Rossi v Peng
[2016] VSC 505
•26 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 01057
| SABRINA ROSSI | Appellant |
| v | |
| XIAODONG PENG | Respondent |
---
JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 August 2016 |
DATE OF JUDGMENT: | 26 August 2016 |
CASE MAY BE CITED AS: | Rossi v Peng |
MEDIUM NEUTRAL CITATION: | [2016] VSC 505 |
---
JUDICIAL REVIEW AND APPEALS – Appeal from an Associate Judge under Supreme Court (General Civil Procedure) Rules2015 r 77.06 – Associate Judge refused leave to appeal from the Victorian Civil and Administrative Tribunal – Whether Associate judge took into account irrelevant considerations or failed to take relevant considerations into account – Whether procedural fairness – Credible business records – Validity of possession order – Residential Tenancies Act1997 s 261 – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Supreme Court Act 1986 s 17(3) - Appeal dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | In person |
HER HONOUR:
Introduction and background
The appellant has appealed against the orders of Mukhtar AsJ made on 23 May 2016 refusing leave to appeal against the order of the Victorian Civil and Administrative Tribunal made on 8 March 2016.
The proceeding in the Tribunal concerned a residential tenancy. The respondent, as the landlord, applied for an order for possession under the Residential Tenancies Act1997 on the ground that the appellant was in arrears of rent for more than 14 days. The respondent claimed that there was unpaid rent in the amount of $4,200,[1] relying on a document prepared by him or his agent entitled ‘Tenant Status Report’ that showed the ‘Effective paid to date’ as 14 January 2016. The appellant disputed that she owed any rent at all and produced a number of bank deposit receipts. The Tribunal stood the matter down to allow the parties to discuss whether all of the payments made by the appellant had been accounted for in the respondent’s records. As a result of this discussion, the Tenant Status Report was amended by a hand-written annotation that read:
14/01/16 – 18/02/16
5 weeks paid to landlord
19 days arrears
$1136.96
[1]Appeal Book filed 15 July 2016 at A67, Tenant Status Report dated 8/3/2016.
The Tribunal did not give written reasons for decision and none were requested. However, it recorded on its Order made on 8 March 2016 the following findings of fact:
1.The Tribunal accepts the date of the start of the rental agreement as 24 March 2015 as per the order of the Tribunal dated 23 March 2015 R20159743.
2.The landlord gave the tenant not less than 14 days’ notice to vacate when the tenant owed at least 14 days’ rent.
3.The landlord is entitled to a possession order.
4.The rent, which is $420.00 per week, is paid to 18 February 2016 and the rent owed to today is $1136.96.
5There is a bond of $1680.00.
The Tribunal made the following Order:
1. The tenant must vacate the rented premises by 8 March 2016.
2.The principal registrar, at the request of the person who obtained the possession order and on the payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 8 September 2016).
3. The tenant shall now pay the landlord rent owed of $1,136.96.
4. The tenant shall reimburse the landlord the application fee of $59.80.
(‘Tribunal’s Order’)
In seeking leave to appeal the Tribunal’s Order pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998, the appellant’s proposed grounds of appeal were as follows:
(1)The Member of VCAT did not allow me to present my evidence or make submissions. The Member did not examine my evidence.
(2)The way the Member conducted the hearing was unfair and misconceived. Every time I tried to give evidence she would tell me to be quiet or she would have me removed by security.
(3)At the hearing the Member did not give me any reasons as to how she came to the conclusion that I owed 19 days of rent.
(4)The Member failed to take a relevant consideration into account that was so central to the case. Had she looked at my bank receipts she would have known that I had paid my rent and that my rent was up to date.
The core complaint made by the appellant about what occurred in the Tribunal was that the Tribunal did not accept that she had made all the rental payments required. According to the appellant, the Tribunal Member had refused to look at her bank deposit receipts, which she said showed that all rental payments had been made. She maintained and continues to maintain that she was up to date with her rent. Insofar as any of the respondent’s documents showed otherwise, they were, the appellant contended, false and fabricated. As a result, the Tribunal was wrong to make the possession order and to order her to pay 19 days of rent found to be outstanding.
The appellant’s application for leave to appeal was heard and determined by the Associate Judge on 23 May 2016. His Honour refused the appellant’s application for leave to appeal and dismissed the originating motion.
His Honour published lengthy written reasons for judgment on 6 June 2016.
In his reasons for judgment, the Associate Judge set out, at length, the appellant’s grievance concerning the alleged denial of procedural fairness by the Tribunal[2] and described the question that he had to determine as follows:[3]
The Tribunal is bound by the rules of natural justice. It is established that the question whether the Tribunal breached those rules is a question of law for the purposes of attracting this Court’s review jurisdiction under s 148 of the VCAT Act if leave to appeal is granted. The question is, according to the test in Hulls, whether there is a real or significant argument to be put that an injustice occurred because she was deprived of procedural fairness.
