Rossi v Peng
[2016] VSC 309
•6 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS
S CI 2016 01057
IN THE MATTER of an order made by the Victorian Civil
and Administrative Appeals Tribunal, Residential Tenancies List,
proceeding No R 2015/46206
– and –
IN THE MATTER of an application for leave to appeal under
s 148 of the Victorian Civil and Administrative Appeals Tribunal Act 1998
BETWEEN:
| SABRINA ROSSI | Plaintiff |
| – and – | |
| XIADONG PENG | Defendant |
JUDGE: | Mukhtar AsJ |
WHERE HELD: | Melbourne |
DATE OF ORDER: | 23 May 2016 |
DATE OF REASONS: | 6 June 2016 |
CASE MAY BE CITED AS: | Rossi v Peng |
MEDIUM NEUTRAL CITATION: | [2016] VSC 309 |
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APPEAL – Appeal from Victorian Civil and Administrative Tribunal – Residential Tenancies Dispute – Litigants in person – Prolonged and fractious disputation – Resolute approach by Tribunal according to essential facts – No denial of procedural fairness – Leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 s 148.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| The Defendant appeared in person |
HIS HONOUR:
This is an application for leave to appeal an order of the Victorian Civil and Administrative Tribunal. The case concerned a residential tenancy. The landlord applied for an order for possession under the Residential Tenancies Act on the ground that the tenant was in arrears of rent for 14 days. On 8 March 2016, Member Ms D Bates of the Tribunal found in favour of the landlord and ordered the tenant to vacate the premises on that day. The tenant was also ordered to pay the landlord rent owing of $1,136.96 and to reimburse the landlord’s application fee of $59.80.
A warrant of possession was issued on 10 March 2016 that authorised the police to enter and dispossess the tenant within 14 days. On 22 March 2016, the tenant filed an originating motion in this court seeking leave to appeal the Tribunal’s orders under s 148 of the VCAT Act on the ground that she was denied procedural fairness. The tenant obtained immediately from the Tribunal a stay of the order to vacate, pending the determination of her application for leave to appeal. The Tribunal extended the warrant to 19 May 2016. The warrant can be further extended for 30 day periods under s 354 of the Residential Tenancies Act and I am informed it has been. The tenant is still in possession. She has not paid the arrears of rent or any rent for continuing use and occupation since the Tribunal’s order.
On 23 May 2016, I refused the tenant’s application for leave to appeal and therefore dismissed the originating motion. The exigencies of the matter were such that it called for orders to pronounced that day and for reasons to be published later. Those orders have been made and authenticated. I now proceed to give the reasons.
The Tribunal’s order was the culmination of a tameless tenancy relationship. There had been a multitude of applications, re-hearings and orders in the Tribunal from the very beginning of the tenancy. The events that preceded the Tribunal’s order are all relevant. They show a battle by attrition, the elements of which aid an understanding of what the Tribunal had to deal with, and likewise, to inform this Court’s judgment on the question of procedural fairness.
It will aid a comprehension of matters if I start by stating an uncontroversial documented fact. Sabrina Rossi as tenant and Xiaodong Peng as landlord signed a residential tenancies agreement dated 18 January 2015 for new premises at 18 Florence Street in Mernda. The rental was $420 per week, equivalent to $1820 per calendar month. Rent was payable in advance. The lease also said ‘With 1st idle week for free’ which is a reference to the week it takes to move in. It was stipulated to be a fixed term agreement for 12 months ‘Subject to tentant [sic] moving in.’ That means the commencement date was when the tenant moved in. The words ‘periodic tenancy’ on the printed lease were struck through.
The tenant accepted this was a fixed term tenancy. Ms Rossi’s affidavit on this application for leave to appeal says ‘I had a fixed term agreement of 12 months which commence[d] on 31 March 2015 and ended on 31 March 2016.’[1] There was an issue of when she took possession. I shall return to this later.
[1]Sworn 11 May 2016, para 4 (the second of two affidavits).
