Quick v Lam-Ly Pty Ltd
[2019] VSC 233
•12 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 00405
| JOHN SEBASTIAN QUICK | Plaintiff |
| v | |
| LAM-LY PTY LTD (ACN 084 484 300) (as trustee of the Ly Family Trust) | Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2019 |
DATE OF JUDGMENT: | 12 April 2019 |
CASE MAY BE CITED AS: | Quick v Lam-Ly Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 233 |
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RESIDENTIAL TENANCIES – Appeal of a decision of the Victorian Civil and Administrative Tribunal – Non-payment of rent – Notice to vacate – Repudiation – Disclaimer – Termination by landlord – No error on a question of law – Residential Tenancies Act 1997 (Vic) ss 39, 216, 219, 221, 225, 322, 330, 342 – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Noonan | Patrick & Associates |
| For the Defendant | Mr A Sandbach | Novatsis & Alexander |
HIS HONOUR:
Introduction
The applicant seeks leave to appeal, and if leave is granted, appeals from the order of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) made on 8 January 2019 in proceeding R2018/44699 in the Residential Tenancies List (‘the Tribunal proceeding’) under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
In the Tribunal proceeding, Lam-Ly Pty Ltd (‘the landlord’) sought orders for possession, payment of rent arrears and forfeiture of the bond in respect of residential premises at 29 Morrah Street, Parkville (‘the premises’). The plaintiff (‘the tenant’) was the respondent to the Tribunal proceeding.
Facts
On 30 September 2014, the tenant and his former partner entered into a 12 month residential tenancy agreement for the premises (‘2014 tenancy agreement’). Clause 13 of the 2014 tenancy agreement – additional clauses provided that the tenant and his former partner would occupy the premises during the term of the agreement, and that any change in the persons occupying the premises must be immediately reported to the agent. The 2014 tenancy agreement was signed by the tenant, his ex-partner and the property manager of the agent.
On 1 October 2014, two different versions of a collateral agreement were signed by the tenants and the agent (‘addenda’). The first version confirmed that the tenant and his ex-partner were the head tenants, would source co-tenants and have them apply to live at the premises. The selected co-tenants would become co-tenants of the premises subject to the landlord’s approval. The second version of the collateral agreement differs from the first version in that it contains a condition requiring copies of the co-tenants application forms to be supplied to the landlord, but makes no reference to the need for co-tenants to be approved. It is not possible to tell on the evidence which version of the collateral agreement applies, or is the later version.
On 11 July 2018, the tenant signed a new residential tenancy agreement to lease the premises as sole tenant (‘the tenancy agreement’). The tenancy agreement was in the required form. However, there were handwritten alterations made to a number of sections of the lease to the effect that the sections were modified by the 2014 lease, addenda and by use. The handwritten alterations to the tenancy agreement were initialled by the tenant, but not by the agent.
It is unclear on the evidence whether the agent’s manager who signed the tenancy agreement affixed her signature before or after the handwritten alterations were made, or noticed that alterations had been made although ultimately this does not matter. There is also uncertainty as to whether the landlord’s approval was required for co-tenants as a result of the two inconsistent addenda both executed on 1 October 2014. There was no evidence of past practice.
During a property inspection of the premises on or about 15 November 2018, the agent’s representative was told by the occupants of the premises that the tenant was unknown to them. This led to the decision to serve a notice to vacate on the tenant for unauthorised sub-letting. The agent served a notice to vacate (‘the first notice’) on the tenant on the basis that the tenant had been sub-letting the premises without its consent. The first notice was given under s 253 of the Residential Tenancies Act 1997 (Vic) (‘the Act’). It was sent by registered post and received by the tenant on 20 November 2018. The first notice required the tenant to vacate on 7 December 2018.
On 26 November 2018 the tenant responded by filing draft points of claim with the Tribunal (‘the tenant’s application’). The draft points of claim contended that the first notice:
(a) was invalid, and
(b) constituted a repudiation of the tenancy agreement.
The tenant stated that he was ‘inclined to accept the notice as a repudiation of our contractual agreement’, and said that he was not liable for rent after 15 November 2018.
