Applicant v First Respondent

PRACTICE AND PROCEDURE - Application for leave to rely on fresh evidence on appeal - No basis for fresh evidence established - Application refused - Bulasa Pty Ltd v Baytown Properties Pty Ltd [2003] VSC 248; Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, referred to.

1 The first respondent, River St Property Nominees Pty Ltd ('River Street'), and the applicant, Rokon Holding Pty Ltd ('Rokon'), are lot owners of a subdivided property at 75 River Street, Richmond, Victoria ('the Property').[1]

(a) Rokon is the owner of Lot G8 on Plan of Subdivision 502581D, Certificate of Title Volume 10908 Folio 504, being an office space on the ground floor of the building situated at the Property ('Lot G8').

(b) River Street is the owner of Lot 2 on Subdivision 502581D, Certificate of Title Volume 01908 Folio 242, being an indoor car park space abutting Lot G8 ('Lot 2').

3 The dispute between them concerns a doorway constructed through a wall forming a boundary between Lot G8 and Lot 2. River Street claims that some time prior to 29 May 2014, Rokon, or its predecessors, constructed the door without obtaining the necessary permissions or consents.[2] The door allegedly intrudes into Lot 2. River Street takes issue with the door remaining in its present location and sought to have Rokon remove the door and reinstate the wall, which Rokon has refused to do.

4 River Street also sought permission from the second respondent, the Owners Corporation No. 1 PS502581D ('Owners Corporation'), to erect a storage cage within Lot 2, but the Owners Corporation refused to do so unless River Street agreed to take no action against the Owners Corporation regarding the door's construction or relocation.

5 An application was commenced by River Street in the Victorian Civil and Administrative Tribunal ('the Tribunal').[3] River Street sought an order against Rokon compelling it to remove the door and remediate the wall and surrounding structures. River Street also sought orders against the Owners Corporation for a declaration that it had no right to prevent River Street from constructing a storage cage on Lot G8.[4]

6 Shortly after the proceeding commenced in the Tribunal, and prior to any defence submissions being filed by Rokon, Rokon brought an application for summary dismissal against River Street's claim pursuant to sections 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act').

7 The Tribunal dismissed Rokon's summary dismissal application on 26 March 2024 ('the Tribunal's orders').[5]

8 Rokon seeks leave to appeal the Tribunal's orders pursuant to section 148 of the VCAT Act.

9 I set out below a brief summary of the background to this proceeding.

10 Prior to 17 January 2007, the two lots on the Property were originally on a single Parent Title Volume 08662 Folio 955, owned by the developer, River Street Developments Pty Ltd ('the Developer').

11 On 17 January 2007, the Developer sold the Property to Jolimont Cove Pty Ltd ('Jolimont Cove').[6]

12 On 12 December 2007, the Property was subdivided into several lots including what is now Lot 2 and Lot G8.

13 On 17 December 2007, Jolimont Cove sold Lot 2 to Christina Sobieralski.[7]

14 On 25 March 2010, Jolimont Cove sold Lot G8 to Zacara Pty Ltd and Lilcoreva Pty Ltd.[8]

15 On 31 May 2013, Zacara Pty Ltd and Lilcoreva Pty Ltd sold Lot G8 to Rokon.[9]

16 On 29 May 2014, Christina Sobieralski sold Lot 2 to River Street.[10]

17 River Street asserts that the door was created on or before 29 May 2014 by Rokon or its predecessors. Rokon claims that the door was constructed in or before 2007, during the common ownership of the two lots.

18 River Street commenced an application in June 2023 with the Tribunal seeking, inter alia, an order compelling Rokon to remove the door and remediate the wall and surrounding structures to their previous condition, or orders that River Street be permitted to do so, and that Rokon indemnify it to reimburse the full cost of these works.[11] River Street also sought against the Owners Corporation a declaration that it had no right to prevent it from installing a storage cage.[12]

19 First, in aid of the relief sought, River Street alleged that the door was constructed without the relevant permits and permission of the Owners Corporation.[13]

20 Second, in aid of the declaration sought, River Street asserts that the Owners Corporation refused to permit River Street to install a storage cage on its lot for two reasons. Namely, that it traverses part of the door between Lot 2 and Lot G8, and the Owners Corporation sought River Street to agree to take no action against it in respect of the relocation of the door. The Owners Corporation has not refused other car parks within private lots to install storage cages near the wall.