Under s 246 of the Residential Tenancies Act, a landlord may give a tenant notice to vacate if the tenant owes at least 14 days rent. The notice must specify a termination date that is at least 14 days after the date on which the notice is given. If the tenant does not deliver up possession of the premises, a landlord can apply to the Tribunal for a possession order under s 335 of the Act. That is what the landlord did.
On 8 March 2016 the Member adhered to a previous finding of the Tribunal that the tenancy would start on 24 March 2015, that being the date on which the landlord’s agent made the keys available by the landlord’s agent together with a bond lodgement form, and a condition report of the premises. The Member also made findings that: the landlord gave the tenant not less than 14 days’ notice when the tenant owed at least 14 day’s rent; the rent was paid to 18 February 2016; the rent owed from 18 February to 8 March was $1136.96; and the landlord was entitled to possession. Hence the order to vacate. There are no written reasons for the orders (and none were sought[2]) but the transcript and the findings bespeak the essential basis of the order.
[2]See s 46 of the VCAT Act.
Ms Rossi’s claim that she was denied procedural fairness is based on the hearing rule; in short, a genuine chance to present a case. She complains she was ignored by the Member at the hearing on 8 March and not permitted to present her case. I am bound to say, on the three occasions the matter came before me, I (like the Member, so the transcript shows) found myself having to look to the landlord and his agent for an explanation of the facts and events, because I simply could not extract them from Ms Rossi amidst her vehement assertions that she had paid the rent, she had the receipts, the landlord and his agent were lying and dishonest, and the outcome was not fair. Her grievance is: at the Tribunal she had to speak over the landlord’s agent and the Member; she was told by the Member to be quiet; after hearing the agent’s evidence the Member had already made up her mind; when she asked the Member to see the documents to which the member was referring, the Member did not let her; the Member ignored her; the Member asked her to be quiet; ‘The member scream[ed] at me to sign the bond lodgement form I told her I was not going to sign the bond lodgement form’; when she told the Member that she had paid the rent and had bank receipts to prove it, she says the Member told her to be quiet or she would be removed by security; and the Member did not give reasons for the decision in writing nor give an oral explanation as to how she owed $1,136.96 rent or how she came to that conclusion. She says she was deprived of the opportunity to say that she had paid the rent and that she had the bank records to show it.
The Tribunal is bound by the rules of natural justice.[3] 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.[4] The question is, according to the test in Hulls,[5] whether there is a real or significant argument to be put that an injustice occurred because she was deprived procedural fairness. Procedural fairness is not a matter of fixed rules. It depends on all the circumstances.
[3]Section 98(1)(a) of the VCAT Act.
[4]See cases in Pizer’s Annotated VCAT Act (5th ed) at [148.320].
[5]Sec to the Dept of Premier and Cabinet v Hulls [1999] 3 VR 331.
When the matter came before me on the first occasion on 2 May 2016 Ms Rossi had not obtained a transcript of the hearing. I made orders requiring the plaintiff to obtain a transcript and to swear an affidavit that exhibited the documents which she says she wanted show to the Member but, according to her, was not allowed to do; and to also exhibit any other documents she was in a position to show the Tribunal to resist the landlord’s application. Likewise I ordered the landlord to produce the evidence on which the claim was based at the Tribunal.
But there was to my mind another important, possibly prevailing, matter. If, as accepted by the tenant, this was a 12 month fixed term tenancy that was going to expire (on the tenant’s case) on 30 March 2016, then this case is farcical. That is, if the term of the lease was to expire three weeks after the Tribunal’s orders on 8 March 2016, she would soon be bound to vacate the premises anyway. As it is, she has been in possession since 8 March on a stay of the Tribunal’s order despite the order and has paid no rent since then. In fact, for the purposes of the arrears claim the Member adhered to a previous finding by the Tribunal (on an earlier dispute) that the tenancy has started on 24 March 2015, which means that the tenancy was due to expire on 23 March 2016, being 2 weeks after the Tribunal’s order. So if Ms Rossi has to vacate anyway, what is the point now of appealing the order to vacate?
