Turner v Hidayat
[2011] VSC 202
•16 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2010 06887
| SHANE TURNER AND BROOK LEA-ANN CATHRO | Plaintiffs |
| v | |
| KUSUMAWATY HIDAYAT | Defendant |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 10 May 2011 | |
DATE OF JUDGMENT: | 16 May 2011 | |
CASE MAY BE CITED AS: | Turner v Hidayat | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 202 | |
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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Application for leave to appeal – Appeal from order of Associate Justice refusing leave to appeal – VCAT struck out the plaintiffs’ claim on the basis of their failure to attend a compulsory conference and subsequently refused to reinstate the claim – Victorian Civil and Administrative Tribunal Act 1998 ss 80, 87, 98, 120 – Breach of the hearing rule of natural justice – Reliance on inappropriate statutory basis for making a strike-out order – Failure to take into account relevant considerations – Speculation about the merits of the plaintiffs’ claim – Appeal from order of Associate Justice allowed – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G. Grabau | Gleeson & Co |
| For the Defendant | Ms K. Hamill | Lewis O’Brien & Associates |
HIS HONOUR:
Introduction and summary
This is an appeal from an order of an Associate Justice dismissing an application for leave to appeal from an order made by a senior member of the Victorian Civil and Administrative Tribunal (‘VCAT’) on 22 November 2010 (‘final VCAT order’).[1]
[1]Turner v Hidayat [2010] VCAT 1906 (22 November 2010) (‘Reasons’).
The plaintiffs, Shane Turner and Brook Cathro, had applied to the VCAT under the Consumer Credit (Victoria) Code for relief in respect of their terms contract (‘Contract’) with the defendant, Kusumawaty Hidayat, for the purchase of the property at 7 Galloway Grove, Bayswater North (‘Property’).
I will refer to the plaintiffs’ application to the VCAT as the ‘VCAT claim’.
The effect of the final VCAT order was to maintain an earlier order made by the VCAT on 2 August 2010 (‘2 August order’) striking out the VCAT claim. The 2 August order was made consequent upon the plaintiffs’ failure to attend a compulsory conference on that day.
As I have concluded that the appeal from the Associate Justice’s order should be allowed and that the plaintiffs should be granted leave to appeal from the final VCAT order, I will state my reasons briefly.
Facts and procedural history
The plaintiffs and the defendant signed the Contract on 15 April 2007. The contract price was $300,000, payable by a deposit of $5,000 and 1,300 weekly instalments. On 13 May 2010, following defaults by the plaintiffs in the payment of instalments, the defendant served a rescission notice.
The relief sought in the VCAT claim included the setting aside or variation of several terms of the Contract and a declaration as to the balance owing under the Contract. The defendant counterclaimed, seeking a declaration that the Contract was at an end and that the defendant was entitled to possession of the Property.
At a directions hearing on 8 July 2010, the VCAT made a consent order (‘8 July order’), which, among other things, listed the proceeding for a compulsory conference at 10.00am on 2 August 2010. The order provided that the parties ‘must attend in person’ and that ‘[t]he parties’ legal representatives may attend’. The plaintiffs’ solicitor, Phillip Gleeson, attended the directions hearing by telephone.
The defendant and her solicitor attended the compulsory conference on 2 August 2010, but neither the plaintiffs themselves nor Mr Gleeson attended. The VCAT’s reasons for the final VCAT order describe what happened next as follows:
A directions hearing followed. Unsurprisingly, the applicants and their solicitor did not attend. The respondent, her solicitor, and counsel who had been briefed specifically for that directions hearing attended.
The orders dated 2 August … were then made.[2]
[2]Reasons, [7]-[8].
Neither the plaintiffs themselves nor Mr Gleeson had prior notice of the directions hearing, the orders to be made at that hearing or the grounds for those orders.
The 2 August order provided as follows:
1.Pursuant to s 78 of the Victorian Civil and Administrative Tribunal Act 1998, this Tribunal orders that the Applicants’ application in this proceeding is struck out.
2.Pursuant to s 78 and s 109 of the Victorian Civil and Administrative Tribunal Act 1998, this Tribunal orders that the Applicants must pay the Respondent’s costs of today’s Compulsory Conference and Hearing, fixed at $2,475.00. These costs must be paid by 23 August 2010.
3.The Defendant has liberty to apply for judgment in her counterclaim. Any such application must include a supporting affidavit. The application must indicate the statutory basis on which it is made.
