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[2019] VSC 442
Supreme Court of Victoria
2019-07-01
Ginnane J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Residential tenancies - Application for leave to appeal VCAT orders - Application for review of possession order - Whether applicant for review had a reasonable excuse for not attending or being represented at Tribunal hearing - Whether applicant for review had a reasonable case to argue - Service of notice to vacate and notice of hearing - Test applied by Member in determining application - Member's findings - No point in review hearing - No question of law - Leave to appeal refused - Residential Tenancies Act 1997 ss 246, 331 and 506; Victorian Civil and Administrative Tribunal Act 1998 ss 120, 140; Electronic Transactions (Victoria) Act 2000.
1 The applicant ('Kornucopia') seeks leave to appeal from orders of the Victorian Civil and Administrative Tribunal ('the Tribunal') made on 11 April 2019 dismissing its application for review of a possession order, and related orders made on 28 February 2019 including a warrant of possession and in respect of a Docklands apartment.[1]
2 Kornucopia was the tenant and the defendant, Mr Yau Wa Tse, the landlord of the apartment.
3 The Tribunal Member refused to grant the review of the possession order because he found that Kornucopia did not have a reasonable excuse for not attending or being represented at the hearing on 28 February 2019. He also found that it did not have a reasonable case to argue. These are matters that must be established in order for the Tribunal to exercise the discretion to grant a review.
4 The Tribunal Member also concluded that if, contrary to his decision, he ought to have granted a review, then he would have made a new order for possession.
5 Kornucopia's proposed questions of law if leave is granted are that:
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) An application under subsection (1) is to be made in accordance with, and within the time limits specified by, the rules.
(3) The rules may limit the number of times a person may apply under this section in respect of the same matter without obtaining the leave of the Tribunal.
(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) In deciding to hear and determine an application under this section the Tribunal may require the applicant to give any undertaking as to costs or damages that the Tribunal considers appropriate.
(5) Nothing in Division 3 of Part 3 applies to a review under this section.
7 On 28 December 2018 the landlord's agent, relying on the non-payment of rent for a period exceeding 14 days, sent a notice to vacate to Kornucopia on behalf of Mr Tse with a termination date of 15 January 2019.[2] The notice was sent by email to: director@kornucopia.com.au and by registered post to three addresses, which are mentioned below.
8 Clause 4A of the Residential Tenancy Agreement between Mr Tse and Kornucopia provided that the tenant expressly consented to the electronic service of notices and other documents in accordance with the requirements of the Electronic Transactions (Victoria) Act 2000 ('the ET Act') at the following email address: director@zenithapartments.net.au.
9 On 7 January 2019, the landlord's agent applied to the Tribunal for a possession order, and orders for payment of arrears of rent and the bond. The application was sent to Kornucopia at the same addresses as the notice to vacate.
10 The application came before the Tribunal on 21 January 2019, when Kornucopia was represented by Ms Xu, a director of Kornucopia and Mr Kuksal, a former director of Kornucopia and now its beneficial owner through a trust.[3] As Kornucopia had paid the arrears of rent, the Member adjourned the hearing to a date no later than 21 April 2019, with a proviso that if the application was not renewed by the landlord giving notice in writing to the principal registrar on or behalf that date, the application would be considered withdrawn.[4] The Member's order otherwise provided that:
11 On 23 January 2019, the landlord's agent under s 331 of the Residential Tenancies Act 1997 ('RT Act') sought to renew the application for a possession order because more rent had become due, and on the same day the agent sent a copy of the application by registered post to each of the three addresses that the notice to vacate had been sent to. Ms K Dangov, the Manager of the Rental Department of the landlord's agent explained the addresses as follows:
(a) Collins Square Tower 4, Level 18, 727 Collins Street Docklands Victoria 3008. This address was the registered address of the tenant until 12 February 2019. Other evidence establishes that it was the address of BDO accountants who acted for Kornucopia.
(b) 78 Australia Wharf, Docklands Victoria 3008. This was the current place of business of Kornucopia since 22 May 2018 at least until the date of Ms Dangov's ASIC search on 2 April 2019.
(c) GPO Box 5099, Melbourne Victoria 3001. This is the 'Contact address' to which communications from ASIC are sent.
12 Ms Dangov also sent the notice to vacate by email to a new email address: director@kornucopia.com.au. This was a different email address to that consented to under the tenancy agreement. Ms Dangov explained that director@zenithapartments.net.au no longer worked and she had communicated with the tenant using the new email address on several occasions. The Member found that the material handed up by the agents included emails to the new email address sent on 23 November, 30 November and 11 December 2018 and 7 January 2019 each addressed to Mr Kuksal. At the hearing the agents also handed up an email from Mr Kuksal from that email address on 12 December 2018, the signature block of which indicated that he was a director of Kornucopia. The new email address was given as the address by Mr Kuksal's lawyers on 12 March when they applied for the review of the 28 February decision. In that application Kornucopia's email address was stated to be director@kornucopia.com.au.
