Xu, John v Director of Housing
[2012] VCC 2051
•21 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-11-05946
| 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 2051 | |
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 cost of repairs 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 dated 23 January 2012 for an application seeking orders that the proceeding be dismissed for lack of jurisdiction.
2 The application was supported by an affidavit of a Mr Darren Alexander Bruno dated 23 January 2012.
3 A similar application has also been made and heard by the Court in proceeding CI-11-06195, and these reasons should be read together with the reasons delivered this day in that proceeding.
4 The plaintiff, Mr Xu, appeared for himself with the assistance of an interpreter.
5 The plaintiff had also filed a number of applications for summary judgment.
6 However, I determined that I would hear the defendant’s application first, given that there would be little utility in hearing an application for summary judgment if the jurisdictional matter had been resolved adversely to the plaintiff.
Background
7 The plaintiff issued this proceeding on 9 December 2011. He also lodged the further proceeding (CI-11-06195) some two weeks later, and a third proceeding subsequently (CI-12-00483) on 3 February 2012.
8 It is difficult to determine the precise nature of the complaint given that the statement of claim is largely unintelligible. However an examination of the pleading appears to revolve around a complaint of failure to repair. Reference is made in the pleading to a Consumer Affairs report dated 13 September 2010, and to problems with bathroom ventilation. The plaintiff ultimately seeks (inter alia) that “the defendant carries out the repair…pursuant to s68 of the RT Act 1997...”
9 In his affidavit, Mr Bruno states that the plaintiff has rented the defendant’s property at 16/40 Brunswick Street, Fitzroy for several years. In recent years there have been a number of actions brought by the plaintiff in the Victorian Civil and Administrative Tribunal (VCAT), some of which have been appealed to the Supreme Court, in relation to various repairs that are required to be completed at the premises.
10 Mr Bruno annexes a letter dated 16 November 2010 from the Department of Human Services which suggests that the Director had agreed to undertake six categories of repair works at the rented premises. The categories appear to include a water leak and also a bathroom ventilation problem, which is the subject of a Consumer Affairs Victoria report in accordance with section 74 of the Residential Tenancies Act 1997 (RTA) dated 13 September 2010, which is annexed to the affidavit (at exhibit DAB-2).
11 The water leak was fixed on 9 January 2012, following service of a notice of entry dated 1 December 2011 (which is contained in annexure “John-1” to Mr Xu’s affidavit of 2 January 2012) and an order from VCAT of 22 December 2011 compelling entry. Mr Xu subsequently applied for an injunction in the Supreme Court to prevent that entry which was dismissed on 6 January 2012. However, it appears that the VCAT order itself remains on appeal to the Supreme Court and I was advised that Mr Xu is currently seeking leave to appeal from 3 different VCAT decisions in the Supreme Court.[1]
[1]See Defendant’s Written Submissions at para 8 and 30.
12 Mr Bruno’s affidavit also annexes a report from a Mr Marguilargos, Housing Services Manager at the Fitzroy Housing Office dated 23 January 2012, who considers the estimated costs of works which remain to be done at the property to be approximately $3,162.50 (at DAB3).
13 The defendant says that the reason the remaining works have not been undertaken is because the plaintiff has denied entry and that only VCAT has jurisdiction to determine the plaintiff’s complaints, given that the amount of repairs involved is less than $10,000.00.
Statutory regime
14 In terms of repairs, division 5 of Part 2 of the RTA sets out the general duties of tenants and landlords. Section 68 makes provision for the landlord’s duty to maintain the premises. Division 6 makes specific provision for repairs. Pursuant to s75 a tenant may apply to the Tribunal for an order requiring the landlord to carry out specific (non urgent) repairs, in circumstances where the tenant has received a report under s74. Section 73 also makes provision for application to be made to the Tribunal for urgent repairs.
15 Pursuant to s.446 of the RTA, VCAT has jurisdiction to hear and determine an application under the Act relating to:
a) any matter arising in relation to a tenancy agreement or a proposed tenancy agreement of premises situated in Victoria; and
b) any matter arising in relation to a residency right under this Act; and
ba) any matter arising in relation to a site agreement or a proposed site agreement in respect of a Part 4A site; and
c) any matter referred to it under this Act.
16 The Tribunal would therefore appear to have jurisdiction to make an order requiring the landlord to carry out repairs under either s73 or s75, given that it is a matter “referred to it under this Act.”