21 Whilst the Owners Corporation did participate in the Tribunal proceeding, on 21 May 2024, the Owners Corporation notified the Court that it did not intend to take any steps in the proceedings and it would abide by any decision that the Court would make.

22 On 20 December 2023, in response to River Street's claim with the Tribunal, Rokon filed a summary dismissal application seeking to dismiss the claim on the grounds of delay and lack of merit ('the summary dismissal application').[14]

(a) that all or part of the proceedings and the relief sought be struck out or dismissed under section 75 of the VCAT Act for unjustified proceedings;[15]

(b) that all of the proceedings be struck out or dismissed under section 76 of the VCAT Act for want of prosecution;[16] and

(c) that Rokon's costs be paid by River Street as agreed or, in lieu of agreement, taxed.

(a) Rokon's application for strike out or dismissal of the proceeding be dismissed; and

(b) Rokon pay River Street's costs of the application to be assessed by the Costs Court on a standard basis and on the County Court scale.[17]

25 The Tribunal gave oral reasons for the Tribunal's orders at the end of the hearing on 26 March 2024. No formal written reasons were published. The Tribunal's oral reasons are recorded in the transcript.[18]

26 The Tribunal said that the dismissal power available under section 75 of the VCAT Act should only be exercised where it is obvious that the case cannot possibly succeed or where the proceeding is an abuse of process.[19] The Tribunal observed that it is a very serious matter to ask the Tribunal to dismiss or strike out an application before a party has had the chance to have its case fully heard and adjudicated upon in a final hearing.[20] Moreover, the application for an order for summary dismissal or striking out should be dealt with on the footing that the Tribunal should assume that all the facts alleged in the claim are able to be proved.[21]

27 The Tribunal stated that section 75 is not confined to whether or not a proceeding could possibly succeed. Even though the Tribunal held some reservations about the success of part of River Street's claim, this did not mean that the rest of the case could not possibly succeed.[22]

28 In rejecting the proposition that the proceeding could be considered an abuse of process, the Tribunal said that had there been an ulterior motive in bringing the claim, an abuse of process could be established under section 75.[23] However, the Tribunal formed the view that this claim was simply one small dispute in a whole bundle of disputes and the evidence fell well short of demonstrating the evidence required to establish an abuse of process here.

29 Whilst the transcript is partially indistinct, the Tribunal opined that he had always held the view that the relevant period of delay applicable to section 76 of the VCAT Act, is the delay in the conduct of the proceeding after the issuing of the claim.[24] Whether there has been a delay prior to that is only a discretionary consideration which comes into play when it comes to deciding whether or not to grant an application. Even if it were to be assumed that the delay prior to the commencement of proceedings is a reason for deciding that there has been a want of prosecution, then prejudice was required to be proven.[25]

30 In terms of costs, the Tribunal ordered Rokon's application be dismissed and that Rokon pay costs as to the proceeding.[26] The Tribunal observed that Rokon ought to have known that the prospect of success under sections 75 and 76 were slim, and the Tribunal ruled that it was appropriate in this case to make an award for costs.[27]

31 By way of its amended notice of appeal filed 19 July 2024, the applicant now applies to this Court for leave to appeal and, if granted, to appeal the Tribunal's orders made on 26 March 2024 pursuant to section 148 of the VCAT Act.

32 On 7 November 2024, the applicant filed an affidavit of Natalia Petukhova (the 'second Petukhova affidavit') dated the same date. Prior to the trial, the first respondent indicated that it would make an objection to the admissibility of that affidavit at trial.

33 Following a direction to file written submissions on the admissibility of the affidavit, the Court received submissions and this issue was to be dealt with as a preliminary matter at the trial on 21 February 2025. However, the parties agreed to this issue being dealt with in the course of this judgment.

34 Rokon submitted that the further or fresh evidence contained in the second Petukhova affidavit was relevant and ought be allowed to be relied upon because:

(a) it demonstrated the error of the Tribunal in rejecting Rokon's submission made below which asserts that River Street had failed to make reasonable and necessary enquiries before commencing the Tribunal proceeding; and

(b) in the event of a successful appeal, it was relevant on the subject of remitter.