On 4 August 2010, the plaintiffs applied to set aside the 2 August order. The application was accompanied by a statutory declaration made by Mr Gleeson in which he stated that he did not attend the compulsory conference ‘because an entry was made in [his] diary by a new member of staff that indicated that this proceeding was listed for 9 August 2010.’
On 19 August 2010, the VCAT made an order by consent (‘19 August order’) which relevantly provided:
2.That, conditional upon the Applicants vacating the property known as 7 Galloway Grove, Bayswater North on or before 25 August, 2010:
(a)Orders 1 and 3 of the Tribunal’s Orders dated 2 August, 2010 be set aside; and
(b)The matter be listed for a compulsory conference at 10.00 am on 6 September 2010.
3.Order 2 of the Tribunal’s Orders dated 2 August, 2010 is to remain in effect.
The plaintiffs did not vacate the Property until 30 August 2010. Upon being advised by the defendant’s solicitor that the plaintiffs had not vacated the Property by 25 August 2010 in accordance with the 19 August order, on 26 August 2010, the VCAT made an order ‘in chambers’ (‘26 August order’), which relevantly provided:
2.The Tribunal confirms that, according to the consent orders, the proceeding remains struck out, liberty to the Respondent to apply for judgment on her counterclaim stands, and the compulsory conference listed on 6 September 2010 is vacated.
Following receipt of the 26 August order, the plaintiffs applied to the VCAT to reinstate the VCAT claim. It is not clear whether that application was made orally or in writing. If it was made in writing, the written application was not in evidence before me. As a result, I am not able to determine either the nature or the basis of the application. I note that the VCAT made an order on 28 October 2010, which relevantly stated that the VCAT ‘treats the applicants’ request for a compulsory conference as a request to reinstate this proceeding.’
Two affidavits were filed on behalf of the plaintiffs in support of the application for reinstatement. The first affidavit was sworn by Mr Gleeson and relevantly stated:
3.… On 18 May 2010 the Applicants executed a Contract of Sale of Land with third parties. Before 2 August 2010 arrangements were made between Lewis O’Brien and Associates, solicitors for the Respondent, and the conveyance[r] for the third parties for the execution of a replacement Contract directly between the Respondent and the third parties.
4.I prepared two Deeds of Cancellation Contracts to facilitate this transaction. Consequently, I believed that the Applicants and Respondent would resolve their dispute privately. …
…
6.The application to reinstate was made by way of a Statutory Declaration, declared on 2 August 2010. I stated in the Statutory Declaration that a temporary clerk in my employ had incorrectly entered the date of the Compulsory Conference in my diary. I have subsequently reviewed my diary and I discovered [an] entry referring to the Compulsory Conference was recorded … for that date. However, the entry is inconclusive as to the date the Compulsory Conference was listed to proceed. …
7.This matter was listed for Hearing on 18 August 2010. For the reasons set out above I felt reasonably confident this matter would resolve before the Hearing date. Consequently, my mind was not on the Compulsory Conference.
The second affidavit in support of the application for reinstatement was sworn by Bradley Bolton, a law clerk employed by Mr Gleeson. Mr Bolton stated that, on 25 August 2010, Mr Turner instructed him that the plaintiffs ‘could not vacate the premises until 30 August 2010 because they had no funds [except] for those expected from the sale of the premises.’ Mr Bolton also stated that, on 25 September 2010, he had informed the defendant’s solicitor that the plaintiffs had found a new purchaser who was willing to pay $20,000 more than the purchase price in the contract of sale dated 18 May 2010 to which Mr Gleeson referred in his affidavit.
Neither of the plaintiffs swore an affidavit in support of the application for reinstatement.
On 19 November 2010, the defendant signed a witness statement. The witness statement set out the amounts that were allegedly payable by the plaintiffs under the Contract and attached a letter dated 3 September 2010 from a real estate agent that expressed the opinion that the Property was worth $340,000. The amounts allegedly due under the Contract exceeded $340,000.
After a contested hearing of the plaintiffs’ application for reinstatement, on 22 November 2010, the VCAT made the final VCAT order, which provided:
1The applicants’ application to reinstate this proceeding is dismissed.
2The defendant’s application for costs is listed for hearing at 10.00 am on 8 December 2010 at 55 King Street, Melbourne.
