Appellant v Respondent

1 Mr Tan (Tan) filed an appeal against the judgment and orders made by the Melbourne Magistrates' Court (Magistrates' Court) on 28 July 2022, requiring Tan to vacate premises rented to him by Ms Wee (Wee) (possession order). Tan later filed an amended notice of appeal to include orders made by the Magistrates' Court on 13 October 2022 requiring Tan to pay Wee the sum of $7,515.95 in compensation for unpaid rent (compensation order).

2 Tan's application for leave to appeal is brought under s 109 of the Magistrates' Court Act 1989 (Vic) (Act). Section 109 allows a party to file an appeal on a question of law within 30 days of the day the order was made. On 30 December 2022, Tan filed his amended notice of appeal seeking to appeal both the possession order and the compensation order. As Tan's amended notice of appeal was filed outside the 30 day period, Tan requires an extension of time in order to proceed with the parts of his amended notice that were not part of his original notice of appeal.

3 By application under r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), Wee seeks an order that the Court dismiss Tan's appeal.

4 This judgment concerns Tan's application for an extension of time to file his amended notice of appeal and Wee's application that Tan's appeal be dismissed.

5 For the reasons given below I have decided not to extend time for Tan to file his amended notice of appeal and to dismiss Tan's appeal.

6 In addition to written and oral submissions, Tan relies upon his:

(a) affidavit sworn 26 September 2022;

(b) affidavit affirmed 1 February 2023; and

(c) affidavits affirmed or sworn 12 April 2023,[1] 18 May 2023[2] and 31 July 2023.[3]

7 In addition to written and oral submissions, Wee relies upon the affidavits of Kim Nguyen sworn 21 February 2023, 28 April 2023 and 1 August 2023.

8 In order to properly consider Tan's grounds for challenging these decisions and request for an extension of time, it is necessary to set out the detailed procedural history of the orders made against him in the Magistrates' Court.

9 Tan and Wee entered into a residential rental agreement (RRA) on 3 May 2021. The agreement was for a fixed term, which, upon conclusion, became a periodic RRA.

10 Wee, through her agents, served a notice to vacate on Tan. Whether the notice to vacate was validly served was an issue before the Magistrates' Court and is raised by Tan in his proposed appeal. On 22 June 2022, as Tan had not vacated the premises, Wee applied for a possession order. Wee also applied for compensation for rental arrears. As Wee resides interstate, the Magistrates' Court had jurisdiction to hear Wee's application.

11 On 28 July 2022, the Magistrates' Court ordered that Tan was required to vacate the premises he rented from Wee. On the same day the Magistrates' Court adjourned Wee's compensation application for further directions to 25 August 2022 and directed Tan to file any application seeking compensation from Wee.

12 On 25 August 2022, Registrar Fawcett reminded Tan that if he wished to claim compensation from Wee (specifically claims about a broken balcony door), he would need to file an application which could be heard and determined concurrent to Wee's compensation application. The Registrar set a hearing date of 13 October 2022.

13 Tan did not file an application for compensation from Wee nor attend the hearing on 13 October 2022. He did, however, provide written submissions which were considered by the Registrar at the hearing. The Registrar proceeded to hear Wee's application for compensation and made the compensation order.

14 Tan's affidavit dated 31 July 2023 exhibits transcripts of:

(a) the Magistrates' Court's decision delivered on 28 July 2022 at which the possession order was made;

(b) a directions hearing conducted in the Magistrates' Court on 25 August 2022; and

(c) the hearing in the Magistrates' Court on 13 October 2022 at which the Registrar made the compensation order.

15 The transcripts exhibited to Tan's affidavit were not prepared by a professional transcript provider, but rather produced by Tan using software that converted an audio recording of the hearings to text. While it is possible to follow what occurred at the hearings from the transcripts, unsurprisingly, they are not of the quality of a transcript prepared by a professional transcriber. They contain obvious mistakes. Wee objected to the Court's use of Tan's transcripts. I allowed Tan to rely on the transcripts and for the parties to make submissions as to the weight I should give them.

16 The transcript of 28 July 2022 records that the Registrar was dealing with Wee's application for a possession order and an order for the payment of rental arrears. The Registrar noted that Tan had alleged breaches of the RRA by Wee, not as a setoff or counterclaim but rather as a defence to Wee's rental arrears claim. The parties agreed that the possession order application would be heard first and that the Registrar would make directions in relation to Wee's rental arrears claim.