35 River Street submitted that the belated attempt to introduce fresh evidence ought be rejected because:

(a) an appeal under section 148 of the VCAT Act is in the nature of judicial review and does not involve fresh reconsideration of the merits of the decision.[28] The Court can only deal with the identified questions of law and does not retry the matter;

(b) in resolving the questions of law before it, the Court does not enter into the fact finding task, evaluate the evidence or substitute its own view of the facts for that of the Tribunal;[29] and

(c) given the nature of the appeal, the adducing of fresh evidence is almost always impermissible.[30] The exception is where the application is founded on a denial of natural justice and the evidence is led to establish this.[31]

Ruling on admissibility of the second Petukhova affidavit

36 I am not persuaded that the second Petukhova affidavit should be allowed to be relied upon in this appeal.

37 I agree with the summary of principles set out above at [35] in relation to the admission of fresh evidence in an appeal such as this.

38 It is a rare case where fresh evidence can legitimately be of assistance to the Court in determining a proceeding such as this which is in the nature of judicial review. The appeal does not involve any question of natural justice (which is the well‑established exception). The evidence now sought to be relied upon, as frankly conceded by Rokon, was not before the Tribunal. Further, the new material was not obtained until sometime between two and five months after the Tribunal dealt with the summary dismissal application.

39 Rokon's submission is, in essence, an attempt to admit fresh information into the proceeding to bolster its case on the merits and to demonstrate the lack of evidentiary basis for River Street's case. It goes only to the proposition which it ran before the Tribunal that River Street has failed to establish an evidentiary basis for their claim and it has not made sufficient enquiries before issuing the claim. This is not evidence of the calibre which should persuade a Court of its admissibility.

40 Rather, it underlines my concern about the nature of the questions of law raised in this appeal. In my view, the appeal is a faintly disguised complaint of disappointment in the outcome of the Tribunal's merits decision on the material it had before it. The implicit suggestion is that the new material produced demonstrates the Tribunal erred when faced with less material. In the context of an appeal on a question of law, the underlying proposition is untenable.

41 I note that paragraphs [3]-[7] of the disputed affidavit refer to exhibited documents which were identified or located well after the Tribunal's summary dismissal decision. In applying the well‑established principles relating to the admissibility of fresh evidence (summarised in [35] above) to the appeal before me under section 148 of the VCAT Act, I am not persuaded that the content of the second Petukhova affidavit ought be admitted. The nature of a section 148 appeal is to consider whether an error of law has been identified and, if so, determine the appeal in accordance with that statutory provision. It does not retry the matter, nor is it entitled to substitute its own view of the evidence for that of th[32]Tribunal.32 The question of whether there is an error of law is to be decided on the evidence that was before th[33]Tribunal.33

42 The balance of the affidavit at paragraphs [8]-[14] is in the nature of a submission or commentary which is of no relevance or assistance to the questions of law raised and should be properly excluded for that reason alone.

43 For the reasons which follow upon where I dismiss the appeal, the submission that the affidavit and the fresh evidence is relevant on remitter is of no consequence.

44 The notice of appeal raises six questions of law. All six questions concern the Tribunal's finding that the first respondent's Points of Claim should be summarily dismissed as an unjustified proceeding, abuse of process and for want of prosecution.[34]

45 The first question concerns whether the Tribunal erred in law by failing to properly consider and give weight to the period of delay on the part of the first respondent prior to commencing the proceedings.[35]

46 The second question concerns whether the Tribunal erred in law by failing to consider and give weight to the delay since the date at which the applicant and the first respondent's predecessor in title since 12 December 2007, when assessing the delay in the commencement of proceedings relevant to the delay.[36]

47 The third question concerns whether the Tribunal erred in law by failing to give any or any proper weight to the prejudice and the quality of justice able to be delivered by the Tribunal considering the delay since 12 December 2007.[37]

48 The fourth question concerns whether the Tribunal erred in law by failing to give any weight to the trivial nature of the alleged interference with the alleged rights of the first respondent considering the delay since 12 December 2007.[38]

49 The fifth question concerns whether the Tribunal erred in law by failing to give any or any proper reasons for his decision.[39]

50 The sixth question concerns whether the Tribunal erred in law by failing to give any or any proper weight to the joint ownership of the two lots respectively owned by the appellant and the first respondent in circumstances where:

(a) before their respective purchase and possession, their predecessor in title had installed the fire door and therefore altered the access by implied easement; and

(b) the first respondent had constructive notice of the altered access rights and implied easement created by the predecessor in title.