Relevant provisions of the Victorian Civil and Administrative Tribunal Act 1998
Sections 78, 87 and 120 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) are important to this appeal. They relevantly provide as follows:
78 Conduct of proceeding causing disadvantage
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as—
(a)failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b)failing to comply with this Act, the regulations, the rules or an enabling enactment; or
(c) asking for an adjournment as a result of (a) or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the Tribunal; or
(f) vexatiously conducting the proceeding; or
(g)failing to attend mediation or the hearing of the proceeding.
(2) If this section applies, the Tribunal may—
(a)order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or
…
(c)make an order for costs under section 109.
87 What happens if a party fails to attend a compulsory conference?
If a party does not attend a properly convened compulsory conference—
(a)the conference may proceed at the appointed time in the party's absence; and
(b)if a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may—
(i)determine the proceeding adversely to the absent party and make any appropriate orders; or
(ii)direct that the absent party be struck out of the proceeding.
120 Re-opening an order on substantive grounds
(1)A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.
(2)An application under subsection (1) is to be made in accordance with, and within the time limits specified by, the rules.
(3)The rules may limit the number of times a person may apply under this section in respect of the same matter without obtaining the leave of the Tribunal.
(4) The Tribunal may—
(a)hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing; and
(b)if it thinks fit, order that the order be revoked or varied.
The VCAT’s reasons for the final VCAT order
The VCAT described the application for reinstatement as follows:
The applicants apply to have their application reinstated. This application is brought on two bases. The first basis is that it is an application under s 120 of the … VCAT Act … to revoke the orders which I made on 2 August 2010. … The second basis of the application is that this is a struck out proceeding and this is an application to reinstate it.[3]
[3]Reasons, [2].
The VCAT made the following observations about s 120 of the VCAT Act and the VCAT’s ‘implied statutory jurisdiction to reinstate a struck out proceeding’:
The cases say that the section involves a two-step approach. First, the Tribunal must determine whether there was a reasonable excuse for the person not attending or being represented at the relevant hearing. But even if the Tribunal is satisfied that there was such a reasonable excuse, the second step is for it to determine whether or not it should exercise its discretion to have the original orders varied or revoked. The exercise of that discretion will turn on the particular circumstances of the case including, among other things, whether the applicant’s case is manifestly unmeritorious. This is all part of a broader consideration of justice and utility. It is futile and would not be in the interests of justice to reinstate a manifestly hopeless case. Other matters such as delay and prejudice may also be relevant.
In my view, similar considerations apply where (as here) the Tribunal is being asked to exercise its implied statutory jurisdiction to reinstate a struck out proceeding. The cases say that the striking out of a proceeding leaves the possibility of reinstatement compared with the dismissal of a proceeding, which does not leave such a possibility. … I also note that what s 120 does must be interpreted liberally. This is a section which prevents a party being shut out from a case because of explained and reasonable absence.[4]
[4]Reasons, [5]-[6].
The VCAT concluded as follows:
There is no evidence before me as to why neither … the applicants nor their solicitor attended the compulsory conference.
…
I am not satisfied that the proceeding should be reinstated under either of the bases relied on by the applicants. There is no explanation why the applicants or their solicitor did not attend the compulsory conference. There are contradictory statements by their solicitor, and I find that evidence unsatisfactory. Even if I were to assume that there was a reasonable excuse for neither the applicants nor their solicitor attending, the subsequent history of the matter does not satisfy me that I should exercise my discretion to revoke the 2 August orders. That subsequent history is this.
On 19 August 2010, the Tribunal made orders with the parties’ consent. There is no evidence from the applicants that they were pressured to consent, although their solicitor in one of his submissions states that there was pressure. In my view, there is simply insufficient evidence that pressure of this kind existed. The consent orders are therefore true consent orders made with voluntary consent from the parties. The Tribunal cannot, in my view, alter these without some very compelling reason, such as a clear lack of true consent or that the order does not reflect the agreement of the parties. No such reason exists. The consent orders assume, at their basis, the fact of the 2 August orders. They contemplate the reinstatement of the proceeding if certain conditions are complied with. Those conditions were not complied with. This is not a case where there has been a failure to attend a hearing and nothing more. The parties have in fact turned their minds to reinstatement, have made consent orders about it, and in my view, I should not adopt a course which would effectively ignore or treat as void those consent orders. For similar reasons, I do not propose, as the applicants suggested, to extend the time limit in the consent orders beyond 25 August 2010. That was the time set for compliance with the conditions in those orders.
