2. The Applicant's application for an injunction to prevent the Landlords acting upon a s146 notice they issued on 19 July 2021 with respect to the non-payment of rent of $1,349.58 is dismissed;

3. The Applicant's application for an order adjusting the Tribunal's Order 1 made 16 July 2021 is dismissed; and

4. The Applicant's application for an order to refund to the Tenant all rent and outgoings paid in advance by the Tenant since 18 September 2020 is adjourned until the final hearing.

The case is reported at Link and Connect Pty Ltd v Seng (Building and Property) (No. 3) [2021] VCAT 1042.

2 On 4 November 2021 the Applicant informed the Tribunal that its appeal from that order has been accepted for filing by the Supreme Court of Victoria.

3 The Applicant applied under section 149 of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) for a stay of the order made by Member Edquist on 10 September 2021 ('the s149 stay application').

4 By directions orders made by SM Kirton on 8 November 2021 the Tribunal listed the s149 stay application for hearing on 26 November 2021 and made orders for the parties to file material ahead of the hearing. The Orders noted in "Other Matters" that:

If the Applicant chooses to make a stay application to the Supreme Court of Victoria (for example under r.4.08(10) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018) prior to the date of the hearing of the s149 stay application in the Tribunal, it must immediately notify the Tribunal that the application has been lodged and the outcome of the application.[1]

5 The Applicant did not make a stay application in the Supreme Court.

6 Section 149, contained in Part 5 of the Act, gives the Tribunal power to stay an order pending appeal. The section reads:

(1) The Tribunal, on the application of a party or on its own initiative, may stay the operation of any order it makes pending the determination of any appeal that may be instituted under this Part.

(2) The Tribunal may attach any conditions it considers appropriate to a stay of an order under subsection (1).

7 The principles to be applied in considering a stay are well-known. In Quick v Lam-Ly Pty Ltd [2019] VSCA 111 at para [27] - [30] they were summarised by Justice of Appeal Beach. It is convenient to set them out:[2] (emphasis added)

27 In deciding whether to order a stay of execution, the court has a wide discretion and is required to take into account all of the circumstances of the case.[21] The party applying for a stay bears the onus of demonstrating that a stay is justified.[22] Ordinarily, a successful party is entitled to the benefit (or fruits) of the judgment and the presumption that the judgment is correct.[23]

28 As has been said many times before, the power to order a stay will generally not be exercised unless the party seeking the same demonstrates special or exceptional circumstances.[24]

29 Special circumstances may be found to exist where the Applicant is able to demonstrate that there is a real risk that it will not be possible to restore the Applicant substantially to his or her former position if the judgment against the Applicant is executed before the conclusion of the appeal.[25] However, the prospect that the appeal may be rendered nugatory must be balanced against a principal that the successful party is entitled to the fruits of its judgment.[26]

30 In order to justify the grant of a stay, an Applicant should also demonstrate that there is at least an arguable ground of appeal. That said, ordinarily, the court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied upon in the application for leave to appeal. In such a case, unless there is no arguable ground of appeal, or the appeal is not bona fide, the court ordinarily will focus on matters relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.[27]

8 These principles have been framed in different ways in this Tribunal. For example in Victoria v Bradto Pty Ltd [2006] VCAT 100, at [7] Judge Bowman VP observed that in determining whether to defer the coming into effect of the Tribunal's orders (whether under s 118 or s 149)[: (formatting added)](: (formatting added))

As discussed by Hollingworth J in Brown and Anor v A.E.P. Belgium S.A. and Anor [2004] VSC 255, consideration should be given to

[2] the effect of a grant or refusal of the stay, and

In Stephens v Garandu P/L [2004] VCAT 1751, Morris J, in considering the stay application, determined it in a practical fashion "having regard to the justice of the matter".

9 Applying these principles, and having considered the parties' written submissions and heard from the parties' representatives at the hearing before me, I find that there is no basis for the Tribunal to stay the orders of dismissal made by Member Edquist in paragraphs 1, 2 and 3 of the order.

10 My primary reason is that there is simply nothing to stay. The Applicant had applied for injunctions to prevent the Landlords doing certain things. The application was dismissed. In the statutory words of s.149(1), which uses the expression "stay the operation of any order", there is nothing to be done under those orders of dismissal the "operation of" [3] which can be stayed. The application is misconceived: a stay of the operation of the orders dismissing the applications for injunctions (and for variation of an order) does not equate to the injunctions being granted (or the order being varied).

11 Further, if the Applicant seeks to have those dismissal orders overturned, that is the purpose of its application for leave to appeal to the Supreme Court under Part 5 of the Act.[4] The Tribunal cannot itself entertain an appeal from its own orders.

12 In regard to the order in the fourth paragraph, which the Applicant has also sought to challenge in its Notice of Appeal to the Supreme Court, it transpires from what was put before me by the Applicant's representative, that this was done by the Applicant seemingly under the misconception that any error (if there is one) in the reasons for decision of Member Edquist will vitiate all the orders made. That does not follow. Additionally, the order was consented to by the Applicant. [5]

13 Accordingly, having regard to the justice of the matter there is no reason to stay the order in paragraph 4 and I dismiss the application to stay it.