13 On 14 February 2019, the Tribunal prepared a notice of hearing of the application. The notice of hearing stated:
NOTICES SENT TO:
Kornucopia Pty Ltd
'Collins Square Tower 4' Level 18, 727 Collins Street
78 Australia Wharf
GPO Box 5099, Melbourne Vic 3001
DOCKLANDS VIC 3008
M: Mobile (Phone number recorded, but not repeated in this judgment).
Email: director@kornucopia.com.au
14 On 28 February 2019, at a hearing at which Kornucopia was not represented, the Tribunal made a possession order, which stated that:
Warning to tenant: if you fail to vacate the rented premises by the date stated in this order you may be forcibly vacated by a member of the police force or an authorised person carrying out a warrant of possession.
15 Kornucopia changed its registered office address from BDO accountants' office at 727 Collins Street to Ingles Street Port Melbourne on 13 February 2019, and to Coventry Street South Melbourne on 18 April 2019. BDO accountants lodged the two changes. The change to the Port Melbourne address was lodged on 6 February and took effect 7 days later.
a. Mr Kuksal controlled the director@kornucopia.com.au email account, but said that because he has 'dozens of email addresses,' he 'did not see' the notice of hearing and, in any event, had no obligation to look out for it. The Member footnoted this finding with the comment that this answer was given 'after some considerable circumlocution' by Mr Kuksal and gave examples of that.
b. Mr Kuksal was the 'proprietor' of Kornucopia, which he went on to explain meant that he owned the tenant through another company Efektiv Pty Ltd, which acts as a trustee of a discretionary trust, Icarus Foundation, of which he is a named beneficiary.
c. Mr Kuksal ceased to be a director of Kornucopia in December 2018 or January 2019 and appointed Ms L Xu to be a director, as she had been involved in its day to day management for some time and this was a natural transition;
d. Although no longer a director, Mr Kuksal continued to be involved in Kornucopia matters, including appearing at the initial hearing on 21 January 2019 and instructing Madgwicks lawyers to lodge the application for review; and
e. Mr Kuksal said that Madgwicks Lawyers made a mistake in listing the email address of Kornucopia as director@kornucopia.com.au, and that despite him having been involved in instructing that firm, this was done without instructions.
17 The Member noted that, notwithstanding the submission that any service on Mr Kuksal's email would be insufficient because he was not a director, after Mr Kuksal had been excused as a witness, Ms Xu made a request for Mr Kuksal to be given permission to represent the company for the remainder of the hearing. He did not give that permission. He said that there was compelling evidence that Mr Kuksal continued to act as a shadow director of Kornucopia, evidence which included his appearance at the initial hearing on 21 January 2019, his involvement in instructing Madgwicks Lawyers to make the review application and the request for him to be granted permission to represent Kornucopia after giving his evidence.
As indicated at paragraph [5] above, the Tribunal's records show that the notice of hearing was sent to the parties on 15 February 2019. The Tribunal's records of the details for Kornucopia (as provided by the agent in its application for possession) showed the three addresses referred to at paragraph 2 [above] and the director@kornucopia.com.au email address. The Tribunal's records do not, however, include details of which method(s) of communication was used to send the notice of hearing.
...
While I cannot be certain as to whether the Tribunal sent the notice of hearing by post or email or both, I am satisfied that it would have been sent to at least one of the addresses or by email to director@kornucopia.com.au.
Having regard to all the evidence, I do not accept the submissions that the notice of hearing was not received by Kornucopia or that it had a reasonable excuse for not attending the hearing on 28 February 2019...
19 The Member noted that there was no record in the Tribunal file of any correspondence to the three addresses having been returned. He said: 'As such, if the notice was sent to that address, then it must have been delivered and there being no other explanation for why Kornucopia did not attend, I find that it does not have a reasonable excuse'.
'[T]he email address, being director@kornucopia.com.au, the evidence was that it was sent and there is no evidence of it not having been delivered.
While Mr Kuksal may not have chosen to read it, I do not consider this to be a reasonable excuse in the circumstances where Kornucopia was put on notice of an impending hearing by reason of the agent sending a copy of the request for renewal to Kornucopia. I also reject the suggestion that the sending of the notice of hearing to the email address controlled by Mr Kuksal was not sufficient because he is not a director. In this regard, there is compelling evidence that Mr Kuksal continues to act as a shadow director of Kornucopia, including his appearance at the initial hearing on 21 January 2019, his involvement in instructing Madgwicks Lawyers to make the review application and the request for him to be granted permission to represent Kornucopia after giving his evidence.
