Application for review of an order under section 120 of the Victorian Civil And Administrative Tribunal Act 1998 (Vic)

Perpetual Limited v Dai (Building and Property) [2025] VCAT 868

1. The first respondent's application for review of the Order made 6 February 2025, under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), is dismissed.
2. The second respondent's application for review of the Order made 6 February 2025, under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), is granted and pursuant to section 120(4)(b) the Order of 6 February 2025 is varied as follows:

(a) Recital A is varied so that it says, 'The first respondent has not complied with the Order dated 1 November 2024'.

(b) Paragraph 1 is varied so that it says, 'Liability is determined against the first respondent in favour of the applicants'.

(c) Paragraph 2 is varied so that it says, 'The first respondent must pay the applicants the sum of $67,108.56'.

1. In a separate Order which shall not be published on Austlii, the principal registrar has been directed to record the details of the second respondent's address for service having regard to rule 4.10(2) of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic).
2. By 7 October 2025 the applicants shall serve on the second respondent copies of the initiating Application and the Points of Claim, the affidavit of Sarah Hall affirmed 12 December 2024, its exhibits 'SH1' and 'SH2', and the written submissions filed on 12 December 2024.
3. By 14 October 2025 the second respondent must file with the Tribunal and serve on the applicants a document headed 'Points of Defence' which briefly sets out in numbered paragraphs the second respondent's defence to the applicants' Points of Claim including his response to the amounts sought by the applicants as set out in Schedule 1 to the Points of Claim. The Points of Defence should respond to each item of Schedule 1 to the Points of Claim, and say whether the first respondent agrees or disagrees with each item, and whether some other payment or transaction affects the calculation of the applicants' claim.
4. WARNING: If the second respondent does not file Points of Defence by 14 October 2025, then pursuant to section 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal the proceeding may be determined in favour of the applicants against the second respondent with quantum to be assessed.
5. If no Points of Defence are filed by 14 October 2025, the second respondent must by 21 October 2025 file with the Tribunal and serve on the applicants affidavit material and written submissions to oppose the quantum claim.
6. The principal registrar is directed to refer the file to any member on 24 October 2025, for the purpose of the member making further orders.
7. If no Points of Defence are filed, any determination of liability of the second respondent and the assessment of quantum is to be determined pursuant to section 100 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
8. The applicants' costs of and incidental to the hearing of the respondents' applications under section 120 are reserved.
9. The applicants' costs incurred as a result of the variation of the Order made 6 February 2025, as it affects the registration of that Order in the Magistrates' Court and any enforcement proceedings, are reserved.

Applicants (respondents to the section 120 application)

