Quick v Lam-Ly Pty Ltd

Case [2019] VSC 233


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

  1. 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’).

  1. 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

  1. 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. 

  1. 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.

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

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Quick v Lam-Ly Pty Ltd [2019] VSC 233
Case
[2019] VSC 233
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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