This goes to question whether on the Hulls test[6] or under the rules of Court,[7] there can be any substantial injustice in refusing leave to appeal. Whether the end date is 23 March or 30 March, the lease has come to an end, and this appeal for an order for possession is now sterile or academic. There is no point setting it aside or remitting it. If that is so, the only question for leave is whether the decision to make her pay $1136.96 is attended with sufficient doubt. That is, by any litigation measure, a petty sum (there being no suggestion of the tenant’s financial hardship), not much more I would think than the cost of filing an originating motion in this Court. For that amount the Court would need to see glaring evidence of conspicuous unfairness, of error or something to conclude that the Tribunal had not made a decision on the substantial merits.
[6]Ibid.
[7]Chapter II, rule 4.13(7).
In saying that, I realise that the Tribunal’s order was obtained in the currency of the lease on the basis of arrears of rent, so the question of the imminent ending of the lease played no part. But it plays a part on this leave application. On my enquiry, the landlord told me that his agent had served a 90 statutory notice in December 2015 to inform the tenant that the tenancy would be terminated on the expiry of its fixed term stated to be 23 March 2016. For that reason, I asked the landlord for evidence of any notice of termination of the fixed term tenancy agreement. He did that by exhibiting a 90 day notice to vacate sent by his agent under s 261 of the Residential Tenancies Act by registered post on 4 December 2016. The notice required the tenant to vacate by 23 March 2016.[8]
[8]Exhibited to the defendant’s affidavit sworn 6 May 2015.
That is why I saw no injustice in refusing leave to appeal the order for possession. Ms Rossi is still in possession yet the term has expired. But in any case, for such a small dispute by two litigants in person the Court had to, in effect, do a merits review to see if there was any injustice in refusing leave to appeal. As I will show, the Tribunal had business records and explanatory evidence from the landlord’s agent that proved arrears of $1,139.60. The rent deposit forms produced by the tenant were all taken into account in the accounting. But, above all, and going to the grounds of the application, my conclusion is that the Member did nothing to deprive the applicant of procedural fairness. The matter called for a resolute approach. In Court I have seen on display an antipathy by the tenant towards the landlord and his property manager; not reciprocated. The landlord and his agent appear to be in a position to state facts and figures. The tenant regards any assertion of fact contrary to hers as a lie, and any document produced by the landlord and his agent as false. The transcript of the hearing before the Tribunal shows an intransigent pursuit of her position which turned into a most disrespectful treatment of the Member who she accused of corruption. Yet as I read the transcript, in those trying conditions, the Member was looking to comprehend the history, encourage cooperation, ascertain the essential facts, and make findings faithful to previous Tribunal orders and on figures according to a property manager’s rental records. Therefore I refused leave as there is no real or significant argument in favour of the applicant on the question of law as identified, and there is no injustice in refusing leave.
As Ms Rossi proclaimed in argument that she would appeal an adverse outcome on this application anyway, it is just as well I give a full account of the facts as I have discovered them. I do not complain, but this case has put the Court to extraordinary searches and labours, and in practical effect, to conduct the similitude of an appeal. This was unavoidable. The materials in support of the application for leave to appeal are poor. Both parties are unrepresented. Facts are not obvious, and some are left to inference. The Court has had to obtain two files from the VCAT and examine them to understand to reconstruct all the procedural events. I have seen fit to have the Court prepare its own exhibits. Exhibit A is a compilation of documents in the VCAT proceeding R2015/46206 in which the appealed order was made. Exhibit B is a compilation of documents in the related VCAT proceeding R2015/9743. Exhibit C is a transcript of the hearing on 8 March 2016.
I shall go through the events according to the files. I shall intersperse the narrative with references to the transcript on 8 March 2015, and explanations given in Court, to try and make sense of things.