17 Section 447(1)(d) limits the jurisdiction of the Tribunal such that it “must not” make a determination requiring the carrying out of works the estimated cost of which exceeds $10,000.00. However, this would not appear to have any application on the evidence available, which suggests that the amount of repairs is only some $3000.00.
18 It follows that VCAT has jurisdiction in relation to Mr Xu’s application.
19 Sections 509 and 510 of the RTA specifically make provision for the jurisdiction of the County Court. Thus, sub-section 509(2) provides that “Subject to section 37 of the County Court Act 1958, the County Court has jurisdiction to hear and determine applications made under section 510.”
20 Section 510 then provides that a person may make an application under this section to a court referred to in section 509 in relation to any matter arising in relation to:
a) a tenancy agreement of premises situated in Victoria; or
b) a right or duty created under this Act in relation to a rooming house; or
c) a right or duty created under this Act in relation to a caravan park; or
d) a site agreement in respect of a Part 4A site-
being an application that, if made to the Tribunal, the Tribunal would, but for section 447, have been entitled to hear and determine.
21 The crucial issue is therefore whether, in the light of these provisions, this Court also has jurisdiction to hear Mr Xu’s claim.
Disposition of the Application
22 The jurisdiction of the Court as set out in s510 is different to that provided in section 446 and, in particular, excludes “any matter referred to [the Tribunal] under this Act” (s446(c)).
23 If the plaintiff’s application is viewed as the making of an application under the RTA, specifically ss 73 and/or 75, there appears to be no jurisdiction in this Court to hear that application which is exclusively directed to VCAT under s446(c).
24 However, it is possible to take a broader view of the proceeding in favour of the plaintiff by considering whether it is a matter “arising in relation to a tenancy agreement.”[2]
[2]Which is broadly defined in s3 as an agreement, whether or not in writing and whether express or implied, under which a person lets premises as a residence.
25 Although the Director did not annexe a copy of the relevant agreement, Mr Xu himself annexed an agreement dated 15 February 2000 (at JCI2 to his affidavit of 2 March). Clause 5 of that agreement requires the landlord to make sure the premises are maintained in good repair; clause 9 includes an obligation that the landlord takes all reasonable steps to ensure quiet enjoyment; and clause 11 states that both parties are to comply with the RTA. In such circumstances, it is possible to characterise the proceeding concerning repairs as a matter “arising in relation to a tenancy agreement.”
26 The question then becomes whether or not the current application can be considered pursuant to s510, and specifically, s510(1)(a).
27 Under s510(1), the jurisdiction of the Court is confined to applications that “if made to the Tribunal, the Tribunal would, but for section 447, have been entitled to hear and determine.” (emphasis added)
28 The apparent intention of this qualification is to limit the jurisdiction of this court to the hearing of applications that the Tribunal would have been entitled to hear, but which the Tribunal is in fact unable to hear because of s447. It would otherwise be entirely unnecessary to add the 3 lines following s510(1)(d) if the Court was entitled to hear any matter coming within s510(1), even if VCAT was also able to hear it.
29 It follows that the Court does not have jurisdiction in relation to applications (such as the present one) which VCAT is able to hear.
30 The Director also referred to a decision of the Court of Appeal in Luck v Renton [2005] VSCA 210. That case dealt with a tenant who had (in effect) sought leave to appeal to the Supreme Court from orders of the Tribunal made on 5 and 20 May in relation to the carrying out of repairs. As a separate matter, and on appeal, the tenant sought an order staying a separate VCAT application which had been instituted by the landlord for possession of the premises. In substance this was an injunction to restrain the Tribunal from hearing the application.
31 The Court rejected the contentions made in support of the “stay”, including a ground based on actual or apprehended bias, although went on to state the following:
“It is important to point out that, even if the claim of institutional bias were made out, the Supreme Court would not be able to deal with the possession application itself. The Tribunal has exclusive jurisdiction under the RT Act to deal with that application.”[3]
[3][2005] VSCA 210 at [55]
32 Although the Court did not elaborate on this statement given its other findings, there is no reason why a different result should follow in the present case.
33 Thus, if a possession case is seen as a matter “referred to the Tribunal under the Act” for the purposes of s446(c), then the Tribunal would have exclusive jurisdiction on the basis of s446 (and the corresponding absence in s510). Further, even if a possession application is seen as a matter arising “in relation to a tenancy agreement”, the court would also not have jurisdiction given that VCAT was able to hear the matter (or put another way, not disabled by virtue of s447).
