JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2016 (Final written submissions 2 September 2016)
DATE OF JUDGMENT:	13 September 2016
CASE MAY BE CITED AS:	Tsolacis v Pappas
MEDIUM NEUTRAL CITATION:	[2016] VSC 549

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal (‘VCAT’) – Application for leave to appeal to the Supreme Court – Whether questions of law – Challenges to findings of fact – Whether real or significant argument that VCAT fell into error – Significant argument on some questions of law – Leave granted – Victorian Civil and Administrative Tribunal Act1998 (‘VCAT Act’), s 148(1)(b).

ADMINISTRATIVE LAW – VCAT – Appeal on a question of law – Whether VCAT made an error of law – Whether finding of fact open on the evidence – Finding open on the evidence considered as a whole – Whether appellant denied procedural fairness – Whether Tribunal must warn the tenant of the need to apply for reasons – Whether Tribunal unfairly sided with the landlord by adducing evidence – No denial of procedural fairness in the circumstances – Appeal dismissed.

LANDLORD AND TENANT – Notice to vacate – Landlord to occupy rented premises immediately after the termination date – Whether notice to vacate validly given – Residential Tenancies Act1997, ss 258, 319, 322 and 330.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendant	Mr D Epstein	Phillips & Wilkins

TABLE OF CONTENTS

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

Affidavits............................................................................................................................................. 1

Background......................................................................................................................................... 1

Applicable Law................................................................................................................................... 6

Self-Represented Litigant............................................................................................................ 6
VCAT - Leave to Appeal.............................................................................................................. 7
Appeal............................................................................................................................................ 9
Nature of the Appeal.......................................................................................................... 9
Questions of Law vs Questions of Fact.......................................................................... 10

Residential Tenancies Act.......................................................................................................... 11

Proposed Notice of Appeal............................................................................................................. 13

The Evidence in the Tribunal........................................................................................................ 14

Submissions and Consideration................................................................................................... 17

No Proper Basis for Notice........................................................................................................ 18
Tenant’s Submissions........................................................................................................ 18
Landlords Submissions.................................................................................................... 20
Consideration..................................................................................................................... 21

Denial of procedural fairness.................................................................................................... 26
Tenant’s Submissions........................................................................................................ 26
Landlord’s Submissions................................................................................................... 26
Consideration..................................................................................................................... 27

Reasons for final Orders............................................................................................................ 27
Tenant’s Submissions........................................................................................................ 27

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction

The appellant (‘Tenant’) applies[1] for leave to appeal, and, if leave is granted, appeals the decision of Member Kefford of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) made 28 June 2016. The Tribunal found that the respondent (‘Landlord’), as Landlord of the bungalow at the rear of 8 Henry Street Kew, Victoria (‘Rented Premises’), was entitled to a possession order and the Tenant’s application for an adjournment was refused. The Tribunal ordered that the Tenant must vacate the Rented Premises by 28 July 2016.
[1]Originating motion filed on 22 July 2016.

The Tribunal also ordered that the Principal Registrar of the Tribunal issue a warrant for possession of the Rented Premises at the Landlord’s request.

Affidavits

The Tenant relied on his affidavits sworn 20 July, 25 July, 17 August and 26 August…

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 Tsolacis v Pappas

Details

AGLC: Tsolacis v Pappas [2016] VSC 549
Case: [2016] VSC 549
Decision Date: 13 September 2016

CaseChat Overview and Summary

The appellant, Mr Tsolacis, filed an application for leave to appeal to the Supreme Court of Victoria against a decision of the Victorian Civil and Administrative Tribunal (VCAT) that dismissed his appeal against the respondent, Mr Pappas. The central issue in the case was whether Mr Pappas had validly given Mr Tsolacis notice to vacate the rented premises under the Residential Tenancies Act 1997, and whether the tribunal had made an error of law in dismissing the appeal. The appeal also challenged some of the tribunal’s findings of fact and procedural fairness.

The Supreme Court reviewed whether there were any questions of law involved that warranted leave to appeal. The court noted that the appellant argued that VCAT had erred in its findings of fact and law, and had denied him procedural fairness. The court examined whether the tribunal's findings of fact were open on the evidence, and if there was a real or significant argument that VCAT had fallen into error. After careful consideration, the court determined that while there was a significant argument on some questions of law, the tribunal’s findings of fact were open on the evidence considered as a whole. The court concluded that there was no denial of procedural fairness and that the tribunal did not unfairly side with the landlord by adducing evidence.

The appeal against the tribunal’s decision was dismissed. The court found that the appellant had not established a significant argument that VCAT fell into error in its findings of fact or law. The court also held that the tribunal had not denied procedural fairness by not warning the tenant to apply for reasons, nor had it unfairly sided with the landlord. Therefore, the decision of VCAT remained intact.

No further orders were made by the Supreme Court regarding the matter.

Orders