JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2016
DATE OF JUDGMENT:	7 September 2016
CASE MAY BE CITED AS:	Shields v Deliopoulos
MEDIUM NEUTRAL CITATION:	[2016] VSC 500

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JUDICIAL REVIEW AND APPEALS – Appeal from Victorian Civil and Administrative Tribunal – Claim by tenant for compensation for breach of s 68 of Residential Tenancies Act 1997 (Vic) – Obligation of landlord to ‘ensure that the rented premises are maintained in good repair’.

LANDLORD AND TENANT – Content of obligation of landlord to ensure rented premises are maintained in good repair – Meaning of ‘ensure’ – Meaning of ‘maintain’ – Meaning of ‘good repair’ – Standard of good repair not referable to condition of premises at commencement of tenancy or level of rent payable – Gration v C. Gillan Investments Pty Ltd (2005) 2 QdR 267 and Kneuppel v Zarpas [2004] SADC 162 referred to – In order to ‘maintain premises in good repair’ it is necessary to put premises in good repair – Payne v Haine (1847) 16 M&W 541, Proudfoot v Hart (1890) 25 QBD 42 referred to – ‘Repairs’ v ‘improvements’ Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1990] VR 646 followed – Landlord and tenant cannot contract out of their obligations and duties under the Act – Section 1, s 27(1) of the Residential Tenancies Act 1997 (Vic) – Appeal allowed.

APPEALS FROM TRIBUNALS – Findings of fact where there was no evidence to support the finding – Decision illogical – Finding of fact where parties had not been provided with an opportunity to address the finding – Commissioner of theAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 referred to and applied – Appeal allowed.

PRACTICE AND PROCEDURE – Whether permissible for tribunal member to make a global finding that landlord had complied with repair obligations – Mulligan v National Disability Insurance Agency (2015) 146 ALD 418 referred to – Imposition of inflexible rule regarding conduct of VCAT proceedings undesirable – Ground of appeal not made out.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Horan QC with Ms L Martin	Victoria Legal Aid
For the Respondent	In person

HER HONOUR:

Background

This appeal concerns, among other things, a fundamental aspect of the law governing the relationship between landlords and tenants in Victoria: the nature and content of the obligation of a landlord to ensure that premises are ‘maintained in good repair’.

In June 2014, the plaintiff in this proceeding, Ms Vikki Shields (‘tenant’) issued a proceeding in the Residential Tenancies List of the Victorian Civil and Administrative Tribunal (‘VCAT’) against the defendant, Mr Peter Deliopoulos (‘landlord’) seeking, among other things, compensation under s 452 of the Residential Tenancies Act 1997 (Vic) (‘RTA’) for the landlord’s alleged breaches of s 68 of the RTA.…

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 Shields v Deliopoulos

Details

AGLC: Shields v Deliopoulos [2016] VSC 500
Case: [2016] VSC 500
Decision Date: 7 September 2016

CaseChat Overview and Summary

The matter of Shields v Deliopoulos involved an appeal by the tenant, Shields, against a decision of the Victorian Civil and Administrative Tribunal (VCAT) which dismissed his claim for compensation under section 68 of the Residential Tenancies Act 1997 (Vic). The tenant alleged that the landlord, Deliopoulos, had breached his statutory obligation to ensure the rented premises were maintained in good repair. The Court of Appeal was required to consider the scope of the landlord's obligations under the Act, the interpretation of key terms such as "ensure", "maintain", and "good repair", and whether the tribunal had correctly applied the law in reaching its decision.

The central legal issues before the Court were whether the landlord's obligation to ensure the premises were in good repair could be satisfied by the landlord taking no action and whether the tribunal's findings on the landlord's compliance with this obligation were supported by the evidence and logical. The Court examined the meaning of the term "ensure" within the context of the landlord's statutory duty, concluding that it implied an active duty to put the premises in good repair. The Court also held that the standard of "good repair" was not relative to the condition of the premises at the start of the tenancy or the level of rent payable. Additionally, the Court scrutinised the tribunal's findings on the landlord's compliance with the statutory duty, determining that the tribunal had made findings not supported by evidence and had failed to provide the parties with an opportunity to address certain findings.

The Court allowed the appeal, finding that the tribunal had erred in its interpretation of the landlord's obligations under the Act and had made illogical findings not supported by the evidence. The Court held that the landlord's obligation to ensure the premises were in good repair required an active duty to put the premises in good repair. The Court also found that the tribunal had erred in making certain findings without evidence and had not given the parties an opportunity to address those findings. The appeal on the ground of the tribunal's global finding regarding the landlord's compliance was dismissed as the Court found that such a global finding was not an inflexible rule and did not undermine the tribunal's decision-making process. The Court's decision clarified the obligations of landlords under the Act and provided guidance on the interpretation of key terms within the statutory provisions.

Orders