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[2025] VSC 573
General information, not legal advice.
Supreme Court of Victoria
2025-09-12
Finanzio J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Judicial Review - Application for extension of time to apply for leave to appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Landlord and tenant - Litigants in person - Non-payment of rent - No reasonable excuse for not attending earlier hearing - Decision not to re-open earlier order under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Warrant of possession over tenant's property - Appeal out of time - No evidence providing explanation for delay - No prospect of success on appeal - No error of law established - Application of extension of time refused - Leave to appeal refused.
1 The Applicant, Kartik Kumar Kumaran ('Mr Kumaran') seeks leave to appeal, and if leave is granted, appeals the decision of the Victorian Civil and Administrative Tribunal ('Tribunal' or 'VCAT') pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') against orders made by the Tribunal on 21 August 2024. Mr Kumaran's application for leave was not made within 28 days of the Tribunal's decision, indeed it was not made until 8 January 2025. Accordingly, Mr Kumaran also seeks an extension of time to commence the proceeding pursuant to s 148(5) of the VCAT Act.
2 The Respondent, Ajmal Bakowli ('Mr Bakowli') is the landlord of a property located in Cranbourne North ('Property').
3 At the outset of the hearing in this matter, I advised the parties that I had read the material, and that I was not prepared to hear the appeal before first considering whether the extension of time should be granted, and separately whether Mr Kumaran should be granted leave to bring the appeal.
4 Mr Kumaran's application was supported by five affidavits filed with this Court on 6 February 2025, 26 March 2025, 4 April 2025, 22 May 2025 and 21 June 2025. Mr Kumaran relied upon written submissions filed in accordance with orders of this Court. Mr Bakowli relied upon two affidavits which were filed with this Court on 7 February 2025 and 9 May 2025. All affidavits were received into evidence.
5 Both Mr Kumaran and Mr Bakowli were self-represented in this Court. Their submissions to me were a combination of oral argument and evidence from the bar table. During the course of the hearing, Mr Bakowli referred to orders made by the Tribunal which were tendered.
6 On 12 February 2025, Lorenz JR made orders requiring Mr Kumaran to obtain a transcript of the hearing of 21 August 2024 and to file an affidavit exhibiting that transcript by 26 March 2025. No transcript of the VCAT hearing was obtained.
7 At some point in mid-February 2025, Mr Kumaran made a request to VCAT for a transcript of a further hearing of 23 September 2024 of his application made under s 120 of the VCAT Act, at the same time as he sought the transcript of the hearing of 21 August 2024. Unlike the situation with the transcript of 21 August 2024, Mr Kumaran was ultimately provided with a copy of the audio recording for the hearing of 23 September 2024, but no transcript. Neither the audio recording or a transcript of the hearing of 21 August 2024 nor any of the material produced before the Tribunal in the rehearing of 23 September 2024 was in evidence before this Court during the course of hearing on 9 September 2025.
8 At the conclusion of the hearing on 9 September 2025, submissions were completed by both parties, and I retired overnight to consider the matter, adjourning the hearing until 10:30am the following day. At 6:03pm that night, Mr Kumaran emailed additional documents to the Court and circulated them to Mr Bakowli. The additional documents were provided unsolicited. At the commencement of the hearing on 10 September 2025, Mr Kumaran informed me that the documents had been provided in response to questions of him by me. I informed the parties that it was highly irregular for additional documents to be provided after the completion of the argument and without leave. Mr Bakowli informed me that most of the documents provided were documents that were already in his possession. I informed the parties that I had reviewed the documents and was minded to allow Mr Kumaran to explain how they were relevant. Of note is that Mr Kumaran provided with this tranche of material the recording of the hearing on 23 September 2024.
9 After hearing from the parties in relation to the additional material, I adjourned the hearing to 12 September 2025 at 1:00pm.
10 In around November 2022, Mr Kumaran and Mr Bakowli signed a residential tenancy agreement dated 24 November 2022. The bond of $2,500 was not registered with the Residential Tenancies Bond Authority ('RTBA') until 17 May 2023.
