No. 5051 and 5052 of 2000
- I have before me two proceedings. As will emerge, the two
proceedings arise out of the same set of circumstances. Accordingly,
it is
appropriate to deal with them together.
- The applicants in each proceeding, who are in fact appellants,
were losing parties in applications before the Victorian Civil and
Administrative Tribunal (VCAT) sitting in the Residential Tenancies Division.
They seek to apply to this Court for leave to appeal
pursuant to s.148 of the
Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act")
against orders made by the tribunal on 4 and 11 April 2000. Both proceedings
were commenced by an originating motion
which was issued yesterday, that is 13
April 2000.
- The first proceeding, number 5051 of 2000, was instituted by
Scandi Pty Ltd as appellant against Mr Heathcote McMichael Wright.
The
other proceeding has been issued by Joseph and Sandra Guss as appellants
against Mr Wright and is number 5052 of 2000. As I
have already said, two
proceedings arise out of basically the same transaction.
- It is necessary to briefly state the background. On 26 March
1997 Scandi Pty Ltd entered into a lease with Mr Wright, who was the
landlord of the premises known as Unit 10, 58 Clarendon Street, East Melbourne.
The annual rent was some $60,000. It appears that
Scandi Pty Ltd in turn
permitted Mr and Mrs Guss to occupy the premises. There is no suggestion
there was a sub-lease and it would
appear they occupied the premises as
licensees.
- I may say that I asked Mr Guss, who appeared before me on
behalf of the appellants, whether or not it was contended that there was
a
sub-lease between Scandi Pty Ltd and he and his wife, and he expressly stated
that there was not. So it would appear that they
occupied the premises as
licensees. I have also been informed that two children of Mr and Mrs Guss
are directors of Scandi Pty Ltd.
- In December 1999 Mr Wright as landlord caused to be served
by registered mail a notice to quit under s.258 of the Residential Tenancies
Act. This notice required the tenant, namely Scandi Pty Ltd, to vacate the
premises at the expiration of 60 days from the day on which
the notice was
given, because Mr Wright wished to occupy the premises himself.
- Apparently, Mr Wright and his wife had recently separated
and Mr Wright wanted the premises to live in.
- As I have said, at that time Mr and Mrs Guss actually were
in possession of the premises and would appear to have been granted that
permission by Scandi Pty Ltd, although it did appear in the course of the
proceeding before the tribunal that another company called
Scandi International
Pty Ltd may have had some interest in the premises. Whoever was the tenant,
and Mr and Mrs Guss refused to
leave the premises, and on 16 March 2000
application was issued by Mr Wright in the VCAT for an order for eviction.
- Mr Guss, who is a solicitor, appeared for himself and his
wife and also Scandi Pty Ltd. The upshot was there were a number of
applications
and cross-applications. Mr Eggleston, a member of the
Tribunal, heard all matters save for one concerning a bias allegation.
- Evidence was called. Mr Guss raised a number of issues
as to why the tenant and he and Mrs Guss should not be evicted and in the
end
result on 4 April 2000 the Tribunal made orders.
- The member gave detailed written reasons for his orders. The
orders on that day were to the effect that Mr Wright was entitled
to
possession and he was entitled to issue a warrant of execution.
- It appears pursuant to orders made that day and subsequently
renewed, Mr Wright caused to be issued a warrant of execution on 11
April
and he enforced the warrant on the evening of 12 April 2000. He took
possession of the premises, changed the locks and thereby
denied Mr and
Mrs Guss access to the residence and their belongings.
- It was in those circumstances that on 13 April 2000
Mr Guss caused to be issued the two originating motions in this Court, one
on
behalf of Scandi Pty Ltd and one on behalf of his wife and himself. He
seeks leave pursuant to s.148 of the VCAT Act to appeal to this Court the
decisions made by Mr Eggleston, hence the urgency of the applications.
They came on yesterday and, in
effect, Mr Guss seeks some type of relief
at this stage to enable he and Mrs Guss to go back into the premises pending
his application
for leave to appeal.
