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[2025] VSC 790
General information, not legal advice.
Supreme Court of Victoria
2025-12-18
Finanzio J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Appeal from Victorian Civil and Administrative Tribunal ('VCAT') in a proceeding under the Residential Tenancies Act 1997 (Vic) ('RTA') - Application to set aside VCAT decision refusing application to extend the period of storage for goods left behind for indeterminate period - Where tenant unable to collect goods from property due to bail conditions - Where goods left behind prevented property from being relet - Where residential rental provider gave notice under s 386 (goods left behind) of RTA - Whether consideration by VCAT of landlord's ability to relet the property relevant - Whether VCAT correctly interpreted 'reclaim' under ss 387 and 389 of RTA - Whether goods able to be stored for indefinite period of time - Whether leave to appeal should be granted - No real prospects of success - Leave to appeal denied.
Residential Tenancies Act 1997 (Vic), , , , , , , , , , ;
Chopra v Department of Education and Training [2019] VSC 488; McSteen v Architects Registration Board of Victoria (No 2) [2018] VSCA 136; Velardo v Andonov [2010] VSCA 38; Republic of Turkey v Mackie Pty Ltd [2019] VSC 103; Khanna v Kulathayendran [2012] VSC 250; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
1 The late Judith Archer ('Ms Archer') rented the property at 4 Skewes Court, Warragul ('the property') pursuant to a rental agreement with Homes Victoria ('owner' or 'landlord'). The rental agreement was terminated on 22 July 2024. When the rental agreement was terminated, the possessions and goods of Ms Archer along with other goods belonging to members of her family remained at the property.
2 The applicant, Chain McDiarmid ('Mr McDiarmid') is the executor of the estate of the late Ms Archer. Both in that capacity, and in his personal capacity, Mr McDiarmid is the legal owner of all of the goods which were at the property at the time the rental agreement ended. The Residential Tenancies Act 1997 (Vic) ('RTA') requires the landlord (Homes Victoria) to store goods left behind for at least 14 days, or longer if by agreement between the parties or by order of the Victorian Civil and Administrative Tribunal ('VCAT' or 'Tribunal').
3 Mr McDiarmid applied to VCAT for an extension of the storage period. He seeks leave to appeal, and if leave is granted, appeals the decision of VCAT to refuse his application to extend the storage period.
4 Part 9 of the RTA is headed 'Goods left behind by renters, residents and site tenants', and applies if the residential rental agreement for a rented premises has been terminated and goods have been left behind.[1] 'Stored goods' are goods left behind which are stored in accordance with s 386 of the RTA.[2]
5 Division 3 of Part 9 deals with goods left behind. Section 384(1) entitles a landlord to remove and destroy or dispose of goods left behind if they are of no monetary value, perishable foodstuffs, or dangerous goods.
6 Section 386 of the RTA provides as follows:
386 What must an owner of premises do about goods left behind?
(1) If a former renter leaves behind goods (other than goods which may be removed and destroyed or disposed of under section 384), the owner of premises must -
(a) take reasonable steps to give a notice, in the form approved by the Director, to the former renter that the goods have been left behind; and
(b) store the goods for a period of at least 14 days, beginning on the day on which the owner of premises gave the notice to the former renter.
(2) A notice under subsection (1)(a) must include a statement informing the former renter of the former renter's rights and obligations in relation to the goods left behind.
(3) The owner of premises may remove the goods from the premises and store them at a safe place.