11 On and from May 2023, Mr Kumaran says that he stopped paying rent, but continued to reside in the Property. In the course of the hearing before me, Mr Kumaran said that various actions by Mr Bakowli and his brother (who seems to have had a role in assisting in the management of the Property) had, in substance caused Mr Kumaran offence. It is apparent that Mr Bakowli had received complaints from neighbours about vehicles being parked in the common property and the number of people attending the property. Mr Kumaran disputed these matters. It is also clear that Mr Bakowli raised the payment of rent with Mr Kumaran, who disputed that at that time he was in arrears. I was provided with records of many text message exchanges which evidence that the nature of the relationship between landlord and tenant deteriorated from this point in time. It is unnecessary to resolve what lead to the situation, or who was to blame. It is an area of heavily disputed fact. Mr Kumaran claims that during this period Mr Bakowli interfered with his quiet enjoyment of the property in various ways. Mr Kumaran made allegations of theft which he reported to police but which have not resulted in charges being laid after almost two years. Mr Kumaran provided me with applications to the Magistrates' Court which appear to be claims for an intervention order against Mr Bakowli, accusing Mr Bakowli of stalking. An interim intervention order was granted on 12 October 2023. A hearing of the application was listed for 23 October 2023. There is no record of any intervention order being made against Mr Bakowli on that date. Mr Kumaran complains that Mr Bakowli's behaviour during this period was in breach of various duties of a landlord and produced text messages which he said evidenced Mr Bakowli's conduct. Mr Bakowli says that Mr Kumaran stopped paying rent in May 2023, since then has never intended to pay rent, and has endeavoured to evade his obligation to pay rent over the course of the last two years, including by failing to attend hearings in VCAT, and/or failing to respond to orders of the Tribunal in the case management of various hearings.
(a) on and from May 2023 the relationship was irretrievably broken; and
(b) despite the breakdown of the relationship Mr Kumaran continued to reside in the Property while not paying rent.
13 Mr Bakowli eventually gave Mr Kumaran a notice to vacate the Property on the basis of a failure to pay rent. Mr Kumaran did not vacate the Property in response to the notice to vacate. As a result Mr Bakowli sought orders for possession of the Property from the Tribunal. Mr Bakowli's application was listed to be heard on 5 December 2023. On 4 December 2023, Mr Kumaran applied to VCAT for an adjournment of the hearing. In the hearing before me Mr Kumaran said that he had not been provided with the documents upon which Mr Bakowli's application was based. In responding to those submissions Mr Bakowli provided me with an email dated 30 November 2023 that he sent to Mr Kumaran giving notice of the material upon which he intended to rely at the hearing of 5 December 2023. Mr Kumaran did not attend the hearing.
16 Mr Kumaran made an application to review the Tribunal's orders made on 5 December 2023. Section 120 of the VCAT Act provides:
120 Re-opening an order on substantive grounds
(1) A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.
(2) ...
(3) ...
(4) The Tribunal may -
(a) hear and determine the application if it is satisfied that -
(i) the applicant had a reasonable excuse for not attending or being represented at the hearing; and
(ii) it is appropriate to hear and determine the application having regard to the matters specified in subsection (4A); and
(b) if it thinks fit, order that the order be revoked or varied.
(4A) For the purposes of subsection (4)(a)(ii), the matters are -
(a) whether the applicant has a reasonable case to argue in relation to the subject-matter of the order; and
(b) any prejudice that may be caused to another party if the application is heard and determined.
(4B) The Tribunal may hear and determine an application under this section despite subsection (4A)(b) if the Tribunal is satisfied that any prejudice that may be caused to a party may be addressed by an order for costs under section 109 or an order for reimbursement of fees under section 115B or both.
(4C) ...
17 On 19 January 2024, the Tribunal dismissed Mr Kumaran's application to re-open the hearing. At the hearing on 19 January, Mr Kumaran claimed that he did not know about the hearing on 5 December 2023 and that this was his reason for not attending. The Tribunal found that notice of the hearing was sent by registered post to Mr Kumaran. In the course of the hearing before the Tribunal, Mr Kumaran conceded that he had received Mr Bakowli's email of 30 November 2023. The Tribunal found, in substance, that Mr Kumaran did not have a reasonable excuse for not attending the hearing. The Tribunal went further and found that Mr Kumaran did not have a reasonable case to argue in relation to the subject matter of the order, and that to re-hear the application would cause prejudice to Mr Bakowli. In addition, and after hearing argument on the matter, the Tribunal also found that Mr Kumaran deliberately chose not to attend the hearing on 5 December 2023 to buy himself more time to prepare for eviction. The Tribunal noted that Mr Kumaran remained in possession of the Property while his application to re-open the 5 December 2023 orders was pending, and in that time the amount of unpaid rent had increased to almost $18,000. Accordingly, the Tribunal dismissed Mr Kumaran's application and confirmed the orders for possession and compensation.
18 It is apparent from the findings of the Tribunal on 5 December 2023 and 19 January 2024 that Mr Kumaran had not paid the rent, or the full amount of rent. In the hearing before me, Mr Kumaran admitted that he had not paid rent, and made clear that his reason for not paying rent was, in summary, that he felt that he had been unfairly treated by the landlord from about May 2023. These statements were consistent with the material contained in Mr Kumaran's affidavit material and the additional documents produced on 9 September 2025. I accept that Mr Kumaran felt aggrieved by what he describes as his treatment by the landlord. In saying that, I make no findings of fault or blame, I merely accept that Mr Kumaran did not pay the rent because he felt aggrieved.