- Section 148(1) of the VCAT Act gives a right to a party
to a proceeding before the tribunal to apply to this Court for leave to appeal
on a question of law. The
application is to be made according to Chapter 2,
Rule 4.08 of the Rules, to a Master. The rules require a summons to issue
within
seven days of the issue of the motion and to be served with supporting
material 14 days before the hearing date.
- The appellants have not been able to make an application to
the Master and, as I have said, they came to this Court yesterday seeking,
in
effect, a stay of the operation of the orders made to date and an injunction
requiring Mr Wright to give back possession of the
premises to Scandi Pty
Ltd and/or Mr and Mrs Guss.
- I heard argument for some hours yesterday and I have also
heard the parties this morning.
- I informed the parties that I knew the respondent,
Mr Wright, and I have socialised with him over a number of years.
Mr Guss, upon
being apprised of the matter and being asked his attitude,
said that the matter was urgent. Accordingly, it would be necessary to
proceed
unless another judge could be found. I indicated it was unlikely at that late
stage that another judge could be found who
did not know Mr Wright, who is
a prominent member of the Victorian Bar. I also informed Mr Guss that I
would consider whether I
was embarrassed after looking into the matter, and
having done so, I do not think I am embarrassed by sitting on the application.
I say that because the application does not involve any disputed questions of
fact, does not involve any cross-examination of any
witnesses, nor the giving
of evidence or me making any findings of any lasting effect, and in the end it
is a question of law whether
a stay should be granted in the circumstances. In
any event, the stay would be for a very short period. I am not embarrassed
hearing
this application, but I would be reluctant to hear any other matter in
this proceeding which is of substance.
- Mr Osborne QC, who appeared with Mr Delaney and Miss
Carroll of counsel, for Mr Wright submitted that a stay should not be
granted
because there was nothing to stay. He pointed out that the warrant had
been executed and, accordingly, there was nothing to stay.
Whilst he did not
mention the case of Marriner v. Smorgon [1989] HCA 69; (1989) 167 C.L.R. 368 and (1989)
V.R. 45, that case is authority for the proposition that a Court will not make
a futile order, that is one that cannot be given effect to.
In that case, the
Court refused to set aside a warrant which had been irregularly issued because
it had in fact been executed.
However, that case is somewhat different to the
present in that it was concerned with setting aside a warrant to correct a
record,
whereas the present proceedings are concerned with an application for
leave to appeal against decisions made by a tribunal.
- The issue that is before me is whether I should grant some
relief to the appellants pending their application to a Master.
- The present application is a mixture of an application to stay
the operation of the orders made by the tribunal and for interlocutory
injunctive relief. The relief sought would run until the hearing of the
application for leave to appeal, and I would anticipate
that application would
be heard in a matter of a few weeks.
- In Patrick Stevedores Operations No.2 Pty Ltd v. Maritime
Union of Australia No.3 (1998) 72 ALJR 869
- Hayne J discussed the principles that should apply when an
application is made to stay the operation of an order pending an application
for leave to appeal. I think it is unnecessary for me to state the facts as
they received enormous amounts of publicity at the time.
What His Honour was
concerned with was an application for a stay over the period between the date
of the decision under appeal and
the date an application for leave to appeal
could be made to the High Court. He stated the principles at page 870 as
follows:
"The principles to be applied in such an application are well
established. The jurisdiction to grant a stay is part of the inherent
jurisdiction of the Court and finds its most frequent use in order to preserve
the subject matter of litigation. Thus, as was mentioned
when the matter first
came on before me last night, in Tait v. The Queen, the jurisdiction was
invoked to prevent the execution of sentence upon Tait. There it was
exercised:
'... without giving any
consideration to or expressing any opinion as to the
grounds upon which [the substance of the application to the Court was] to be
based, but entirely so that the authority of this Court may be maintained and
we may have another opportunity of considering
it.'
It is then an ample jurisdiction.
To speak only of preserving the subject matter of litigation may in
some cases obscure the fact that the jurisdiction can be invoked, if to
grant a stay is necessary to prevent the exercise of rights of appeal being
rendered futile
or their exercise in circumstances where restoration of the
status quo cannot be achieved.