17 The Registrar's reasons for decision record that the Registrar was satisfied that the Magistrates' Court had jurisdiction to hear and determine the application and that the application was made within the legislative time limit.

18 The Registrar then proceeded to deal with the issue of whether the notice to vacate had been validly served. Mr Tan had raised a number of issues with the service of the notice to vacate. The first of these was that the notice had not been served in accordance with the Electronic Transactions (Victoria) Act 2000 (Vic) (ETVA) or cl 9 of the RRA. Specifically, Tan submitted that his consent in cl 9 of the RRA to receive notices electronically was conditional upon those notices being sent from the agent's email address specified in his RRA. The relevant email address specified in the RRA was that of an agent who had left the employment of the agency before the notice to vacate was emailed to Tan.

19 Looking to the terms of cl 9 of the RRA, the Registrar noted the requirement that electronic service of document be in accordance with the requirements of the ETVA. With respect to the specific words of cls 9.1 and 9.2 of the RRA, the Registrar noted that Wee, through her agent, had agreed to the service of notices and other documents by electronic methods such as email, and specified the email address of the agent. The Registrar also noted that Tan had also agreed to service of notices and other documents by electronic methods and provided his email address. Clauses 82 and 83 of the RRA also required the parties to provide written notice of any change of email address for service or withdrawal of consent.

20 The Registrar considered the evidence of Wee's agent, Ms Stanway (Stanway), that the agent whose email address appeared in the RRA had left the agency. Stanway said that since that agent's departure, she and other agents had communicated with Tan by using the email address Tan had provided in the RRA.

21 The Registrar then recorded that Wee served a notice to vacate for rental arrears on Tan on 4 February 2022. Tan made an application to the Victorian Civil and Administrative Tribunal (VCAT) in relation to that notice. The Registrar stated that Wee no longer sought to rely on that notice.

22 The Registrar said that in April 2022 Wee decided to sell the rental premises with vacant possession and signed an exclusive sales authority with the agency on 4 April 2022. The agency invoiced Wee for the sales advertising campaign on 21 April 2022, which was due on 5 May 2022 and Wee made that payment on 3 May 2022. The paid invoice and transaction receipt were in evidence before the Registrar. An email from Wee to Stanway of 11 July 2022 was also in evidence. In that email, Wee confirmed her intention to sell the property. At that time Tan remained in occupation of the property notwithstanding that the vacation date in the notice had passed.

23 The Registrar recorded that Stanway's evidence was that Wee's decision to sell was in part motivated by Tan's failure to pay rent.

24 Next, the Registrar turned to the notice to vacate sent by email on 4 April 2022 to Tan by Kurt Georgio (Georgio). The notice provided that Tan was to vacate the premises by 4 June 2022 as the property was to be sold with vacant possession. The notice included a copy of the exclusive sales authority signed by Wee.

25 The Registrar set out Stanway's evidence that she sits next to Georgio and that there was no indication that the email wasn't transmitted or that a bounce back notice was received. Stanway's evidence was that she spoke to Tan in May 2022 and he claimed that he never received Georgio's email of 4 April 2022 containing the notice to vacate and that the notice was invalid. Stanway provided an email to the Magistrates' Court from Tan dated 17 May 2022 which indicated Tan was aware of the impending sale of the property with vacant possession, as the correspondence contained Tan's efforts to negotiate staying in the premises. In the email, Tan states he would agree to a shorter period to vacate that was workable for the buyer.

26 The Registrar said that Stanway's evidence was that the sale of the premises had been delayed due to Tan's failure to vacate.

27 The Registrar recorded that Tan denied any conversation in May about the notice to vacate and maintained that he only became aware of Georgio's email two days prior to the date the notice required him to vacate so it was impossible for him to make any decisions or move. The Registrar noted that Tan changed his evidence when Stanway referred the Court to her email to Tan dated 20 May 2022 in which she referred to the notice to vacate. Tan's evidence then was that the 20 May 2022 email was the first time he became aware of the notice to vacate.

28 The Registrar said she asked Tan about the 17 May 2022 email, at which point Tan's evidence was that he knew Wee was considering selling the property because two other agents had organised a sales viewing of the property at short notice around 4 May 2022. Yet, he did not believe Wee genuinely intended to sell the premises. Tan's evidence was that he was unaware Wee had made a final decision to sell, referring the Court to his email to Stanway of 3 June 2022 which indicated the same thing about the extent of his knowledge. The Registrar recorded that Tan's evidence was that he sent the email in the context of the earlier notice to vacate for failure to pay rent.