19 Importantly, it was in these proceedings on 5 December 2023 that Mr Kumaran's liability to pay the rent arrears was determined. The appropriate time for Mr Kumaran to raise matters concerning his liability, including any disputes between himself and Mr Bakowli which might have had the effect of countering Mr Bakowli's claim for compensation (which at this stage was confined to a claim for rent) was on 5 December 2023. Mr Kumaran did not attend the hearing to make his case. Further, Mr Kumaran did not seek to appeal the decision of the Tribunal on 5 December 2023 or its refusal of Mr Kumaran's application to re-open the hearing on 19 January 2024. Following those hearings, Mr Kumaran's liability to pay the rent had been finally decided by the Tribunal. Importantly, those decisions of the Tribunal are not the subject of any application before this Court in these proceedings.
20 On 20 January 2024, Mr Bakowli obtained a warrant for possession of the Property. On 7 February 2024, Mr Kumaran left the Property. Mr Kumaran and Mr Bakowli have differing accounts as to whether Mr Kumaran was evicted or left the Property voluntarily, but it is unnecessary to decide that difference in these proceedings.
21 Notwithstanding that Mr Kumaran had not paid any of the outstanding rent, and in spite of the existence of orders of VCAT dated 5 December 2023 (confirmed on 19 January 2024) requiring Mr Kumaran to pay rental arrears in the order of $18,000, on 9 February 2024, Mr Kumaran claimed a refund of the bond ($2,500) from the RTBA.
22 When an application for a refund of bond monies is made by a renter, the RTBA refunds the bond after 14 days unless disputed within that period by the rental provider. Mr Bakowli explained before me that he had misunderstood the situation and failed to notify the RTBA of his intention to dispute Mr Kumaran's claim for the refund of the bond within 14 days. Mr Bakowli mistakenly believed that it would be sufficient for him to make a claim to VCAT disputing the claim for the bond money. Because Mr Bakowli had failed to give notice of his intention to dispute the return of the bond by the RTBA within 14 days, the RTBA refunded the bond money to Mr Kumaran.
23 On 14 February 2024 (well within the 14 day period within which he could have notified the RTBA that he disputed Mr Kumaran's claim for the bond), Mr Bakowli submitted an application to VCAT claiming the bond money, as well as monies for unpaid rent in the order of $23,000, damage to the Property and outstanding utility bills to the value of $26,341.95 (being proceeding R2024 9643 'Bakowli Claim'). The Bakowli Claim was made under ss 419A and 452 (respectively) of the Residential Tenancies Act 1997 (Vic). In substance, Mr Bakowli was making a claim for rental arrears which had already been awarded to him on 19 January 2024 (at least in part to the value of $14,500). The new parts of his claim comprised the additional rent for the period between 5 December 2023 and 7 February 2024 not yet the subject of an order; the bond money; and his claim for the cost of repairs. The application for compensation was supported by quotes and evidence that the work had been completed by 20 March 2024 and was to the value of $26,076.52.
24 On 24 February 2024 the RTBA refunded the full bond of $2,500 to Mr Kumaran.
25 On 25 March 2024, VCAT emailed Mr Kumaran advising that the Bakowli Claim had been received by VCAT for repayment of the bond and for compensation. Mr Kumaran complained in the hearing before me that the material supporting the Bakowli Claim had not been given to him before that time or in a timely way. Mr Kumaran pressed these complaints, but ultimately conceded that he was provided with the material upon which Mr Bakowli intended to rely with a sufficient amount of time before he was required to present his case.
26 The Bakowli Claim was listed for hearing at 2:00pm on 24 July 2024 before Member Wolff. In addition, Mr Kumaran had made two claims of his own, seeking compensation under ss 419A and 452 of the Residential Tenancies Act 1997. Those claims for compensation were in substance claims based upon Mr Kumaran's assertion that Mr Bakowli had interfered with his quiet enjoyment of the Property.
27 On 24 July 2024, at 11:26am and at 11:29am, Mr Kumaran emailed VCAT seeking an urgent adjournment of the hearing. Mr Kumaran stated that the reason for the adjournment was that his wife was eight months pregnant and he needed to take her to the hospital.
28 On 24 July 2024, the Tribunal adjourned all matters but made orders that within seven days Mr Kumaran was required to provide evidence substantiating the basis upon which he sought the adjournment that the Tribunal had granted. Before me, Mr Kumaran accepted that the Tribunal made those orders, and that he never complied with them.
29 The matters were again listed for hearing on 21 August 2024 at 10:30pm to be heard in person at Frankston.
30 On 20 August 2024 at 3:51pm, Mr Kumaran applied to the Tribunal for an adjournment of the hearing set to commence the following day. His stated reason was that his wife was 38 weeks pregnant, wanted to attend the hearing as she was a witness to the matters which he wished to raise, but was too medically weak to attend the hearing. At 7:35pm that night Mr Bakowli advised VCAT that he objected to the adjournment, pointing out that Mr Kumaran still had not provided medical evidence to substantiate his adjournment request of 24 July 2024.