The jurisdiction to grant a stay is, however, an extraordinary jurisdiction and
exceptional circumstances must be shown before
its exercise is warranted.
It is equally clear that it is very important to bear steadily in mind that the
grant of a stay would
deprive the respondents to this application of the
benefit of the orders which they on obtained from North J and which were in
substance
upheld by the Full Court of the Federal Court".
(Emphasis added.)
His Honour at page 871 went on to say this:
"In the course of argument counsel adverted to many of the large
number of reported decisions in this Court about the grant or refusal
of stay
pending application for the grant of special leave. All of those decisions
must be read in the light of the circumstances
of the individual cases.
Nothing that is said in them is to be read as identifying immutable principles
which fetter the Court's
jurisdiction to grant a stay. The jurisdiction is
ample. The relevant question which falls for decision is whether it should be
exercised in this case.
The present applicants applied to the Full Court of the Federal Court for a
stay of proceedings pending
their application to this Court for special leave.
That application for stay was refused. In considering whether now to grant a
stay, it is important to consider first whether there is a substantial prospect
that special leave to appeal will be granted, to
consider also what effects the
grant or refusal of a stay would have, and to consider where lies the balance
of convenience".
- His Honour emphasised a number of matters should be taken into
account. First of all, it is noted that it is an extraordinary jurisdiction
and exceptional circumstances must be shown before its exercise is warranted.
Secondly, as His Honour points out, it is a matter
of some substance whether
the exercise of the right of appeal pending a successful appeal would render
futile the actual appeal process
itself; or, as he stated, whether restoration
of the status quo cannot be achieved.
- I am of the view that these are matters of some substance in
the present applications.
- It is clear here that if the orders are not stayed and the
respondent evicts Mr and Mrs Guss and their belongs that a successful
appeal would be of little practical effect, especially if some months elapse
before the appeal is heard and determined.
- But it is important at the outset to consider the three
questions stated by His Honour, namely:
(i) Is there a substantial prospect that leave to appeal would
be granted?
(ii) What effects would the grant or refusal of the stays have?
(iii) Where lies the balance of convenience?
- In the proceeding brought by Scandi Pty Ltd, the decision
sought to be appealed is the decision made
- 4 April 2000 whereby the respondent was granted possession of
the property and was permitted to issue a warrant of possession against
Scandi
Pty Ltd.
- In the proceeding brought by Mr and Mrs Guss the
complaint concerns the decision made the 11 April 2000 which gave permission to
the respondent to evict Mr and Mrs Guss and to issue a warrant which was
apparently exercised at 5 p.m. on 12 April when Mr Wright
changed the
locks and stopped Mr and Mrs Guss from entering the premises.
- In my opinion, Mr Guss has had more than ample time since
4 April to properly bring this application before the Court. By leaving
the
application so late, the Court has not had the benefit of the grounds stated in
the form of the proposed notice of appeal, or
an affidavit setting out the
acts, facts, matters, et cetera, relied upon.
- The originating motion in each proceeding does not state any
grounds. Mr Guss did not issue the applications until yesterday, 13
April, and, accordingly, has been unable to comply with any of the requirements
of the rules. However, his tardy application has
brought about the urgency and
the Court is faced with inadequate and insufficient material. The fault lies
with Mr Guss but I accept
that he has been fighting the matter on a number of
fronts and justice demands that the application be dealt with. As I say, since
the motions did not set out the grounds of appeal, it was necessary for
Mr Guss to state orally the grounds he relied upon. This,
he did.
- The right to appeal depends upon leave being granted and the
appeal must relate to a question of law.
- A finding with respect to a disputed question of fact cannot
per se be a question of law. If a finding is made which is not supported
by
evidence or is a finding that no reasonable tribunal could have made in the
circumstances, then that may involve a question of
law. But if there are
disputed facts which are ultimately resolved in favour of one party, as a
general proposition that finding
cannot raise a question of law.