I now say something about the merits of the applicants’ claim. I note that the further amended particulars of claim primarily seek reopening of the contract between the parties, but on a limited basis. The applicants do not say that the contract should be reopened and wholly set aside. They seek the setting aside of certain conditions in the contract, for example which entitle the defendant to certain interest and late fees on default, to certain legal costs on an indemnity basis, and to add to the outstanding balance certain amounts expended in returning the relevant property to its condition on the preliminary settlement date. I have in the material before me an affidavit from the defendant to which is exhibited an appraisal of the value of the property. It is by no means clear that there will be sufficient equity in the property to satisfy whatever balance might (had the hearing gone ahead) have been declared to be owing by the applicants to the defendant. The applicants’ material refers to their impecuniosity. I take these matters into account when I come to the conclusion that there is a real possibility that the hearing might, if it went ahead, be a fruitless exercise.[5]
[5]Reasons, [10], [14]-[16].
Proposed notice of appeal
The plaintiffs’ proposed notice of appeal is an inelegant and confusing document. Nevertheless, it is reasonably clear that the alleged errors of law include the following:
(a)the VCAT erred in finding that no explanation had been given for the non‑attendance at the compulsory conference;
(b)the VCAT breached the hearing rule of natural justice by:
(i)making an order to strike out the VCAT claim at a hearing, notice of which was not given to the plaintiffs; and
(ii)striking out the VCAT claim while leaving the defendant’s counterclaim on foot;
(c)the VCAT ruled on the merits of the VCAT claim without any factual or legal basis for the ruling;
(d)the VCAT construed s 120 of the VCAT Act too narrowly; and
(e)the VCAT failed to take into account the absence of significant prejudice to the respondent arising from the plaintiffs’ short delay in vacating the Property.
Decision
In order to succeed in their application for leave to appeal against the final VCAT order, the plaintiffs must establish that there was a sufficient doubt about whether the VCAT made an error of law that affected the final VCAT order to justify the grant of leave.[6] In my opinion, the plaintiffs have satisfied this requirement and have also demonstrated that substantial injustice would be suffered by the plaintiffs if the error of law was not corrected. Accordingly, the plaintiffs should be granted leave to appeal against the final VCAT order.
[6]Secretary, Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 337 [16].
As the appeal against the final VCAT order will be heard in due course, it is neither necessary nor appropriate for me to set out in detail my reasons for concluding that leave to appeal should be granted. What follows are brief reasons for my decision.
The 2 August order was made consequent upon the plaintiffs’ failure to attend the compulsory conference. Section 87 of the VCAT Act authorises the VCAT to make an order striking out a proceeding where an applicant fails to attend a properly convened compulsory conference. The sole ground for such an order is the applicant’s failure to attend a compulsory conference and the only natural justice obligation that applies is that the applicant have been given prior notice of the compulsory conference. Section 87 does not expressly authorise the VCAT to make an order for costs against the absent party.
The 2 August order, however, was made under s 78, rather than s 87, of the VCAT Act. Section 78 authorises the VCAT to strike out a proceeding and to make an order for costs where the VCAT forms a belief about two matters. The first matter is that a party (‘the first party’) is conducting the proceeding in a particular way. The second matter is that the way in which the first party is conducting the proceeding ‘unnecessarily disadvantages another party to the proceeding’.
Section 78 gives some examples of conduct that satisfies the first requirement. The examples include failing to comply with an order without reasonable excuse, attempting to deceive another party, conducting the proceeding vexatiously and failing to attend a mediation or the hearing of the proceeding. Each of these examples contains an element of fault on the part of the first party.
Breach of the hearing rule of natural justice
As the 8 July order was made by consent, with Mr Gleeson attending the directions hearing by telephone, it may be assumed that the plaintiffs were aware of the compulsory conference scheduled for 2 August 2010. It may also be assumed that the plaintiffs were aware that, if they did not attend the compulsory conference, there was a risk that the VCAT might make an order under s 87 of the VCAT Act striking out the VCAT claim. The plaintiffs, however, were not given any prior notice, either by the defendant or by the VCAT, that the VCAT proposed to make orders under s 78 of the VCAT Act based on findings that the plaintiffs were conducting the VCAT claim in a way that unnecessarily disadvantaged the defendant. Arguably, this constituted an error of law on the basis of a breach of the hearing rule of natural justice.[7]
[7]Martin v Fasham Johnson Pty Ltd [2008] VSC 289 (4 August 2008) [34]. See also Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280, 298 [51], 300-2 [65]-[71].