31 On 20 August 2024, VCAT made orders adjourning the in-person hearing in Frankston on the following day, to a hearing by telephone at 9:30am on 21 August 2024. Before me, Mr Kumaran submitted that he was not aware that the hearing had been rescheduled to a telephone conference until sometime after 9:00am on 21 August 2024.
32 Mr Kumaran's statement that he was unaware of the change to the manner in which the hearing would be conducted appears to be inconsistent with material provided by Mr Kumaran on 9 September 2025. Mr Kumaran provided an email exchange in the early hours of the morning of 21 August 2024. After having received Mr Bakowli's email the night before opposing the grant of an adjournment; at 6:16am on 21 August 2024, Mr Kumaran emailed the Tribunal pressing his application for an adjournment. In that email, Mr Kumaran asks for the hearing to heard in a 'face to face not by phone conference'. He requested that the matter be heard in the first week of September 2024. This request for a face to face hearing, and not a hearing by telephone conference, suggests that Mr Kumaran knew at 6:16am that the hearing had been rescheduled to a telephone hearing, contrary to the submissions he made to me that the first he knew of the rescheduling was some time after 9:00am that morning. I make no finding about that inconsistency, but observe that, even on Mr Kumaran's version, by around 9:15am on 21 August 2024, Mr Kumaran:
(a) Had applied late for an adjournment of the matter the day before;
(b) Knew that the application for the adjournment was opposed;
(c) Had not heard from the Tribunal that his application for an adjournment had been granted; and
(d) Knew that the hearing had been converted to a telephone hearing, so that it was not necessary for him to attend the hearing physically, but that attendance could be achieved by telephone.
33 In light of the grounds advanced in support of an adjournment, conversion of the hearing on 21 August 2024 from what was originally scheduled to take place in person at Frankston, to a hearing via teleconference on that same day made it easier for Mr Kumaran to attend. Rather than having to make arrangements to attend the hearing in person, it would have been a simple thing for Mr Kumaran to attend by telephone and to make his application for an adjournment by telephone.
34 Mr Kumaran did not attend the telephone hearing on 21 August 2024. Before me he said that he tried to make contact with the Tribunal but was unable. Having heard Mr Kumaran at length, I do not consider that he ever intended to attend the hearing. Mr Kumaran said before me that had he attended the hearing it was his intention to explain to the Tribunal the long history of the relationship between himself and the landlord. He had not filed any evidence or material before 20 August 2024 for that purpose. Nor had he filed evidence in response to the Tribunal's orders of 24 July 2024.
35 On 21 August 2024, the hearing proceeded via teleconference in the absence of Mr Kumaran. The adjournment request was denied by the Tribunal. Mr Kumaran's two applications were also listed that day being R2023 38370 and R2024 15738. These were applications made for compensation by Mr Kumaran. Mr Kumaran's claims in proceedings R2023 38370 and R2024 15738 were dismissed.
36 In Mr Bakowli's claim the Tribunal made the following findings:
37 Accordingly VCAT made the following orders ('August Orders'):
Pursuant to section 126 of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal extends the time for the commencement of this proceeding to the date of the application.
The renter must now pay the rental provider compensation of $26899.84 being the balance after deduction of the bond.
Any order for arrears of rent made today includes all previous unsatisfied orders for arrears arising out of this residential rental agreement.
38 Importantly, notwithstanding that Mr Kumaran did not attend the hearing, Mr Bakowli did not succeed on every claim. Mr Bakowli was awarded the total amount of rental arears, which included the amounts already awarded in December 2023, but adjusted to account for the total period of unpaid rent up to 7 February 2024. Mr Bakowli was not given compensation in relation to the bond money. Mr Bakowli's claim for compensation arising from the damage he said had been caused to the property totalling more than $26,000 was reduced to about $5,000.
39 Mr Kumaran sought review of the August Orders under s 120 of the VCAT Act.
40 None of the material before the Tribunal on this application was filed in this Court before 9 September 2025. On that day, and for the first time, Mr Kumaran provided the recording of the hearing which took place on 23 September 2024.
41 Mr Kumaran attended the hearing on 23 September 2024 and made submissions to the Tribunal. Before me on 9 September 2025, Mr Kumaran explained that he had prepared a significant volume of material which he gave to the Tribunal, and that he made submissions to the Tribunal on the rehearing application on 23 September 2024.
42 Mr Kumaran also accepted that, although he had complained about not being provided with Mr Bakowli's material in accordance with the Tribunal's earlier orders, he had been provided with that material in time to prepare for the 21 August 2024 hearing, and if his application for re-hearing had been granted, he was prepared to present his case on the material relied upon by Mr Bakowli at the application for a re-hearing on 23 September 2024.