7 The owner of the premises may sell or dispose of goods if the former renter has not reclaimed the goods within 14 days.[3] Where a former renter requests the owner of the premises to store goods for more than 14 days and the owner refuses to do so, the former renter may apply to VCAT for an order requiring the owner to store the goods for a longer period.[4] On such an application VCAT may order that the owner store goods for a period of more than 14 days.[5] Where the owner agrees or is ordered to store the goods for a period of more than 14 days, the owner may sell or dispose of the goods after that period if the former renter has not reclaimed the goods.[6]
8 If the quantity of goods left behind is sufficient to prevent the owner of the premises from renting the property, the owner may require the former renter to pay an occupation fee.[7] The occupation fee must not exceed an amount that is equal to the rent that would have been payable under the terminated rental agreement, and not exceeding a total amount equivalent to rent for 14 days.[8] Where VCAT makes orders that the owner store the goods for more than 14 days, the former renter is liable to pay an occupation fee equivalent to the rent that would have been paid under the former rental agreement for each day the goods are stored.[9] At any time, the former renter may reclaim the goods before their destruction or disposal,[10] but the owner may require the former renter to pay an occupation fee in relation to the stored goods.
9 The RTA does not prescribe the considerations that are relevant to the exercise of VCAT's power to extend the storage period. The scope of considerations is informed by the purpose of the discretion, as discerned from the text, context and purpose of the legislation. Relevantly, s 1 of the RTA provides that the purpose of the RTA is to define the rights and duties of residential rental providers and renters. In that context, Division 3 of Part 9 must be construed as intending to prescribe the rights and duties of former renters and owners in respect of goods left behind at the conclusion of a tenancy agreement. Taken as a whole, the provisions seek to strike a balance between on the one hand, the former renter's right to their goods, and the owner's right to move on after the termination of the rental agreement with, in effect, vacant possession of the property. Where and how that balance is to be struck is informed by the mechanisms put in place by the RTA.
10 Between July 2024 and April 2025, Homes Victoria sought to encourage Mr McDiarmid to make arrangements to remove the goods from the property. Mr McDiarmid did not remove the goods. There is a considerable history of negotiations and discussions between the parties, but it is unnecessary to traverse those matters here. It is sufficient to say that during that period Homes Victoria agreed to store the goods for longer than 14 days while attempting to negotiate with Mr McDiarmid about the removal of the goods.
11 Ultimately, Homes Victoria served Mr McDiarmid with a notice under s 386(2) of the RTA ('the s386 notice'), in the prescribed form and specifying the goods that Homes Victoria assessed as being 'goods left behind' at the property ('the specified goods'). By April 2025, Homes Victoria had stored the specified goods for more than four months at the property.
12 Mr McDiarmid did not remove the goods and maintained that he was not in a position to remove the goods from the property because:
(a) He had been charged with assault and released on bail subject to conditions which prevented him from going within 50 metres of the property, and from within 5 metres of certain specified persons who, at the time, were occupants of the property. I understand that Mr McDiarmid has a criminal record such that any breach of his bail conditions could have serious consequences;
(b) Mr McDiarmid says that the 50 metre restriction was imposed as a condition of bail because there are other residents of the street in which the property is located who may have involvement in the criminal trial as witnesses; and
(c) Owing to his personal financial circumstances, he could not afford to pay to have someone remove the goods, or arrange for other family members to do so.
13 Mr McDiarmid made a request to Homes Victoria for an extension of the storage period beyond 14 days. Homes Victoria refused to grant the request and Mr McDiarmid applied to VCAT for an order extending the storage period, under s 395 of the RTA.
14 On 30 April 2025, VCAT heard the application for an extension of the storage period. Homes Victoria opposed the application.
15 Mr McDiarmid submitted that the landlord ought to be required to store the goods until he was in a position to collect them himself. Mr McDiarmid says in this Court, and said to VCAT, that he was the only person who could collect the goods from the property, and that by virtue of the conditions of his bail, he was not permitted to do so, without risk of breaching those bail conditions. His case before the Tribunal was that the storage period should be extended until such time as the bail conditions were varied, or the criminal proceedings resolved in such a way as to no longer put Mr McDiarmid at risk of breaching those bail conditions by attending the property to collect the goods. Mr McDiarmid was unable to tell the Tribunal when that would be, and in those circumstances the Tribunal correctly proceeded upon the assumption that an extension was sought for an indefinite period. Mr McDiarmid submitted that he was prepared to pay for the storage during the extended period.
