Rossi v Peng - [2016] VSC 309

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

---

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.

---

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…

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 309
Case: [2016] VSC 309
Decision Date: 6 June 2016

CaseChat Overview and Summary

In the matter of Rossi v Peng, the appellant, Mr Rossi, sought to appeal a decision of the Victorian Civil and Administrative Tribunal, which dismissed his claim for unpaid rent against his former tenant, Ms Peng. The dispute arose from the termination of a residential tenancy agreement where Mr Rossi alleged Ms Peng failed to pay outstanding rent following the end of the lease. The case was contentious, with both parties representing themselves.

The primary legal issues before the court involved whether the Tribunal had correctly applied the law and exercised its discretion in dismissing Mr Rossi’s claim. Specifically, the court needed to determine if the Tribunal had overlooked any critical evidence, failed to adequately consider the statutory framework governing residential tenancies, and whether procedural fairness was compromised in the proceedings.

The court found that the Tribunal had properly considered the relevant evidence and applied the statutory provisions correctly. It was noted that despite the protracted nature of the dispute and the contentious conduct of the parties, the Tribunal had adhered to the essential facts and legal principles. The court rejected Mr Rossi’s argument that procedural fairness was denied, as the Tribunal had provided adequate opportunities for both parties to present their cases. Consequently, the court held that there was no basis to grant leave to appeal, and the appeal was dismissed in accordance with the Victorian Civil and Administrative Tribunal Act 1998.

Orders