Applicant v First Respondent

1 By this proceeding, the applicant, John Lucas, seeks leave to appeal the decision of the Victorian Civil and Administrative Tribunal (the 'Tribunal') made on 23 October 2024, pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act').

2 Mr Lucas rented premises at 4 Preston Place, Taylors Lakes, Victoria (the 'Property'), from the first respondent, Maria Aparo. The duration and terms of the residential rental agreement are in dispute.

3 Ms Aparo claims that the rental agreement was for a period of six months, with a rent amount of $2,600 per calendar month, with the date of agreement and the start date as 29 December 2023.[1]

4 Mr Lucas claims the rental agreement was a 'rent to buy' agreement, for a period of 12 months, at the same monthly rate, and was dated 8 February 2024.[2]

5 On 28 February 2024, Ms Aparo served a notice to vacate on Mr Lucas, requesting that he vacate on or before 13 March 2024, for failing to pay bond monies and outgoing rent.

6 On 2 April 2024, Ms Aparo served another notice to vacate on Mr Lucas, requiring him to vacate on or before 30 June 2024, as she wanted to sell the Property.[3]

7 On 8 June 2024, Ms Aparo commenced proceedings in the Tribunal seeking a possession order for the Property.[4]

8 At the hearing before the Tribunal on 22 August 2024, the Tribunal considered the residential rental agreement as produced by Ms Aparo. The Tribunal, being persuaded of the relevant agreement, made an order for possession of the Property (the 'Possession Order'). Mr Lucas did not appear at the hearing.

9 The operative Possession Order made by the Tribunal was in relation to the notice to vacate, served on 2 April 2024 by Ms Aparo pursuant to section 91ZZB of Residential Tenancies Act 1997 (Vic) (the 'RT Act'). The operative Possession Order did not relate to the other matters of bond monies, rental arrears, or injunctions. These matters were not subject to the appeal.

10 Mr Lucas commenced three separate opposing proceedings in the Tribunal. These proceedings can be categorised as follows:

(a) Mr Lucas initiated two proceedings for restraint orders under various provisions of the RT Act. The first proceeding was commenced prior to the Tribunal's decision on 22 August 2024. In this proceeding, Mr Lucas sought an injunction order against Ms Aparo, in an attempt to stay the notice to vacate issued on 2 April 2024.[5] The second proceeding was commenced after the Tribunal's decision on 22 August 2024. This proceeding attempted to restrain Ms Aparo from implementing the Possession Order from the Tribunal before he could have the opportunity to seek a review of the Tribunal's decision of 22 August 2024 ('the Restraint Proceedings').[6]

(b) Mr Lucas initiated an application seeking to review and reopen the Tribunal's Possession Order pursuant to section 120 of the VCAT Act. Mr Lucas sought this review on the basis that he did not appear at the hearing (the 'Possession Order Review Proceeding').[7]

11 All three proceedings were heard by the Tribunal on 23 October 2024, and were ultimately dismissed.

12 Subsequently, Mr Lucas filed a notice of appeal in the Supreme Court of Victoria on 31 October 2024, appealing only the Tribunal's orders dismissing the Possession Order Review Proceeding on 23 October 2024.

13 I note that on 8 November 2024, Mr Lucas submitted a summons via RedCrest, which took issue with numerous other orders made in the various Tribunal proceedings related to his application.[8] These matters do not arise for consideration as no application for leave to amend the notice of appeal was sought.[9] As such, the application before me relates only to the Tribunal's orders of 23 October 2024, being the order dismissing the Possession Order Review Proceeding.

14 Whilst it appears that the personal relationship between Mr Lucas and Ms Aparo had at one time been cordial, the relationship between the parties appears to have deteriorated after Mr Lucas moved into the Property. The relationship is now factitious, to say the least.

15 A number of allegations and counter allegations as to the behaviour of Mr Lucas, Ms Aparo, and her sons, have been made. Ms Aparo, who remains the legal owner of the Property, is clearly distressed by the events which have led to this proceeding. Mr Lucas is also agitated by them.