16 In dealing with Mr McDiarmid's application, the Tribunal said:
The second issue is your application for a period of time for the goods to be stored. You've been granted a considerable extension already. That was granted, I think, up until April and then of course I accept that Homes Victoria is refusing a further period. You have sought really an indeterminate period for the extension. That is not appropriate. This is a Homes Victoria property. Rental housing is in high demand. Public housing is at high demand. The property needs to be emptied of goods to enable Homes Victoria to do its job and provide rented premises to people who are in need.
You have had a lot of period of time. I realise that you have issues and concerns, but they're not Homes Victoria's issues and concerns, they are yours and it is your responsibility to make whatever efforts you need to get your goods packed up and removed. I do accept that there's quite a lot of goods to come out at the property, so I'm giving three weeks, 21 days, for that to occur. So my order is that the owner must store your goods for an additional period of 21 days. That is until 21 May 2025.
After that the rental provider is entitled to take the steps allowed under the Residential Tenancies Act to empty out the house.
17 On 30 April 2025, VCAT made orders requiring Homes Victoria to store the goods for an additional 21 days.
18 On 20 May 2025, Mr McDiarmid sought leave to appeal the decision of VCAT.
19 It is important to identify what this appeal is not about, and in doing so it is appropriate to set out some of the matters that have arisen since the VCAT hearing.
20 After the application for leave to appeal was filed in this Court, Homes Victoria removed the specified goods from the property and placed them in a storage unit at its own expense, inviting Mr McDiarmid to collect the goods at his convenience. By removing the specified goods from the property, Homes Victoria removed the impediment preventing Mr McDiarmid from reclaiming the specified goods because attending the storage unit to collect those goods would not breach the bail conditions.
21 Homes Victoria then wrote to Mr McDiarmid informing him that at the property there remained goods which in its opinion fell within the meaning of s 384, being goods which it was entitled to dispose of or destroy, because it assessed them as having no monetary value ('the s 384 goods'). It provided Mr McDiarmid with a schedule of the s 384 goods.
22 Mr McDiarmid sought an interlocutory injunction in the Practice Court to prevent Homes Victoria from disposing of the s 384 goods until the hearing of this appeal. Before any ruling on the application for an interlocutory injunction was made, Homes Victoria gave an undertaking, the terms of which were agreed to by Mr McDiarmid. The undertaking was to the effect that Homes Victoria would collect some of the s 384 goods, plus some further identified goods, and deliver them to Mr McDiarmid's home (together, the 'undertaking goods'). It was agreed that the rest of the s 384 goods could be destroyed.
23 The undertaking goods included some building materials. Mr McDiarmid contends that the undertaking extended to additional building materials that form a veranda that is attached to the house. Homes Victoria has refused to dismantle the veranda and provide the building materials as 'goods' covered by the undertaking.
24 It is evident from submissions on this appeal that there is a contest about who owns the building materials, whether the structures are fixtures and whether the former tenant was required to remove the structures before termination of the lease, in order to have a claim to the materials.[11] That contest was not ventilated before VCAT, at least not to any extent that suggests VCAT considered whether the structures were 'goods left behind' and does not arise on this appeal.
25 Since the VCAT hearing, Mr McDiarmid informed Homes Victoria of a room constructed at the property without its permission which also contained some goods and boxes of documents. Homes Victoria was not aware of the existence of the room, let alone its contents, at the time that it issued the s 386 notice. The content of the room was not the subject of the VCAT hearing or the undertaking.
26 Mr McDiarmid never challenged the content of the s 386 notice. VCAT's decision only dealt with the specified goods, which have now been in a storage unit for some months and remain uncollected.
27 Mr McDiarmid may have other remedies under the RTA to seek to obtain the building materials and/or the documents but they are not matters before this Court. An appeal on a question of law does not arise in relation to any of the matters which have arisen since the VCAT decision for the simple reason that none of these new matters were placed before the Tribunal and for that reason could not have been the subject of consideration or product of error.