51 Before turning to the substantive appeal, I first address the issue of leave to appeal. The appeal jurisdiction of this Court is not automatic.[41] The first step is for the Court to decide whether leave to appeal should be granted.

52 For leave to appeal to be granted, I must be satisfied that the application identifies questions of law and that the questions have a real prospect of success.[42]

53 Section 75(5) of the VCAT Act states that for the purposes of the VCAT Act, the question of whether or not an application is frivolous, vexatious, misconceived, lacking in substance or was otherwise an abuse of process, is a question of law.

54 In relation in to the matters raised involving section 75, I am not persuaded that whilst section 75(5) characterises the subject matter as raising a question of law, the second consideration in granting leave to appeal, of whether the appeal has a real prospect of success, is far less obvious.

55 In short, for the reasons which follow I am not persuaded that any of the proposed questions of law have a real prospect of success. Questions 1-‍4 and 6 are cast in terms of weight to be given to a particular factor, or an allegation that no proper weight was given to a relevant factor. The weight to be given in considering a relevant factor is a matter for the Tribunal and it is not a question which is amenable to appeal under section 148 of the VCAT Act.

56 The fifth question, that of 'failing to give any or any proper reasons', was not further developed in argument before me. This was not unsurprising. Section 117(1) of the VCAT Act provides that there is no obligation for the Tribunal to provide reasons for an interim order.[43] 'Interim order means an order of an interim or interlocutory nature' by section 3 of the VCAT Act. No submission was made as to the failure or refusal to provide reasons, reasons having been requested pursuant to section 117(2).

57 In any event, the oral reasons provided by the Tribunal dealt with the key findings and propositions of law in dispute and provide a clear and intelligible pathway to demonstrate the Tribunal's reasoning in refusing Rokon's application. I will refuse leave to appeal question 5.

58 For the reasons which follow, I am not persuaded that any of the questions posed have a real prospect of success.

59 Before turning to the questions and grounds raised, I have set out the principles which have been applied in the determination of the application and appeal.

60 Section 75 of the VCAT Act empowers the Tribunal to 'make an order summarily dismissing or striking out all, or any part of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.'[44]

61 The section 75 of the VCAT Act summary dismissal principles are well established. Rokon bore the onus of establishing that the Tribunal should summarily dismiss River Street's claim. Rokon had to establish that the proceeding was undoubtedly hopeless or that there was no real question to be tried. The Tribunal was required to exercise great caution in making such determinations.

62 The Court of Appeal has described the terms in section 75(1) of the VCAT Act, 'misconceived' and 'lacking in substance', as referring to proceedings in which it is readily apparent that it is hopeless and bound to fail.[45] The Tribunal had to reach a high level of satisfaction that River Street did not have an arguable case,[46] assuming that the applicant would be able to establish the facts that it alleged.[47] A proceeding should not be summarily dismissed if its outcome may depend on evidence to be called at a final hearing. This is a high bar and is one, as the Tribunal correctly identified, which ought to be exercised with great caution.

63 I note that the application was brought very early on in the Tribunal proceeding, even before any defence had been filed. Such a practice or tactic is commonplace in commercial litigation. However, this proceeding was issued in the Tribunal which by its nature and its legislative remit is less formal and more accessible. It is not a court of pleading, the rules of evidence do not apply and the Tribunal may inform itself as it deems fit, subject to the rules of natural justice. This is reflected in the practices and procedures of the Tribunal. The rules and practices which apply to a proceeding issued in the Court do not apply in the Tribunal, except to the extent the Tribunal chooses to adopt them. This includes the application of the overarching principles and provisions of the Civil Procedure Act 2010 (Vic) ('the Civil Procedure Act').

