McKinnon v Cowban [2004] VSC 380

5. The first-named respondent who is the appellant's landlord is in turn an 88 year old man suffering from Paget's disease and other disabilities who, it appears to the Court entirely reasonably, wishes to take possession of the premises in order to realise their value and better accommodate himself and his wife.

8. The application before me is one by the appellant for leave pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 to appeal a decision of the Tribunal giving the landlord possession of the premises. The test for leave to appeal under s.148 has recently been summarised by Chief Justice Warren in Zygorodimos v State of Victoria[1], in the following terms:

"For leave to be granted, the applicant must satisfy the Court that there has been an arguable error of law on the part of the Tribunal; a real or significant argument to justify the grant of leave; and the prospect of substantial injustice in the absence of leave to appeal: Secretary to the Department of Premier and Cabinet v Hulls." (citation omitted)

12. Rule 4.07 of Chapter 2 of the Supreme Court Rules provides with respect to the type of appeal before me that:

(1) Within seven days after filing the originating motion the applicant shall file an affidavit in support of the application for leave to appeal. (2) The affidavit shall set out the acts, facts, matters and circumstances relating to- (a) the order of the Tribunal; (b) the grounds in the proposed notice of appeal. (3) There shall be included as exhibits to the affidavit - (a) a copy of the order from which the appeal is to be brought; (b) a copy of any reasons given for the order; and (c) a copy of the proposed notice of appeal - or their absence as exhibits shall be accounted for in the affidavit."

17. The matter before me was the subject of an application for the continuation of an interlocutory injunction heard by me in the Practice Court on 23 August 2004. At the time of that application I observed as follows.

"The documents referred to in the Tribunal's decision are not before the Court nor is any purportedly comprehensive account of the evidence which was given to the Tribunal. In these circumstances the plaintiff's contentions must be judged against the Tribunal's reasons."

21. When the matter came on before me today, I again raised with Mr Ahearne the limited nature of the affidavit material before the Court and he submitted to me that the appellant's case could be made out on the basis of the Tribunal's reasons. I accordingly propose to deal with it on that basis. It seems to me that given the clear terms of the rules of Court, the serial nature of the interlocutory applications in this matter, and the observations that have previously been made as to deficiencies in the documentation, it would not be fair to the first respondent to do otherwise.

24. The reasons of the Tribunal record two submissions made by Mr Ahearne to it which have been agitated before me. The first is the question of the landlord's intention. Section 259 of the Residential Tenancies Act 1997 provides:

"(1) A landlord may give a tenant a notice to vacate rented premises if the premises are immediately after the termination date to be sold or offered for sale with vacant possession."

28. When the matter came before the Tribunal, Mr Ahearne submitted that the landlord did not genuinely intend to sell the premises. He made the submission in the context set out in detail in paragraphs 4 and 7 of the Tribunal's reasons.

"4. The landlord's representative gave evidence to the Tribunal that the landlord wished to sell the property in order to finance his residence in a nursing home. ... 7. Mr Ahearn submitted that the landlord did not genuinely intend to sell the premises. At the hearing on 7 July the applicant's representative was requested by the Tribunal to provide proof of intention to sell the property immediately upon the premises being vacated. A letter from the landlord stating his intention to sell was offered, but deemed insufficient proof. The matter was adjourned in order for the landlord to obtain and present to the Tribunal sufficient evidence of intention to sell immediately upon the premises being vacated. At the subsequent hearing on 22 July 2004 the landlord's representative provided an Exclusive Sale Authority signed by the landlord. This was found to be sufficient evidence of intention. The Tribunal found that the landlord had proven the grounds for giving the notice."

32. Mr Ahearne now submits that the terms of s.259 were not satisfied. He has today submitted to me a document headed "Further grounds of appeal, especially re s.259 RT Act". The nub of these grounds can be seen in proposed grounds 3 and 5 which I shall quote.

"(3) The Tribunal failed to advert to the need properly to construe section 259 and to require proof of the landlord's requisite intention to be had at the date of the notice to vacate. (5) There was no evidence before the Tribunal (or required by the Tribunal) of the requisite intention of landlord [sic] had at the time required for that intention."

36. In my view, these proposed grounds do not give rise to questions of law which are seriously arguable in the present case. Firstly, there is no evidence that either of these grounds was raised before the Tribunal. The decision records that what was put to the Tribunal was simply that the landlord did not genuinely intend to sell the premises. In accordance with the authorities summarised by Batt J in the case of the City of Greater Geelong v Herd[2], including the decision of the High Court in Coulton v Holcombe[3], it is in my view not open to the appellant to agitate questions of law which were not expressly raised before the Tribunal, particularly in circumstances of the type now in issue, where further evidence might have been called to meet the point as now refined.