The draft points of claim alleged that the tenant was entitled to:
(a) the return of his property bond in full;
(b) reimbursement for shutdown costs;
(c) damages for lost sub-tenants; and
(d) additional accommodation costs until the end of the term of the tenancy agreement on 29 June 2019.
The tenant’s application was given Tribunal file reference 2018/41499. The tenant did not pay the application fee and sought fee relief. The Tribunal registry decided on 29 November 2018 that fee relief was denied. It would appear that the tenant did not pay the application fee, with the result that his application stalled and did not progress further.
It is common ground that the tenant ceased paying rent from 29 November 2018, and has not paid rent since.
The agent reviewed the first notice on its expiration, deciding that it should be withdrawn in view of the tenant’s handwritten alterations to the tenancy agreement, and the uncertainty as to what was agreed.
On 14 December 2018, the agent gave the tenant a second notice to vacate (‘the second notice’) now based on his failure to pay rent. The specified termination date was 4 January 2019. The agent then commenced the Tribunal proceeding based on the non-payment of rent under s 246 of the Act.
The Tribunal proceeding came on for hearing on 8 January 2019. The tenant did not dispute that the rent was 14 days overdue on the day that the second notice was given, and contended that he was not obliged to pay rent at all.
During the Tribunal hearing, the tenant stated that:
(a) he was still in possession of the premises;
(b) he was not personally living at the premises;
(c) there were other people, sub-tenants living at the premises; and
(d) he still had personal property at the premises.
The tenant sought to defend the claim for possession, on the basis that:
(a) he had accepted the landlord’s repudiation of the tenancy;
(b) he had moved out of the premises personally but had continued to sublet the premises short term;
(c) the common law of repudiation supplemented the provisions of the Act; and
(d) the result was that he was entitled to remain in adverse possession without payment of rent.
The Tribunal conducted an informal mediation between the parties with the object of resolving the proceeding. It was not successful. The Tribunal proceeding then fell to be decided by the Tribunal.
In oral reasons for decision, the Tribunal found:
(a) the tenant was currently letting the premises;
(b) there was no dispute that the rent was $3,911 per calendar month and that it was paid until 28 November 2018;
(c) the outstanding rent as at the date of the hearing was $5,014.74;
(d) the tenant claimed that he was not liable for rent after 15 November 2018 for the reasons that he gave; and
(e) the tenant contended that the service of the first notice amounted to a repudiation and that he had accepted that repudiation by the making of the tenant’s application to the Tribunal.
The Tribunal then held:
(a) section 216 of the Act provided that a tenancy agreement does not terminate, and must not be terminated, except in accordance with the Act;
(b) termination of residential tenancies is dealt with according to the provisions of the Act;
(c) the tenancy agreement had not been terminated by the tenant in a manner authorised by the Act, and the landlord had not withdrawn the obligation to pay rent under the tenancy agreement;
(d) the landlord had given the tenant notice to vacate for arrears of rent in accordance with the requirements of the Act, and
(e) the landlord was entitled to a possession order under s 246 of the Act.
As a result, the Tribunal ordered the tenant to vacate the premises by 8 February 2019 and gave consequential relief to the landlord.
The appeal
In the notice of appeal, the tenant raises three questions. They are, in substance, whether:
(a) the tenant’s prior acceptance of the owner’s repudiation of the lease is a valid defence to rent arrears;
(b) the monthly rent was in arrears having regard to the service of the first notice and the tenant’s claim for damages; and
(c) possession should have been granted by the Tribunal.
The grounds of appeal seek to establish that:
(a) the tenant had a valid defence to the application for possession;
(b) the Tribunal misunderstood the effect of s 216 of the Act; and
(c) the common law of repudiation applied to residential tenancies.
The landlord contended that the Tribunal’s decision was correct.
Relevant provisions of the Act
Section 39 of the Act provides, in relation to rent:
For the purposes of this Act, rent under a tenancy agreement accrues from day to day and, subject to section 242, is recoverable or refundable accordingly.