64 The statutory test under section 63 of the Civil Procedure Act for summary dismissal, being the 'no real prospect of success' test, is a harsher test and can be distinguished from the higher bar that applies before the Tribunal. The change of emphasis in the practices and procedures in the Tribunal is importantly reflected in the test to be applied in section 75 summary dismissal applications. The relevant test, as established in General Steel Industries Inc v Commissioner for Railways (NSW), is whether the matter is 'hopeless' or 'bound to fail'.[48]

65 That is not by any measure to say that it would be improper to bring an application by way of section 75 at an early time, nor that the processes for summary dismissal should necessarily be used sparingly. The point is that summary dismissal applications should be used appropriately and where there is a prospect that there may be facts and legal arguments raised which are not untenable (in that they are 'hopeless' or 'bound to fail'). A summary dismissal or strike out should be dealt with on the footing that the Tribunal should assume that all the facts alleged in the claim are able to be proved.[49] Hence, the Tribunal should be slow to exercise its discretion to summarily dismiss a proceeding.[50]

66 As the Tribunal noted, it is 'a very serious thing to ask the Tribunal to dismiss' a proceeding before a party has had the chance to have its day in the Tribunal and call its evidence.[51] Otherwise, an applicant is entitled to have the case fully heard and adjudicated upon a final hearing. These principles were stated in State Electricity Commission of Victoria v Rabel,[52] and were confirmed in Forrester v AIMS Corporation.[53]

Section 76

67 Section 76 of the VCAT Act states that 'at any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.'[54] Satisfaction of delay in prosecution does not in and of itself necessitate dismissal, and the Tribunal retains its discretion.

68 The main focus of Rokon's submission was the delay in instituting the proceeding, rather than the delay since the proceeding was issued.

69 The authorities are clear that when considering prejudice, the relevant period is subsequent to the issue of proceedings.[55] However, the events that occurred before the issue of proceedings, particularly if those proceedings were issued just before the expiration of a period of limitation, are not irrelevant to the exercise of the Court's discretion.[56]

70 In refusing leave to appeal in ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd v Moulieris,[57] Kaye JA relied on the discussion by the Court of Appeal in Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells.[58] The discussion sets out the principles relevant to want of prosecution in the Courts which were also applicable under section 76. These were, relevantly (in summary):

(a) the critical issues which must be considered are the delay, any explanation for the delay, and the likely prejudice to be caused to the defendant as a result of that delay;

(b) in considering each of those issues, ordinarily, the effect of the delay on the orderly management of Courts business is not a relevant consideration;

(c) the delay which must be considered is the period of time that has passed since the issue of the proceeding question. However, where the plaintiff has been tardy in issuing the proceedings, the plaintiff is obliged to prosecute the claim with greater expedition than if the proceeding had been issued earlier editor time approximate to the events in question;

(d) the delay in the prosecution of the case is not confined only to periods of total inactivity. It can also include failure to take steps in a manner which would have enabled interlocutory procedures to be concluded within a reasonable time;

(e) it is not a prerequisite for the defendant by affidavit to allege prejudice sustained as a result of delay. Prejudice may be inferred from all the circumstances of the case. In determining whether or not and to what extent the defendant has suffered prejudice, the Court focuses primarily on the prejudice caused by the delay by the plaintiff in prosecuting the claim; and

(f) the relevant prejudice includes that which will likely be suffered up to the time at which it might fairly be expected that case would be tried to conclusion.

71 The authorities in this regard have established that, where there is a long or prejudicial delay in instituting proceedings, an applicant should proceed expeditiously in the prosecution of his or her claim. The delay in bringing the claim may factor into the Tribunal's finding of want of prosecution. However, where the claim is made and there has been no inordinate delay which is prejudicial, the pre‑issuance period is not the focus.

The Tribunal's attribution of weight as an error of law

72 There is no question of law raised based on weight to be accorded by the decisionmaker in exercising a discretion. Insofar as any of the questions raised by Rokon rely solely on this basis, they are bound to fail. This would apply to questions 1-4 and 6 which are all framed in terms of the issue being the weight accorded or not accorded by the Tribunal in reaching its decision.

73 Insofar as questions of law 1-4 and 6 are purported to be based on the principles established in Minister for Arts, Heritage and Environment v Peko‑Wallsend Ltd, a failure to take into account a mandatory consideration may give rise to an error of law.[59] However, the questions of law and grounds are not directly framed to raise this proposition.

No merits review open under section 148 of the VCAT Act

74 To succeed on appeal, a material or vitiating error of law must be established.

75 There is no valid appeal based on a merits review.[60]

76 I now deal with each question of law raised by Rokon in turn.

Question 1: Failure to consider the period of delay

77 The first question and the grounds are framed by reference to the alleged error of the Tribunal in not properly considering the period of delay prior to the issuing of proceedings.

78 Insofar as the question is framed by reference to weight to be attributed to pre‑issuing delay, it is clear that the Tribunal turned its mind to this consideration but rejected it. The weight to be attributed to any factor is a matter for the decisionmaker and it is not open to this Court to second‑guess that attribution.