39. Next, as I said in my ruling of 23 August 2004, it is apparent the Tribunal formed the view on the basis of the material before it that the requisite intention required by the section had been established in accordance with s.259. The Tribunal was not required to be satisfied as to the existence of particular documentation evidencing the intention at a particular date, but of the ultimate fact of such intention. Further, it cannot be said the evidence shows it was not open to the Tribunal to be satisfied as to this fact. More particularly, the Tribunal's reasons directly address the question it records as raised before it and it is simply not arguable in my view that the Tribunal's conclusion as to the matter put in issue was not open to it.

42. I should add that the documentation before the Tribunal bearing on the question of intention has not been produced to the Court and its substance is not properly described in the affidavit material filed on behalf of the appellant, nor is the absence of the documentation accounted for by affidavit in accordance with r.4.07.

45. This is a matter of particular sensitivity in the present case because Mr Ahearne appears before the Court effectively in the capacities of counsel, witness and occupant. It is necessary to be scrupulously fair to the landlord in these circumstances to avoid both the possibility of injustice and any appearance of an injustice arising from the court treating Mr Ahearne's statements from the Bar table as evidence. At one point in submission to this Court Mr Ahearne stated:

"... [the Tribunal] says I submitted that the landlord did not genuinely intend to sell the premises, but I can't remember my own fact contentions, but of course, the point is the intention and points of law now take up the intention ..."

This submission demonstrates the vice of the absence of a proper evidentiary basis for contending the Tribunal has not properly addressed what was submitted to it. Accordingly Mr Ahearne should not be permitted to depart from the concession I have previously referred to that the matter is to be determined on the facts as set out in the Tribunal's decision.

50. Lastly, it must be remembered that it has been accepted in this Court, at least since the decision in the Portland Properties case[4] that it is not sufficient on an appeal of this type to suggest that it is possible the inferior Tribunal erred in law because the terms of the reasons do not address all arguments now put to the court. It must be shown that the Tribunal was guilty of a vitiating error of law.

53. In conclusion, in terms of the first matter raised by Mr Ahearne, in my view the grounds formulated by him do not identify a seriously arguable case.

56. The next matter put forward by Mr Ahearne falls within the umbrella of paragraph eight of the Tribunal's reasons, which I shall quote.

"Mr Ahearne made extensive submissions into the application of common law principles of property law. The Tribunal found that the Residential Tenancies Act (1997) sets out the requirements in relation to notices to vacate in residential tenancies."

60. Mr Ahearne put to me that the Tribunal had failed to give any or proper effect to the provisions of s.42(2)(e) of the Transfer of Land Act (1958).

63. This aspect of the matter was put to me on 23 August 2004 as the primary basis on which an injunction was sought. On that occasion I observed, after setting out the terms of ss.259 and 322 of the Residential Tenancies Act (1997) as follows.

"I do not accept that it is seriously arguable that s.42(2)(e) of the Transfer of Land Act deprives the Tribunal of jurisdiction in circumstances where it is clear the Residential Tenancies Act expressly grants that jurisdiction. In my view, it is simply unarguable that the operation of s.259 of the Residential Tenancies Act is somehow cut down by the provision of the Transfer of Land Act referred to. What the Residential Tenancies Act, in effect, provides for, is the termination of a tenancy in specified circumstances. This outcome is governed by a specific statutory scheme and that scheme is entirely consistent with the provisions of the Transfer of Land Act."

Nothing said to me today persuades me to take a different view.

68. It follows that the two matters put to me by Mr Ahearne, as justifying leave to appeal, do not meet the test, which I first stated by reference to the judgment of Warren CJ. I am not satisfied that there has been an arguable error of law on the part of the Tribunal. And I am certainly not satisfied that there is a real or significant argument to justify the grant of leave.

71. Further, although it is strictly unnecessary to deal with this aspect of the matter, if Mr Ahearne's submissions were to be accepted, it is apparent that the appellant is holding over as a tenant from month to month, and has by virtue of these proceedings already obtained a significant extension of her occupancy. It is difficult to conclude in these circumstances that the Tribunal's order has resulted in serious injustice.

74. Conversely, if leave to appeal were granted there is no prospect that the appeal could be further heard within a reasonably short period of time and there is a prospect of substantial injustice to the landlord if leave were granted.

[1] [2004] VSC 143 at paragraph 8

[2] (1997) 20 AATR 293

[3] [1986] HCA 33; (1986) 162 CLR 1

[4] Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18