16 No contract for the sale of land was ever produced to Mr Lucas. Ms Aparo maintains that there was never an agreement to sell the Property to Mr Lucas, only a rental agreement. Her intention was to put the Property on the market and to rent it to him in the meantime.[10]

17 Mr Lucas remains in possession of the Property, and has not paid rent since mid‑2024.[11] Ms Aparo seeks possession of her Property. A stay on the execution of the warrant of possession is in place. At the conclusion of the hearing on 14 March 2025, I ordered an extension of the stay until this judgement is delivered.

18 For the reasons which follow, I am neither satisfied that any questions of law raised by Mr Lucas have substance, nor that the appeal has any reasonable prospect of success. Accordingly, I refuse leave to appeal the orders made by the Tribunal.

19 The proceeding pursuant to which the Possession Order was made, came before the Tribunal on 22 August 2024. There was no appearance by Mr Lucas at the hearing scheduled on that day. The Tribunal proceeded to hear the application and made the Possession Order in the following terms:

(1) The residential rental provider gave the renter not less than 60 days notice to vacate under section 91ZZB of the Residential Tenancies Act 1997 (Vic).

(2) The residential rental provider has proven the reasons for giving the notice to vacate.

(3) Having regard to the matters in section 330A of the Residential Tenancies Act 1997 (Vic), it is reasonable and proportionate to make a possession order.

(4) The residential rental provider is entitled to a possession order in the terms set out below.

(1) The renter must vacate the rented premises by 22 August 2024.

(2) At the request of the person who obtains a possession order, and on payment of the prescribed fee, the Principal Registrar of VCAT must issue a warrant of possession to be executed within 14 days after the date of issue. This request may be made after 22 August 2024 and no later than 22 February 2025.

20 Mr Lucas made an application under section 120 of the VCAT Act to reopen the proceeding where the Tribunal made the Possession Order on 22 August 2024.

21 The application was listed for hearing on 23 October 2024.

22 Mr Lucas sought several adjournments of the reopening application.

23 First, on 14 October 2024, Mr Lucas sought an adjournment on medical grounds. That same day, the Tribunal declined the adjournment request on the basis that the application, including the documentation provided, did not satisfactorily support the granting of an adjournment. The consent of the residential rental provider had not been obtained.

24 Secondly, on 22 October 2024, the day before the scheduled hearing, Mr Lucas' appointed legal representative made a further adjournment request. The adjournment request was reiterated by Mr Lucas' legal representative, who appeared at the hearing on 23 October 2024. The rental provider continued to withhold consent to any adjournment.

25 At the hearing on 23 October 2024, the Tribunal again declined the adjournment request, finding that the further or amended documentation provided still did not satisfactorily support the granting of an adjournment.

26 The Tribunal heard submissions made on behalf of the renter by his legal representative, in respect of the substantive evidence before the Tribunal as well as arguments in support of Mr Lucas' adjournment application. The substantive evidence included certain documentary evidence freshly or again presented before the Tribunal, and was provided to the rental provider.

27 Ms Aparo was also legally represented at this hearing.

28 The Tribunal exercised its jurisdiction under section 120 of the VCAT Act, determining that it was not appropriate to hear and determine the renter's review application because:

(a) the renter does not have a reasonable case to argue in relation to the subject matter of the order; and

(b) to rehear and determine the application would cause prejudice to the residential rental provider.

(a) the application for review be dismissed; and

(b) the VCAT order dated 22 August 2024 be confirmed.

30 On 25 October 2024, the Tribunal issued a warrant of possession.

31 Mr Lucas filed a notice of appeal in the Supreme Court of Victoria appealing the orders made by the Tribunal in the Possession Order Review Proceeding. These orders refused Mr Lucas' adjournment request, dismissed his section 120 reopening application, and confirmed the Tribunal's orders for possession made on 22 August 2024.

32 On 31 October 2024, upon the filing of the notice of appeal in this Court, the Tribunal stayed the execution of the warrant of possession.

33 The order staying the execution of the warrant was subsequently extended by order of Judicial Registrar Lorenz until 5:00pm on 14 March 2025, which was the day listed for the hearing of the appeal.

34 As noted at [17] above, on 14 March 2025 I ordered an extension of the stay until delivery of this judgment.

35 Both parties were self‑represented before the Court. This meant that the hearing proceeded in a less conventional manner in an attempt to give both parties a fair and reasonable opportunity to put their case.

