The applicant required an extension of time within which to seek leave to appeal from the orders made in VCAT. His application for an extension of time required the judge to consider the length of the applicant's delay, the reasons for the delay, the merits of the proposed appeal and any prejudice that would be suffered by the respondent in granting an extension of time. Having considered all of these matters, the judge concluded that the application for an extension of time should be refused. Having read all of the applicant's material, there is no basis upon which this Court could conclude that the judge erred in refusing the applicant's application for an extension of time: first, for the reasons given below, the proposed appeal from VCAT was devoid of merit; and secondly, as the judge rightly concluded, the applicant's material provided no satisfactory explanation for his delay in commencing appeal proceedings in the Trial Division.
While VCAT made a number of orders adverse to the applicant between 5 December 2023 and 23 September 2024, it is only the 21 August 2024 VCAT orders (coupled with the order, dismissing the review of those orders, made on 23 September 2024) which was the subject of the proposed appeal to the Trial Division. The applicant's complaint that he was denied procedural fairness when VCAT proceeded with the hearing on 21 August 2024 in his absence is without substance. Given the history of the VCAT proceedings, the Tribunal was well-entitled to refuse the adjournment application made by the applicant on 20 August 2024 and then to proceed to hear the matter in the applicant's absence on 21 August 2024. More specifically, there was simply no error (let alone any error of law) in the Tribunal proceeding to determine the matter as it did on 20 and 21 August 2024.
It follows from these conclusions that the Tribunal was plainly correct when, on 23 September 2024, it dismissed the applicant's application for the review of the 21 August 2024 VCAT orders.
Similarly, there is nothing in the applicant's complaints of bias (made for the first time in this Court) against the Tribunal. An examination of the proceedings as they unfolded at VCAT discloses no discernible basis upon which a finding of bias (actual or apprehended) could be made.
Next, to the extent that the applicant makes complaint about the judge's conduct of the hearing in the Trial Division, those complaints must be rejected. Contrary to the applicant's submissions, the judge did not 'ignore' the applicant's five affidavits. Much of the material in the applicant's affidavits was irrelevant to the issues required to be determined by his Honour when considering the applicant's applications for an extension of time and leave to appeal. That said, his Honour referred to the affidavits in his reasons for judgment[21] and it is plain, from the judge's reasoning, that his Honour gave appropriate consideration to the applicant's affidavit material.[22]
Essentially, the applicant's proposed appeal from VCAT to the Trial Division was devoid of merit for the reasons given by the primary judge.[23] That said, two arguments made by the applicant in this Court, but which were not put to the judge,[24] need to be dealt with: namely, the applicant's two arguments in support of his assertions that VCAT misapplied ss 419A and 452 of the RT Act.
Section 419A of the RT Act permits a residential rental provider to apply to VCAT for an order requiring the RTBA to repay a bond to the rental provider. Section 419A(2) requires such an application to be made within 14 days after the residential rental agreement has terminated. Section 419A(3) provides that, on such an application, VCAT may make an order requiring the RTBA to repay the bond to any party.
While the 21 August 2024 VCAT orders refer to the Bakowli claim being an application for a bond repayment under s 419A of the RT Act (as well as for compensation under s 452 of the RT Act), and while VCAT ordered an extension of time under s 126 of the VCAT Act in relation to that application, VCAT did not make any order for the repayment of the bond to the respondent.
VCAT did not make any order under s 419A of the RT Act because, by the time of the hearing on 21 August 2024, the bond was no longer in the possession of the RTBA. Section 419A of the RT Act had no work to do by the time of the hearing on 21 August 2024 because s 419A only permits the Tribunal to order that the RTBA repay the bond. There is no power under s 419A for the Tribunal to order a renter to pay (or repay) a bond (previously repaid by the RTBA to the renter, as had occurred in this case) to a rental provider.
Thus, all that the applicant could claim on 21 August 2024 was compensation for the loss of rent and the sundry items referred to in [24] above. The amount ordered under s 452 of the RT Act was the sum of those amounts as set out in the 21 August 2024 VCAT orders. While the order referred to the applicant paying the respondent 'compensation of $26,899.84 being the balance after deduction of the bond', the words 'after deduction of the bond' were otiose and had (and have) no operative effect.
The extension of time granted in the 21 August 2024 VCAT orders did not involve any relevant error of law which could entitle the applicant to have the 21 August 2024 VCAT orders set aside on appeal. While the extension of time was unnecessary because s 419A of the RT Act had no relevant application or field of operation by the time of those orders, the extension of time did not give rise to the making of a substantive order about which the applicant could now make complaint in an appeal under s 148 of the VCAT Act.
The applicant's complaints about the construction and application of s 419A of the RT Act, being premised on there having been an order requiring him to repay the bond, are misconceived because no order requiring the applicant to repay the bond has ever been made by the Tribunal. As I have already said, the only order requiring the applicant to pay money was made under s 452 of the RT Act.
Similarly, the applicant's complaints about the construction and application of s 452 of the RT Act are misconceived. His assertion that s 452 of the RT Act confines claims 'to 14 days rent loss without a proper extension' is not supported by any provision in the RT Act. Nothing in s 452, or any other provision of the RT Act, limited the respondent to recovering a lesser sum than that which was found due to him on 21 August 2024.[25]
[2]
For the reasons given above, the orders made by the judge were plainly correct. The applicant's proposed appeal has no prospect of success. More particularly, the application for leave to appeal is totally without merit within the meaning of s 14D(3) of the Supreme Court Act 1986. It must be refused.
[2] As to the consequence of the application being determined to be totally without merit, see s 14D(3) of the Supreme Court Act 1986.
[5]
[8] Which included five affidavits filed by the applicant and two affidavits filed by the respondent, all of which were received into evidence.
[6]
[13] Ground 1 was rejected at Reasons, [73]; grounds 2 and 8 were rejected at Reasons, [67]-[72]; ground 3 was rejected at Reasons, [79]-[83]; grounds 4 and 5 were rejected at Reasons, [74]-[75]; ground 6 was rejected at Reasons, [76]; ground 7 was rejected at Reasons, [78]; and ground 9 was rejected at Reasons, [77].
[23] See, in particular, Reasons, [46], [58]-[61], [65]-[83].
[10]
[25] Cf s 213(1) of the RT Act which provides that a residential rental provider is not entitled to claim compensation under the RT Act for a failure of a renter to pay rent unless any amount of unpaid rent is not paid for at least 14 days after it was due.
Parties
Applicant/Plaintiff:
Kumaran
Respondent/Defendant:
Bakowli [2025] VSCA 336
Legislation Cited (4)
Tenancies Act 1997
Civil and Administrative Tribunal Act 1998
Court Act 1986
Court (General Civil Procedure) Rules 2025
Cases Cited (2)
Kumaran v Bakowli [2025] VSCA 336 (19 December 2025)