29 Tan submitted that he had never dealt with Georgio before and that he would have received the email attaching the notice to vacate if it had been sent by other agents with whom he had dealings or if Stanway had been copied in to the email. Tan also said that during the relevant period he had received other emails and text messages from other agents about rent arrears and that none mentioned the notice to vacate.

30 Next, the Registrar set out Tan's evidence that there had been an ongoing issue about the balcony door at the premises that impeded his ability to cook without attracting insects and that this issue had been resolved on 22 February 2022. Tan submitted that there was a nexus between this issue and a notice issued by VCAT on the same day which incorrectly referred to Tan as a squatter.

31 The Registrar then considered the statutory requirements of a valid notice to vacate and concluded that she was satisfied the notice was in the prescribed form, addressed to the renter, signed by the agent and appropriately specified the reason for giving notice both in its description and in attaching the sales authority. The Registrar was satisfied that the notice included the requisite notice period under the Residential Tenancies Act 1997 (Vic) (RTA).

32 First, the Registrar considered the issue of whether the notice had been validly served. Service of the notice was governed by s 506(3) of the RTA which allows a party to serve a document electronically in accordance with the ETVA. The Registrar recited the conditions set out in s 8(2) of the ETVA, namely that at the time the information was given it was reasonable to expect that the information would be readily accessible so as to be usable for subsequent reference and that the person to whom the information is permitted to be given consents to the information being given by means of an electronic communication.

33 Secondly, the Registrar considered Tan's argument that his consent to receive electronic communications, given in cl 9 of the RRA, was inherently conditional. In considering the meaning of cl 9, the Registrar was required to give effect to the intentions of the parties assessed objectively rather than subjectively. Having recourse to the text and context of cl 9, the Registrar did not find Tan's contention as to its meaning and operation convincing. The Registrar found that cl 9 is to be interpreted as dealing exclusively with consent to receive emails at a particular email address by each party. There was also nothing contained in the text which expressly imposed an obligation on either party to only serve notices (or other documents) from their nominated email addresses. The Registrar found that Tan's consent was therefore not conditional, as reflected by Tan's historical conduct over the course of the tenancy with respect to communicating via electronic means without objection.

34 The Registrar considered Tan's argument that it was not reasonable, within the meaning of s 8(2) of the ETVA, to expect that the information would be readily accessible so as to be useful for subsequent reference. Tan had argued that due to cyber-security measures, particularly in circumstances where an email contained an attachment, it was unreasonable to expect the information in an email received from a new and unfamiliar email address was accessible. Tan had also argued it was unreasonable that Stanway had not sent the notice or been copied into the email and that if she had been then he would have received it. The Registrar found that, based on the history of successful email communication between multiple agents and Tan it was reasonable, within the meaning of the EVTA, for the agency to expect that the notice would be readily accessible if sent to Tan via email. The Registrar found that the notice to vacate was served in accordance with the Act.

35 Thirdly, the Registrar dealt with Tan's contention that he had not received the email attaching the notice. The Registrar found that Tan's evidence on this point was baseless and not credible given: his inconsistent evidence about the notice to vacate; his attempts to satisfy himself that he had not received the email which did not include any evidence about the searches he had undertaken; and his evidence that he would have received the email had it been sent by alternative agent(s) with whom Tan had previous dealings. In addition the Registrar considered the email of 17 May 2022, which the Registrar considered was consistent with Tan having knowledge of the 60 days' notice period in the notice to vacate.

36 Fourthly, the Registrar then rejected Tan's argument that the notice to vacate was invalid because it was served for an illegal intention. Noting Stanway's evidence about the payment of the invoice for the marketing campaign for the sale and the signed exclusive sales authority, along with the sales viewing conducted by another agent in early May 2022, the Registrar found on the balance of probabilities that Wee intended to sell the property with vacant possession.

37 The Registrar then considered Tan's argument that the notice had been issued in retaliation for Tan enforcing his rights over the problem with the balcony door. The Registrar accepted that there was a nexus in timing between Wee's application in VCAT for a possession order on the basis of rental arrears and the fixing of the balcony door. The timing of the VCAT application was, however, considered explicable on the basis of Tan's alleged non-payment of rent. Based on these findings, the Registrar was not satisfied the notice to vacate was served for an illegal purpose.