The events that occurred at VCAT
The tenancy was signed on 18 January 2015. There is evidence that on that date the tenant paid over $2,520 being a bond based on 4 weeks’ rent ($1,680) and 2 weeks rent in advance ($840). There was trouble in getting or taking possession. I cannot tell why. I detect personal problems arose between the tenant and the landlord’s agent, leading her to insist on dealing with the landlord direct. Yet the agent was in charge and she was required to sign documentation with the agent who had the responsibility to then lodge the bond and give her a condition report before giving possession of the premises. I gather she refused to attend the agent’s office to sign a bond lodgement form to be given to the Residential Tenancies Bond Authority.[9] An impasse ensued.
[9]See s 405(3) of the Residential Tenancies Act.
The tenant made an application in the VCAT sometime in February 2015 (possibly the 16 February) in proceeding R2015/6978. On 20 February 2015, Member Pennell made an order, in the absence of the landlord, requiring the landlord to give the tenant possession of the property by immediately giving her the keys. Another order was made that ‘the landlord and the landlord’s servants or agents be restrained from entering or loitering about the rented premises once the tenant has possession of the property’. It seems that for as long as the tenant was refusing to attend the agent’s office to sign the necessary pre-possession statutory documentation and put things in proper order, the agent was not allowing possession. There is no suggestion of any improper personal conduct by the agent towards Ms Rossi. For the purposes of those orders the Tribunal stated a finding on the order that the parties had made a tenancy agreement subject to the Residential Tenancies Act.
I do not know the date, and I have not seen the documentation, but I can tell from the file that the landlord then filed an application under s 120 of the VCAT Act for a reopening and rehearing of the order made in his absence in that first proceeding.
Then came a second application in February 2015 by the tenant in a new proceeding R2015/8572. That was an application for restraining orders under s 452 or 472 of the Residential Tenancies Act. On 26 February 2015, that application went before Member Buchanan. The Member ordered, in the absence of the landlord, that the landlord and his agent comply with the Tribunal’s order made in the first proceeding, that is, to give the tenant keys to the premises. The member then adjourned the second proceeding to be heard with the first proceeding (R2015/6978) seeing as they arose under the same tenancy agreement.
Then, an order was made on 3 March 2015 by Member Buchanan in the first proceeding (R2015/6978) on the landlord’s application to reopen. I assume the landlord and tenant were present. The order records two findings of the Tribunal. First, a finding that the parties made a residential tenancies agreement on 18 January 2015 and the tenant paid a bond to the landlord of $1,680. Secondly, a finding that the landlord had refused to grant possession of the premises or give keys to the tenant. The Tribunal made two orders. First, that the landlord must immediately give possession of the premises and the keys to the tenant. Secondly, that the landlord must forthwith lodge the bond with the Residential Tenancies Bond Authority. Under s 405 of the Residential Tenancies Act, a landlord who receives a bond from a tenant must sign a bond lodgement form. But so too must the tenant. From there, the landlord must then lodge the bond moneys and the lodgement form with the Residential Tenancies Bond Authority. The problem was that Ms Rossi would not sign the form.
Two days after that order, the tenant filed a new application R2015/9743. Her application said:
I would like to seek an urgent order to get a locksmith to change the locks on the Premises 18 Florence drive mernda To stop the Owner a Real Estate from entering the property who are showing tenants through the house.
At the moment there is a for lease board barry plant in front of the house. As he has breached the order twice I would like an order without his consent. I would like to cliam (sic) for my cost. I have a photo to prove that there is a for lease board there.
On that day, 5 March 2015, Member Buchanan made an order ― in the absence of the landlord ― which noted that the landlord had not given keys to the premises ‘and that she [the tenant] intends to have keys cut to allow her access to the premises’. It was more than that. She wanted to change the locks to the landlord’s property, which in effect excludes the landlord from his own property. The member ordered that the proceeding be adjourned to a date not later than 5 June 2015 and gave leave to the tenant to renew the proceeding before then.