Part 6 of the Act deals with the termination of residential tenancies. Relevant provisions are:
216 Termination of tenancy agreement
Despite any Act or law to the contrary, a tenancy agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.
219 Termination after notice to vacate
(1)A tenancy agreement terminates if the landlord or the tenant gives a notice to vacate or a notice of intention to vacate the rented premises under this Division and—
(a)the tenant vacates the rented premises on or after the termination date specified in the notice;
…
221 Termination where premises are sub-let
A tenancy agreement terminates if—
(a)the tenant is not in possession of the rented premises because the tenant has sub-let them; and
(b)the landlord or tenant gives a notice to vacate or a notice of intention to vacate the rented premises under this Division; and
(c)the period (if any) between the date on which the notice is given and the termination date specified in the notice has expired.
225 Termination by disclaimer
A tenancy agreement may terminate by disclaimer (for example, on repudiation of the agreement by the tenant accepted by the landlord).
Part 7 div 1 of the Act deals with applications for possession orders.
Section 330 provides that the Tribunal must make a possession order requiring a tenant to vacate on the day specified in the order if the Tribunal is satisfied:
(a)in the case of an application where notice to vacate has been given, that –
(i) the landlord … was entitled to give the notice; and
(ii) the notice has not been withdrawn.
Section 342 of the Act gives a tenancy agreement extended effect even if a possession order has been made. It provides:
If a possession order is made under this Division, the tenancy agreement terminates at the end of the day before the day on which possession of the rented premises is delivered up to the landlord.
Termination of residential tenancy agreements
Section 216 is a pivotal provision of the Act. It provides in substance for the termination of residential tenancy agreements to be governed by a statutory code, and not by the general law of contract unless adopted by the code. The code is found in pt 6 div 1, pts 7 and 8 of the Act. The provisions of the Act listed in s 216 are a complete statement of the ways in which a tenancy agreement governed by the Act can be terminated. It is not legally possible to terminate a tenancy agreement governed by the Act in any other way.[1] The central importance of s 216 has been discussed by the Tribunal in decided cases,[2] and noted in decisions of the Supreme Court.[3]
[1]PJO v Director of Housing [2018] VCAT 361, [43]; Magrath v Varacolli [2016] VCAT 575 [49]; Whitbourn v Nerian Nominees Pty Ltd [2017] VCAT 1564, [32], [33]; J Billings, J Kefford, A Vassie, H Barker, VCAT: Victorian Civil and Administrative Tribunal Residential Tenancies (Anstat, Dec 2018) [216.02].
[2]Ibid.
[3]Burgess v Director of Housing [2014] VSC 648, [31], [66] (Macaulay J); Tajon Pty Ltd v Arvanitis [2017] VSC 130, [55] (Derham AsJ); Annesley v Westpac Banking Corporation [2016] VSC 323, [87] (Derham AsJ).
I now turn to review the findings of the Tribunal having regard to the applicable provisions of the Act.
The effect of the first notice
Although it was later withdrawn, the service of the first notice on the tenant was not without legal consequences. The rights of parties to a residential tenancy agreement after service of a notice to vacate are governed by the Act.
Upon receipt of a notice to vacate, a tenant has the right to:
(a) vacate the premises on or after the termination date (s 219(1)(a));
(b) require the landlord to demonstrate the entitlement to give the notice at a Tribunal hearing (s 330(1)); or
(c) remain in possession of the premises in accordance with the residential tenancy agreement until possession of the premises is delivered up to the landlord (s 342).
In all cases, the occupancy of the tenant is subject to, and protected by the Act and the provisions of the residential tenancy agreement.
In the present case, the tenant did not vacate the premises on the termination date, but remained in possession of the premises. The rights of the tenant continued to be subject to the provisions of the Act and the tenancy agreement.
The effect of the second notice
The rights of the parties where rent is in arrears are governed by s 246 of the Act, which provides for the service of a notice to vacate if the tenant owes at least 14 days rent to the landlord.
