Tilley v No 352 Toorak Road Pty Ltd - [2016] VSC 608

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05816

PETER GRAHAM TILLEY	Applicant/Appellant
v
No 352 TOORAK ROAD PTY LTD (ACN 004 569 475)	Respondent

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2016. Further submissions received on 31 March 2016
DATE OF JUDGMENT:	7 October 2016
CASE MAY BE CITED AS:	Tilley v No 352 Toorak Road Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 608

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APPEAL – application for leave to appeal and appeal if leave is granted against order of VCAT – neighbourhood dispute concerning parking on residual land – Company Titles (Home Units) Act 2013 (Vic) ss 8, 10– whether VCAT in determining what is a ‘fair’ order pursuant to s 8 is limited to the determination of legal rights – held: not so limited – whether there was evidence to support a finding that there would be considerable inconvenience to persons currently using the car spaces if the respondent was ordered to ensure they did not do so – held: there was such evidence – whether in taking into account that inconvenience given that those persons had no legal right to park there the Tribunal took into account an irrelevant consideration –held: no – principles of legal unreasonableness discussed - Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 discussed and applied – leave to appeal granted on one question of law but appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Snow	Baker Jones Lawyers
For the Respondent	Mr M Symons	Stewart Peters Lawyer

TABLE OF CONTENTS

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

Legislative context.............................................................................................................................. 3

Company Titles (Home Units) Act 2013 (Vic)................................................................................ 3
Victorian Civil and Administrative Tribunal Act 1998 (Vic)......................................................... 6

Proposed appeal................................................................................................................................. 8

Submissions and discussion............................................................................................................ 8

Questions of law........................................................................................................................... 8
Legal principles in relation to unreasonableness and irrelevant considerations............... 8
Application of these principles to this case............................................................................ 11
Applicant’s submissions.................................................................................................. 11
Respondent’s submissions............................................................................................... 12

Purpose and objects of the Act.................................................................................................. 13
‘Fair’ not confined to legal rights.................................................................................... 13
Nature of hearing at VCAT.............................................................................................. 17

Determination of the Questions................................................................................................ 18
Was the decision manifestly unreasonable?................................................................. 18
Was inconvenience to other occupiers irrelevant?....................................................... 21

Conclusion and orders.................................................................................................................... 22

Leave to appeal........................................................................................................................... 22
Appeal.......................................................................................................................................... 23
Orders........................................................................................................................................... 23

HER HONOUR:

Introduction

This proceeding commenced as an application for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) constituted by Senior Member A Vassie. By orders made by me on 3 December 2015, the application for leave to appeal was referred to the court that would hear the substantive appeal if leave were granted. Justice J Forrest referred the hearing and determination of the appeal to me by order made on 4 December 2015. I heard the application for leave to appeal and appeal (if leave be granted) on 7 March 2016. Shortly after the hearing, I…

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: [2016] VSC 608
Decision Date: 7 October 2016

CaseChat Overview and Summary

The appeal in Tilley v No 352 Toorak Road Pty Ltd involved a dispute over parking on a piece of land subject to the Company Titles (Home Units) Act 2013 (Vic). The applicant, Tilley, sought an order against the respondent, No 352 Toorak Road Pty Ltd, which managed the land, to prevent unauthorised parking on a residual area. The Victorian Civil and Administrative Tribunal (VCAT) had made an order that the respondent ensure the unauthorised parking did not occur, but the respondent appealed this decision to the Court. The respondent argued that VCAT was limited to determining legal rights and that it had taken into account an irrelevant consideration by considering the inconvenience of the unauthorised parking.

The court needed to decide whether VCAT was limited to determining legal rights when making an order under section 8 of the Act and whether it had considered an irrelevant factor by taking into account the inconvenience of the parking. The court needed to determine if there was evidence of considerable inconvenience and whether this was a relevant factor in the decision. The respondent argued that the consideration of inconvenience was not a proper consideration as those parking had no legal right to do so.

The court found that VCAT was not limited to determining legal rights when making an order under section 8 of the Act. The court held that VCAT was empowered to consider all relevant factors, including inconvenience, in making a decision. The court found that there was evidence of considerable inconvenience to persons currently using the car spaces if the respondent was ordered to ensure they did not park there. The court held that this was a relevant factor in the decision and that VCAT had not taken into account an irrelevant consideration. The court discussed the principles of legal unreasonableness and held that VCAT's decision was not legally unreasonable. Leave to appeal was granted on one question of law but the appeal was dismissed.

The court found that the decision of VCAT was not legally unreasonable and that it had properly considered all relevant factors in making its decision. The court held that the consideration of inconvenience was a relevant factor and that VCAT had not taken into account an irrelevant consideration. The court granted leave to appeal on one question of law but dismissed the appeal. The decision of VCAT was upheld, and the order preventing unauthorised parking on the residual land was to stand.

Orders