34 The decision in Luck therefore supports the defendant’s application.
35 The plaintiff addressed the Court at some length and raised many factors, not all of which were pertinent to the question of jurisdiction. The main contentions raised were that:
· this court has unlimited jurisdiction;
· the claim was in fact worth more than $10,000.00; and
· that the appearance filed had become unconditional.
36 The County Court does have unlimited monetary jurisdiction as Mr Xu correctly highlighted.[4] However, the Court has no actual jurisdiction beyond that which Parliament has given it. For reasons already given, I do not consider that the Court has been given jurisdiction in relation to this matter. Moreover, although section 509(2) is expressed to be “subject to section 37”, the natural reading of this provision is that the conferral of jurisdiction under the RTA is subject to any express limitations imposed on the court’s jurisdiction from time to time.
[4]See s.3 of the Court’s Legislation (Jurisdiction) Act 2006 which came into effect on 1 January 2007.
37 In terms of the value of the claim, the evidence of the defendant is that the claim is only worth an amount of some $3,000.00. Although the plaintiff pointed to various parts of the extensive material he had filed, there appeared to be nothing filed that suggested a higher value in relation to the complaints the subject of the writ in this matter.
38 In terms of the appearance, Mr Wu appeared to be suggesting that the conditional appearance (of 21 December 2011) had effect as an unconditional appearance pursuant to rule 8.08(3), given that the defendant did not make application within 14 days after it was filed. Even if this is so, it is of no consequence, given that any waiver would not be effective to confer jurisdiction on this court if the court has in fact no jurisdiction.[5]
[5]Colbert v Tocumwal Trading Co Pty Ltd [1964] VR 820 at 826
39 Finally, I have also given consideration to Section 509(4). It provides that if a person makes an application to the Supreme Court, being an application that the Tribunal would have been entitled to hear and determine, the person is not entitled to any costs in the proceeding unless the Supreme Court is satisfied that at the time of making the application there were reasonable grounds for believing that the Tribunal would not have been entitled to hear and determine the application.
40 Although this might suggest that VCAT and the Court were intended to have concurrent jurisdictions, I accept the defendant’s submission that the true value of a claim may be unclear as at the time of issue. Section 509(4) thereby provides some protection for an applicant in such circumstances provided there were reasonable grounds for proceeding to Court.
41 I therefore accept the defendant’s submission that this Court lacks jurisdiction to hear this proceeding if the proceeding is, in reality, concerned with repairs worth $10,000 or less.
Claim about windows
42 During the course of oral submission Mr Xu, however, also sought to rely on a further matter, namely a complaint about windows. In particular, he pointed to an estimate of repairs for windows of $17,471.69 contained in a report of a Mr Simpson dated 29 January 2012 post dating the issue of this proceeding (see exhibit JCI-5 to the affidavit of Mr Xu of 2 March).
43 Counsel for the Director advised that the repair of windows was already the subject of a claim in VCAT, which would mean that this Court would have no jurisdiction by reason of s448. However, no evidence of such a proceeding was adduced. Moreover, if Mr Xu was correct, then VCAT would not appear to have jurisdiction in relation to the windows claim (given its apparent value), unless an authority was provided pursuant to s447.
44 In any event, given the windows do not appear to be referred to in the existing statement of claim dated 7 December 2011, the defendant submitted that the proceeding should still be dismissed.
Appropriate Orders
45 It is appropriate to strike out the existing statement of claim on the basis that the court has no jurisdiction because the repairs the subject of the present claim are apparently worth $10,000 or less.
46 Such a course would also be appropriate, given that the pleading is largely unintelligible pursuant to Order 23.02.
47 However, before considering whether a dismissal of the proceeding is warranted and/or whether the plaintiff should be given an opportunity to replead his case, it is necessary for the “windows” issue to be examined more closely. This necessitates a consideration of whether any VCAT proceeding should be taken into account for the purposes of s448. The defendant has also issued a summons to dismiss the plaintiff’s proceeding in CI-12-00483, which is currently returnable on 29 March 2012. In such circumstances, all three proceedings should be considered together before further orders are made in relation to any of the 3 proceedings.
48 I therefore consider that the appropriate orders are as follows:
1. The statement of claim filed 9 December 2011 is struck out.
2. On or before Friday 23 March, 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, 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.
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