- It is necessary to briefly deal with the grounds relied upon
by Mr Guss.
- The first relates to the service of the notice to vacate.
Service was effected by sending the notice to vacate by registered mail
to
Mr and Mrs Guss. Mr Guss gave evidence the document was not received
by them. However, there was some evidence, coupled with
the presumptions found
in s.49(2) of the Interpretation of Legislation Act which supported a finding
that service had been effected in accordance with the Residential Tenancies
Act. The tribunal member carefully considered the question which in my view
was ultimately a question of fact and found contrary to
Mr Guss that
service had been properly effected. My provisional view is that the issue
raised by Mr Guss at this time is not a question
of law.
- The second question concerned an allegation by Mr Guss
that the original lease between Mr Wright and Scandi Pty Ltd was, in
effect,
substituted by a lease between Mr Wright and Scandi International
Pty Ltd. It was argued by Mr Guss before the tribunal that there
was a
novation of the lease. The tribunal member carefully considered the law and
the facts and found as a fact that there was no
agreement between the parties
to arrive at a new agreement. Again, my provisional view is that this does not
raise a question of
law.
- Mr Guss was unable to identify any error of law made by
the tribunal member in respect to this question. His complaint really comes
down to the fact that he made a finding of fact adverse to his interest. As I
said, my provisional view is that Mr Guss did not
demonstrate any error of law
on the part of the Tribunal.
- The third ground raised by Mr Guss was the fact that
Scandi Pty Ltd, after the lease was entered into, had a receiver and manager
appointed to it. Application was made by counsel on behalf of Mr Wright
before the tribunal to amend the title of Scandi Pty Ltd
to add the words
"(receiver and manager)." it is difficult to understand what Mr Guss was
putting to the Court. That is what his
ground of complaint is. It appeared he
wished to take advantage of the fact that the receiver and manager was
appointed after the
lease was entered into and the receiver/manager apparently
was unaware of the lease, but, nevertheless, signified his consent to
the
orders being made in the hearing before the tribunal. He was not called as a
witness before the tribunal. Mr Guss objected
to findings being made on
documentary evidence when the witness was not called. However, as
Mr Osborne QC pointed out, the tribunal
was not strictly bound by the
rules of evidence and this is made quite clear by the VCAT Act.
- Further, it seems to me it is a technical point which has very
little merit. The mere misdescription of a party is not a basis
for denying
the substance of a claim. Again, my provisional view is there is no
demonstrable error of law made by the tribunal.
- Next it was put that the bond which had been provided
initially by Scandi Pty Ltd was subsequently changed to a bond by Scandi
International
Pty Ltd. It was then contended by Mr Guss that the
declaration which was made by the Tribunal concerning that bond, and the fact
that it is to be held in trust for Mr Wright and Scandi Pty Ltd, was a
declaration that should not have been made and was contrary
to the evidence.
- Mr Guss also produced to the Court today a document which
was evidently before the tribunal which does show that Scandi International
Pty
Ltd at some point apparently was a party to the bond.
- I have heard further argument today concerning the question of
estoppel, which seems to be something that is aligned with this particular
issue. But all I need to say in relation to this declaration point at this
stage is that if in fact the declaration should not have
been made, that does
not affect the efficacy of the orders for possession and the issue of a
warrant.
- Accordingly, in my view, even if Mr Guss is correct in his
contentions, it is not a matter that is relevant to the question of granting
a
stay or any other form of interlocutory relief, irrespective of whether
Mr and Mrs Guss are in the premises and irrespective of
whether
Mr Wright goes into the premises. This matter, if it is a live matter,
could be argued by Mr Guss at the appeal assuming
he is to be granted
leave and the question of who is in possession is irrelevant to the issue.
- That brings me to the final matter which Mr Guss raised
this morning. That was a matter of estoppel by conduct. It appears that
evidence was given by - what I might call the Guss interest that in fact from a
certain point of time on, Scandi International Pty
Ltd was treated as the
tenant, that it did in fact provide a bond at a certain point after the lease
was entered into, and that from
then on money was paid by that company as the
alleged tenant.