14 Further, I am not satisfied that the Applicant has demonstrated that this is an "exceptional case" that would justify the grant of a stay (per Quick v Lam Pty Ltd) or that there is a realistic prospect of obtaining leave to appeal (per Victoria v Bradto Pty Ltd).

15 The "well established" principles for establishing entitlement to an interlocutory injunctive relief are conveniently summarised by Justice Riordan in the recent case in the Supreme Court of Lanhai Pty Ltd v 7-Eleven Stores Pty Ltd [2021] VSC 587 at [30] - [32] and [34]. [6] Having considered Member Edquist's reasons for decision and the Notice of Appeal filed by the Applicant in the Supreme Court, I regard the prospects of the Applicant obtaining leave to appeal and being granted an appeal from a discretionary interlocutory order of the nature made by the Tribunal in this case to be slim: the task of identifying an error of law is "a formidable one indeed".[7]

16 I consider a powerful consideration against the Applicant's prospects of success in establishing an error of law in the Tribunal's order for dismissal of its applications for interlocutory relief to be that:

(1) The orders appealed from are all not merely interlocutory but discretionary; and

(2) The Applicant refuses to pay rent for the premises the subject of dispute in this proceeding.

17 That in turn is a further and distinct discretionary ground justifying the refusal of a stay pending an appeal. This factor was highlighted by the Court of Appeal in Quick v Lam-Ly by Beach JA in rejecting the tenant's case that he was entitled to remain in possession without paying, stating that (at para [46]): (emphasis added)

even if I were persuaded that Mr Quick had a ground of appeal that was at least arguable, there is no basis in this case for staying the orders that have been made against him so that he may continue to 'adversely possess' the premises pending the hearing of his application for leave to appeal, without paying or securing the outstanding rent that has accrued (and continues to accrue).

18 Critically too in this case, the granting of a stay of an order dismissing an application (even if that were that possible) would have the effect of denying the Respondent the fruits of its success in having the interlocutory application against it dismissed. And, conversely, the refusal of a stay does not in any way render the Applicant's application for leave to appeal nugatory. The orders that are available to be made by the Supreme Court on a successful appeal remain available under ss.148(7) of the Act.

19 I find that the Applicant's applications for a stay of orders is without legal foundation or merit and for that reason the application is dismissed. I reserve the Respondent's costs of the s149 stay application.

[1] This direction was apparently made because in the Applicant's Notice of Appeal under "Orders sought" from the Supreme Court the Applicant states: (emphasis added).

2. Seek the Court's stay all 4 of VCAT's orders of 10 September 2021 in the 'Interlocutory Injunction' of proceeding BP2015/2020 pending final determinations and orders of the Appellant's appeal of all 4 of VCAT's orders of 10 September 2021 in the 'Interlocutory Injunction' of proceeding BP2015/2020 have been made. However this request has already been made by the Plaintiff to VCAT, and VCAT is awaiting the issuance of Courts proceeding number for the appeal prior to progressing the Plaintiff's stay application.

3. By virtue of point 2 above, seek the Court's approval or alternatively by VCAT (under the stay application) that the Respondent's are not permitted to issue and/or rely on and/or act on any new section 146 (1) PLA 1958 default notices issued subsequent to 21 July 2021 to the Appellant with respect to the non payment of rent and/or outgoings and/or default notice fees until such default notices become subject to final determinations and orders of the Appellant's appeal of all 4 of VCAT's orders of 10 September 2021 have been made.

[2] The footnotes to Beach JA's decision refer to:

[21] Maher v Commonwealth Bank of Australia ('Maher') [2008] VSCA 122 [23].

[22] Maher [2008] VSCA 122 [20]; Loftus v Australia and New Zealand Banking Group Limited ('Loftus') [2016] VSCA 114 [7].

[23] Maher [2008] VSCA 122 [20].

[24] Cellante v G Kallis Industries Pty Ltd ('Cellante') [1991] VicRp 99; [1991] 2 VR 653, 656; He v Huang ('He') [2017] VSCA 102 [49]-[51].

[25] Loftus [2016] VSCA 114 [7].

[26] Maher [2008] VSCA 122 [27]; Uren v Uren ('Uren') [2017] VSCA 300 [50].

[27] Loftus [2016] VSCA 114 [8]; Uren [2017] VSCA 300 [51].

[3] The Supreme Court rules use the expression "stay of execution" which means the same thing.

[4] If the Supreme Court were to grant leave and to uphold an appeal the orders it can make are under s.148 are:

(7) The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal -

(a) an order affirming, varying or setting aside the order of the Tribunal;

(b) an order that the Tribunal could have made in the proceeding;

(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.

(8) If the court makes an order under subsection (7)(c), it must give directions as to whether or not the Tribunal is to be constituted for the rehearing by the same members who made the original order.

[5] This order was one that was made "with the consent" of the Applicant tenant at the hearing before Member Edquist: Link and Connect Pty Ltd v Seng (Building and Property) (No. 3) [2021] VCAT 1042 para [147].

[6] See also Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 per Gleeson CJ and Crennan J at [19]; per Gummow and Hayne JJ at [65] - [72].

[7] See the decision of the Court of Appeal in Bradto v State of Victoria [2006] VSCA 89 at [3] - [4].