The next event is very important. On 23 March 2015, the landlord applied for a review of that last ex parte order under s 120 of the VCAT Act. That application went before Member Grainger on 23 March 2015 who granted the review and revoked the orders made on 5 March 2015. In the order as made, the Tribunal made a finding, so described, that ‘If the tenant collects the keys in accordance with paragraph 1 of the order below, the start date of the tenancy is 24 March 2015 and the tenant will be paid to 14 April 2015’. Pausing there, that makes sense of having the first ‘idle’ week for free as stated in the lease, and then the 2 weeks rent already paid on the signing of the lease to take her up to 14 March 2015.[10] But, the Tribunal’s orders expressed to be by consent of the landlord put an onus on the tenant to act and pick up the keys. The orders said in imperative terms:
1.The tenant shall collect the keys to the rented premises and a copy of the condition report signed by the landlord’s agent at 10:00am from the landlord’s agent’s business premises being Barry Plant Mill Park – South Morang, 500B Plenty Road, Mill Park.
2.The tenant shall sign the Residential Tenancies Bond Lodgement form and sign an acknowledgement in relation to how many keys she has been given at the time she collects the keys.
[10]See Transcript 23, ln 30.
As I construe it, the availability of the keys was the giving of constructive possession. The lease starts running. If she had been complaining that she could not get possession, then surely it was in her pressing interests to get the keys.
That brings me to 24 March 2015. The evidence is that the agent had everything ready for the tenant on the 24 March awaiting her attendance at the office.[11] The tenant admits she never collected the keys. Nor has signed the bond lodgement form, which is a statutory necessity.[12] Instead she arranged for a locksmith to ‘get in there’.[13] That is astonishing. It is the landlords’ property. As I read the transcript, the locksmith got entry and changed the locks to the exclusion of the landlord.[14] At the hearing on 8 March (at which the tenant, the landlord, and his agent were all sworn in before addressing the Member) the agent said that the tenant was in there before 24 March; that he went to inspect the property and she was there.[15] Ms Rossi said ‘Yeah I was in there because I had the lease’.[16] The landlord also told the Member that the tenant was there on 24 March. Yet at the Tribunal, and before me, she insisted she did not move in until 30 March 2015. Beyond that assertion, she had no evidence of that. The significance of the moving in date goes to when rent starts running.
[11]T 20 passim.
[12]See T 21, ln 22-31.
[13]T 19, ln 17; and T 28, ln 25.
[14]T 29, ln 13-17.
[15]T 23, ln 3-4.
[16]T 23, ln 9.
The narrative so far ought reveal the severe distrust and the disorder arising out of something as elementary as taking possession of rented premises. The transcript of the hearing reveals that Ms Rossi has nothing personal against the landlord but saw fit to insult his agent, Mr Brayden Schmidt (who has attended in this Court with the landlord to explain the facts with decorum in a knowledgeable manner) as ‘low life’.[17]
[17]T 19, ln 11-19.
It did not take long for the next fight. Within days, on 1 April 2015, the landlord brought an application for possession of the premises for the tenant’s failure to pay the bond. I do not know if that means not paying the bond money or, more likely, a failure of the tenant to sign the completed bond lodgement form to enable the landlord to then lodge the bond with the Residential Tenancies Bond Authority. At a hearing of the Tribunal on 1 April 2015 at the Darebin Intercultural Centre at Preston, a Tribunal member, R. Scott, ordered that the tenant must vacate the premises by 1 April 2015. The tenant was not present at this hearing. On 16 April 2015 a warrant of possession was issued.
Then came another proceeding brought by the tenant on 6 May 2015 in proceeding R2015/10681. The tenant sought a reopening and review of the last order under s 120 of the VCAT Act for her non‑attendance. Tribunal Member B. Cremean granted a reopening; dismissed the landlord’s application for possession; and cancelled the warrant of possession. But, in an order which suggests that the tenant failed to previously sign the bond lodgement form as she was ordered to do, Member Cremean ordered this:
The landlord’s agent is directed to send the bond lodgement to the tenant for signature within the next two days and the tenant is directed to return the signed form by return mail to enable the bond to be lodged with the Residential Tenancies Bond Authority.