38 Finally, the Registrar turned to Wee's application for a possession order. The Registrar was satisfied that the relevant conditions of s 330(1) of the RTA were met. Balancing all of the considerations the Registrar was satisfied that it was reasonable and proportionate to make the possession order sought by Wee under s 330A of the RTA.

39 After making the possession order the Registrar adjourned Wee's application for the compensation order to 25 August 2022 and directed Tan to file any application seeking compensation from Wee, which Tan sought to have determined concurrently with Wee's application for the compensation order.

40 At the directions hearing on 25 August 2022, Tan confirmed he did not intend to file an application for compensation but rather would respond to Wee's application. The transcript records that on 12 August 2022, Tan vacated the rented premises. The Registrar made directions that Stanway (acting as Wee's agent) file an amended application and Tan file a reply and any application for compensation. Both applications were listed for 13 October 2022.

41 Relevantly, the Registrar also confirmed her understanding that Tan sought to argue for relief from some of his rental obligations as the premises provided did not comply with the minimum statutory standards. The Registrar reiterated that unless Tan filed a claim, this aspect of Tan's argument could not be considered as a defence for an unpaid rent claim. The Registrar told Tan that if he made his own claim, the Registrar would consider both claims and any set off between the claims. Relevantly, Tan responded:

Right, right. Yeah. So there will be two applications and the applicant's one and my application and not the way I think because you cannot consider your Honour, you cannot consider my defence as a claim as a defence. As an action, I do not know how you term it.

...

Right, right, right, right. Ok. So...your hands are tight (sic) in terms of the procedure. I understand that. Thank you. Ok.

42 Tan did not attend the hearing on 13 October 2022 nor did he apply for compensation. Prior to the hearing, Tan informed the Magistrates' Court of his intention to appeal the possession order to the Supreme Court.

43 At the hearing on 13 October 2022 the Registrar heard sworn evidence from Stanway about the calculation and amount of alleged rental arrears. The Registrar was satisfied on the evidence that the rent was in arrears. The Registrar turned to the relevant statutory provisions and noted that:

(a) she was not satisfied Tan had taken all reasonable steps to comply with his obligation to pay rent;

(b) she was satisfied Wee did not consent to Tan's failure to pay rent and that Wee took all reasonable steps to mitigate the loss suffered as a result of Tan's failure to pay rent;

(c) Tan's notice of reply asserted he was entitled to a rent credit of $3400 because of Wee's breach of the minimum standards required of a residential rental premises (specifically that all external windows in a rental premises that can be opened must be lockable and can be opened or closed) because the balcony door could not be closed;

(d) Tan was notified that if he sought to rely on that claim he would have to make his own claim for compensation under the RTA;

(e) the Court had twice made directions for Tan to file a claim for compensation which Tan had not done;

(f) in the circumstances she declined to take Tan's compensation claim in his reply into account;

(g) Tan could pursue his claim for compensation through other mechanisms available under the RTA;

(h) Tan's email to the Court of 12 October 2022 raised a question whether Wee was entitled to rent for the period after the date for vacation of the premises in the notice to vacate up to the date Tan actually vacated the premises; and

(i) she found no barrier in the RTA to Wee claiming rental arrears for that period.

44 Tan represented himself in this proceeding. As a self-represented litigant, he is entitled to the assistance of the Court to ensure a fair hearing.[4] While Tan raised doubts during the course of the hearing about his own ability to explain his arguments, I found him to be articulate and cognisant of the facts of his case and the relevant legislation referred to in his submissions.

(a) The validity of the service of the notice to vacate; and

(b) Whether the notice to vacate - the subject of the possession order - was issued by Wee in retaliation for Tan having exercised his right to minimum standards.

46 In relation to the validity of service issue, Tan's notice of appeal set out various questions and recitations of his evidence in the Magistrates' Court. Specifically, Tan identified the following as the overarching question of law on the validity of service issue:

[W]hether the rental provider should have sent [the email attaching the notice to vacate] from the nominated address on the lease in order for the notice to vacate to be valid under s 8(2)(b) of the [ETVA]?

47 In relation to the retaliation issue, Tan's notice of appeal again sets out submissions, recitations of his evidence in the Magistrates' Court and questions. The questions involve consideration of:

(a) whether the rental provider is obliged to present contemporaneous evidence of communication of their intention to sell the premises; and

(b) the reasonableness of the Registrar's inferences from Wee's evidence about her intention to sell the premises.