[2]Rossi v Peng [2016] VSC 309 (‘Reasons’) [9].
[3]Reasons [10].
No challenge is made to this formulation of the question to be determined.
The Associate Judge called for and read both Tribunal files relating to this matter, along with the transcript of the hearing before the Tribunal, and concluded that the Tribunal did not deprive the applicant of procedural fairness.
Furthermore, having reviewed the Tribunal file in full, his Honour found that the Tribunal had business records and explanatory evidence from the landlord’s agent that proved the rental arrears of $1,136.96. His Honour was satisfied that the rent deposit forms produced by the appellant were all taken into account in the computation of the rent paid.
As a further matter, the Associate Judge observed that, for the purposes of the arrears claim, the Tribunal found that the tenancy had started on 24 March 2015 and it was a 12 month fixed term tenancy that was therefore due to expire on 23 March 2016, two weeks after the Tribunal’s Order. The respondent, by his agent, had served a 90 day statutory notice (Notice to Vacate) in December 2015 to inform the appellant that the tenancy would be terminated on the expiry of the fixed term, stated to be 23 March 2016.
This, so his Honour held, meant that the appeal against the order for possession was sterile or academic. His Honour concluded that leave to appeal the possession order should be refused on this basis.
Grounds of appeal
The appellant now complains, among other things, that she was denied procedural fairness by the learned Associate Judge. Her grounds of appeal from the decision of Mukhtar AsJ to refuse leave to appeal are as follows:
1.The Associate Justice Mukhtar failed to take relevant considerations into account.
2.The Associate Justice Mukhtar wrongly took into account irrelevant considerations.
3.Breach of natural Justice/lack of procedural fairness. Failure to accord natural justice.
4.The Associate Justice Mukhtar did not examine my evidence at all.
5.The Associate Justice Mukhtar disregarded my written evidence my Westpac bank receipts which is crucial to the case.
6.The way the Associate Justice Mukhtar conducted the hearing was unfair and misconceived.
7.The decision was affected by untrue claims made by the defendant [respondent].
All of these grounds are based, as I understand them, on a number of related propositions asserted by the appellant in the Tribunal and again before his Honour:
(a) The appellant was up to date with her rent payments as at the date of the Tribunal hearing and the making of the possession order;
(b) She could prove she was up to date by producing the bank deposit receipts, but first the Tribunal and then the Associate Judge refused to look at the receipts;
(c) The various ledgers and other documents relied on by the respondent to show rent payments were outstanding were fabricated and fraudulent;
(d) The possession order was therefore invalid.
Thus, when asked what relevant considerations the Associate Judge had failed to take into account, the appellant pointed to the bank deposit receipts and to what she contended was the invalidity of the possession order and the fabrication by the respondent of false tenancy reports. The irrelevant considerations taken into account by the Associate Judge were identified by the appellant as the false tenant ledger and ‘everything’ the respondent said at the hearing. She further contended that the fact that she had been served a Notice to Vacate at the expiry of her fixed term tenancy was an irrelevant consideration in the exercise of the Court’s discretion to grant leave to appeal.
As to the remaining grounds, the appellant contended generally that the Associate Judge ignored everything she had to say along with all of her evidence, and that he did not ‘physically’ look at the bank deposit receipts even though she asked him to do so.
Analysis
The Associate Judge was considering an application for leave to appeal from the Tribunal on questions of law. The proposed grounds were based on a want of procedural fairness by the Tribunal. Applying the test in Hulls, the Associate Judge refused leave to appeal.
The Court must now decide whether his Honour erred in refusing leave to appeal based on the grounds advanced by the appellant.
An appeal from an Associate Judge is not a hearing de novo. To succeed, the applicant must show that the Associate Judge made a legal, factual or discretionary error.[4]
[4]Hamadou Djime v Matthew Le [2016] VSCA 105 [20]; Oswal v Carson [2013] VSC 355 [11], citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 [14].
I see no error in the way in which the Associate Judge dealt with the question of procedural fairness in the Tribunal. Having summarised the general principles and the factors affecting the content of the requirements of procedural fairness in the Tribunal,[5] his Honour described the question before him as follows:[6]
The question here is whether there is a basis for granting leave to appeal the Member’s decision on the basis that a real or respectable argument exists to say that Ms Rossi [the appellant] was deprived of the opportunity to make submissions or to present her side of the case or show the Tribunal documents which she says would show that she had paid the rent.