1. The applicants are the landlords of retail premises in a shopping centre. Bariano Group Pty Ltd (in liquidation) was the tenant, under a retail premises lease. The respondents are the guarantors of the tenant's obligations under the lease.
2. The applicant sued the respondents for $67,108.56, as outstanding rent outgoings GST and other sums, after undertaking mediation with the respondents before the Victorian Small Business Commissioner. The initiating Application was filed with Points of Claim which contained pleadings about the roles of the applicants, Bariano Group, and the respondents; the existence of a lease dated 24 October 2016 and its relevant covenants; breaches by Bariano Group and the applicants' service of a notice of termination; and the failure by Bariano Group to pay the amounts due under the lease. A Schedule setting out the calculation of the $67,108.56 was attached to the Points of Claim.
3. In accordance with standard Tribunal procedures, after receiving the initiating Application and the Points of Claim, a Senior Member made an Order in Chambers on 19 August 2024 setting out directions for the conduct of the proceeding. Paragraph 4 of the Order listed a directions hearing in the proceeding to be held on 1 November 2024, and paragraph 2 required each respondent to file and serve Points of Defence to the Points of Claim before that directions hearing.
4. In paragraph 3 of the Order in Chambers the Senior Member said, 'I direct the principal registrar to send a copy of the first listings notice (ie, a Notice of Directions Hearing) with this order to the parties'. In paragraph 4 the Senior Member said that the parties would be notified of the hearing arrangement (ie, the Zoom details) before 1 November 2024.
5. Until a respondent tells the Tribunal of their address for service[1] the Tribunal relies on the address details given by the applicant. On pages 2 and 3 of the initiating Application the applicant said that the first respondent's physical address was number 1460 in a street, and it also stated her email address. On pages 4 and 5 of the initiating Application the applicant stated the same street and email addresses for the second respondent.
6. Relying on the street address details in the initiating Application, on 30 August 2024 the Tribunal posted the Order of 19 August 2024 and the Notice of Directions Hearing to the first respondent only. It did not address any correspondence to the second respondent, and it did not send the documents by email.
7. The registry's omission to correspond with the second respondent, contrary to paragraph 3 of the Order of 19 August 2024, is not explained by anything on the Tribunal's digital file.
8. There is no Declaration of Service by the applicants on the Tribunal's digital file. Neither party produced a recording or transcript of the directions hearing held on 1 November 2024, so I have no objective evidence of the applicants having orally sworn or even advised the Tribunal that they had served relevant documents on the respondents. For the purposes of this application, I find that the second respondent was not served with Notice of the Directions Hearing on 1 November 2024.
9. The directions hearing took place on 1 November 2024. The respondents did not appear. The presiding Senior Member extended the date for the respondents to file Points of Defence to 6 December 2024. Paragraphs 2 - 4 of the Order said the following:

1. If the respondents fail to file Points Of Defence by 6 December 2024, then pursuant to section 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the proceeding may be determined in favour of the applicants with quantum to be assessed. 2. If no Points of Defence are filed:

(a) the applicants must by 13 December 2024 file and serve affidavit material and written submissions to substantiate their quantum claim. > > (b) the respondents must by 24 January 2025 file and serve affidavit material and written submissions to oppose the quantum claim.

1. Pursuant to section 100 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), any determination under section 78 and the assessment of quantum is to be determined based upon the party's (sic) written submissions and any documentary material filed by them in chambers.
2. Paragraphs 5 and 6 of the Order required the registrar to produce the file to a Member after 24 January 2025 'for the purpose of making further orders' and granted the parties liberty to apply.
3. I consider that, provided the respondents were sent the Order of 1 November 2024, the Tribunal afforded the respondents procedural fairness,[2] by giving them the time extension, then a lengthy period to file responding material if they did not file Points of Defence, and reserving liberty to apply.
4. I mention here that the Tribunal has been making Orders of this kind for years, but that in Bahl Enterprises Pty Ltd v Sikandar[3] the Supreme Court held that the Tribunal was empowered to make an Order determining liability and providing for the subsequent assessment of damages under section 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
5. Section 100 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) was enacted in 2021, as a response to the Covid 19 pandemic having reduced the Tribunal's ability to conduct in-person hearings. The new subsections 100(2) & (3) specifically provided that the Tribunal could conduct all or part of a proceeding entirely on the basis of documents without the appearance of the parties or their representatives or witnesses. The subsections allowed a party to object to the Tribunal taking that course, but empowered the Tribunal to reject such an objection if it was satisfied that the objection was not reasonable. In practice, section 100 has been used relatively rarely, and mainly in the way set out in paragraphs 5 and 6 of the above Order. I am unaware of any 'trials' being conducted solely on the basis of documents under section 100.
6. On 11 November 2024 the Tribunal posted the Order of 1 November 2024 to the first respondent only. It did not address any correspondence to the second respondent, and it did not send the document by email.
7. I can conclude that the first respondent 'failed' to appear at the directions hearing on 1 November 2024, but I could not reach that conclusion in respect of the second respondent.
8. The respondents did not file Points of Defence.
9. By email of 5:38am on 12 December 2024 the applicants, through their legal practitioners, filed these documents:[4]