43 On 23 September 2024 VCAT made the following findings:
AND
It is not appropriate to hear and determine the application because:
- to rehear and determine the application would cause prejudice to the rental provider.
45 The Tribunal made a specific finding that Mr Kumaran did not have a reasonable excuse for not attending the hearing. The Tribunal also made a specific finding that rehearing the application would cause detriment to Mr Bakowli. None of the material filed by Mr Kumaran is directed to a complaint that the decision of the Tribunal on 23 September 2024 is affected by legal error.
46 Having now listened to the recording of that hearing it is patently clear that no attack could be made on the decision of the Tribunal made on 23 September 2024. At the commencement of the hearing on 23 September 2024, the Tribunal advised the parties that to make an order to re-open the case, the Tribunal needed to be satisfied that Mr Kumaran had a reasonable excuse for not attending the hearing on 21 August 2024. The Tribunal noted that the matter had been adjourned on 24 July 2024 on condition that evidence be provided within seven days which supported the application for adjournment. The Tribunal noted that no evidence had been filed. The Tribunal swore in both Mr Kumaran and Mr Bakowli. It asked Mr Kumaran to explain why he had not complied with the orders of the Tribunal on 24 July 2024, and further what evidence Mr Kumaran had to explain why he did not attend. Mr Kumaran provided the Tribunal with no evidence supporting his reasons for seeking an adjournment on 24 July 2024. Neither did Mr Kumaran produce any evidence to substantiate his excuse for not appearing on 21 August 2024.
47 It is patently clear that the Tribunal found, as a fact, that Mr Kumaran did not have a reasonable excuse for not attending the hearing on 21 August 2024, and that such excuses as were proffered by Mr Kumaran at the hearing on 23 September 2024 were not accepted.
48 The August Orders for compensation were subsequently registered with the Magistrates' Court, and Mr Bakowli elected to have a warrant issued to seize Mr Kumaran's property to satisfy the debt owed in November 2024. Shortly after the execution of the warrant, Mr Kumaran informed Mr Bakowli that he intended to commence proceedings in this Court. Mr Kumaran said that this was in December 2024.
49 On 8 January 2025, the Sheriff's Office of Victoria ('Sheriff') seized a vehicle belonging to Mr Kumaran. On 9 January 2025 the Sheriff, by letter to Mr Kumaran, advised that the outstanding amount of $27,800.82 (which included the warrant amount(s), warrant execution costs and daily interest as at the date of the letter sent from the Sheriff to Mr Kumaran on 9 January 2024) would need to be paid in full in order to release the vehicle from seizure.
50 On that same day, Mr Kumaran made an application to this Court for leave to appeal the August Orders under s 148 of the VCAT Act_,_ seeking an extension of time to make that application for leave under s 148(5) of the VCAT Act.
51 On 9 April 2025, Lorenz JR granted a stay of the orders of 21 August 2024. I have extended that stay until 12 September 2025.
52 At the commencement of the hearing I informed the parties that Mr Kumaran needed to overcome two significant hurdles. First he needed to explain the significant delay between the making of the orders he proposes to challenge on appeal and his application for leave to appeal. Second, it would be necessary for Mr Kumaran to explain why leave should be granted.
53 It is appropriate to address each in turn, commencing with the application for leave to appeal.
54 An appeal from VCAT is permitted by s 148(1) of the VCAT Act and lies if the appellant can establish an error of law.
55 An appeal cannot be commenced without first obtaining leave to appeal. Leave to appeal can only be granted if the Court is satisfied that the appeal has a real prospect of success.[1]
56 Mr Kumaran sets out his proposed grounds of appeal in the proposed notice of appeal.
57 The notice of appeal filed by Mr Kumaran contains the following grounds of appeal:
58 It must be observed that, as framed, the grounds do not disclose discernible error of law which could justify the relief sought. Ground 1 asserts a denial of procedural fairness, but without explaining the basis of the so-called denial. Ground 2 asserts unreasonableness. Ground 3 asserts excess of jurisdiction. Ground 4 as framed is unintelligible. As drawn, none of the grounds in any way resembles legal error capable of resulting in the relief sought.
59 The affidavit material filed by Mr Kumaran does not assist because it does not disclose how the Tribunal's decision of 21 August 2024 was affected by error of law. In most respects, the affidavit material contains a litany of Mr Kumaran's grievances against the landlord which have little if any bearing on the questions sought to be raised on an appeal if leave were granted.
60 Mr Kumaran further expanded the grounds upon which he sought to rely in a document tendered at the commencement of the hearing. The expanded grounds, numbering nine in total were relied upon by Mr Kumaran and were helpful in that by these Mr Kumaran sought to explain the nature of his complaints.