48 Tan's amended notice of appeal added a further proposed question of law in relation to the compensation order, being whether a rental provider, before making an application for an order for rental arrears, is required to demonstrate they have discharged their obligation to provide rental premises that meet the statutory minimum standards.

49 Tan then further refined his proposed questions of law in his written outline of submissions dated 18 May 2023, framing these issues as:

(a) Validity of the notice to vacate under s 8 of the ETVA;

(b) Underlying intent; and

(c) Rent entitlement.

50 In relation to the validity of the notice to vacate, Tan's submissions identified two 'legal elements' giving rise to questions of law. The first legal element identified by Tan was 'reasonableness'. The second was 'consent'.

51 In relation to reasonableness, Tan explained that ss 8(1) and 8(2) of the ETVA state that if, by or under a law of Victoria a person is 'required'[5] or 'permitted'[6] to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication where, at the time the information was given, it was reasonable to expect it would be readily accessible so as to be useable for subsequent reference. Tan framed his question of law as 'whether it was reasonable to expect that the notice to vacate would be readily accessible so as to be usable for subsequent reference?'

52 Tan's submissions identified three errors of law purportedly made by the Magistrates' Court for this Court's consideration:

(a) The Registrar considered the agent's screenshots of emails sent to Tan by other agents which were tracked to show whether the emails had been opened, which was an irrelevant consideration;

(b) The Registrar failed to consider that the agent did not provide tracking evidence of the email sent to Tan attaching the notice to vacate; and

(c) The Registrar made a decision so unreasonable or unjust that it may be inferred that there has been an error of law because it was not reasonable to expect an email to be received: when it is sent from an email address for the first time; when the agent had not told Tan it would now send notices from Georgio; when the email was not copied to Stanway; and when neither Stanway nor the other agents subsequently mentioned the notice to vacate to Tan.

53 In relation to consent Tan explained that the definition of consent in the ETVA includes, 'consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with'.

54 Tan framed his question of law as whether the Registrar correctly interpreted cl 9 of the RRA so that the word 'service' was limited to only receipt of notices and did not extend to both the sending and receipt of notices.

55 In relation to the issue of underlying intent, Tan identified the following questions of law:

(a) Did the Registrar err by deciding, in the absence of contemporaneous evidence, that the sale of the premises with vacant possession was the reason Wee issued the notice to vacate?

(b) Did the Registrar err by failing to consider anomalies or in accepting those anomalies in Wee's evidence regarding payment to the agents under the exclusive sales agreement?

(c) Having accepted the anomalies, did the Registrar err by failing to consider other corroborative evidence such as contemporaneous evidence?

(d) Did the Registrar err in not considering that the notice to vacate was issued in retaliation for Tan exercising his right to minimum standards?

56 In relation to the issue of rent entitlement, Tan identified two legal elements; 'minimum standards' and 'post notice period'.

57 Under the minimum standards element, Tan posed the following questions of law:

(a) Did the Registrar err in deciding that Wee was still entitled to rent in spite of failing to provide premises to the minimum standards under the RTA?

(b) Where minimum standards were not complied with, did the Registrar err in deciding the onus is on Tan to make an application for compensation and demonstrate loss?

(c) In the alternative, did the Registrar err in failing to place the onus on Wee to show she had discharged her obligations to provide premises meeting the minimum standards before claiming an entitlement to rent?

(d) 'Given that an applicant in raising a civil matter must have a proper basis, did the [Registrar] make an error of law for failing to have the proper basis to include the minimum basis as intended by Parliament for rented property? That is a proper basis that the applicant have fulfilled their legal obligations before seeking legal rights.'

58 Under the 'post notice period' element, Tan posed the following questions of law:

(a) Given the statutory prohibition on landlords re-letting premises in the six months after the notice period in the case of notice given on the basis of intended sale of the property, did the Registrar err in deciding that Wee was entitled to claim rent from Tan for any of the six month period after the expiry of the notice when Tan remained in the premises?

(b) Did the Registrar err in not extending the six month period by the length of time Tan remained in the premises after the expiry of the notice period?

(c) Did the Registrar err in making an order that Tan pay rent for the period after the expiry of the notice period in circumstances where the statutory prohibition against re-letting meant the landlord suffered no loss?

(d) Did the Registrar make a decision so unreasonable or unjust that it may be inferred that there has been an error even if no specific error can be identified?

