Rossi v Peng - [2016] VSC 505

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 01057

SABRINA ROSSI	Appellant
v
XIAODONG PENG	Respondent

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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

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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.

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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…

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 Rossi v Peng

Details

AGLC: Rossi v Peng [2016] VSC 505
Case: [2016] VSC 505
Decision Date: 26 August 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, Rossi brought an appeal against a decision made by an Associate Judge. The Associate Judge had previously declined to grant Rossi leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT). Rossi’s appeal centred on the Associate Judge’s handling of evidence and the application of relevant legal principles. The dispute involved whether the Associate Judge considered irrelevant factors or omitted to consider relevant factors, and if procedural fairness was upheld. Additionally, the validity of a possession order issued by VCAT under the Residential Tenancies Act 1997 was questioned, along with the interpretation and application of the Victorian Civil and Administrative Tribunal Act 1998 and the Supreme Court Act 1986.

The central legal issues in the appeal were whether the Associate Judge exercised judicial discretion correctly by considering the relevant and irrelevant factors and whether procedural fairness was observed in the decision-making process. Specifically, Rossi argued that the Associate Judge failed to give appropriate weight to certain business records that Rossi claimed were credible. Furthermore, the appeal challenged the validity of the possession order granted by VCAT and questioned whether the Associate Judge had correctly applied the statutory provisions in the Residential Tenancies Act 1997, the Victorian Civil and Administrative Tribunal Act 1998, and the Supreme Court Act 1986.

The Court found that the Associate Judge had appropriately exercised their discretion and had not erred in their consideration of the evidence. The Court held that the Associate Judge did not take into account irrelevant considerations nor fail to consider relevant ones. Moreover, the Court confirmed that procedural fairness was observed in the proceedings before VCAT and the Associate Judge. The credibility of the business records was found to be appropriately assessed, and the possession order was upheld as valid under the relevant statutory provisions. Consequently, the appeal was dismissed, affirming the Associate Judge’s decision.

The Court’s final order was that Rossi’s appeal against the Associate Judge’s decision was dismissed, and no leave to appeal was granted. The possession order issued by VCAT remained in effect, and Rossi was not granted the relief sought through the appeal.

Orders