[5]Reasons [44]. His Honour recognised that under s 98 of the VCAT Act, the Tribunal is bound by the rules of natural justice, is not bound by the rules of evidence, may inform itself on any matter as it sees fit, and must conduct each proceeding with as little formality and technicality as the matter permits.
[6]Reasons [45].
His Honour’s judgment shows that he read the transcript of the Tribunal hearing and considered the materials before the Tribunal. He described in detail the events leading up to and at the hearing in the Tribunal on 8 March 2016, including the opportunity given to the parties to confer to check the bank deposit receipts produced by the appellant against the respondent’s records and the consequent adjustment of the Tenant Status Report.[7]
[7]His Honour recorded that, in the course of a somewhat tense and confused hearing, against a background of a multitude of orders, the Tribunal called for a short adjournment and asked the parties to go to a separate room to enable the appellant to produce to the respondent and his agent her bank records which she contended would show there were no arrears. The parties went into a separate room and the appellant produced some bank deposit forms or receipts to show five payments of rent which were paid to the respondent, but not delivered to the agent for business recording. In the appellant’s presence, the respondent checked off those five payments to lead to the outcome that payments brought her up to 18 February 2016, leaving 19 days of arrears from 19 February 2016 to 8 March 2016. The Tribunal accepted this evidence.
His Honour stated that it was unnecessary to copiously recite contents of the transcript.[8] However, he observed that the proceeding in the Tribunal had a complicated history and that it was difficult to get an understanding of all that had preceded the application for the possession order. This impelled the Tribunal Member to try to ascertain, amidst the chaotic history, the facts concerning the basis of the application. After identifying the question before the Tribunal to be ‘an elementary one of ascertaining whether someone paid rent’, his Honour said:[9]
These things can normally be demonstrated by banking records or other documentation showing the lodgement of rent money or its receipt. In this case my examination of the file shows that the landlord had an agent acting who conducted the rental business according to computerised accounting programs that record rental payments and running balances. That was a credible basis for the Tribunal to embark on the fact-finding exercise. From there, Ms Rossi’s assertions at the Tribunal that she had documentation to show that she had paid the rent, led the Tribunal Member to call a short adjournment to enable the parties to confer in a separate room and to require Ms Rossi to produce to the landlord and the agent the documents which she says showed she was not in arrears. This was a sound and efficient course to take.
There is no suggestion that the meeting miscarried on some way. Indeed it resulted in an adjustment of the figures. It was confirmed to me in court that Ms Rossi did sit down with the landlord and his agent at the Tribunal and furnished to them the documentation by which she contended she had paid the rent. The outcome was to discover that there was five weeks rental payments she had made to the landlord which had not yet been sent to the agent. The VCAT file shows that the Tribunal accepted that the agent had checked off each of those five payments and adjusted the rental owing down to the ultimate figure. Added notations on a Tenant Status Report dated 8 March 2016 on the file show that the landlord accepted that five weeks rent had been paid to the landlord for the period 14 January 2016 to 18 February 2016. That left 19 days arrears of $1,136.96. There was no evidence before the Tribunal, nor any assertion by her that she had paid that 19 days arrears.
[8]Reasons [46].
[9]Reasons [46]-[47].
The Associate Judge found that the appellant was given every opportunity to demonstrate that she was not in arrears with her rent. The documents which she had (the bank deposit receipts) were acted upon by the respondent and his agent and the Tenant Status Report was adjusted. Moreover, the Tribunal was entitled to act upon what appeared to be credible business records and a credible explanation from those responsible for managing the financial affairs of the respondent. His Honour stated that nothing in the transcript revealed to him a shutting down of the appellant or an ignoring of her. The appellant did no more than to repeat that there was fraud and corruption, and to assert that she had receipts, when she had already presented those receipts to the respondent.
That was sufficient to dispose of the complaint that the appellant had not received a fair hearing or had not been given a proper opportunity to present her case in the Tribunal. Furthermore, the Associate Judge did not err in holding that it was open to the Tribunal to take into account the respondent’s business records and treat them as accurate in the absence of any proof that they were unreliable or fraudulent.
In addition to dealing with the complaint that the appellant had been denied procedural fairness based on his reading of the transcript, the Associate Judge satisfied himself that the appellant’s bank deposit receipts were taken into account by the Tribunal. His Honour asked the appellant to swear an affidavit exhibiting the documents that she said proved she had paid the rent but that the Tribunal had refused to receive. The appellant swore an affidavit on 11 May 2016 which exhibited four deposit receipts from the Westpac Banking Corporation to the credit of the respondent, each for the weekly rental amount of $420. The first was from April 2015, and the remaining deposit receipts were from February and March 2016. The appellant confirmed that she had shown these receipts to the respondent during the recess granted by the Tribunal to enable her to show to the respondent proof of her payments of rent. His Honour records in his judgment that he checked these deposit receipts against the tenant ledger covering the entire period of the appellant’s occupancy that was produced by the respondent. His Honour found as follows:[10]
Each of the three deposit slips that Ms Rossi has exhibited are accounted for in this ledger. Thus, quite apart from my conclusion that nothing on the transcript shows a denial of procedural fairness, I can now go further and say that, on her own evidence, the evidence which Ms Rossi says she was precluded from presenting was or has been taken into account in the computation of the rent owing as was accepted by the Member.