(a) an affidavit of Ms Sarah Hall, Retail and Commercial Manager of the applicants' shopping centre, to which she exhibited a copy of the applicants' ledger spreadsheet for the tenancy generated on 9 January 2024 which itemised the amounts outstanding for the tenancy from 1 June 2022, and a copy of all outstanding invoices referenced in that ledger spreadsheet. in 'SH1'; and

(b) written submissions to the effect that the respondents had been unresponsive in relation to the dispute, belatedly attending a mediation conducted by the Victorian Small Business Commissioner but not attending an adjourned mediation resulting in the Commissioner issuing a Certificate under section 87(1) of the Retail Leases Act 2003 (Vic) on 27 March 2024, not serving Points of Defence, and ending with a request for the Tribunal to order the respondents to pay 'the full amount outstanding of $67,108.56'.

1. The respondents had not filed any documents with the Tribunal by 6 February 2025.
2. The file was referred to a Senior Member who made an Order on 6 February 2025 in which the Tribunal made a finding that the respondents had not complied with the Order of 1 November 2024, and made orders that liability was determined in favour of the applicants, and that the respondents must pay $67,108.56.
3. On 2 April 2025 the first respondent filed, by email, her application under section 120 of the Victorian Civil And Administrative Tribunal Act 1998 (Vic). By that date the applicant had registered the Tribunal's Order of 6 February 2025 with the Magistrates' Court. The email address from which the first respondent sent these documents was different to the email address which the Tribunal had been using as the first respondent's address for service. In fact, the address contained the word 'bariano', which arguably should have been handed over to the liquidator of Bariano Group.
4. Also on 2 April 2025, but at a different time, the second respondent filed, by email, his application under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). This was the first time the second respondent had disclosed an email address to the Tribunal. It also contained the word 'bariano'.
5. On 2 April 2025 the Tribunal's registry emailed both respondents, asking whether they needed an interpreter for the hearing of this section 120 application. I note that in the Tribunal's digital filing system this email has been indexed by the registry as 'Email to R1' which may go some way to explaining the failures previously to send documents to the second respondent.
6. On 26 May 2025 the Tribunal's registry emailed all parties the Notice of the section 120 hearing. The registry used the first respondent's email address which contained the word 'bariano' that I have referred to above, the email address for both respondents which was stated in the initiating Application, and the email address which the second respondent used in his email enclosing his section 120 application.
7. The two written section 120 applications contain much the same points. The Form which is used to make these applications concludes with a 'certification', where by ticking a box the person completing the Form certifies that, to the best of their knowledge, all information provided in the application is true and correct, and that the person acknowledges that it is an offence under section 136 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to knowingly give false or misleading information to the Tribunal. So, whilst the document is not an affidavit or statutory declaration in its own right, it is a serious document.
8. The first respondent said that:

(a) English is not her first language, and she always needs assistance to read English;

(b) she was not aware of the 'court case' (sic) and was never sent any emails about the case;

(c) when her son, the second respondent, came back from China to Melbourne for a visit on 15 March 2025, she gave him a bundle of mail that she had received. The second respondent let her know that a VCAT Order had been made against her and that she needs to apply for a rehearing;

(d) she did not get any mail directly about the hearing; and

(e) 'I have a reasonable case to argue about the subject matter of the original order because we ... have presented our calculation that we do not owe the landlord any rent, if they have cash out our bank guaranty (sic), which they had'.

1. If you construe the first respondent's assertion in (d) above to mean that she was not notified that a Tribunal member was considering the file on 6 February 2025 ['directly about the hearing'] , it is an acceptable statement. It cannot be read as suggesting that she never received mail from the Tribunal about the proceeding.
2. Moving on, the second respondent said that:

(a) he has been living in China;

(b) when he came back from China to visit his family in Melbourne, the second respondent gave him 'a lot' of unopened mail, and in the bundle he saw the VCAT Order on 20 March 2025;

(c) he did not receive any emails from the applicants or the Tribunal about the hearing;

(d) the email address he used to communicate with the applicant previously [supplied] is forwarded to [a gmail address, supplied] and this was blocked in China,

(e) 'I have a reasonable case to argue about the subject matter of the original order because we ... have presented our calculation that we do not owe the landlord any rent, if they have cash out our bank guaranty (sic), which they had'.