It may be said that any breach of the hearing rule of natural justice on 2 August 2010 was waived by the plaintiffs consenting to the 19 August order. By that order, the parties agreed that, provided the plaintiffs vacated the Property by 25 August 2010, the VCAT claim be reinstated.
In the course of argument before me, I raised with the parties the question of whether s 78 even authorises the making of a strike-out order on the basis of a party's failure to attend a compulsory conference, given that the section, so far as is relevant, expressly refers only to a party's failure to attend mediation or the hearing of the proceeding as a basis for such an order. I also raised with the parties the question of whether s 87 is the sole source of power for a strike-out order in circumstances where the only conduct relied upon by a party is the other party’s failure to attend a compulsory conference. If s 78 does not authorise the making of a strike-out order on the basis of a party's failure to attend a compulsory conference and s 87 provides the sole source of power for such an order in those circumstances, the 2 August order was void because it was made without jurisdiction. In this regard, I note that there is no evidence before me that the VCAT determined that the two requirements in s 78 were satisfied. Unlike a breach of the rules of natural justice, an absence of jurisdiction cannot be waived by a party. As the issues discussed in this paragraph were not raised by the proposed notice of appeal, I have not formed any view on them and they have not influenced my decision to grant leave to appeal against the final VCAT order.
Reliance on inappropriate statutory basis for making the strike-out order
If the plaintiffs’ consent to the 19 August order constituted a waiver of any breach of the hearing rule of natural justice, the critical issue is whether the VCAT erred in law in refusing to reinstate the VCAT claim either pursuant to s 120 of the VCAT Act or pursuant to the VCAT’s implied power to reinstate a struck-out proceeding.
The implied power to reinstate a struck-out proceeding was recognised by the Court of Appeal in Herald and Weekly Times Pty Ltd v Victoria.[8] Such a power must be implied because there is doubt about whether it is expressly conferred by any provision of the VCAT Act. Section 80 may not apply because the striking out of a proceeding may not constitute a ‘direction’. Section 98(3) may not apply because an order striking out a proceeding may not constitute an order which ‘regulate[s] [the VCAT’s] own procedure’. Section 120 may not apply because a compulsory conference may not constitute a ‘hearing’.
[8](2006) 25 VAR 124, 132 [19].
Although s 120 of the VCAT Act may provide some guidance to the VCAT when it is exercising the implied power, the exercise of the implied power is not governed by that section. In particular, the precondition in s 120 that the party must have a reasonable excuse for failing to attend or being represented at the hearing does not apply. That is not to say, however, that the absence of a reasonable excuse is irrelevant. On the contrary, it is a very significant factor that must be taken into account. Other factors that must be taken into account are whether the absence of the party caused any prejudice to the party that attended, whether an order for costs would sufficiently overcome that prejudice, whether the application to reinstate was made promptly, and the merits of the proceeding that is sought to be reinstated.
In the present case, it is not clear why the VCAT did not make an order under s 87 of the VCAT Act striking out the VCAT claim on the basis of the plaintiffs’ failure to attend the compulsory conference. It may be that the VCAT was concerned that, if it made a strike-out order under s 87, the plaintiffs would be unable to invoke the reinstatement provisions of s 120 because the compulsory conference was not a ‘hearing’. That is one possible explanation for the VCAT’s convening of a directions hearing after the compulsory conference and the making of a strike-out order at that ‘hearing’.
If the VCAT proceeded on this basis, however, it is arguable that the VCAT fell into error because it overlooked the existence of the implied power to reinstate a proceeding struck out under s 87 of the VCAT Act and also because its actions placed the plaintiffs in a worse position in having to rely on s 120 of the Act rather than the implied power to reinstate.
It appears that the plaintiffs applied for reinstatement of the VCAT claim without specifying the basis for the application. The VCAT decided to consider the application under s 120 of the VCAT Act as well as under the VCAT’s implied power to reinstate.