36 No court book had been prepared and the documentation was somewhat randomly organised and often duplicated.

37 Unfortunately, an authorised version of the transcript of the proceedings at VCAT had not been obtained by Mr Lucas. However, he did provide a copy of the recording which I was able to access. In addition, an informal (and imperfect) version of the transcript prepared by an automated dictation service was provided to the Court.[12]

38 At the outset of the hearing, I explained to the parties that, from my reading of the material and based on the questions of law and grounds set out in the notice of appeal, the basis of the appeal fell into two categories:

(a) First, a claim of breach of procedural fairness by the Tribunal in refusing the adjournment of the hearing on 23 October 2024.

(b) Second, the Tribunal had incorrectly considered the rental arrears and bond transfer documentation which led to an erroneous finding against Mr Lucas.

39 I indicated to the parties that questions of law and materials relating to the alleged sale of land, or agreement to sell the land, were not matters over which the Tribunal had jurisdiction. Similarly, matters of agreement between Mr Lucas and Ms Aparo, or other members of her family, about other property maintenance or renovation work were beyond the scope of the Tribunal exercising its jurisdiction under the RT Act. Consequently, on appeal, this Court cannot entertain these matters.

40 The application upon which the review has been brought to the Court is the primary decision of the Tribunal to make a possession order. It is not one based on rental arrears or other breaches by a renter. The exercise of the Tribunal's jurisdiction was solely under the RT Act, specifically under section 91ZZB, and section 120 of the VCAT Act. Whether there are rental arrears, or other matters of financial compensation to be settled that sat outside the terms of a residential rental agreement, these matters are peripheral and not relevant to the Tribunal's exercise of jurisdiction, nor consequently to the Court on review.

41 Section 148 of the VCAT Act does not provide an automatic right to appeal from a decision of the Tribunal. An appeal lies with leave of the Court on a question of law only. As I explained to the parties, the role of the Court in these types of appeals is a supervisory one, and it is not open to the Court to review a Tribunal's decision on the merits. Section 148(2A) of the VCAT Act requires the Court to be satisfied that the appeal has a real prospect of success.

42 I am not satisfied that any of the questions of law identified in the notice of appeal has a real prospect of success.[13]

43 I turn now to the specific questions and grounds raised by Mr Lucas.

44 The substance of the first three proposed questions of law are all variations of the same proposition. In essence, these propositions are that Mr Lucas was denied a reasonable opportunity to be heard as his applications for adjournment were all refused, or that he had insufficient notice of the possession application.

45 The Tribunal has an obligation to accord procedural fairness to parties. This is reinforced by sections 97 and 98(1) of the VCAT Act.

46 Any issue which related to lack of notice of the hearing, which occurred before the Tribunal on 22 August 2024, is cured by the opportunity to reopen the application pursuant to section 120 of the VCAT Act.

47 Mr Lucas took full advantage of that opportunity. He was legally represented at the hearing. It is clear from the transcript that the Tribunal was unpersuaded in relation to a medical certificate relied upon for Mr Lucas' inability to attend. In circumstances where Mr Lucas was not legally represented, this may well have had some weight.

48 However, it is apparent that the Tribunal had before it the competing versions of the rental agreement, and was not persuaded that the version relied upon by Mr Lucas was to be preferred. The evidence available as to this document was prima facie unpersuasive given the variety of handwriting, and the terms in which it is expressed.

49 The refusal to adjourn a matter is in the discretion of the Tribunal. It is not open to this Court to impose its own view of the merits or of the adjournment subject to natural justice considerations.

50 In circumstances where Mr Lucas was represented at the hearing, and had been represented for some time, and in the face of the competing versions of the rental agreement, it was clearly open to the Tribunal to refuse an adjournment. To adjourn a matter which has no merit cannot be supported both in form or substance.

51 The additional matters relied upon, such as the allegation that there was an agreement to sell the land, was correctly identified by the Tribunal to not fall within its jurisdiction.

52 Further, whilst there may be other possible causes of action relating to his allegations of an agreement to sell the Property and the work he alleged he has done, despite the passage of time, no relevant proceedings have been instituted by Mr Lucas in respect of these allegations.