59 Under a section of his amended notice of appeal entitled 'Extension of Time' Tan said, in summary:

(a) It was not possible for him to file and serve his amended notice of appeal within time because there was no respondent or representative of the respondent to serve the notice on;

(b) On 9 November 2022, at a directions hearing convened on Tan's notice of appeal the Court refused leave for Wee's agent to appear for Wee;

(c) Normally the Court would have made a direction for Tan to file his amended notice of appeal at the directions hearing on 9 November 2022, and if the Court had done so, Tan's amended notice of appeal would have been filed in time;

(d) Tan was waiting for a direction to file the amended notice of appeal;

(e) On 23 November 2022, at a further directions hearing, the Court again refused to grant Wee's agents leave to represent Wee and adjourned the proceeding; and

(f) Adjourn means to stop and resume at a later time so the time to file the amended notice of appeal should have stopped running while the proceeding was adjourned.

60 Section 109 of the Act relevantly provides:

(1) A party to a civil proceeding in the Court may appeal, on a question of law, from a final order of the Court in that proceeding -

(b) in the case of the Court constituted other than by the Chief Magistrate who is a dual commission holder - to the Supreme Court.

(a) must be instituted not later than 30 days after the day on which the order complained of was made;

(4) An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).

(5) The Supreme Court may grant leave to under subsection (4) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

61 Any such appeal must also be brought in accordance with the Rules.[7]

62 The Rules also provide that where an appeal is instituted more than 30 days after the day on which the order under appeal was made, the appeal is taken to be an application for leave to appeal.[8] In Mako'ochieng v Kirk,[9] McDonald J set out the well-established principles governing applications for leave to appeal, inter alia:

(a) The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;

(b) The onus lies on the applicant to satisfy the test of exceptional circumstances;

(c) Although 'exceptional' is defined as meaning 'unusual, special, out of the ordinary course' in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to 'rarely occur' and 'perhaps be outside reasonable anticipation or expectation';

(d) The inquiry is confined to the circumstances relevant to the applicant's failure to appeal within time (ie 30 days) and whether they may be characterised as exceptional;

(e) As part of that inquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;

(f) The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal;

(g) That which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances;

(h) The exceptional circumstances must relate solely to the explanation for the delay;

(i) By use of the expression 'exceptional circumstances', the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. The bar is a 'significant hurdle', which requires a 'persuasive explanation', to be demonstrated by 'clear and cogent proofs'.[10]

63 In terms of the Wee's application for summary dismissal of the appeal, r 58.10(9) of the Rules provides that the Court may dismiss an appeal if satisfied that:

(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

64 An appeal under s 109 of the Act must relate to a question of law involved in the determination of the order the applicant seeks to appeal.[11] Therefore, the existence of a question of law is not only a precondition to the right to appeal but also the subject of the appeal.[12] It must also have been raised in the Magistrates' Court: whether on the pleadings, by evidence or otherwise.[13]

65 A decision on a matter of practice or procedure may only be raised on appeal if the appellant can show that (at least prima facie) the question which was the subject of the decision was not only a question of law but also involved in the final order of the Magistrates' Court - not merely peripheral or collateral to it.[14]

66 An appeal under s 109 of the Act is not a re-hearing or a review of the Registrar's decision. It is an appeal, strictly so-called.[15]

67 To succeed in an appeal under s 109 of the Act the appellant must establish that the Registrar acted on a wrong principle of law, misapprehended the facts or made a wholly erroneous assessment of the relevant issues.[16]

68 In Elvin v Davey,[17] Keogh J determined that the grounds for error(s) of law in appeals pursuant to s 109 include:

(a) whether the Magistrate has identified the correct legal test;

(b) whether the Magistrate applied the correct legal test;

(c) whether there is any evidence to support a finding by the Magistrate of a particular fact; and

(d) whether the facts found fall within a statute properly construed.

69 The Magistrates' Court made the compensation order on 13 October 2022. Tan filed his amended notice of appeal on 30 December 2022; almost seven weeks after the statutory time limitation for filing an appeal.

70 Tan submitted that it was exceptional for Wee not to appear at two directions hearings and for her agents to attempt to appear on her behalf. Accordingly, Tan argued, it was unexceptional for him to take a cautious approach and not serve the agents with his amended notice of appeal. Even accepting it was reasonable for Tan not to serve his amended notice of appeal on Wee's agents, that does not explain Tan's failure to file the amended notice of appeal.

71 Tan also submitted that, as a self-represented litigant, he thought he would breach rr 64.04(k) and 64.07 of the Rules if he filed an amended notice of appeal without a direction of the Court. Tan submitted that, as a self-represented litigant, he respected the Court's order that the proceeding be adjourned 'for matters to be further discussed at a later date' and that it would be exceptional for him to be punished for showing this respect.