The tenant did not submit to the Tribunal that he was not in arrears of at least 14 days of rent when the second notice was served or that the calculation of rent arrears was wrong. He did not suggest that the requirements of s 246 of the Act were not shown on the facts. The Tribunal found that the statutory requirements for the recovery of possession by the landlord under the Act were proven on the evidence.
Section 330(1)(a) of the Act provides that the Tribunal must make a possession order requiring a tenant to vacate rented premises if the Tribunal is satisfied in the case of an application where a notice to vacate has been given that the landlord was entitled to give the notice, and that the notice has been not been withdrawn.
In the present case, the Tribunal was satisfied that the landlord was entitled to give the second notice to vacate, and that the notice had not been withdrawn. The Tribunal was obliged to make a possession order and did so.
I now turn to the three questions raised by the tenant in this proceeding.[4]
[4]Above [22].
Question 1 – Was the tenant’s prior acceptance of the owner’s repudiation of the lease a valid defence to rent arrears?
The alleged repudiation
The tenant submitted to the Tribunal that the service of the first notice was a repudiation, and that he was entitled to terminate the tenancy agreement. He referred to the Tribunal decisions of Loughran v Hasham,[5] and Shen v Hatfield.[6] Both decisions concerned retail leases not the subject of the Act or comparable statutory provisions.
[5][2017] VCAT 2067.
[6][2018] VCAT 1864.
The tenant also referred to an excellent article in the University of Western Australia Law Review which discussed the application of the contractual doctrine of repudiation to real property leases.[7] Again, this article is not concerned with residential tenancies or the legislative code by which they are governed.
[7]Celina Chew, ‘Leases Repudiated: The Application of the Contractual Doctrine of Repudiation to Real Property Leases’ (1990) 20(1) University of Western Australian Law Review 86.
For a party to validly terminate a residential tenancy agreement, it is not sufficient to point to a right of termination that may be found in a contractual doctrine arising under the general law, unless the right of termination is given force and effect by a provision in pt 6 div 1, or pts 7 or 8 of the Act. This is because s 216 takes effect ‘despite any Act or law to the contrary’. The High Court has said that the word ‘despite’ is a synonym for ‘notwithstanding’.[8]
[8]Attorney General (Cth) v Oates (1999) 198 CLR 162, 178 [33].
Review of the transcript of the Tribunal proceeding shows that the tenant did not point to any specific provision of the Act which supported his asserted right to remain in adverse possession. The Tribunal correctly highlighted in the course of the hearing, that residential tenancies were governed by the Act, that the Act set out the circumstances where the tenancy was terminated and overrode the common law.
Disclaimer
Although s 225 of the Act was not relied on before the Tribunal, the tenant now seeks to rely on its provisions as a defence.
Section 225 permits a tenancy agreement to be terminated by disclaimer, referring by way of example to the repudiation of an agreement by the tenant accepted by the landlord. The tenant contends that the service of the first notice constituted a disclaimer of the tenancy agreement by the landlord.
The law of landlord and tenant has long recognised that a lease may be terminated by disclaimer. In Re Teller Home Furnishers Pty Ltd (in liq) Electronic Industries v Horsburgh, Gowans J held that disclaimer involves a renunciation of the tenancy by the tenant by words or conduct, saying in effect, ‘I am no longer your tenant’.[9] Gowans J described a disclaimer as a concept that does not require bilateral action involving the two parties to the contractual obligation.[10] The subject matter of the disclaimer was property and in the case of a lease it was the disclaimer of an estate or interest in land, and involved a direct repudiation of the claim or title to the estate or interest. Where the estate or interest in land is one which has come into existence by virtue of a lease, the disclaimer involves a direct repudiation of the relationship of landlord and tenant.[11]
[9]Re Teller Home Furnishers Pty Ltd (in liq) Electronic Industries v Horsburgh [1967] VR 313, 317.
[10]Ibid.
[11]Ibid 317 (citations omitted).
In Australian Safeway Stores Pty Ltd v Toorak Village Development Pty Ltd, Gowans J rejected a submission that a cessation of the tenant’s use was a disclaimer of the lease.[12] There was no denial of the landlord’s title so as to amount to unequivocal repudiation of the lease, or abandonment of possession to the lessor.