[10]Reasons [50].
Before me, on appeal from the orders of the Associate Judge, the appellant continued to assert that no-one had looked at her bank deposit receipts and that the business records produced by the respondent were fabricated and fraudulent.
At no stage has the appellant filed any material setting out her own accounting of her rental payments or in any way substantiating her allegations of fraud against the respondent. She has limited her submissions to making unsubstantiated allegations from the Bar table. She is plainly of the view that she can make all manner of scurrilous allegations from the Bar table without making the slightest effort to prove those allegations. She expects the Court and Tribunal to act upon them, even in the absence of any proof. This expectation is misconceived.
Given the lengths to which the Associate Judge went to understand the history of the proceeding and precisely what occurred at the hearing in the Tribunal, and that he did so specifically in response to the submissions (allegations) made by the appellant, it cannot sensibly be said that she was not given the opportunity to be heard by his Honour. Her bank deposit receipts were examined and checked against the available material to confirm that the payments had been taken into account in the Tribunal’s computation of the outstanding rent.
In substance, the appellant’s complaint is that both the Tribunal and the Associate Judge failed to accept her version of events simply on the basis of her assertions and failed to dismiss the respondent’s business records as fraudulent in the absence of any proof of fraud. There is plainly no error in such a course.
In my view, therefore, there is no substance to the grounds that the Associate Judge failed to accord the appellant natural justice, failed to take into account relevant considerations or took into account irrelevant considerations in considering the appellant’s proposed grounds of appeal. His Honour was not charged with carrying out a merits review of the Tribunal’s decision. The appeal from the Tribunal was an appeal on questions of law. His Honour took the time to read the Tribunal transcript and the Tribunal files, along with the material filed in this Court, and concluded that the appellant had been given ample opportunity to present her case. Although the transcript of the hearing before Mukhtar AsJ was not in evidence,[11] his reasons for judgment show that the Associate Judge dealt with the arguments made by the appellant and that he did not conduct an unfair or ‘misconceived’ hearing.
[11]The appellant declined to take the opportunity to put the transcript in evidence.
Furthermore, his Honour’s reasons for judgment make plain that, although he was not bound to do so when considering whether there had been a want of procedural fairness in the Tribunal, the Associate Judge satisfied himself that there was no error by the Tribunal in finding that the appellant was in arears of rent and making a possession order.
This deals with the grounds of appeal in all but one respect.
It remains to consider whether the Associate Judge erred in taking into account that the appellant’s tenancy expired two weeks after the Tribunal’s order and that to grant leave to appeal against the possession order would therefore be futile.
Section 261 of the Residential Tenancies Act provides that where there is a ‘fixed term tenancy agreement’, a landlord may, before the end of the term of the tenancy agreement, give the tenant a notice to vacate the rented premises at the end of the fixed term. In this case, a notice to vacate had to be given not less than 90 days before the end of the fixed term.
The Associate Judge found that the respondent had served on the appellant a 90 day statutory notice (the Notice to Vacate) in December 2015. The Notice to Vacate was exhibited to the respondent’s affidavit made on 9 May 2016, along with a registered post lodgement receipt dated 4 December 2015. As a result, so the Associate Judge found, the tenancy terminated on 23 March 2016.
The appellant argued that this was an irrelevant consideration as she was able to challenge the Notice to Vacate. She had called a tenants’ advice line, and been told that she could not be required to vacate the premises as long as she was paying the rent unless the landlord had a legitimate reason for recovering possession, such as needing the premises for himself.
However, the appellant did not challenge and has not challenged the respondent’s exercise of his rights under s 261 of the Residential Tenancies Act. Moreover, a landlord’s right conferred by s 261 to serve a Notice to Vacate does not depend on the tenant’s failure to pay rent or any other matter. It is expressed to be a right that arises at the end of the term of the lease, subject to the giving of notice.
Accordingly, it was open to the Associate Judge to take into account in refusing to grant leave to appeal against the possession order that the lease had already come to an end and that it did so a mere two weeks after the making of the possession order.
Conclusion
None of the grounds of appeal is made out. The appeal from the orders of Mukhtar AsJ refusing the appellant’s application for leave to appeal and dismissing the originating motion is dismissed.
0
3
0