28 In practical terms, the remaining dispute between the parties concerns goods and building materials that were not the subject of any order by the Tribunal. Mr McDiarmid is now (and has been for some time) free to collect the specified goods from the storage unit where they are held. In those circumstances his appeal of VCAT's refusal to extend the storage period appears entirely futile and for that reason could be dismissed on discretionary grounds. Instead, I have considered each of the grounds and concluded that leave should be refused.
29 Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') permits an appeal to this Court from a decision of the Tribunal on a question of law, subject to the grant of leave. Leave must not be granted unless the Court is satisfied that the appeal enjoys real prospects of success.[12]
30 Mr McDiarmid originally raised four grounds of appeal. They were as follows:
31 On 29 August 2025, Mr McDiarmid amended the notice of appeal and proceeded on the following five grounds:
32 Mr McDiarmid has since abandoned ground 5 and sought to further amend the notice of appeal by informally introducing a new ground of appeal as follows:[13]
33 It is convenient to deal with all of the grounds now pressed.
97 Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
35 The provision operates in conjunction with s 98 of the VCAT Act, which permits the Tribunal to undertake its task unconstrained by the rules of evidence and procedure, but bound by the rules of natural justice. In requiring the Tribunal to act fairly, and according to the substantial merits of the case, s 97 directs the Tribunal to eschew technicalities and to focus upon the substance of the dispute that it is charged with deciding or resolving, requiring the Tribunal to act fairly in that process.[14]
36 Section 97 does not impose an overarching requirement of objective fairness,[15] nor does it augment or limit the range of relevant considerations in the exercise of any discretion arising under an enabling enactment.
37 Mr McDiarmid says that the impact on Homes Victoria's ability to relet the property was not a matter of 'substance' for the purpose of s 97 of the VCAT Act arising from his proposal to extend the time for the goods to be stored. As such, it was submitted that the issue was not one directed to the 'substantial merits of the case', and in having regard to the matter the Tribunal contravened the provision.
38 The ground of appeal misconstrues the role of s 97, and the meaning of the phrase 'substantial merits of the case'. The ground as framed assumes that s 97 intends to regulate or define the legal relevance of matters in the exercise of discretion, when in fact, s 97 exists to describe the method by which the Tribunal should undertake its task. Accordingly, as framed, the ground has no prospects of success. Mr McDiarmid accepted as much in the hearing before me, but recast the ground as really a complaint, tied to ground 2, to the effect that the Tribunal had taken into account an irrelevant consideration.
39 The ground would also have no prospects of success, even if it were beneficially recast as a complaint that the Tribunal took into account an irrelevant consideration.
40 Mr McDiarmid says that his application was not for the goods to be stored 'at the property', nor for the goods to be moved. Rather he says the application was merely for orders that the goods be stored for a longer period of time. It is said that the impediment which such an extension might create for Homes Victoria in reletting the property did not arise on the application.
41 Any decision on an application necessarily invites consideration of the consequences of such an order on the landlord, which in turn naturally includes consideration of the possibility that the goods may need to be stored at the property itself. In the present case, the landlord is Homes Victoria, who complained that: an extension of time for an indefinite period was unreasonable; a dwelling of this kind was in high demand and highly suitable for reletting to people in need of housing; the broader public interest was served by making the dwelling available as soon as possible because public housing was in short supply; this was consistent with Homes Victoria's core function. For all of these reasons, Homes Victoria opposed the indeterminate period of extension of storage at the property because to do so would prevent it from reletting the property.
42 These matters were clearly relevant on the material before the Tribunal, having regard to the text, context and purpose of the RTA and the regime for managing goods left behind. The quantity of goods left behind prevented the property from being relet. Homes Victoria had agreed to extend the period of storage on the property for a period of more than four months free of any charge. Homes Victoria's need to relet the property was clearly a weighty consideration which the Tribunal was entitled to take into account. Certainly, it could not be described as legally irrelevant to the Tribunal's deliberations.