72 Rule 64.04(k) and r 64.07 of the Rules relate to appeals to the Court of Appeal and have no application to appeals to the Supreme Court. In any event, r 64.04(k) concerns a requirement that an application for leave to appeal include the applicant's address for service, including an active email address. That rule, even if it were applicable, could have no possible bearing on Tan's ability to file his amended notice of appeal in time. Tan's notice of appeal already included his address and email address. Further, r 64.07 sets out the time for service of an application for leave to appeal to the Court of Appeal, being not later than five days after it is filed or within such time as specified by the Court of Appeal or Registrar. Again, that rule does not concern the time for filing a notice of appeal.

73 It remains unclear why Tan was of the view he required a direction from the Court to file an amended notice of appeal. The orders made by the Court at the directions hearing on 23 November 2022 indicate in 'Other Matters', that Tan informed the Court of his intention to file an amended notice of appeal to include the compensation order. Those orders included a stay of the compensation order. The Court made no direction or order regarding the timeframe for Tan to file his amended notice of appeal, which was in any event, already out of time by then.

74 Finally, Tan's status as a self-represented litigant is not, without more, an exceptional circumstance. Many self-represented litigants commence appeals under s 109 of the Act within time. Indeed Tan filed his first notice of appeal within the statutory time limit.

75 I am not satisfied that Tan has established exceptional circumstances for his failure to file his appeal against the compensation order within time.

76 Wee's summary dismissal application under r 58.10(9) is brought on the basis that Tan's notice of appeal:

(a) is frivolous, vexatious or otherwise an abuse of the process of the Court as it does not sufficiently disclose the basis upon which the orders sought may be made: r 58.10(9)(c);

(b) does not sufficiently identify a question of law on which the appeal may be brought and there is no explanation as to if, and if so how, the matters now complained of were raised and determined in the Magistrates' Court proceeding: r 58.10(9)(a); and

(c) does not disclose an arguable case and to refuse leave would impose no substantial injustice: r 58.10(9)(b).

77 The extant grounds of appeal can be distilled as follows:

(a) Whether Wee should have sent the notice to vacate from the agent's email address specified in cl 9 of the RRA?

(b) Whether it was reasonable to expect the notice to vacate would be readily accessible as contemplated by s 8(2) of the ETVA?

(c) Was the Registrar's finding that Tan received the notice to vacate supported by all of the evidence?

78 It is necessary to reiterate that an appeal under s 109 of the Act is not a re-hearing. It must be an appeal in the strict sense. In order to resist Wee's dismissal application, it is necessary for Tan to have raised an arguable case that the Registrar committed an error of law.

79 I am satisfied the Registrar carefully considered the construction of both cl 9 of the RRA and s 8(2) of the ETVA. As demonstrated within the transcript, the Registrar approached the construction of these provisions in a methodical and orthodox way. Tan's alleged questions of law, insofar as they relate to the Registrar's construction of these provisions amount to an attempt to re-argue his case that was ultimately unsuccessful.

80 Tan's primary argument before the Registrar was that he had not received the email from the agent attaching the notice to vacate. In addition, Tan raised arguments that because the email came from an agent not familiar to him, it was not reasonable to expect that the notice to vacate would be readily accessible. A finding of fact is only open to challenge as an error of law if there is no probative evidence to support it.[18] An inference is open to challenge as an error of law if the inference was not reasonably open on the facts.[19] Here, there was considerable evidence of Tan receiving and responding to emails from various agents. It was clearly open to the Registrar to infer, based on that history, that the notice to vacate would be reasonably accessible to Tan. Tan's proposed error of law on this point is unarguable.

81 Tan's proposed errors of law based on the Registrar's assessment of the evidence about whether Tan received the notice to vacate are misguided. Again, a finding of fact is open to challenge as an error of law only if there was no probative evidence to support it. Here, the Registrar considered the history of email communications between the agency and Tan, she considered Stanway's evidence of the absence of any notification that the email had bounced back or not been delivered and she considered the discrepancies in Tan's evidence which led her to place more weight on the other available evidence. In my view, there was clearly probative evidence available to support the Registrar's finding and this proposed error of law is not arguable.

82 It necessarily follows that I am unable to accept that the Registrar's decision was so unreasonable or unjust that an error of law may be inferred.