Ms Rossi has still not signed the bond lodgement form.
The tenant remained in possession. Ms Rossi refused to pay the rent to the agent. She paid it to the landlord who then had to give it to the agent for processing and recording for proper account keeping and management. The rent was paid up to 15 October 2015. I am not sure of the dates, but it appears that on 1 December 2015 the landlord’s agent served by registered post a 14 day notice to vacate for arrears of rent. The notice required the tenant to leave by 18 December 2015. On 4 December 2015 the landlord filed a new application 2015/46206 seeking possession of the premises for arrears of rent, and payment of rent. The application form said:
We seek possession and rent for rental arrears, your rent is paid up to and including 15 October 2015 and you are now 50 days in arrears and owe $2,992.00 please make payment immediately to prevent further action.
It is to be remembered this was a fixed term tenancy. Under s 261 of the Residential Tenancies Act a landlord may, before the end of the term of the tenancy, give the tenant notice to vacate the premise at the end of the fixed term. The notice must be given not less than 90 days before the end of the fixed term. There is now in evidence proof that on 4 December 2015 the landlord’s agent also sent a 90 day notice to vacate the premises on the expiry of the fixed term, which the notice stated as 23 March 2016. That date is 12 months after the Tribunal ordered her to collect the keys on 24 March 2015.
Before expiry though, the landlord’s application for possession for failure to pay rent was returnable on 21 December 2015 at the Preston Intercultural Centre. According to my examination of the VCAT file, a hearing occurred that day. The tenant attended. A representative of the landlord’s agent, a Mr Chopra, attended. The matter went before Member S. Lipe. There still seemed to be a problem with the signing of the bond form by the tenant. The member made these orders:
The Bond is to be delivered to the Agent for signature by the tenant and the Bond is to be lodged with the Residential Tenancies Bond Authority via the agent within seven days.
The tenant is to produce copies of all Westpac Bank receipts to the agent and the landlord within 7 days or to produce at the next re-scheduled hearing.
The proceeding is adjourned to a date no later than 21 March 2016 … The proceeding may be renewed by the landlord or the tenant.
I do not know if the tenant complied with the orders to produce her bank receipts. I presume the order concerning the bank receipts was made so as to put the tenant to the test of proving privately that, as she had asserted, she was not in arrears. Perhaps the tenant did not, for under the permission to ‘renew’ the application, on 2 February 2016 the landlord obtained a hearing on 18 February 2016. On that day the landlord was represented by a Mr Chopra from the estate agency. Member Cremean adjourned the proceedings on a date to be fixed to enable the landlord to attend in person at the hearing. To be clear, the landlord was seeking to renew his application brought on 4 December 2015 for an order for possession for arrears of rent. As at 4 December 2015, the rent was paid up to 15 October 2015. The claim was based upon a Notice to Vacate served on 1 December 2015.
That brings me now to the hearing and the order made on 8 March 2016 before Member D. Bates on which the application for leave to appeal is made. At that hearing, the landlord was present in person with two estate agents, Messrs Schmidt and Chopra. The tenant was present.
The hearing on 8 March 2016
The materials on the VCAT file (Exhibit A) show that the Tribunal proceeded on the basis of a signed summary of proof declared to be true and correct by the landlord’s agent Brayden Schmidt on 8 March 2016. The facts from the landlord’s agent were as follows. The agency’s records were all prepared as faithful to the Tribunal’s order on 23 March 2015 that that the lease commenced on 24 March 2015, and, Ms Rossi was in possession on that day. After taking into account rent paid directly to the landlord but not known to the agent for processing, the rent was now paid to 18 February 2016 and the rent owed as at 8 March 2016 was $1,136.96. As for the bond, it was noted that $1,640 was paid but the bond had not yet been lodged because the tenant would not sign the lodgement form.