43 Mr McDiarmid's second ground of appeal is to the effect that the Tribunal was wrong to give this matter determinative weight because it failed to consider other aspects of the legislative framework which could have alleviated or removed any impediment to Homes Victoria reletting the property. It is convenient to now deal with ground 2.
44 Ground 2 proceeds on the basis that the Tribunal failed to consider s 386(3) of the RTA, which permits the owner to 'remove the goods from the premises and store them at a safe place' - and therefore failed to have regard to the fact that an extension of time to the storage period did not oblige the landlord to store the goods at the property. The argument runs that s 386(3) militates against giving any weight to the Tribunal's observation that an extension of time for an indefinite period would impede Homes Victoria reletting the property. Mr McDiarmid says that if an extension were granted it would be open for Homes Victoria to simply store the goods in a safe place other than at the property. He says any financial impact on Homes Victoria arising from the cost of the storage could be addressed by its ability to require an occupation fee under s 388(1).
45 It is true that s 388(1) of the RTA creates a framework to mitigate the financial burden of storage, whether at the property or at some other facility. Whether it is ultimately an effective mitigant depends on the circumstances, including the likelihood that the costs of storage would ultimately be recouped. What has happened in this case since the VCAT hearing is a good example of the potential difficulties that might arise, and the circumstances which might discourage an owner from going down this path. After the VCAT hearing, Homes Victoria made the decision to remove most of the goods and place them in storage at its own cost, inviting Mr McDiarmid to collect them. By placing the goods in a storage unit away from the property Homes Victoria removed the impediment preventing Mr McDiarmid from collecting the goods. However, the goods remain uncollected. After the interlocutory injunction, Mr McDiarmid undertook to pay the rental of the storage unit for as long as the goods remained in the storage unit from that point in time. The rent remains unpaid.
46 The thrust of Mr McDiarmid's argument before me on ground 2 is that the Tribunal should have assumed that if Homes Victoria really wanted to relet the property, it could simply store the goods in some other location and seek to recoup an occupation fee to mitigate the financial loss. In substance Mr McDiarmid contends that the effect of s 386(3) is that it is a mandatory relevant consideration which the Tribunal failed to take into account. The practical effect of the submission is that if the extension of time had been granted, and if Homes Victoria wanted to relet the property as soon as possible, it would have been compelled to remove the goods, pay for storage and seek to recover the cost of that storage from Mr McDiarmid under s 388(1). In doing so, Homes Victoria would also have been compelled to assume the risk that the occupation fees would be paid for an indefinite period.
47 Whether s 386(3) is a mandatory relevant consideration turns on the proper construction of the statute, by reference to the text, context and purpose of the discretion conferred on VCAT, the role that s 386(3) plays in that discretion and the RTA as a whole. The obvious features of ss 386(3) and 388(1) are that they do not oblige a landlord to either remove goods or require the payment of an occupation fee. These provisions confer upon the owner options which may be taken up, or not. This is confirmed by the fact that a renter has no right to challenge a decision of the owner not to remove the goods from the property, nor does the Tribunal have power to compel the owner to do so, or require the payment of an occupation fee. It is possible that the owner's willingness to store goods is a factor relevant to the exercise of the discretion to extend the period for storage, but it would be improper and impermissible for the Tribunal to use the power to extend the period of storage with a view to compelling the owner to remove the goods from the property.
48 To find error of law, it would be necessary to conclude that s 386(3), which is expressed to give the owner a discretion to remove the goods from the property, obliged the owner to do so and/or empowered VCAT to force an owner's hand. For the reasons which I have outlined, I do not accept that this is the correct construction of the statute.
49 The VCAT hearing was conducted on the basis that the specified goods were to remain at the property until Mr McDiarmid collected them or the statutory period of storage expired. At no point preceding or during the hearing was there any suggestion that Homes Victoria would of its own volition remove the goods from the property under s 386(3). Nor was it suggested by Mr McDiarmid that Homes Victoria should be required to remove the goods under s 386(3). So much is clear from the application and the way in which the case was conducted before VCAT.
