Rowson v McClure and VCAT - [2013] VSC 140

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 1310 2013

MARK WILLIAM ROWSON	Plaintiff
v
JOSIE McCLURE AND THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2013
DATE OF JUDGMENT:	27 March 2013
CASE MAY BE CITED AS:	Rowson v McClure and VCAT
MEDIUM NEUTRAL CITATION:	[2013] VSC 140	Revised 2 April 2013

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Appeal to Supreme Court – Leave to appeal – Question of law – Discretion – Residential Tenancies Act 1997 – Notice to vacate – Prescribed form – Whether notice valid – Whether notice in or to the like effect of the prescribed form – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr Phillip Leaman	Tisher Liner FC Law

HIS HONOUR:

Introduction

The plaintiff, Mark William Rowson (“the plaintiff”) applied by originating motion dated 18 March 2013 for leave to appeal a decision made by the second defendant (“VCAT”) in proceeding R 2013/8867/00 in which Josie McClure (“the Landlord”) sought possession of premises at 4/635 Inkerman Road, Caulfield North (“the premises”). The application was made pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”).

The essential ground advanced by the plaintiff for the purposes of s 148 was that a notice to vacate served upon him was not in the form prescribed under Regulation 9(1) of the Residential Tenancies Regulations2008 (“Regulations”), namely Form 3 in Schedule 1, and therefore that notice did not meet the requirements of s 319(a) of the Residential Tenancies Act 1997 (“Tenancies Act”).

Background facts

The plaintiff is the tenant of the premises under a tenancy agreement for a term of 12 months, expiring on 6 June 2013. In early January 2013 his employment as an information technology consultant/contractor ended and he was unable to obtain further work, at least immediately. He fell behind in the payment of rent. On or about 25 January 2013 he was served with a notice to vacate purportedly given pursuant to s 319 of the Tenancies Act, based upon non-payment of rent and s 246 of that Act. That notice was sent by registered post on 21 January 2013 and required the plaintiff to vacate on 7 February 2013.

At or about the same time the agent for the Landlord filed an application with VCAT pursuant to s 322(1) of the Tenancies Act claiming possession of the premises and an order for payment of arrears of rent.

The plaintiff attempted to negotiate with the Landlord’s agent some payment arrangement, but without success.

There was a hearing before a Member of VCAT on 26 February 2013 at which the plaintiff brought to the attention of the Member that the notice to vacate purportedly given under s 246 of the Tenancies Act did not comply with the form…

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 Rowson v McClure and VCAT

Details

AGLC: Rowson v McClure and VCAT [2013] VSC 140
Case: [2013] VSC 140
Decision Date

CaseChat Overview and Summary

The plaintiff, Mark William Rowson, applied for leave to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT) in which Josie McClure sought possession of the premises at 4/635 Inkerman Road, Caulfield North, on the basis of the plaintiff's failure to pay rent. The plaintiff argued that the notice to vacate served upon him did not meet the requirements of s 319(a) of the Residential Tenancies Act 1997 because it was not in the form prescribed under Regulation 9(1) of the Residential Tenancies Regulations 2008. The plaintiff sought to appeal to the Supreme Court on the basis that the notice to vacate was not in the prescribed form and thus was invalid. The primary issue before the court was whether the notice to vacate was in the prescribed form and whether the omission of a particular paragraph from the notice rendered it invalid.

The court considered the relevant statutory provisions, including s 319(a) of the Tenancies Act, which states that a notice to vacate is not valid unless it is in the relevant prescribed form. The court also considered the Interpretation of Legislation Act 1984, which provides that any form in or to the like effect of the prescribed form shall be sufficient in law, unless the contrary intention appears. The court found that the omission of a particular paragraph from the notice did not render the notice invalid, as the purpose of the prescribed form was to provide a useful mode of achieving one of the main purposes of the Tenancies Act, that is to provide for the inexpensive and quick resolution of disputes under the Act. The court held that the omission of the paragraph did not materially affect the substance of the Form and was thus not essential to the validity of the notice.

In addition, the court considered the procedure for applying for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998, and the matters that may guide an Associate Judge in refusing leave to appeal. The court found that the justice of the case leaned heavily against the grant of leave, as the plaintiff had not paid rent for some months, and the Landlord was faced with actual and potential injustice arising out of the use of a notice to vacate found on the VCAT website. The court also noted that the prosecution of the appeal would result in declaring nothing of real significance to the parties, although it may clear the air in a general way for the giving of notices in the future.

In conclusion, the court found that there was no real or significant argument to be put that the notice to vacate was not valid, and that to refuse leave to appeal would not impose substantial injustice. The court exercised its discretion under s 148 of the VCAT Act and Rule 4.09 of Chapter II of the Rules to refuse the plaintiff leave to appeal the orders of VCAT sought to be appealed in the Originating Motion.

Orders