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Quick v Lam-Ly Pty Ltd

Quick v Lam-Ly Pty Ltd

Case [2019] VSCA 111 22 May 2019

Stay of Proceedings

Appeal

Jurisdiction

Civil Litigation & Procedure

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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…

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 111
Case: [2019] VSCA 111
Decision Date: 22 May 2019

CaseChat Overview and Summary

Quick was the plaintiff and Lam-Ly Pty Ltd was the defendant in a dispute heard by the Court of Appeal. Quick sought damages for breach of contract and misleading and deceptive conduct, arising from a contract for the sale of property. The case was first heard by VCAT, which dismissed Quick’s claims and ordered Quick to pay Lam-Ly’s costs. Quick applied for leave to appeal VCAT’s decision to the Trial Division. That application was dismissed. VCAT then granted an ex parte order staying its original decision pending the outcome of the appeal to the Trial Division. Quick applied to the Court of Appeal for leave to appeal the Trial Division’s decision. The Court of Appeal had to determine whether VCAT was right to grant a stay of its original order after the appeal to the Trial Division was dismissed, whether Quick had an arguable ground of appeal, and whether the stay granted by VCAT should be continued. The Court of Appeal found that VCAT had no jurisdiction to grant a stay once the appeal to the Trial Division had been dismissed. The Court held that the appeal to the Trial Division was an independent appeal, and the dismissal of that appeal did not affect VCAT’s original decision. The Court also found that Quick did not have an arguable ground of appeal. Finally, the Court held that the stay granted by VCAT should not be continued. The Court terminated the stay and ordered Quick to pay Lam-Ly’s costs of the appeal.

Orders