre, Pont, Re Willmott or Willmott Growers or any of the other authorities relied upon by Mr Quick support the case that he sought to advance on this application. The very passage relied upon by Mr Quick in Re Wilmott[30] wherein Redlich JA observes that, ‘disclaimer in the exercise of [a] statutory power is different from that under contract law where the act of disclaimer or repudiation does not of itself determine the tenancy’, highlights merely one of the problems Mr Quick has in the pursuit of his present case.
[29]Cf Reasons [17].
[30]Re Wilmott (2012) 36 VR 472, 487 [73].
In his application for leave to appeal and written case, Mr Quick submitted that he had been denied natural justice and procedural fairness in his appeal to the Trial Division, resulting in the judge accepting ‘positions from’ [affidavits not before VCAT which were] directly adopted which contradict what was before the Tribunal and contradict [emails produced by Mr Quick]’. The breach of natural justice and denial of procedural fairness was alleged by Mr Quick to have produced errors at Reasons [7] and [13]. When asked in oral argument to identify the errors in Reasons [7] and [13] of which he made complaint, Mr Quick said that the issue of possession of the premises was not before VCAT on 8 January 2019 — the only issue before VCAT on that day was said to be the outstanding rent.
The transcript of the hearing before VCAT on 8 January, however, discloses that, contrary to Mr Quick’s submission, the issue of possession was, and remained, before the Tribunal. The transcript provides:
Member: Alright, but this is a claim for possession.
Mr Quick:Their claim for possession based on rent being 14 days overdue.
Member:Well, no rent been paid to the 28th of November [scil, from the 28th of November] according to …
Mr Quick:Yes, on the 29th of November I was under an earlier notice to vacate.
The VCAT transcript also reveals that Mr Quick’s case at that point in time was one based on a contention that he had accepted a repudiation of the lease — rather than one based on the concept of disclaimer. Specifically, there was the following exchange between Mr Quick and the Member:
Mr Quick:Member I do not understand that you’re telling me that the statute governs residential tenancies. I think we are in very clear disagreement about whether a landlord can repudiate a lease agreement and a tenant can accept under the common law.
Member: So, what is the effect of what you say is repudiation?
Mr Quick:It means that there is no longer a lease agreement if it, if repudiation has been legitimately accepted. If one party engages in conduct which says they’re not willing to honour the agreement. Right, ‘leave because you’re subletting illegally’. I’m not subletting illegally but ‘leave because you’re subletting illegally’.
Member: But you didn’t leave.
Mr Quick:Yes but I can accept that as repudiation of the agreement. I’m entitled to, it’s my right to say …
Member: So on what basis?
Mr Quick: They’re saying we don’t want the contract.
Member: Yes so on what basis?
Mr Quick: You’re honouring I’m honouring.
Member: On what basis are you occupying the premises?
Mr Quick:Adversely? Adverse possession. It means that I’m occupying against the interests of the owner having claimed damages.
Member: So you’re occupying but you’re not paying rent.
Mr Quick:I did not pay rent on the 29th, and I stipulated damages on the 26th so in, in any rate, I’ve stipulated damages much, much greater than the rent.
In oral argument, Mr Quick contended that the agent who appeared for Lam-Ly on 8 January 2019 abandoned Lam-Ly’s claim for possession. While there was discussion in the hearing about payment plans, issues of mitigation and negotiation, and while at one stage the agent said that if Mr Quick paid the rent then they would be happy for him to continue to rent the premises, at no stage was there any abandonment by the agent or Lam-Ly of Lam-Ly’s claim for possession. Indeed, late in the hearing the member made it plain that he would give judgment on 8 January ‘at least in relation to the possession application’, without there being any demur by Mr Quick about that issue not being, or no longer being, before the Tribunal.
In his written and oral submissions, Mr Quick raised a number of other issues including a contention that if his lease had been terminated then it had not been done in good faith. Mr Quick alleged that Lam-Ly’s agent had been negligent and had also acted in bad faith. Further, Mr Quick made reference to a number of statutory provisions, including ss 30 and 85 of the Supreme Court Act 1986, the Civil Procedure Act 2010, and provisions in the Residential Tenancies Act 1997. Additionally, he said he was ‘looking, in good faith, to find a reasonable way to wind down the tenancy’. None of these matters (either alone or collectively) rise to the level of an arguable ground of appeal.
In support of his contention that the stay ordered by VCAT on 26 April should be continued, Mr Quick made reference to what he described as ‘related proceedings’. In oral argument, Mr Quick laid particular emphasis on a VCAT proceeding he commenced against a Mr Vranesic.[31] Nothing in these ‘related proceedings’ bears on the question of whether the stay ordered by VCAT on 26 April should be continued. Indeed, the application against Mr Vranesic arose out of matters that occurred subsequent to the 8 January hearing. Moreover, the transcript of 8 January does not disclose that any related proceedings were the subject of any reference during the hearing on that day.
[31]And perhaps also Mr Vranesic’s wife (the VCAT application tendered by Mr Quick making reference to Mr Vranesic’s wife, without actually naming her).
Having read all of the material filed by the parties and the full transcript of the VCAT hearing of 8 January 2019, I am far from persuaded that Mr Quick has any arguable ground of appeal from the orders made by Garde J. Pending the hearing of Mr Quick’s application for leave to appeal, Lam-Ly is entitled to the fruits of the judgment it has obtained. Mr Quick has not established the special or exceptional circumstances required by the authorities in order to justify the continuation of the stay ordered on 26 April (whatever the correctness of that order, or the appropriateness of its making, once Mr Quick’s appeal to the Trial Division had been dismissed).[32]
[32]See s 149 of the VCAT Act and n4 above.
Moreover, even if I were persuaded that Mr Quick had a ground of appeal that was at least arguable, there is no basis in this case for staying the orders that have been made against him so that he may continue to ‘adversely possess’ the premises pending the hearing of his application for leave to appeal, without paying or securing the outstanding rent that has accrued (and continues to accrue).
Conclusion
The stay granted by VCAT on 26 April will be lifted and the consequential injunction ordered by VCAT on that day will be dissolved.
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