[12][1974] VR 268, 274.
Commonly, a trustee in bankruptcy or a liquidator of an insolvent company may disclaim an onerous contract or other obligation. Disclaimers can also occur in other circumstances.
Disclaimer by a liquidator of a failed company was considered by the High Court of Australia in Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (In liq) (‘Willmott’).[13] The liquidator of the company disclaimed a lease of real property under s 568(1) of the Corporations Act 2001 (Cth). The plurality of the Court considered that the lease was a contract within the meaning of the provision, and could be disclaimed by the liquidator of the landlord exercising the statutory power to do so.[14]
[13](2013) 251 CLR 592 (‘Willmott’).
[14]Ibid (French CJ, Hayne, Kiefel, and Gageler JJ; Keane J dissenting).
In Progressive Mailing House Pty Ltd v Tabali Pty Ltd, the High Court held that the ordinary principles of contract, including that of termination for repudiation, apply to leases.[15] However, as Mason J said, what needs to be established in order to constitute a repudiation is that the party evinces an intention no longer to be bound by the contract or that he intends to fulfil the contract in a manner substantially inconsistent with his obligations and not in any other way.[16]
[15](1985) 157 CLR 17.
[16]Ibid 33, citing Shevill v Builders’ Licensing Board (1982) 149 CLR 620, 625–677 (Mason J; Wilson, Deane and Dawson JJ agreeing).
The notion of disclaimer significantly overlaps with the more commonly used notion of repudiation. Repudiation is always a serious happening, not lightly to be found or inferred.[17] There must be actual renunciation of the parties’ liabilities, conduct by a party which makes further performance impossible, or a declaration that the party will only carry out its obligations if it feels like it.[18] Refusal to perform contractual obligations may, but does not always, amount to repudiation.[19]
[17]Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60, 71; Braidotti v Queensland City Property Ltd (1991) 172 CLR 293, 317 (Gaudron J); Shevill v Builders Licencing Board (1982) 149 CLR 620, 633 (Wilson J); Command Energy Pty Ltd v Nauru Phosphate Royalties Trust [2003] VSC 261, [787] (Harper J).
[18]Shevillv Builders’ Licensing Board (1982) 149 CLR 620, 633 (Wilson J); Ripka Pty Ltd v Maggiore Bakeries Pty Ltd [1984] VR 629, 634.
[19]Taylor v Johnston (1983) 151 CLR 422; Seymour v Seymour (1996) 40 NSWLR 358.
Notwithstanding the decision of the High Court in Willmott,[20] the landlord sought to contend that only the tenant could disclaim a lease, as historically a disclaimer related to the leasehold estate or interest in land. It was said, the landlord was entitled to an estate in fee simple which could not be disclaimed. The landlord sought to distinguish Willmott,[21] on the basis that the High Court was solely concerned with the construction of a statutory power to disclaim, drawing some comfort from the example in parenthesis in s 225 which referred only to a disclaimer by a tenant.
[20](2013) 251 CLR 592.
[21]Ibid.
Section 225 refers to disclaimer of a tenancy agreement and not an estate or interest in land.[22] Although there is no Victorian decision on point, the New South Wales Civil and Administrative Appeals Tribunal (‘NCAT’) has taken the view that a landlord can disclaim a residential tenancy agreement.
[22]A tenancy agreement is a defined expression in s 3 of the Act.
In Corcoran v Far, the landlord excluded the tenant from the premises and subsequently refused to allow him to return at all.[23] The NCAT appeal panel held that this was a repudiation by the landlord which gave rise to an entitlement in the tenant to terminate the residential tenancy agreement.[24]
[23][2018] NSWCATAP 13.
[24]Ibid [58].
In Pont v Connolly-Bishop, another NCAT appeal panel decision, the head tenant of a three bedroom apartment sub-let the third bedroom, which had access to a bathroom through a storeroom.[25] The head tenant notified the sub-tenant that she could no longer use the storeroom. The NCAT appeal panel determined that the head tenant’s direction that the storeroom and attached bathroom could not be used by the sub-tenant of the bedroom constituted a repudiation.[26]
[25]Pont v Connolly-Bishop [2018] NSWCATAP 160.