1. The sentences which I have quoted in paragraphs 25 and 27 (e) above are identical and I infer that the second respondent prepared both documents.
2. In the section 120 hearing, the second respondent made submissions which were consistent with the contents of the written section 120 applications, and the first respondent essentially did the same through an interpreter.
3. In opposing the applications, the applicants relied on a written submission dated 28 August 2025, supplemented by some oral submissions. The main points it contained were that the parties attended a mediation before the Victorian Small Business Commissioner on 21 December 2023, at which both respondents attended. That mediation was adjourned. On 19 January 2024 the applicants, through their legal practitioners, emailed the mediator and the respondents a spreadsheet setting out full details of the tenancy ledger and other documents. The spreadsheet was consistent with exhibit 'SH1' to Ms Hall's affidavit. The respondents did not attend the adjourned mediation and the Commissioner issued a Certificate under section 87(1) of the Retail Leases Act 2003 (Vic). The email addresses given by the respondents in their section 120 applications were not previously known to the applicants, and were not used by the Victorian Small Business Commissioner when corresponding about the mediation. In their oral submissions, the applicants stood by the spreadsheet, and submitted that the calling up of the bank guarantee by the applicants had been taken into account in the calculation of the claim for $67,108.56.
4. In considering the submissions I have examined exhibit 'SH1' and see that, within the last 7 entries, the applicants acknowledge receipt of amounts of $60,351.73 on 22 November 2023, $23,741.00 on 17 November 2023, and $10,483.38, as well as 3 round figures all in June 2023 of $10,000.00, $17,000.00 and $10,000.00. I say no more than that it is possible that the $60,351.73 might reflect the calling up of the bank guarantee, and the 3 round figures might reflect payments by the tenant just before the lease was terminated. I do not purport to conclude that exhibit 'SH1' proves that the bank guarantee was, or was not, called up by the applicants.
5. Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) begins by saying that:

(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.