79 In any event, the Tribunal set out its understanding of the law in this regard without error.[61] I have set out above what is settled by law in terms of the delay under section 76. The circumstances which might give rise to consideration of delay prior to the issuing of proceedings just do not arise here. There is no evidence that River Street has not pursued the proceeding, once issued, in a timely manner.

80 I note the application for summary dismissal was brought very early in the proceeding, before any defence or other interlocutory proceedings would occur in the normal course. This demonstrates to me that delay of that ilk, which might be taken into account in the exercise of discretion, does not exist here.

81 Accordingly, I find that question 1 is not made out.

Question 2: Failure to consider predecessor in title when weighing the period of delay

82 Whilst couched in terms of inordinate delay to support section 76, the grounds raise particular factual matters (i.e. the allegation that the door was in situ in 2007); that the door was said to be in place prior to the ownership by River Street and that the legal consequence of these factors is that the Tribunal would be required to dismiss the proceeding pursuant to section 76.

83 Insofar as the question of law and grounds argue that the Tribunal did not consider or give weight to a particular factor prior to the issuing of proceedings, as stated above, the question of both relevance and weight are in the discretion of the Tribunal, and in this regard it is not the role of the Court to second‑guess this assessment.

84 Again, as set out above, the delay prior to issuing proceedings was properly stated and considered by the Tribunal.

85 The submissions below relied on the matters before the Tribunal as the basis of demonstrating inordinate delay. However, the delay identified was not the delay in prosecuting the proceeding. The correct starting point is the commencement of the proceeding.

86 The matters identified in the ground supporting this question of law are, in reality, facts and legal consequence for proper determination at trial. Where there are facts or legal arguments in contention, the Tribunal was correct to form the view that the high bar for summary dismissal is not reached. These are matters for assessment at a full hearing.

87 The Tribunal was not in error in this regard. I find that question 2 is not made out.

Question 3: Failure to give proper weight to the prejudice and quality of justice resulting from the period of delay

88 There is little doubt that the passage of time diminishes clear memories and affect the availability or cogency of evidence which may be available to a party.

89 However, in this matter, the documents proving the course of events including permissions granted will be relevant. At this early stage of the proceeding, where evidence is still being marshalled, and the refinement of the issues is being worked through, the identification of prejudice is limited to the prejudice by mere passage of time. The transcript of the hearing shows that the submission made as to prejudice was put on the basis of the usual prejudice by passage of time.[62]

90 That the Tribunal did not treat this as a decisive factor is unsurprising. It is a factor which it considered and clearly did not find persuasive. The weight accorded to a particular factor is a matter for the Tribunal.

91 The question of triviality is a qualitative one and is a matter which properly can be the subject of evidence and submission at the hearing. The Tribunal made comments as to the functionality of the door, demonstrating that the Tribunal both took the effect and operation of the door into account. Ultimately, the question goes to relief as much as the determination of the merits.

Question 4: Failure to weigh the trivial nature of the alleged interference

93 A version of the same grounds as set out in support of questions 1-3 are repeated in respect of question 4 though the focus is on the nature of the alleged interference.

94 Ultimately, the nature of the interference is a question of fact and would need to be subject of evidence.

95 I am unpersuaded that the grounds relied upon to support question 4 are made out.

Question 5: Did the Tribunal err in law by failing to give any or any proper reasons for his decision?

96 This question was not pursued by Rokon in its written or oral submissions. I will however deal with it as a matter of completeness, given River Street has addressed it.

97 The decision by the Tribunal was an interim or interlocutory decision. Hence, there is no obligation to give reasons for the decision per section 117(1) of the VCAT Act.

98 Whilst there is a provision in the VCAT Act to allows parties to seek written reasons, there is no evidence that reasons were sought.[63]

99 In any event, a fair reading of the transcript of the hearing, including the interchange with representatives of the parties and the concluding remarks by the Tribunal, does not disclose error.

100 Insofar as it was maintained as a live question by Rokon, I find that question 5 is not made out.

Question 6: Failure to consider joint ownership of the two lots

101 As stated in respect of each of the earlier proposed questions of law, questions of weight or proper weight are not questions of law for the purposes of section 148.