The VCAT was correct in concluding that the discretion in s 120 of the VCAT Act to reinstate a proceeding is enlivened only if the applicant satisfies the VCAT that he or she had a reasonable excuse for not attending or being represented at a hearing. The VCAT concluded that ‘[t]here [was] no evidence before [it] as to why neither … the applicants nor their solicitor attended the compulsory conference’[9] and that ‘[t]here [was] no explanation why the applicants or their solicitor did not attend the compulsory conference’.[10] These conclusions are difficult to understand in the light of Mr Gleeson’s affidavit evidence that his diary entry was inconclusive about the date of the compulsory conference and that he had overlooked the compulsory conference because of the parties’ endeavours to resolve the dispute. Leaving aside the reliability of Mr Gleeson’s evidence and the cogency of his explanation, the fact is that he did give evidence about his non-attendance and proffered an explanation for the non-attendance. However, it is not necessary for me to consider this issue further.
[9]Reasons, [10].
[10]Reasons, [14].
Failure to take into account relevant considerations
It appears from the VCAT’s reasons for the final VCAT order that, during the hearing of the plaintiffs’ application for reinstatement, counsel for the plaintiffs submitted that the VCAT should bring about the reinstatement of the VCAT claim by extending the deadline for compliance with the condition in the 12 August order that the plaintiffs vacate the Property from 25 August 2010 to 30 August 2010.[11]
[11]Depending on the circumstances, the VCAT may grant an extension of time under ss 80, 98(3), 126(2), 130 or 131 of the VCAT Act.
The VCAT decided not to extend the time for compliance with the condition. Critical to the VCAT’s decision was its arguably erroneous view that, as the plaintiffs had consented to the condition and the condition was not void, it would be inappropriate for the VCAT to alter the condition unless there was ‘some very compelling reason, such as a clear lack of true consent’. As the VCAT concluded that the parties had genuinely consented to the condition, it did not consider the reasons for the plaintiffs’ delay in vacating the Property (namely, impecuniosity), the length of the delay (namely, five days) or whether the delay caused any prejudice to the defendant. In my opinion, those matters were arguably central to a proper consideration of the submission about the extension of time for compliance with the condition.[12] On this basis, it is arguable that the VCAT committed an error of law by failing to take into account relevant considerations.
[12]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-50.
Speculation about the merits of the VCAT claim
In deciding to dismiss the plaintiffs’ application for reinstatement, the VCAT took into account its conclusion that ‘there is a real possibility that the hearing might, if it went ahead, be a fruitless exercise.’[13] This conclusion was based on the VCAT’s finding that ‘[i]t is by no means clear that there will be sufficient equity in the property to satisfy whatever balance might (had the hearing gone ahead) have been declared to be owing by the applicants to the respondent.’[14] It appears that the VCAT also took into account that the plaintiffs were impecunious.
[13]Reasons, [16].
[14]Reasons, [16].
In my opinion, the evidence before the VCAT was insufficient to enable it to make any reliable assessment about the merits of the VCAT claim. Although the defendant’s witness statement dated 19 November 2010 included an appraisal of the value of the Property and some calculations about what was owing under the Contract, the witness statement did not calculate what would be owing under the Contract if the VCAT claim succeeded in its entirety. Further, it appears that the plaintiffs had received two offers to purchase the Property and that the second offer was $20,000 more than the first offer. The VCAT did not refer to these offers. Even if the evidence about the offers was imprecise, it might be expected that the plaintiffs would adduce detailed evidence about the value of the Property if the VCAT claim were to be heard on its merits.
For the above reasons, it is arguable that the VCAT’s conclusion about the merits of the VCAT claim involved no more than speculation and that the VCAT erred in taking into account speculative matters in deciding to dismiss the application for reinstatement. The VCAT may also have fallen into error in taking into account the plaintiffs’ apparent impecuniosity in relation to the merits of the VCAT claim.
Proposed order
Subject to hearing further from the parties, I propose to make the following orders:
(a)the time within which the plaintiffs may appeal against the order of Associate Justice Efthim made on 24 February 2011 and 4 March 2011 is extended to 9 May 2011;
(b)the order of Associate Justice Efthim made on 24 February 2011 and 4 March 2011 is set aside; and
(c)the plaintiffs have leave to appeal against the order of the Victorian Civil and Administrative Tribunal made on 22 November 2010.
As I stated at [25] above, the proposed notice of appeal is an inelegant and confusing document. I will invite the parties to make further submissions on the precise grounds to be included in the notice of appeal and on any procedural orders that may be necessary.
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