Tan v Wee - [2023] VSC 687

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03417

BETWEEN:

ADRIAN TAN	Appellant
v
KWAI WEE	Respondent

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2023
DATE OF JUDGMENT:	24 November 2023
CASE MAY BE CITED AS:	Tan v Wee
MEDIUM NEUTRAL CITATION:	[2023] VSC 687

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JUDICIAL REVIEW – Magistrates’ Court Act 1989 (Vic), s 109 – Possession Order – Compensation order – Appeal from possession order – Appeal amended to add new grounds – Amended appeal filed out of time – Whether failure to appeal within prescribed 30 day period due to exceptional circumstances – Grounds of appeal not arguable –Application for leave to appeal dismissed.

ADMINISTRATIVE LAW – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 58.09 – Application for summary dismissal of appellant’s application to Supreme Court for appeal of orders made by the Magistrates’ Court – Whether the appellant has an arguable case – Grounds of appeal not arguable – Application for summary dismissal granted.

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APPEARANCES:	Counsel	Solicitors
The Appellant in person
For the Respondent	Ms S Kearney of counsel	Monaco Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Evidence and submissions............................................................................................................... 1

Background......................................................................................................................................... 2

Factual background........................................................................................................................... 2

Proceeding in the Magistrates’ Court............................................................................................. 2

The transcripts.................................................................................................................................... 3

Notice to Vacate............................................................................................................................. 4
Validity of Notice to Vacate......................................................................................................... 7

Questions raised on appeal............................................................................................................ 11

Principles........................................................................................................................................... 16

Submissions...................................................................................................................................... 19

Tan’s submissions....................................................................................................................... 19
Has Tan established exceptional circumstances?................................................................... 19

Wee’s submissions...................................................................................................................... 20

Consideration.................................................................................................................................... 21

Conclusion......................................................................................................................................... 24

HIS HONOUR:

Introduction

Mr Tan (Tan) filed an appeal against the judgment and orders made by the Melbourne Magistrates’ Court (Magistrates’ Court) on 28 July 2022, requiring Tan to vacate premises rented to him by Ms Wee (Wee) (possession order). Tan later filed an amended notice of appeal to include orders made by the Magistrates’ Court on 13 October 2022 requiring Tan to pay Wee the sum of $7,515.95 in compensation for unpaid rent (compensation order).

Tan’s application for leave to appeal is brought under s 109 of the Magistrates’ Court Act 1989 (Vic) (Act). Section 109 allows a party to file an appeal on a question of law within 30 days of the day the order was made. On 30 December 2022, Tan filed his amended notice of appeal seeking to appeal both the possession order and the compensation order. As Tan’s amended notice of appeal was filed outside the 30 day period, Tan requires an extension of time in order to proceed with the parts of his amended notice that were not part of his original notice of appeal.

By application under r 58.10(9) of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (Rules), Wee seeks an order that the Court dismiss Tan’s appeal.

This judgment concerns Tan’s application for an extension of time to file his amended notice of appeal and Wee’s application that Tan’s appeal be dismissed.

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 Tan v Wee

Details

AGLC: Tan v Wee [2023] VSC 687
Case: [2023] VSC 687
Decision Date: 24 November 2023

CaseChat Overview and Summary

In the case of Tan v Wee, the appellant, Mr. Tan, sought judicial review of a possession order and a compensation order issued by the Magistrates' Court of Victoria. The orders were made under the Magistrates’ Court Act 1989 (Vic) and pertained to a dispute over the possession of property between Mr. Tan and Mr. Wee. The central issue was whether the appellant's failure to appeal within the stipulated 30-day period was excused due to exceptional circumstances, and if the grounds of appeal were arguable.

The court examined whether the appellant's delay in filing the amended appeal was due to exceptional circumstances as per the Magistrates’ Court Act 1989 (Vic). The court also assessed the arguability of the grounds of appeal presented by Mr. Tan. It found that the delay was not due to exceptional circumstances and that the grounds of appeal were not arguable. Consequently, the application for leave to appeal was dismissed. Further, under the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the court considered whether the appellant had an arguable case for the summary dismissal of the application to appeal. Given that the grounds of appeal were deemed not arguable, the application for summary dismissal was granted.

The court concluded that the appellant's appeal was both untimely and without merit. The appeal was dismissed, and the orders of the Magistrates' Court were upheld. The court did not find any exceptional circumstances that would excuse the late filing of the amended appeal, and the grounds of appeal were not considered valid. As a result, Mr. Tan's application to appeal the Magistrates' Court orders was summarily dismissed.

Orders