1. Jurisdictional Error: The Tribunal determined matters beyond power and without a proper evidentiary basis.
2. Denial of Procedural Fairness: The Applicant was denied a fair opportunity to be heard; adjournment requests were not properly considered, and service of documents was irregular.
3. Failure to Consider Relevant Matters: The Tribunal failed to take into account material evidence provided by the Applicant regarding rent payments, tenancy conditions, and mitigating circumstances.
4. Consideration of Irrelevant Matters: The Tribunal improperly relied on assertions not supported by evidence in reaching its decision.
5. Unreasonableness: The Tribunal's decision was legally unreasonable in that no reasonable tribunal could have made the same findings on the evidence before it.
6. Errors in Application of the Residential Tenancies Act 1997 (Vic): The Tribunal misapplied or failed to properly apply sections 419A, 452 and related provisions in determining liability and compensation.
7. Enforcement Without Proper Basis: The seizure of the Applicant's motor vehicle was executed without proper consideration of the pending appeal and without affording the Applicant adequate procedural protection.
8. Natural Justice and Self-Represented Litigant Principles: The Tribunal failed to extend appropriate latitude to the Applicant as a self-represented litigant, thereby compounding the denial of procedural fairness.
9. Proportionality: The enforcement measures taken (including seizure of an essential family vehicle) were disproportionate to the alleged arrears and damage, and resulted in manifest injustice.
62 Conscious of the fact that Mr Kumaran is self-represented, I sought to explore with him the nature of each of these grounds.
63 In explaining these expanded grounds Mr Kumaran confirmed that his complaint was directed at the Tribunal's decision of 21 August 2024, and it is in that way that the expanded grounds relied upon by Mr Kumaran are to be understood.
64 Mr Kumaran confirmed before me that it was his intention to appeal the 21 August 2024 decision and not the Tribunal's refusal to re-open the case. Mr Kumaran confirmed that his affidavit material did not include the material that was before the Tribunal on 23 September 2024, and that he had not provided a transcript of the proceedings on that day nor the audio recording of that hearing, notwithstanding that he had obtained a copy of the audio recording.
65 The audio recording was only provided following the first day of hearing, in the evening of 9 September 2024. The recording reveals that in deciding to dismiss Mr Kumaran's application under s 120 of the VCAT Act, the Tribunal was not satisfied that Mr Kumaran had established a reasonable excuse for not attending the hearing of 21 August 2024. The Tribunal's findings are of fact. In reaching those findings Mr Kumaran was given every opportunity to produce evidence to support the reasons given for his non-attendance.
66 Mr Kumaran seeks to attack the decision of the Tribunal on 21 August 2024 directly. I am satisfied that no attack can be made on the findings of the Tribunal on 23 September 2024.
67 Accordingly, where Mr Kumaran complains of a denial of procedural fairness in grounds 2 and 8, it is to be read as a complaint in relation to the hearing of 21 August 2024.
68 Mr Kumaran's complaint appears to be that on 21 August 2024 the Tribunal acted upon the evidence and submissions produced by Mr Bakowli, in his absence and without the full explanation of Mr Kumaran's side of the story, and it was this which Mr Kumaran said amounted to procedural unfairness.
69 There is no denial of procedural fairness in proceeding with a scheduled hearing in the absence of a party, where that party has had notice of the hearing, and where an application for an adjournment has not been granted. In the present case, Mr Kumaran was aware that the hearing was scheduled, he had applied to have it adjourned. He had been given no indication that the Tribunal had granted his adjournment request and so it remained his obligation to attend the hearing, even if it were only to remake the application for adjournment.
70 Mr Kumaran was provided with timely notice of the hearing of 21 August 2024. The change of hearing arrangements were not a barrier to his attendance, but instead made it easier to do so. That hearing was his opportunity to advance the matters in his own cause. Put simply, Mr Kumaran was afforded a reasonable opportunity to be heard.
71 The VCAT Act provides an opportunity to review a hearing in circumstances where parties do not attend or are not represented. In such cases, the applicant for re-hearing must establish that they had a good reason for not attending the hearing.
72 On 23 September 2024, the Tribunal was not satisfied that Mr Kumaran's excuse was reasonable. The Tribunal also found that Mr Bakowli would suffer prejudice if the review were allowed. Both findings are conclusions of fact, which this Court could only overturn (assuming they had been appealed) if it was satisfied that those fact findings were legally unreasonable. There is no material before me which would suggest that the findings were not open. Indeed, listening to the audio recording of that hearing, the findings of the Tribunal were clearly open.