102 However, in Rokon's written and oral submissions, it was asserted that the effect of the prior ownership, and the installation of the door by the prior owner, has consequently created an implied easement. Rokon alleges that River Street had constructive notice of these altered access rights and implied easement.[64]

103 River Street responded to these propositions in its written submission, and orally at the hearing, challenging them on the basis that:

(a) the rule in Wheeldon v Burrows is that an easement will arise where there is a grant of part of the grantor's land, on which there has been continuous and apparent exercise of a quasi‑easement, that is reasonably necessary for the enjoyment of the land.[65] The asserted easement was said not to be reasonably necessary for the enjoyment of Rokon's lot, and challenged that the asserted easement was not present on the original plans;

(b) in respect of section 62 of the Property Law Act 1958 (Vic), this section only operates to convey an easement that is already existing and does not result in the creation of new easements; and

(c) in order for an easement to arise under section 12(2) of the Subdivision Act 1988 (Vic), it must be necessary for the reasonable use and enjoyment of the property, consistent with reasonable use and enjoyment of the land other than that which it benefits. Neither of these requirements are satisfied.

104 In my view, the issues in dispute in this regard are live issues requiring legal argument and evidence. Consequently, the Tribunal was correct in refusing the summary dismissal application.

105 I note that the manner in which a number of these matters were litigated before the Court were far more detailed than is apparent from the transcript of the proceeding before the Tribunal. I have formed the view that what was before the Tribunal was a less developed argument on behalf of Rokon, with more detailed legal arguments on the merits of the parties' respective positions developed before me.

106 This question is one which requires an assessment of the evidence and it would be inappropriate for the Court on appeal to form its own view of the facts when the exploration of this issue is one which properly should be undertaken on a merits hearing before the Tribunal.

107 As I have earlier noted, an appeal pursuant to section 148 of the VCAT Act is not in the nature of a merits review but rather a question of law which is material or vitiating. I am not satisfied that this question was one which was appropriate for determination summarily as sought by Rokon. I am not persuaded that the Tribunal was in error in refusing to dismiss the summary dismissal application on the material and argument which was put before it.

108 Accordingly, I find that question 6 is not made out.

109 In addition, Rokon in its submissions relied upon the presumption of regularity, another matter not raised in the submissions before the Tribunal.

110 I am not satisfied that there has been any material or vitiating error established by Rokon.

111 The Tribunal correctly identified the legal principles and applied them to the material as it was before it. As the Tribunal correctly stated, it is a serious matter to summarily dismiss a proceeding and not provide the opportunity to a party to have a hearing, call evidence and make its submissions. The application for summary dismissal was brought very early in the proceeding and, as observed by the experienced Tribunal Member, the application was run more like a pleadings summons in the Supreme Court than a summary dismissal application pursuant to sections 75 and 76 of the VCAT Act.

112 The practice and procedures of the Supreme Court (including the application of the Civil Procedure Act) do not apply at the Tribunal. A misunderstanding of the difference in the jurisdictions goes some way to understanding the lack of persuasiveness in Rokon's summary dismissal application at the Tribunal and on the application on a section 148 review to this Court.

113 The case made on behalf of the applicant was well constructed and elegantly argued. However, when its substance is considered, I cannot be persuaded that the argument is in reality any more than disappointment with the outcome, an outcome which was open on the material before the Tribunal at that time, and despite it being one upon which reasonable minds may differ, cannot be disturbed on an appeal brought pursuant to section 148 of the VCAT Act.

114 In accordance with the above reasons, I refuse leave to appeal on all questions.

115 If leave had been granted, I would in any event have dismissed the appeal for the same reasons set out above.

116 The application made pursuant to section 148 of the VCAT Act is dismissed.

117 I will provide the parties with an opportunity to make submissions as to costs.

[2] This being the date on which River Street acquired ownership of Lot 2.

[3] In Holding Pty Ltd v River St Property Nominees Pty Ltd & Ors (Victorian Civil and Administrative Tribunal, OC783/2023, commenced 26 March 2024), the application is dated 29 June 2023 though it bears the date stamp of 8 November 2023.

[4] The declarations and associated orders were based on the Owners Corporation Act 2006 (Vic) ss 162 and 165, and the Subdivision Act 1998 (Vic) s 39.

[5] Whilst the application for orders made on 20 December 2023 refers to a strike out, the application was conducted on the basis that summary dismissal was sought. As such, I have referred to this application as a summary dismissal proceeding.

