Turner v Hidayat - [2011] VSC 202

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…

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: [2011] VSC 202
Decision Date: 16 May 2011

CaseChat Overview and Summary

In Turner v Hidayat, the plaintiffs sought to appeal a decision of the Associate Justice of the Victorian Civil and Administrative Tribunal (VCAT) who had dismissed their claim and refused to reinstate it. The plaintiffs' application for leave to appeal was grounded on the grounds that the Associate Justice had erred in law by striking out their claim, and subsequently refusing to reinstate it. The error was seen to involve a breach of the rules of natural justice, the reliance on an incorrect statutory basis for the strike-out order, the failure to consider relevant factors, and the speculation about the merits of the plaintiffs' claim.

The central legal issues the court had to decide were whether the Associate Justice had indeed erred in law, and if so, what the appropriate remedy would be. This included whether the errors made by the Associate Justice were sufficient to warrant the granting of leave to appeal and the subsequent reinstatement of the plaintiffs' claim.

The court found that the Associate Justice had indeed erred in law by breaching the rules of natural justice, relying on an inappropriate statutory basis for the strike-out order, failing to take into account relevant considerations, and speculating about the merits of the plaintiffs' claim. These errors were considered significant enough to warrant the granting of leave to appeal. The court also noted that the error in relying on an incorrect statutory basis was a substantial one, as it formed the foundation for the strike-out order. Consequently, the appeal from the order of the Associate Justice was allowed, and leave to appeal was granted. The plaintiffs' claim was reinstated, and the matter was remitted back to VCAT for further consideration.

Orders