50 This is clear for the following reasons. First, Mr McDiarmid's application for an extension of the storage period was premised entirely upon the fact that his bail conditions operated as a constraint upon him attending the property. If the goods were to have been removed from the property, he would not have been prevented from collecting the goods, nor would he have needed any additional time to collect the goods.
51 Second, it is clear from the transcript of the proceedings in VCAT that Mr McDiarmid's application was presented solely on the premise that the goods were to remain at the property until he was personally able to retrieve them from the property. In an exchange with the Tribunal, Mr Diarmid was asked what orders he was seeking. In response, he said:
I seek to have place put in properly under section 317 - 397, sorry, which would be put it into storage mode for the time being until the matters are resolved and I pay for the storage. [emphasis added]
52 The phrase 'until the matters are resolved' necessarily implies that he anticipated that the goods would be stored at the property, and not some external property, otherwise there would be no need for the extension at all.
53 Third, even if Mr McDiarmid had expressly raised s 386(3), he would nonetheless have confronted the fact that Homes Victoria had given no indication that it was intending to move the goods. Mr McDiarmid had no right to bring an application seeking to compel Homes Victoria to remove the goods from the property to a safe place. Neither did the Tribunal have the power to make an order compelling Homes Victoria to do so on Mr McDiarmid's application under s 401(a) of the RTA. Mr McDiarmid's offer to pay the storage must be viewed in the context of the way the hearing was conducted as a potential mitigation of the inconvenience of extending the storage period at the property.
54 Fourth, the response of Homes Victoria to the application confirms that, at least at that point, it had no intention of removing the goods from the property:
So we're opposed to our properties being used as storage facilities, considering it's a three-bedroom property in a highly sought after location. With [the] homelessness crisis currently, it's not a viable option for us to have the property used as a storage facility because they've failed to get the belongings out.
55 Even if Mr McDiarmid had pressed an argument that, in all the circumstances, the period of storage should be extended on the basis that goods can be removed under s 386(3) and Homes Victoria assumes the risk of paying for storage other than at the property, the Tribunal would nonetheless have been required to consider whether such an outcome amounted to a reasonable balance of the interests of the owner and the former renter. This would have been a question of the merits of the application advanced before the Tribunal, but the reality is that no such case was advanced.
56 VCAT's discretion fell to be exercised on the material advanced in the hearing. The evidence established two competing interests. On the one hand, Homes Victoria's position was that it was entitled to have access to its property as soon as possible, having already provided free storage for well in excess of the statutory minimum of 14 days. Its contention was that the indefinite extension applied for by Mr McDiarmid was unreasonable. On the other hand, Mr McDiarmid maintained that he was not presently able to personally attend the property because of his bail conditions and was not able to arrange any alternative. The Tribunal was well apprised of Mr McDiarmid's difficulties in arranging the removal of the goods and the length of time that the goods had already been stored on the land for free. The Tribunal was able to take all of these matters into account.
57 The Tribunal was entitled to choose between these competing positions. Its choice was a decision on the merits. The Tribunal was aware that Mr McDiarmid was prepared to pay for storage, but there was no discussion of storage other than on the property.
58 The RTA does not impose a limitless obligation on a landlord to store the goods of a former renter, even if the impediment is a serious one which prevents the former renter from reclaiming the goods. In the present case, the Tribunal was seized of the details Mr McDiarmid's situation. This included not just the bail conditions themselves, but also efforts to vary them, efforts to obtain assistance in removing the goods, and his willingness to pay for the cost of storage.
59 In the end, the Tribunal's decision lay squarely within the limits of its decisional freedom, and accordingly this ground has no real prospects of success.
60 Ground 3 proceeds on the premise that the Tribunal 'wrongly interpreted the word "reclaim" in s 387 and s 391' of the RTA to mean 'collect' rather than 'demand' the restoration of something.
387 Renters and other entitled persons may reclaim goods left behind
(1) A former renter or other person who has a lawful right to goods left behind may reclaim the goods at any time before the destruction or disposal of the goods.