There is a computer produced document headed ‘Tenant Status Report’ prepared by the estate agent which was received by the Tribunal. It shows the last payment was $2100 received by the landlord on 5 February 2016. As at 14 January she was in arrears for $4200. In court the agent explained to me that payments of rent were made by the tenant to the landlord directly. The landlord then paid the rent to the agency so there is a record, an entry into the payment ledger and an adjustment to the tenancy status report. In the tense and confused state of affairs, and the multitude of orders, the Member called a short adjournment and asked the parties to go to a separate room and for the tenant to produce to the landlord and his agent her bank records which she contended would show there were no arrears. Mr Schmidt who struck me certainly as competent and knowledgeable about this matter explained that in the short adjournment, the parties then went to a separate room and Ms Rossi produced some bank deposit forms or receipts to show 5 payments of rent (at $420 per week) which were paid to the landlord but not yet delivered to the agent for business recording. In her presence, he said, he and the landlord then checked off those five payments to lead to the outcome that payments brought her up to 18 February 2016. That left 19 days of arrears from 19 February 2016 to 8 March 2016 calculated at $1,136.96. The Member accepted that evidence.
There was no evidence from Ms Rossi, beyond assertion, that she was up to date with the rent. She made reference to a letter. The transcript reveals that she told the Member she had a letter to prove that she moved in on 31 March and that is when the rent started to get paid. I cannot tell if the letter was produced.[18] The letter to which she makes reference is exhibit ‘SR-1’ to an affidavit sworn by her on this application on 4 April 2016. That letter is irrelevant. It is a letter of complaint for not handing over the keys which says that ‘I have been left with no choice but to hire a locksmith to gain entry to the premises’. That letter does not having anything to do with the arrears of rent, nor offer a defence to the landlord’s application.
[18]See transcript p 16, line 8 cf.
The order made on that day stated the following five findings:
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 $1,136.96.
5. There is a bond of $1,680.00.
The Tribunal then made the following orders:
1.The tenant must vacate the rented premises by 08 March 2016.
2.The principal registrar, at the request of the person who obtained the possession order and on 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 08 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.
The following day, the tenant wrote to the Tribunal and asked for a rehearing. This is not permissible of course unless under s 120 of the VCAT Act a party seeks a rehearing for an order made in her absence. Having been told that by the Acting Registrar, the tenant then filed the originating motion on 22 March 2016 seeking leave to appeal and later obtained a stay pending the determination of the leave to appeal application.
In this ordeal, it is now possible to state the following:
(a) on 4 December 2015 the landlord filed his application claiming possession for the tenant’s failure to pay rent;
(b) the rent had been paid up to 15 October 2015 but as at 4 December 2015 was 50 days in arrears;
(c) the notice to vacate on which the claim for possession was based was given by registered post on 1 December 2015 and required her, in accordance with the Act to vacate the premises by 18 December 2015;
(d) also on 4 December 2015 the landlord served a 90 day notice to terminate the fixed term tenancy on 23 March 2016;
(e) by the time of the hearing on 8 March 2016, the rent had been paid to 18 February 2016, but, what was in arrears was the rent from then until 8 March 2016, a period of 19 days;
(f) those arrears were $1,136.96 and was the basis upon which the order for possession was made and, the order to make payment for the same amount;
(g) when the order was made on 8 March 2016, the lease was going to expire soon afterwards on 23 March 2016;
(h) as there has been a stay on the Tribunal’s orders of 8 March 2016, the landlord’s figures prove that not only has the tenant not paid $1,136.96 on the stayed order, but since 8 March 2016 to 12 May 2016 (the date of the second hearing before me) the rent payable is $7,180.60 and is accruing at about $60 per day.
Procedural Fairness
There is no need, I think, to recite the general principles and the factors affecting the content of the requirements of procedural fairness, or the content of the hearing rules: see generally Aronson and Groves, Judicial Review of Administrative Action.[19] The content of the hearing rule depends on all of the circumstances. What is required is the reasonable opportunity to present a case. 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 manner as it sees fit, and must conduct each proceeding with as little formality and technicality as the matter permits.