[6] Plan of Subdivision 502581D; these registrations can be seen on the Certificate of Title Volume 10908 Folio 504 and Certificate of Title Volume 01908 Folio 242.

[7] These registrations can be seen on the Certificate of Title Volume 01908 Folio 242.

[8] These registrations can be seen on the Certificate of Title Volume 10908 Folio 504.

[9] Certificate of Title Volume 10908 Folio 504.

[10] Certificate of Title Volume 01908 Folio 242.

[11] Owners Corporation Act 2006 (Vic) ss 162, 165(1); Subdivision Act 1988 (Vic) ss 34A(1)-(3), 39(1).

[12] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 124.

[13] Planning and Environment Act 1987 (Vic) pt 4.

[14] Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75-76.

[15] Ibid s 75.

[16] Ibid s 76.

[17] Rokon Holding Pty Ltd v River St Property Nominees Pty Ltd & Ors (Victorian Civil and Administrative Tribunal, OC783/2023, commenced 26 March 2024).

[18] Transcript of Proceedings, Rokon Holding Pty Ltd v River St Property Nominees Pty Ltd & Ors (Victorian Civil and Administrative Tribunal, OC783/2023, Senior Member Vassie, 26 March 2024) 1-41. The Tribunal's oral reasons commence at 36.

[21] VCAT Transcript 36; Forrester v AIMS Corporation [2004] VSC 506; (2004) 22 VAR 97, [33]; (Kaye J) who adopted the principles expressed by the Supreme Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, 119-120.

[23] VCAT Transcript 37; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75(1)(b).

[26] VCAT Transcript 41; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109.

[28] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, [15].

[29] Republic of Turkey v Mackie Pty Ltd [2019] VSC 103, [20]; Gombac Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [56].

[30] Bulasa Pty Ltd v Baytown Properties Pty Ltd [2003] VSC 248, [28].

[31] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, [81]-[84].

[32] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, [15]; Republic of Turkey v Mackie Pty Ltd [2019] VSC 103, [20]; Gombac Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [56].

[33] Bulasa Pty Ltd v Baytown Properties Pty Ltd [2003] VSCA 248, [28].

[34] Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75-76.

[35] Ibid s 76.

[39] Ibid s 75.

40 Bulasa Pty Ltd v Baytown Properties Pty Ltd [2003] VSCA 248, [28].

[41] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.

[42] Ibid s 148(2A).

[43] Ibid s 117(1).

[44] Ibid s 75(1)(a)-(b).

[45] Chopra v Department of Education and Training [2019] VSCA 298, [134] (Tate, Whelan and Kyrou JJA).

[46] Weber v Deakin University [2018] VSCA 53, [24] (Tate, McLeish JJA and McDonald AJA).

[47] Towie v State of Victoria [2008] VSC 177; (2008) 19 VR 640, 660 [78]-[79] (Kyrou J).

[48] [1964] HCA 69; (1964) 112 CLR 125.

[50] Lanigan v Circus Oz [2022] VSC 35, [110] (McDonald J).

[52] [1998] 1 VR 102.

[53] [2004] VSC 506; (2004) 22 VAR 97, [25].

[54] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 76.

[55] ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2022] VSC 555, [38], [63]. Affirmed on appeal without consideration of this issue: ACN 115 918 959 Pty Ltd (formerly known as Pearl Hill Pty Ltd) v Moulieris [2024] VSCA 71, [25]-[26].

[56] Fernando v Epworth Hospital Ltd [2019] VSC 697, [37] citing Newman v Victoria (Supreme Court of Victoria, McDonald J, 25 August 1995), [16].

[57] [2022] VSC 555, [34]-[38].

[58] [1993] 3 VR 864.

[59] (1987) 15 FCR 274.

[60] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, [15].

[63] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 45(1).

[64] Rokon Holding Pty Ltd, 'Applicant's Outline of Submissions', Submission in Rokon Holding Pty Ltd v River St Property Nominees Pty Ltd & Anor, S ECI 2024 01937, 13 September 2024, [61]-[66], raises the rule in Wheeldon v Burrows (1879) 12 Ch D 31; Property Law Act 1958 (Vic) s 62; Subdivision Act 1988 (Vic) s 12(2).

[65] [1879] UKLawRpCh 204; (1879) 12 Ch D 31.