73 Mr Kumaran explained that ground 1 was concerned with the Tribunal's decision to grant Mr Bakowli an extension of time within which to make his application for compensation. Under s 126 of the VCAT Act, the Tribunal has a broad power within which to grant an extension of time - there can be no question that the Tribunal lacked the power, and nothing in the material provided to me, or to which I was taken, suggests that the circumstances in this case somehow precluded the Tribunal from exercising its discretion. As I understand it, the complaint is that the Tribunal should not have granted the extension in all the circumstances. The gravamen of this ground of appeal appears to be that the Tribunal granted the extension of time on the strength of the material provided by Mr Bakowli alone on 21 August 2024 and without reference to the explanation which might have been given by Mr Kumaran had he attended. The hearing of 21 August 2024 was an opportunity to contest the grant of an extension of time.
74 Ground 4 complains that the Tribunal made findings not supported by evidence before it on 21 August 2024. In truth, the complaint is that the Tribunal made findings which Mr Kumaran says might have been contradicted by him if he had been there to make his case. In substance, ground 5 makes the same point, though it is cast as the Tribunal's findings were legally unreasonable because it did not have the benefit of Mr Kumaran's side of the story.
75 In summary, the grounds which have in common the central complaint that the Tribunal was not seized of Mr Kumaran's version, or allege a denial of procedural fairness, have no real prospects of success. Mr Kumaran had the opportunity to attend the hearing on 21 August 2024. His failure to attend entitled him to apply to re-open. A re-opening was conditional upon Mr Kumaran satisfying the Tribunal that he had a good reason for failing to attend the hearing on 21 August 2024. He had a month to prepare. On 23 September 2024 the Tribunal did not accept that he had a reasonable excuse for not attending the hearing. That decision was based upon findings of fact within the purview of the Tribunal to make. That decision of the Tribunal is not the subject of this appeal, and no allegation of legal error is made in relation to the Tribunal's decision in this respect. In any event, there is nothing before me which suggests that the Tribunal's decision on 23 September 2024 was affected by legal error.
76 Ground 6 asserts that the Tribunal misapplied ss 419A and 452 of the Residential Tenancies Act 1997. When pressed on this ground Mr Kumaran was unable to point to any matter which substantiated the stated misapplication. The ground is misconceived.
77 By ground 9, Mr Kumaran complains that the enforcement measures taken, including the seizure of his car to satisfy the rental arrears is disproportionate and manifestly unjust. This is not a matter before the Court on this appeal.
78 By ground 7, Mr Kumaran asserts that the seizure of his car was without a proper basis, because it was said that the vehicle was seized without consideration of the appeal constituted by these proceedings. This ground is not concerned with any error of law on the part of the Tribunal, but rather concerns the conduct of Mr Bakowli following the Tribunal's decision. It is clear that Mr Bakowli sought to obtain a warrant for the seizure of Mr Kumaran's property in November 2024. At that time, Mr Kumaran had been unsuccessful before VCAT, had not appealed the decision of VCAT within the required 28 days, nor had he advised Mr Bakowli of his intention to appeal to this Court. It is also the case that, at the time Mr Bakowli sought to obtain a warrant, orders had been made by the Tribunal requiring Mr Kumaran to pay the rental arrears since January 2024 - which had not been challenged by Mr Kumaran and which remain unpaid.
79 Ground 3 best captures the heart of Mr Kumaran's complaint. Mr Kumaran submits that the Tribunal failed to consider relevant matters concerning the history of the rental relationship between him and Mr Bakowli. In his submissions filed on 1 August 2025 in these proceedings, Mr Kumaran sets out his version of events going back to 2022 when the tenancy of the Property commenced. Mr Kumaran submitted that the contents of his submissions included the matters which he had proposed to put to the Tribunal on 21 August 2024 had he attended. He said that he had prepared a large bundle of material which addressed those matters contained and which he provided to the Tribunal at the hearing on 23 September 2024. Some of the additional material provided to the Court on 9 September 2025 also included material upon which Mr Kumaran said he intended to rely at the hearing on 23 September 2024. The material contained in both the submissions filed 1 August 2025, and that which was summarised in oral submissions before me can be summarised as follows:
(a) Mr Kumaran enjoyed a period in which he was content with the tenancy arrangements;
(b) He says that from about May 2023 the relationship deteriorated. It is unnecessary for me to explore the factual basis of this relationship breakdown because in the end, it is largely irrelevant to the question of whether the Tribunal made an error of law;
(c) As a result of the breakdown of the relationship Mr Kumaran stopped paying rent, feeling justified in doing so because of the unfair way he felt he was being treated.
80 Mr Kumaran wrongly perceived that he could simply not pay rent as a response to the way he felt he was being treated. Mr Bakowli had been successful in applying for compensation for unpaid rent as far back as 5 December 2023. Mr Kumaran had been given every opportunity to complain about his treatment in response to Mr Bakowli's claims for rental arrears, but he did not appear in VCAT to do so.
81 It is not for this Court to re-open orders made by the Tribunal concerning rental arrears that are more than 18 months old.