[26]Ibid [44]–[45].
In both of these cases, the landlord, or head tenant instructed the tenant, or sub-tenant to not use the premises in the future, or a significant part of the premises at all. This was held to be a direct repudiation of the relationship of landlord and tenant.
Ultimately, I do not need to decide the point, as the present case involves very different circumstances. For reasons that I will shortly come to, it is clear that the landlord did not disclaim or repudiate the tenancy agreement.
Was there disclaimer or repudiation of the tenancy agreement?
The tenant sought to rely on the service of the first notice as an act of repudiation by the landlord. Had it not been for the handwritten alterations to the tenancy agreement, which were not initialled by the agent, the notice would have been perfectly valid and effective. Even with the handwritten alterations, there was real doubt as to the landlord’s power to terminate the lease for unauthorised subletting. On the first version of the addenda, the landlord was entitled to terminate because it had not approved the co-tenants. On the second version of the addenda, the landlord was not entitled to terminate.
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.
Question 2 – Was the monthly rent in arrears in view of the service of the first notice and the tenant’s claim for damages?
Section 39 of the Act provides for the purposes of the Act, that rent under a tenancy agreement accrues from day to day and subject to an exception not relevant here, is recoverable accordingly. The obligation to pay rent is stated in the Act and in the tenancy agreement in an unconditional manner. It is not dependent on compliance with the landlord’s covenants.
Under s 212 of the Act, the Tribunal may, if satisfied of a breach of a covenant, order the person in breach to remedy the breach or pay compensation. If an order for compensation is made in favour of a tenant under s 212(5) of the Act, the Tribunal can specify that the compensation be in the form of a refund or reduction of the rent payable by the tenant. However, there was no application before the Tribunal under this provision.
In the present case, the tenant’s application had not progressed and was yet to be heard or substantiated. The claim was dependent on demonstrating that the landlord had repudiated the tenancy agreement. For the reasons I have given, the landlord had not repudiated the tenancy agreement. There was no legal basis on which rent could be withheld. Consequently, rent was required to be paid under the Act and the tenancy agreement. The rent was due and payable and in arrears.
Question 3 – Should possession have been granted by the Tribunal in the circumstances?
Section 330 of the Act requires the Tribunal to make an order to vacate if the Tribunal is satisfied that the landlord was entitled to give the notice to vacate and if the notice has not been withdrawn. The Tribunal was satisfied for the reasons stated above, that the requirements for an order to vacate were met, and made such an order. I find that it made no error in doing so.
Other issues
In submissions to the Court, the tenant raised some additional issues. I will briefly address these issues although they are not raised in the grounds of appeal.
Failure to give natural justice
Review of the transcript of the Tribunal hearing shows that the Tribunal conducted the hearing in accordance with the requirements of natural justice. The parties were sworn at the commencement of the proceeding. The tenant actively participated, gave evidence and made submissions, as did the agent on behalf of the landlord. A short informal mediation was conducted. There was no denial of natural justice.
The tenant’s application
The tenant’s application was not listed for hearing before the Tribunal on 8 January 2019. The tenant alerted the Tribunal to the existence of the application. The Tribunal reviewed the tenant’s application and its status online. The Tribunal properly determined the Tribunal proceeding which was the only proceeding before it.
Section 102 of the VCAT Act
The tenant gave evidence, made submissions, referred to authority, and produced documents in a hearing that is recorded in the transcript as extending over 2 hours, 19 minutes in duration. During much of this time, the Tribunal heard submissions and evidence from the tenant. There was no non-compliance with s 102 of the VCAT Act.[27]
[27]VCAT Act s 102 states (1) the Tribunal must allow a party a reasonable opportunity (a) to call or give evidence; and (b) to examine, cross-examine or re-examine witnesses; and (c) to make submissions to the Tribunal.
Conclusion
For the reasons that I have given the Tribunal decision must be upheld. The grounds set out in the notice of appeal fail. Leave to appeal will be granted, but the appeal dismissed.
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