(2) If the owner of premises requires an occupation fee in relation to stored goods, the former renter or other person who has a lawful right to the stored goods must pay the occupation fee before reclaiming the stored goods.
391 When owner of premises may sell or dispose of stored goods
(1) An owner of premises may sell or dispose of stored goods if the former renter or other person who has a lawful right to the stored goods has not reclaimed them within 14 days, unless the owner of premises has agreed or been ordered by the Tribunal to store the goods for longer than 14 days.
(2) An owner of premises who has agreed or been ordered by the Tribunal to store stored goods for a period of more than 14 days may sell or dispose of the goods in any lawful manner after that period if the former renter or other person who has a lawful right to the stored goods has not reclaimed the goods.
63 Ground 3 is said to arise from a passage of the transcript of the proceedings. At the conclusion of the VCAT hearing, following the pronouncement of the Tribunal's decision and reasons for decision, the Tribunal asked the parties if they had any questions. The representative of Homes Victoria asked what the position would be after the period of 21 days had expired, including whether it would be able to sell or dispose of the goods. In a cursory way, the Tribunal, having already pronounced its orders, purported to explain that Homes Victoria would have the rights conferred upon it under the RTA. The exchange went as follows:
[Homes Victoria]: Yeah, just in terms of the order, so once the 21 days - so once we get...
...
[Homes Victoria]: ...to 21 May, we can then dispose of the belongings as of 22 May, anything that's left, is that correct?
[Tribunal]: Your rights under the Residential Tenancies Act that you have to remove goods, sell them, whatever it is, come back into effect because the storage period has ended.[16]
64 Mr McDiarmid submits that from this brief exchange, it can be inferred that the Tribunal erroneously interpreted the RTA in a way which was relevant to the outcome of the VCAT proceedings.
65 Mr McDiarmid submits that the word 'reclaim' should be construed to mean 'demand' - such that any claim of ownership of the goods would be sufficient to prevent a landlord from selling or disposing of the goods. He says the exchange following the Tribunal's reasons reveals that the Tribunal considered that the meaning of the word 'reclaim' should be understood as meaning merely to 'collect' - with the result that a failure to collect the goods within the relevant time would be sufficient.
66 This argument must fail for the following reasons. First, in approaching the transcript of the hearing as a record of the Tribunal's findings, this Court should be cautious not to permit overzealous scrutiny with an eye keenly tuned to finding legal error.[17] That is particularly so in a case like this where:
(a) the Tribunal had already pronounced its decision,
(b) the observations were made in response to a query about what the rights of a party might be in the future in circumstances that were not the subject of the litigation before the Tribunal, and
(c) where it is clear that the remarks were made in a truncated and generalised way, consistent with the nature of the inquiry and the context in which they were made.
67 In these circumstances, the Tribunal's statement should not be taken to imply an error of law.
68 Second, as far as it goes, the Tribunal's statement is correct. Upon the completion of the storage period, Homes Victoria would have all of the rights conferred upon it by the RTA. The Tribunal did not go into detail as to what all of those rights would be, or the many qualifications upon those rights. Sections 387 and 391 qualify the rights that Homes Victoria has under the RTA to sell or dispose of the goods. Those provisions make clear that even if the relevant storage period has elapsed, the former renter may still reclaim those goods if they have not yet been disposed of or sold.
69 Third, the Tribunal did not refer to s 387, nor does the Tribunal mention the words 'reclaim', 'collect' or 'retrieve'. It was unnecessary for it to do so given the nature of the proceedings with which it was concerned. The word 'reclaim' clearly includes the collection of goods. Whether in some circumstances it might also include a mere demand for the goods is an interesting question which did not arise for the Tribunal's consideration. In any event, it certainly cannot be said that the Tribunal formed a view one way or the other on the meaning of the word.