- Now, this matter was debated before the tribunal and
Mr Guss makes some complaint of the paucity of the reasons given by
Mr Eggleston
on this very topic. However, I think in context his
criticism is somewhat harsh. I accept at the bottom of page 8 that the
tribunal
member expressed his finding in this way:
"I reject the respondent's contention that the applicant is
estopped through the applicant's conduct, being able to seek possession
of the
property. There is no evidence that has been put before the tribunal which in
my view is tantamount to an estoppel".
- However, one has to go over to the next page where the
tribunal member does in some detail consider the question of the assignment
of
the lease which clearly is all bound up with this issue of estoppel.
- In the end, it is a matter of fact whether or not there was an
estoppel. It appears to me that that was very much bound up by the
issue of
assignment, which the tribunal member clearly considered and found against the
Guss interest. So again, my provisional
view is that this matter is really a
question of fact and not of law. The issue was raised, was the subject of
evidence and submissions
and was resolved by the Tribunal in favour of the
landlord. Mr Guss did not identify any error of law on the part of the
Tribunal.
- I should at this stage make mention of the originating motion
which has in fact been issued by Mr and Mrs Guss. The complaint made
in
that originating motion is that an order was made on 11 April 2000 that
Mr Wright obtain possession of the subject premises against
Mr and
Mrs Guss and be permitted to apply for the issue a warrant of execution which
was exercised on 12 April. The appellants had
been put out of possession.
This application was necessary because, despite the fact that Mr Wright was
entitled to possession against
Scandi Pty Ltd, and Mr and Mrs Guss sought
to claim some interest in the property and thereby contended were entitled to
possession.
So the matter had to be litigated and in the end an order was made
against Mr and Mrs Guss.
- When one analyses the legal basis upon which they were
permitted to reside there, namely as licensees, their rights are very much
bound up by rights of the tenant. Once the tenant goes, then their rights
would also go. I did put this to Mr Guss this morning
and asked whether
or not this proceeding really depends on the earlier proceeding, and he
answered "yes and no" to that.
- He first of all said that, yes, it does depend on the other
proceeding, but contended it does have a separate life of its own.
Being
pressed to identify that, it came back to an allegation of bias against the
tribunal member. It appears that when the second
round of proceedings were
before the member, Mr Guss did raise the question of bias bearing in mind
that the member had already made
adverse findings against the Guss interests in
the earlier proceeding. The member refused to disqualify himself and
Mr Guss then
sought to exercise a right under the VCAT Act to have
the matter debated and heard by the president of the tribunal, The Honourable
Kellam, J. Application was made to Kellam
J, who refused the application and
stated that in his opinion Mr Eggleston in the circumstances should
proceed to hear the matter.
- If there is any complaint against the tribunal on this
question, it must be a complaint made in relation to the order made by Kellam
J.
- I am not in a position to grant leave in relation to that
order and Mr Guss would have to go to the Court of Appeal to appeal that
order, and at the moment he has not sought to do that.
- Accordingly, I consider that the bias contention is irrelevant
to the present issues. I think the reality is that the second set
of
proceedings really do depend upon the first.
- However, having indicated that, my provisional views are the
grounds that Mr Guss relies upon do not really raise questions of
law.
The fact is that the material before the Court is incomplete in that the
transcript has not been made available and, further,
Mr Guss was required
to detail his grounds of appeal orally without the benefit of fully considering
the points he wished to make
and putting them in writing.
- It is now necessary to consider what effect the grant or
refusal of a stay and/or grant of refusal of injunctive relief would have.
- At the moment the landlord has in his favour an order giving
him the right to possession. He has issued a warrant of execution
pursuant to
the orders made in his favour and has executed it. He has changed the locks
and denied Mr and Mrs Guss access to the
apartment and their possessions.
However, in the course of argument yesterday Mr Osborne QC did state
Mr and Mrs Guss could, by arrangement,
attend at the premises to remove
any of their possessions. I have been informed that this was done.