[19]5th ed, chapter 8.
There are no fixed rules at law to determine the content of procedural fairness and it has to be recognised that judgments in this field involve an intuitive standard of fairness depending on the statutory framework and the factual circumstances of each case. And was said in Lam,[20] fairness is essentially a practical concept concerned to avoiding practical injustice. 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 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. But as I have shown part of the hearing involved, in effect, an opportunity for her to show the documents to the landlord and agent.
[20](2003) 214 CLR 1, 13-14 (per Gleeson CJ).
It is unnecessary for me to copiously recite contents of the transcript. The first thing to be said is that an assessment of the conduct of the hearing cannot take place without an understanding of all that preceded it. Indeed, the transcript shows the Member was herself, as I have found myself, having to deal with so many orders that it was difficult to get an understanding of all that had preceded the application. I do not see that difficulty as somehow leading to the Member truncating proceedings or depriving Ms Rossi of a chance to present her case. Rather, it impelled the Member reasonably to try and ascertain, amidst the chaotic history, the facts concerning the basis of the application which was arrears of rent whilst dealing with Ms Rossi’s attitude. The issue on its face would be an elementary one of ascertaining whether someone paid rent. 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 in 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. Instead, as the transcript shows, there was a most, I think, offensive and insulting attack against the landlord or the agent and eventually the Tribunal.
I think the transcript reveals that Ms Rossi was given every opportunity to demonstrate that she was not in arrears. The documents which she had were acted upon by the landlord and his agent. There is no suggestion they were not. Rather, her assertion seems to have been that the tenancy report was a falsehood. I think there comes a point in litigation where judges or tribunal members are entitled to call a halt to proceedings and act on what appears to be credible business records and a credible explanation from those responsible for the managing of the financial affairs. Nothing in the transcript reveals to me a shutting down of Ms Rossi or ignoring her. The circumstances were trying. Ms Rossi was doing no more than repeating that there was fraud and corruption and asserting she had receipts, when she had already presented those receipts to the landlord.
I think what ought put an end to the matter is an opportunity that I gave Ms Rossi on the first return date of the summons to swear an affidavit exhibiting the documents which she says prove that she had paid the rent but which the Member refused to receive. In response to that order, Ms Rossi swore an affidavit on 11 May 2016 which exhibited four deposit receipts of Westpac Banking Corporation for the credit of the landlord by name. Each of the receipts is for $420 which is the weekly rent. The first of those receipts is stamped 20 April 2015 which has no bearing on the arrears for which the possession order was eventually made, so that can be ignored. The remaining three receipts are dated 15 February 2016, 25 February 2016, and 5 March 2016. They are the three receipts which, as I understand it, Ms Rossi says she wanted to show to the Tribunal in defence of the application but was prevented from doing so. On my enquiry, she confirmed that she showed those receipts to the landlord and his agent in the recess granted by the Member to enable her to show documents concerning her payments of rent.
To try and put an end to this saga, the landlord has exhibited a ‘tenant ledger’ in an affidavit sworn on this application.[21] It gives a complete picture. That ledger starts on 24 March 2015. The next three entries above that date are blank, which is consistent with the first ‘idle week’ rent for free and the second and third week having been pre‑paid. Thus, on its face, the ledger correctly starts with payments as at 23 April 2015. The ledger records payments received and arears up to the hearing day of 8 March 2016 and later up to 12 May 2016 when the matter was first in this Court. 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.
[21]Sworn 6 May 2015.
I think this judgment has gone far enough to expose the facts of the matter. On the basis of the account I have given in this judgment, I am firmly of the view that the plaintiff has no real or significant argument to be put that she was denied procedural fairness. Moreover, on the evidence as I have surveyed it, the Member’s order was completely justified.
It is for those reasons that the Court refused leave to appeal.
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