Zhang v Bajada - [2024] VSC 15

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04730

JACK ZHANG	First Appellant
– and –
DILINA QUAN	Second Appellant
v
JAMAS BAJADA	Respondent

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2023
DATE OF JUDGMENT:	5 February 2024
CASE MAY BE CITED AS:	Zhang v Bajada
MEDIUM NEUTRAL CITATION:	[2024] VSC 15

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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Appeal to set aside Tribunal’s decision to strike out proceeding against respondent – Whether Tribunal erred in failing to make express findings that proceeding was frivolous, vexatious, misconceived or lacking in substance, or was otherwise an abuse of process – Whether appellants denied procedural fairness – Whether appellants will suffer substantial prejudice – Leave to appeal granted – Appeal allowed – ss 75 and 98 Victorian Civil and Administrative Tribunal Act 1998 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr H Foxcroft KC Mr B Reid	McMahon Fearnley
For the Respondent	Mr R Andrew KC Mr N Phillpott	Noble Lawyers

HIS HONOUR:

This is an appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’).

On 18 November 2019, Jack Zhang and Dilina Quan (‘the appellants’) commenced a proceeding BP 2198/2019 (‘the VCAT proceeding’) in VCAT against a number of respondents including Mr James Bajada, the respondent to the current appeal (‘the respondent’). In the VCAT proceeding the respondent was the second respondent.

On 13 September 2022, the Tribunal struck out the appellants’ proceeding against the respondent in the following terms:

There being no claim on foot as against the second respondent, and as no respondent is seeking to apportion liability to the second respondent in the absence of a claim, the proceeding as against the second respondent is struck out.
(the strike out order).

Also on 13 September 2022, the Tribunal made a consequential order in relation to costs as between the appellants and the respondent in the following terms:

Pursuant to s 75(2) of the Victorian Civil and Administrative Tribunal Act 1998 the applicants must pay the second respondent’s costs of the proceeding, to be taxed on the County Court scale on the standard basis in default of agreement. The costs may be taxed immediately.
(the costs order).

The appellants seek leave to appeal against the strike out order and the costs order (collectively, ‘the orders’) and if leave is granted the appellants seek to have the orders set aside.

For the reasons which follow, I have determined to grant leave to appeal and uphold the appeal.

Background

The appellants were at all material times the owners of a property situated at 8 Waterside Place, Maribyrnong, Victoria. On 1 September 2010, the appellants entered into a building contract for the construction of a three-storey home with JPB Nominees Pty Ltd (ACN 006 609 061) (‘the builder’). The builder is now deregistered but at all material times relevant to the VCAT proceeding,…

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 Zhang v Bajada

Details

AGLC: Zhang v Bajada [2024] VSC 15
Case: [2024] VSC 15
Decision Date: 5 February 2024

CaseChat Overview and Summary

In Zhang v Bajada, the appellants sought to appeal the decision of the Victorian Civil and Administrative Tribunal (VCAT) to strike out their proceeding against the respondent. The dispute centred on the manner in which VCAT dismissed the appellants' claims, particularly regarding whether the Tribunal appropriately considered the appellants' allegations and whether the dismissal amounted to a denial of procedural fairness. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether VCAT erred in failing to make express findings that the proceeding was frivolous, vexatious, misconceived or lacking in substance, or constituted an abuse of process. Additionally, the court needed to determine whether the appellants were denied procedural fairness and whether they would suffer substantial prejudice if the appeal were not allowed. These issues were crucial in assessing the correctness of VCAT's decision to strike out the proceeding.

The court held that VCAT did not adequately address the criteria required for a dismissal under the relevant legislation. It found that VCAT's decision did not include express findings that the proceeding was frivolous, vexatious, misconceived or lacking in substance, nor did it consider whether the proceeding constituted an abuse of process. Furthermore, the court found that the appellants were denied procedural fairness because they were not given a proper opportunity to respond to the allegations that could have led to the proceeding being dismissed. The court concluded that the appellants would suffer substantial prejudice if the appeal were not allowed, as it would deny them their right to have their claims fully heard and determined. Consequently, the court granted leave to appeal and allowed the appeal, setting aside VCAT's decision to strike out the proceeding.

As a result of the court's decision, the proceeding was restored, and the matter was remitted back to VCAT for further consideration. The appellants were granted leave to appeal, and the Tribunal’s decision to strike out the proceeding was set aside.

Orders