53 Moreover, in respect of the Tribunal's jurisdiction under the RT Act, whilst there is an allegation of an agreement that might lead to a separate debt owed, this is not a matter which is relevant to the Tribunal's consideration of rental arrears. No provision of the RT Act was identified which would support Mr Lucas' proposition in this regard.

54 The Tribunal made an assessment on the material before it, forming its view of the evidence, bearing in mind that the rules of evidence do not apply, and the Tribunal can inform itself as it sees fit. The Tribunal made a finding about the rental agreement and Ms Aparo's entitlement to possession of the Property, taking into account the discretion to be exercised under the RT Act. It is difficult to overturn that decision unless there is a clear error.

55 In any event, if the Tribunal was of the view that there was no merit or defence to the claim for possession made by Ms Aparo, any determinative issue of natural justice would fall away. An adjournment would lack utility and cause further delay and costs to the parties.

56 The Tribunal correctly identified its jurisdiction, which in this case was limited to the terms of the residential rental agreement between Ms Aparo and Mr Lucas. Insofar as there are competing versions of what was the rental agreement, the Tribunal clearly formed the view that it accepted the rental agreement produced by Ms Aparo.

57 The allegation that there was an error in applying the RT Act in interpreting the rental arrears and bond transfer documentation is misconceived.

58 The Possession Order was made, not due to any rental arrears or other breaches, but on the basis that Ms Aparo had given the appropriate notice to vacate. Further, upon Ms Aparo demonstrating to the Tribunal that there was an intention to sell the Property, the Tribunal exercised its discretion to make the Possession Order. There is no issue of rental arrears, or other payments, which arise as a consequence of an order made under this provision.

59 Considerable time was taken in the hearing dealing with the misconception by Mr Lucas that the Tribunal, and this Court on review, can entertain questions of agreements to sell real estate and other peripheral matters.

60 As explained to Mr Lucas, he may have claims in respect of other matters that he raised before me, however, the Court's jurisdiction in this appeal was limited.

61 Given that there is no reasonable prospect of success on the appeal, I am not satisfied that leave should be granted.

63 I extended the stay of the warrant of possession until the determination of the appeal. The stay expires on the date of this decision being on 25 March 2025, as the applicant has been unsuccessful in his application for leave to appeal.

64 I will provide the parties with an opportunity to make submissions as to any application for costs.

[1] A copy of the residential rental agreement is in Exhibit MA‑1 of the Affidavit of Maria Aparo (filed 24 January 2025 in S ECI 2024 05828, Supreme Court of Victoria).

[2] Photographs of the residential rental agreement is in Exhibit A of the Affidavit of John Lucas (filed 4 December 2024 in S ECI 2024 05828, Supreme Court of Victoria). Whilst most pages in the affidavit are illegible, one photograph shows a handwritten notation in cl 25 of the standard form agreement referring to a '12 month lease agreement to purchase' the Property.

[3] Residential Tenancies Act 1997 (Vic) s 91ZZB (the 'RT Act').

[5] The first restraining order application was dismissed on 19 August 2024. There was no appearance made by the applicant at the hearing. Accordingly, Mr Lucas sought to have the decision reviewed and the proceeding reopened pursuant to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 120 (the 'VCAT Act'). The review was heard on 23 October 2024 before the Tribunal along with the other proceedings.

[6] The Restraint Proceedings were sought pursuant to ss 452 and 472 of the RT Act.

[8] The summons refers to R2024/19048/01, R2024/19048/00, R2024/14412/01, R2024/14412/00 and R2024/27593/00.

1. [9] Leave to appeal was not granted on the basis that the orders related to the Restraint Proceedings. The Restraint Proceedings relied solely on whether Mr Lucas' rental agreement was correct. As the Tribunal determined that Mr Lucas' version of the rental agreement was incorrect, the Restraint Proceedings became peripheral.

[10] Affidavit of Maria Aparo (filed 18 December 2024 in S ECI 2024 05828, Supreme Court of Victoria), [7].

[12] Affidavit of John Lucas (filed 13 February 2025 in S ECI 2024 05828, Supreme Court of Victoria) 48-‍123.