70 Fourth, Mr McDiarmid has not demonstrated how the orders made by the Tribunal are affected by the alleged error. If the Tribunal did proceed on the basis that 'reclaim' was wrongly limited to the collection of the goods and not a demand for them (which is not established) and, that construction of the word 'reclaim' is incorrect, Mr McDiarmid has not established how that so-called error infected the Tribunal's decision on the extension of the storage period.
71 Homes Victoria submits for completeness that the word 'reclaim' in this context should be read to mean 'collect' or 'retrieve' in the sense of taking physical possession of the goods. I agree that these words are appropriate synonyms. I leave for another day whether a mere 'demand' for the return of the goods might fall within the operation of the clause. It seems to me that in circumstances where the goods have not yet been destroyed or sold, but are in the possession of the landlord, that a demand for their return might fall within the scope of the entitlement given by s 387 of the RTA, but this is not a matter which I need to decide in this case for the reasons I have already given.
73 Ground 4 asserts that the Tribunal erred by approaching the exercise of its discretion to extend time under s 395 on the basis that it could only grant extensions for determinate periods of time.
74 Section 401(a) of the RTA provides:
401 What orders can the Tribunal make?
On an application under this Division, the Tribunal may -
(a) in the case of an application under section 395, order that an owner of premises must store goods for a period of more than 14 days...
75 There is no express limitation on the nature of an extension which may be granted. Having regard to the overarching purpose of the legislation, and the goods left behind provisions, it would be difficult to imagine a scenario where the correct balance would be struck by an order requiring a landlord to store goods indefinitely. Such a requirement would place on the landlord a particularly onerous and likely disproportionate burden.
76 In any event, it is not necessary to make a definitive finding on the limits of the power to extend because it is apparent from the transcript of the proceedings that the Tribunal did not make the error alleged. The Tribunal did not proceed upon the basis that it did not have the power to make an order extending the period of storage for an indefinite period. Rather the Tribunal decided, having heard Mr McDiarmid's arguments and those of Homes Victoria, that such an order seeking an indefinite extension would be inappropriate.
77 Properly construed, the Tribunal's conclusion was open on the material before it and contains no error of law.
79 Mr McDiarmid sought to amend ground 5 of his appeal to submit that the Tribunal's power to make orders did not extend to goods which were not the specified goods. The amended ground was raised in the submissions filed only a short time before the final hearing in this matter.
80 The ground is not directed to any error of law that the Tribunal could have made. Logically, it cannot be the case that the Tribunal made any decision in respect of goods (including possible building materials) which had not been raised or considered by the Tribunal. Rather the proposed new ground is a vehicle to ventilate matters which have emerged since the hearing. In substance, what is sought is a declaration that the goods which remain in dispute, and which were not the subject of consideration by the Tribunal, could not have been the subject of the order.
81 As I have outlined above, the answer to this question likely involves contested questions of fact. An appeal on a question of law from a decision of VCAT is not an appropriate vehicle to ventilate new matters of this kind.
82 All of these matters militate against the grant of leave to amend and accordingly leave to amend the grounds of appeal is refused.
83 For the foregoing reasons, as none of the proposed grounds of appeal enjoy real prospects of success, accordingly leave to appeal is refused.
84 I will make orders that Mr McDiarmid pay the costs of Homes Victoria on the standard basis, to be taxed in default of agreement.
[1] Residential Tenancies Act 1997 (Vic) ('RTA') s 378(a).
[9] Ibid s 388(3)(a).
[12] See Chopra v Department of Education and Training [2019] VSC 488; McSteen v Architects Registration Board of Victoria [2018] VSCA 136.
[13] A 'Proposed amended Notice of appeal' was emailed to the Court on 28 November 2025.
[14] Velardo v Andonov [2010] VSCA 38 [62]; Republic of Turkey v Mackie Pty Ltd [2019] VSC 103 [44]; Khanna v Kulathayendran [2012] VSC 250.
[15] Khanna v Kulathayendran (n 14) [36].
[17] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ).
McDiarmid
Homes Victoria [2025] VSC 790
(1996) 185 CLR 259