83 Tan's proposed questions of law in relation to Wee's underlying intention in issuing the notice to vacate are based on complaints about the evidence upon which the finding was made. The transcript shows the Registrar considered the evidence of the signed sales authority between Wee and the agency, the evidence of sales inspections of the property, the evidence of the invoice for the marketing of the property for sale and the payment of that invoice. There was clearly probative evidence available to the Registrar to make this finding. Again, this point is not arguable.

84 Tan raised Wee's alleged failure to provide premises that met the statutory minimum standards required, with particular reference to the broken balcony door. The Registrar found there was a temporal nexus between Wee's application for possession orders on the basis of rental arrears and Tan's complaints about the broken balcony door. The Registrar concluded that the timing of Wee's application was explicable on the basis of Tan's alleged non-payment of rent. This was a finding open to the Registrar on the evidence.

85 Tan was repeatedly told by the Registrar that if he wanted to make a claim for compensation regarding a failure to provide premises that met the minimum standards, he would need to do so by way of a separate application - not as a defence to Wee's application. That direction reflects the scheme of the RTA. The transcript confirms that Tan understood this advice. Notwithstanding this, Tan did not file any application for compensation. Rather, he seeks to argue on appeal that as a pre-requisite to making a claim for possession orders and compensation orders, it was necessary for Wee to establish the premises met the statutory minimum standards. In oral submissions, Tan identified the basis of his argument as being the common law and his own sense of what fairness requires. Tan did not refer the Court to any authority or statutory provision in support of his argument. His submissions also remain unsupported by the terms of the RTA. In my view, they are not arguable.

86 It is not strictly necessary to consider Tan's proposed questions of law in relation to the compensation order because I have decided not to grant Tan's application for an extension of time. For the sake of completeness, it is my view that none of Tan's proposed questions of law about Wee's entitlement to claim rental arrears before establishing that the premises met the minimum standards or about Wee's entitlement to claim rent for the period after the specified date to vacate are arguable.

87 The transcript shows that on 13 October 2022 the Registrar considered Tan's arguments about whether Wee was entitled to rent for the period after the date in the notice to vacate for Tan to vacate the premises and the date Tan actually vacated the premises. The Registrar ultimately determined that Wee was entitled to claim rental arrears for that period. This was an orthodox way for the Registrar to deal with Tan's submissions and clearly correct.

88 Tan's proposed questions of law also include a question about whether the Registrar should have extended the period during which the premises could not be re-let. There is no evidence that this issue was raised before the Registrar on 13 October 2022. There is also no evidence before this Court that the premises were re-let following Tan's departure. Indeed, the evidence was that the premises had been sold.

89 I am satisfied that Tan's questions of law in relation to the compensation order are not arguable.

90 It follows that Wee's application to dismiss Tan's appeal will be granted.

91 For the reasons given above I refuse Tan's application for an extension of time to bring his amended notice of appeal. I also grant Wee's application to dismiss Tan's appeal under r 58.10(9)(b) of the Rules, on the basis that Tan does not have an arguable case on appeal.

92 I request the parties confer on the question of the costs of the proceeding. If the parties are unable to reach agreement on the terms of any costs order within seven days after the date of this judgment, the matter will be re-listed for oral submissions on costs.

[1] The opening lines of this affidavit state that Tan is making 'affirmation' while the jurat says it is 'Sworn' by Tan.

[2] Like his previous affidavit, this affidavit contains both 'affirmation' and 'Sworn'.

[3] This affidavit follows the pattern of Tan's previous two affidavits of containing both 'affirmation' and 'Sworn'.

[4] Roberts v Harkness [2018] VSCA 215; (2018) 57 VR 334, [46]-[56].

[5] Electronic Transactions (Victoria) Act 2000 (Vic), s 8(1).

[6] Ibid s 8(2).

[7] Magistrates' Court Act 1989 (Vic), s 109(3).

[8] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 58.11.

[9] [2017] VSC 459.

[11] Wong v Cater [2000] VSCA 53, [43] (Tadgell JA with Chernov JA and Winneke P agreeing) (Wong).

[13] Emer v Queen Victoria Women's Centre Trust [1999] VSC 115, [47]-[48].

[15] Carter v Reid [1992] VicRp 22; [1992] 1 VR 351, 363.

[16] Romas v Green [2015] VSC 95, [26].

[17] [2022] VSC 214, [48].

[18] Roads Corporation v Dacakis [1995] VicRp 70; (1995) 2 VR 508, 520.