1. Clearly, the directions hearing on 1 November 2024 was a hearing. However, the examination of the file and the making of the Orders on 19 August 2024 and 6 February 2025 are deemed to be hearings, even though it would not have been possible for either party to have 'appeared' in them.
2. The Tribunal's power to make directions is found in section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). If either party was dissatisfied with the Order of 19 August 2024, they could have applied for further directions. It would be most unusual for section 120 to be brought into play.
3. As there is no evidence that the second respondent was given notice of the directions hearing on 1 November 2024, he is able confidently to seek a review of that Order under section 120(1).
4. I conclude that the first respondent was given notice of the directions hearing on 1 November 2024. As stated above, there is evidence that the Tribunal posted relevant documents to her, and there is her admission in her written section 120 application that she received mail and simply did not open it. Despite the first respondent saying that she needs assistance to read English, there is no logical reason for her to have not consulted anyone other than the second respondent about the correspondence.
5. Section 120(2) provides that an application under section 120 must be made within a time limit specified by the VCAT Rules. However the Tribunal is empowered to extend that time limit and frequently does so in these situations.
6. Subsections 120(4) and (4A) then provide, in effect, that the Tribunal can grant an application for review if it is satisfied that the applicant for review 'had a reasonable excuse for not attending or being represented at the hearing' and that they have 'a reasonable case to argue in relation to the subject matter of the order'. The Tribunal must also consider any prejudice that may be caused to the party who has the benefit of the Order, if the application for review is heard and determined. In practical terms, most prejudice that is found to exist can be compensated by an order for costs. There may, however, be situations where the prejudice is more significant, such as where witnesses have disappeared.
7. I am satisfied that the second respondent had a reasonable excuse for not attending or being represented at the directions hearing on 1 November 2024. As there is no evidence that the second respondent was served with that Order, and the making of the Order on 6 February 2025 is deemed to be a hearing at which the second respondent was not 'represented' because he had not filed Points of Defence or any material in relation to quantum because he is taken to have been unaware of the 1 November 2024 Order, I must conclude that he had a reasonable excuse for not appearing or being represented at the making of the Order of 6 February 2025.
8. Whilst the dispute over the calculation of the applicants' claim is a little thin, and particularly so on the respondents' side, the respondents are entitled to be heard on that controversy and so I conclude for the purposes of this section 120 application that the second respondent has a reasonable case to argue in relation to the subject matter of the Order of 6 February 2025.
9. The applicants can be expected to seek to prove their claim for $67,108.56 largely by relying on business records, and so I do not see any prejudice caused by the Order of 6 February 2025 being set aside as a barrier to the second respondent's application. The prejudice is the wastage of costs, and can be cured by an award of costs.
10. The position with the first respondent is different. I cannot conclude that the first respondent had a reasonable excuse for not attending or being represented at the directions hearing on 1 November 2024, because she was sent notice of that hearing. Even though she is self-represented, she could have obtained advice and could have applied for a directions hearing at which the timetable set in that Order could have been adjusted. Rather than complying with the Order of 1 November 2024 or even communicating with the Tribunal under Rule 4.10(2) of the VCAT Rules, the first respondent simply failed to even open her mail. This behaviour is unacceptable in a legal proceeding. As the respondents had attended one mediation session with the Victorian Small Business Commissioner, it is more likely than not that the first respondent was able to conclude that the mail from the Tribunal, which she failed to open, related to the same claim as was the subject of that mediation.
11. Similarly, I cannot conclude that the first respondent had a reasonable excuse for not 'appearing' or being 'represented' on 6 February 2025. Because the Order of 1 November 2024 had been posted to her, she could have filed Points of Defence, even after the time limit stated in the Order of 1 November 2024 had expired.
12. However, for the reasons outlined above I consider that the first respondent has a reasonable case to argue in relation to the subject matter of the Order of 6 February 2025.
13. The process of making the Order on 6 February 2025 is deemed to be a hearing. Parties were not literally notified that on 6 February 2025 the Tribunal would consider making an Order. However, as the first respondent received, by mail, the Order of 1 November 2024 she knew or ought to have known that if she did not file Points of Defence there was the prospect of an Order being made against her after 24 January 2025. She knew that if, as occurred, the applicants served an affidavit verifying the quantum of its claim, that she had until 24 January 2024 to formally reply. Ignoring mail from the Tribunal does not amount to having a reasonable excuse for not attending or being represented at the deemed hearing on 6 February 2025.
14. For the above reasons I dismiss the first respondent's application under section 120, but grant the second respondent's application under section 120. To put this into effect it is necessary that I 'vary' the Order of 6 February 2025, under section 120(4)(b).

[1] The Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (the 'VCAT Rules') do not contain the concept of respondents filing a Notice of Appearance, as in rule 8.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Rule 4.10(2) of the VCAT Rules provides that a 'party other than the applicant must, not later than 14 days after becoming a party, file with the principal registrar a statement of that party's address in Victoria for the service of documents'. Unlike a Writ in a court proceeding, which tells the defendant to file a notice of appearance within the time limit, the VCAT initiating Application form does not contain text drawing respondents' attention to Rule 4.10(2). As the VCAT Rules do not provide for 'judgment in default of appearance', for obvious reasons, the consequence of a respondent not complying with rule 4.10(2) is simply that the address details supplied by the applicant will continue to be relied on.

1. [2] Section 98(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) obliges the Tribunal to afford the parties natural justice.

[3] [2025] VSC 394.

[4] These were placed in the Tribunal's digital file on 13 December 2024.