Xu, John v Director of Housing

[2012] VCC 2052

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-06195

JOHN XU	Plaintiff
v
DIRECTOR OF HOUSING	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2012
DATE OF JUDGMENT:	21 March 2012
CASE MAY BE CITED AS:	Xu, John v Director of Housing
MEDIUM NEUTRAL CITATION:	[2012] VCC 2052

REASONS FOR JUDGMENT

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Catchwords: Practice and Procedure - application to dismiss proceeding for lack of jurisdiction - whether Court has jurisdiction to hear application for an order to repair in relation to a tenancy agreement under the Residential Tenancies Act 1997 - no jurisdiction under s510 where estimated costs of repair less than $10,000.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Xu (In person)
For the Defendant	Mr J. Warren	Legal Services Branch Dept of Human Services

HER HONOUR:

1       This is the return of the defendant’s Summons filed 23 January 2012 which seeks orders that the proceeding should be dismissed for lack of jurisdiction. It is supported by an affidavit of a Mr Bruno of 23 January 2012, which is not materially different to the affidavit of Mr Bruno filed in proceeding CI-11-05946 between the same parties.

2       These reasons should be read together with the more extensive reasons I have delivered in proceeding CI-11-05946 also this day.

3       I have compared the writ and statement of claim filed in this proceeding of 20 December 2011 with the pleadings filed in CI-11-05946. 

4       The present statement of claim is largely unintelligible and should be struck out under Order 23.02.  However, as best as can be determined, this proceeding appears to seek to raise similar issues as that considered in CI-11-05946, although it also appears to raise issues about the notice of entry the subject of a hearing at VCAT on 22 December 2011.

5       Insofar as this proceeding seeks to appeal a decision of VCAT, this Court has no jurisdiction.  Rather, pursuant to s148 of the Victorian Civil and Administrative Tribunal (VCAT) Act 1998, appeals are instituted in the Supreme Court on a question of law.

6       For reasons already given in proceeding CI-11-05946, insofar as this proceeding seeks an order for repairs, this Court has no jurisdiction to hear it on the basis that the relevant repairs are valued at $10,000 or less.

7       However, before considering whether the proceeding should thereby be dismissed and/or whether the plaintiff should be given an opportunity to replead,  I am satisfied that further steps should be taken, particularly given Mr Xu appears to be relying on a separate “windows” claim not included in his pleading.

8       I therefore consider that the appropriate orders are as follows:

1.      The statement of claim filed 20  December 2011 is struck out.

2.      On or before Friday 23 March 2012, the plaintiff is to provide a document of one page or less which precisely sets out the repairs he says the landlord should undertake. He should also annexe any document which estimates the cost of those repairs specified.

3.      On or before Tuesday 27 March 2012, the defendant is to file and serve any further affidavits on which it relies, which suggest that this proceeding should be dismissed for lack of jurisdiction.  Such affidavit material should include reference to the status of any relevant VCAT proceeding for the purposes of s448 of the RTA.

4.      The matter is listed for further hearing on 30 March 2012 at 12 pm.  At that time the Court will consider whether it is appropriate to dismiss and/or make any other order in this proceeding as well as proceeding CI-11-06196 and CI-12-00483, in the light of these reasons.

5.      I will hear from the parties on the question of costs on the return date of 30 March 2012.