82 From the material before me, it is clear enough that had Mr Kumaran exercised his right to participate in the hearing of 21 August 2024, and taken the opportunity to advance all of the matters which he now seeks to advance in this Court, it is unlikely that any of those matters would have altered the result in any way.
83 Certainly, none of the historical matters which Mr Kumaran seeks to assert on this appeal establish an error of law on the part of the Tribunal. They are matters which Mr Kumaran might have wished to agitate before the Tribunal if he had availed himself of the opportunities to do so. But as it stands, those matters were not before the Tribunal when it made the decisions appealed against. That fact does not establish error of law in the Tribunal's decision of 21 August 2024, in deciding to proceed in the absence of Mr Kumaran.
84 For all of those reasons, I do not regard the appeal as enjoying real prospects of success and for that reason I would decline to grant leave to appeal.
85 Even if I were minded to consider the grant of leave to appeal, in this case, Mr Kumaran must also obtain an extension of time to file the application for leave.
86 Pursuant to s 148(2)(a) of the VCAT Act an application for leave to appeal must be filed within 28 days of the Tribunal's decision.
87 Section 148(5) of the VCAT Act permits an extension of time at the discretion of the Court:
(5) The Trial Division of the Supreme Court may at any time extend or abridge any time limit fixed by or under this section.
88 In Brandwill Holdings Pty Ltd v Jonson[2] Emerton J (as her Honour then was) observed:
In my view, whatever the merits of the proposed appeal and the public interest in it being heard and determined, the applicant must still provide a good explanation for the delay. This too has to do with the requirement to do justice between the parties. The legislature has decided that the period in which an appeal may be brought from a Tribunal decision is limited. As McHugh J said in Brisbane South Regional Health Authority v Taylor, a limitation period should not been seen as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgement that the welfare of society is best served by causes of action being litigated within the limitation period even if this may result in a good cause of action being defeated. In this case, the legislature has created only a small window in which to bring an appeal from the Tribunal. This no doubt has to do with the nature of the Tribunal's jurisdiction and as well as the more general need for finality in litigation. The parties to the Tribunal proceeding are entitled to the measure of certainty that this constraint provides. A good reason for the delay therefore remains a very important consideration for the exercise of the Court's discretion to extend time.
(Citations omitted)
89 In Secretary to the Department of Justice and Regulation v Bhatia[3] Richards J (as her Honour then was) stated:
While the discretion to extend time is at large, the authorities identify factors typically taken into account in order to do justice between the parties. These factors include the length of the delay, any explanation for the delay, any prejudice to the respondent due to the delay, and whether there is an arguable case for leave to appeal. No single factor is determinative, although ordinarily time is not extended unless the applicant explains the delay and provides the Court with a good reason for excusing it.
(Citations omitted)
90 Here the decision Mr Kumaran seeks to appeal was made by VCAT on 21 August 2024. The appeal was first commenced on 8 January 2025 - 140 days after the decision of 21 August 2024.
91 Mr Kumaran sought to re-open the matter under s 120 of the VCAT Act. He does not seek to appeal that decision. On one view, his attempt to attack the August Orders on procedural fairness grounds, having failed in his attempt to re-open the hearing under s 120, and without challenging the Tribunal's orders in September 2024, amounts to an abuse of process.
92 Even if I ignore this failing and give Mr Kumaran some latitude as an unrepresented litigant, Mr Kumaran's explanation for the delay of almost four months is completely inadequate in all the circumstances.
93 Mr Kumaran accepted that he was aware that when the Tribunal rejected his application to re-open he had 28 days within which to appeal that decision, and that he understood the time limits. He submitted that at the time he was homeless. When pressed on his circumstances he accepted that he was living with friends at the time and that he had access to the internet. Mr Kumaran submitted that he was unaware of the appeal process and that he was originally concerned that he could not afford to commence proceedings in this Court, but it is apparent to me that no effort was made by Mr Kumaran to explore the possibility of fee waivers until after Mr Bakowli finally took steps to enforce the orders of the Tribunal in November 2024.
94 On balance, Mr Kumaran's explanation for the delay is unsatisfactory. That, combined with the fact that the proposed appeal does not enjoy a real prospect of success, militate strongly against granting any extension of time.
95 Mr Bakowli, who also appeared unrepresented explained and I accept, that as a result of the delays in recovering the unpaid rent and other moneys from Mr Kumaran to date, he and his wife were forced to sell the Property. In my view, further delay only increases the already palpable prejudice to them.
96 For all of these reasons the summons seeking an extension of time is dismissed.
97 That order alone disposes of the application for leave to appeal, but for the avoidance of doubt, leave to appeal would not have been granted.
98 As both parties are self-represented, I do not propose to make any orders for legal costs.
[1] McSteen v Architects Registration Board of Victoria [2018] VSCA 96.
Kumaran
Bakowli [2025] VSC 573