- Clearly, what Mr Wright has done is in accordance with
the orders made in his favour and, accordingly, his conduct is lawful. If
I do
not grant any relief at all at this stage pending the application for leave to
appeal, then Mr Wright would no doubt go into
possession and remove all
the possessions of Mr and Mrs Guss.
- The application for leave to appeal is to be made on summons
which must be filed within seven days of the issue of the motion and
the
summons shall be served not less than 14 days before the date fixed for
hearing. It can be seen that the hearing of the application
could be at least
21 days away from the present day. If Mr Guss was successful in his
application for leave to appeal, then no doubt
a stay would be granted to
ensure that his appeal would not be rendered futile by events overtaking it.
- This is a matter of substance in this application which I
emphasize is an application for a relief for a short period to enable
the
appellants to properly present on adequate material their application for leave
to appeal to a Master.
- Coming to the balance of convenience, I have no doubt that the
balance of convenience lies squarely and fairly in favour of Mr and
Mrs
Guss at this stage.
- Whilst I am not persuaded on the arguments to date that
Mr Guss has reasonable prospects of obtaining leave to appeal, I am very
aware that this application has been made quickly, on insufficient and
inadequate material, and the balance of convenience favours
Mr and Mrs
Guss being granted a short stay to enable the application for leave to appeal
to be made.
- I am prepared to grant relief which is a mixture of a stay and
injunctive relief to preserve the status quo to enable the application
to be
made expeditiously. The relief is to be subject to conditions. I am not in a
position to undo anything that has occurred
to date which was in accordance
with orders made. Therefore, it is not open to the Court to interfere with the
issue and execution
of the warrant of execution. However, the Court can and
should freeze the situation at this stage to enable Mr and Mrs Guss to
make
their application for leave to appeal. In other words, to preserve the
status quo for a short period to enable the applicants to
apply for leave to
appeal to a Master.
- Accordingly, and subject to any submissions that counsel may
make, I am prepared to make the following orders. This would be on
the usual
undertaking as to damages, and I emphasize that Mr Guss must appreciate
that if Mr Wright is not permitted to occupy the
premises for a period,
there may be some damage flowing from that fact. Upon the usual undertaking for
damages, I would be prepared
to order the following orders.
- These orders will be in each of the two originating motions.
The appellant or appellants, as the case may be, by it or their counsel,
Mr Joe Guss, undertakes to abide by any order this honourable Court may
make as to damages in case this honourable Court shall hereafter
be of the
opinion that the respondent to the appeal shall have suffered by reason of this
order which each of the appellants should
pay, I order:
1. That until the hearing and determination of the application
for leave to appeal or further order that the respondent Heathcote
McMichael
Wright be restrained from occupying or permitting any other person to occupy
the premises situated at and known as Unit
10, 58 Clarendon Street, East
Melbourne in the State of Victoria and removing or in any way dealing with
any of the property of
the appellants situated at the said premises subject to
the following conditions -
(i) that Mr and Mrs Joseph Guss pay to the respondents solicitors Peter
Lustig & Co the amount of any rent owing and unpaid
as at 17 April 2000 by
4.15 p.m. on that day, such rent to be held in trust for the respondent until
the hearing and determination
of the application for leave to appeal or further
order;
(ii) the appellant issue and serve the summons seeking leave to appeal by 4.15
p.m. on Monday, 17 April 2000, returnable before
a Master on the 27 April
2000;
(iii) the appellant prosecute the application for leave to appeal
expeditiously.
2. That the respondent, Heathcote McMichael Wright, permit Mr and Mrs
Joseph Guss access to the premises on Saturday of each week
commencing 15 April
2000 between the hours of 9 to 11 a.m. in the company of a representative
nominated by the respondent to enable
Mr and Mrs Guss to deal with their
possessions and this access is to continue until further order.
3. Liberty to apply.
4. That the costs be reserved.
5. Direct that the appellants' solicitor draw up this order and that it be
signed by a judge pursuant to Rule 60.04(1) of the Rules
of the Court.
---
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