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…

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] VSC 233
Case: [2019] VSC 233
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the matter of Quick v Lam-Ly Pty Ltd, the appellant, Ms Quick, sought to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT) concerning a dispute over the non-payment of rent and a subsequent notice to vacate issued by the respondent, Lam-Ly Pty Ltd. The case was heard in the Supreme Court of Victoria, with the Honourable Justice Byrne presiding over the appeal.

The primary legal issue the court had to address was whether VCAT erred in its determination that the respondent did not repudiate the residential tenancy agreement. Additionally, the court needed to decide if VCAT made any errors in concluding that the respondent did not disclaim the tenancy agreement, and whether VCAT erred in finding that the respondent did not terminate the tenancy agreement. The court also needed to assess if VCAT's decision was correct in law concerning the applicability of the provisions of the Residential Tenancies Act 1997 (Vic) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

The Supreme Court found no error in VCAT's decision, affirming that the respondent did not repudiate, disclaim, or terminate the residential tenancy agreement. The court determined that VCAT correctly applied the relevant provisions of the Residential Tenancies Act 1997 (Vic) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in reaching its conclusions. The court held that VCAT's interpretation of the law and the facts was sound and that there was no basis for the appeal. Consequently, the appeal was dismissed, and the decision of VCAT was upheld.

In light of the dismissal of the appeal, the final orders of the court were that Ms Quick was to pay Lam-Ly Pty Ltd’s costs of the appeal, to be taxed if not agreed. The court also ordered that interest on the taxed costs be calculated from the date of the order until the date of satisfaction.

Orders