21 The Member also referred to Mr Tse's evidence of a telephone conversation between Mr Kuksal and Mr Tse the night before the review hearing in which, according to Mr Tse, Mr Kuksal suggested that Kornucopia would only address the rent arrears if Mr Tse granted Kornucopia a proxy to represent him at the body corporate meetings relating to 889 Collins Street. Mr Kuksal disputed this evidence.
22 The Member did not accept that Mr Kuksal's evidence on this conversation was credible and considered that it reflected poorly on him as a witness. He concluded that:
Rather, the level of personal involvement by Mr Kuksal in the day to day affairs of Kornucopia provide strong evidence that he continued to represent the company throughout the relevant material and it is reasonable for others to have relied on that.
23 The Member found that Kornucopia did not have a reasonable excuse for not attending or being represented at the hearing on 28 February 2019 and therefore the review should not be granted. He went on to consider whether Kornucopia had a reasonable case to argue as it was not served with the notice to vacate in accordance with the requirements of the RT Act.
24 The Member found that, having regard to the pattern of electronic communications between the agent and Kornucopia to and from the email address: director@kornucopia.com.au, to the extent that consent was not express he found it to be inferred.[5] As mentioned, the Member referred to Ms Dangov's evidence of corresponding with Mr Kuksal by using that email address.
... I am satisfied on the balance of probabilities that the NTV was served in accordance with the requirements of section 506 of the RT Act. As that is the only basis on which Kornucopia seeks to challenge the possession order, it follows in my view that it doesn't have a reasonable case to argue (in the sense that the argument will not succeed).
26 The Member noted that if he granted the review and made a new possession order, the landlord would incur additional costs and may suffer further loss by reason of delaying the time to obtain the warrant and arrange its execution. This prejudice was a relevant matter under s 120(4A) of the VCAT Act.
27 The Member then considered whether the landlord satisfied the requirements to entitle him to a possession order and found that he did.
28 The Member's findings were based on his satisfaction that the notice to vacate was 'given' by electronic communication to Kornucopia.
29 The Member found that the application for possession had been sent to the registered office of Kornucopia before it changed its address. He stated and found that:
The Tribunal's orders of 28 February 2019 include a finding that at the time the NTV was given, the Collins Square address was the registered office of Kornucopia. I infer that this remained the case in the period prior to 13 February 2019, such that service of the application on that address satisfied the requirements of section 140 of the VCAT Act.
30 The Member found that as at the day of the review hearing rent was owing in the sum of $6,281. He noted that Ms Xu was non-committal when asked by the agent at the hearing whether Kornucopia had any intention to repay the outstanding rent. He was not satisfied that satisfactory arrangements could be made to avoid financial loss to the landlord.
In conclusion, if I ought to have granted review, then I would have made a new order for possession.
32 Kornucopia's case was that the Tribunal Member had wrongly identified the issues for decision. Kornucopia initially argued that the Tribunal had lacked jurisdiction to hear the possession order application. This was because the notice of the hearing had not been sent by the Tribunal to any of the addresses permitted by s 140 of the VCAT Act. For this reason alone, the Tribunal's orders of 28 February 2019 must be set aside.
33 In any event, Kornucopia had a reasonable excuse as required by s 120 of the VCAT Act for not attending or being represented at the hearing on 28 February 2019. It argued that the notice to vacate was not served at the rented premises in accordance with s 506(3)(b), nor was it served at the consented email address for the services of documents as stipulated in s 506(3)(ba). Kornucopia had not received notice of the hearing at its registered office, which by 15 February 2019 was the Port Melbourne address, having been changed with effect two days previously. Ms Xu made an affidavit stating that she was not served with the 'application or any other relevant documents' and that Kornucopia did not receive any documents from the landlord at the Port Melbourne address, nor did she receive any documents delivered by email. Mr Kuksal also said that he did not see the documents.
34 If Kornucopia had to establish that it had a reasonable case to argue as required by s 120, its case was that the notice to vacate was not served in accordance with the provisions of s 506(3) of the RT Act. The Tribunal Member found that there was either express or inferred consent to email notices being sent to the director@kornucopia.com.au email address.
35 In addition, the Member erred in making a final determination of whether Kornucopia had a defence to the possession order claim as he only had to determine something less than that, being whether Kornucopia had established a reasonable case to argue, being the failure to serve the notice to vacate and the notice of hearing.
36 The Member accepted that there had been no effective service for the purposes of s 506(3) with the exception of the inferred consent provisions. There was no inferred consent to service by electronic means other than to the email address stated in the lease, but the documents were sent to a different email address.
37 The landlord, Mr Tse, submitted that the Notice of Appeal did not clearly identify the questions of law which Kornucopia sought to raise.
38 He acknowledged that the Member's decision depended on establishing inferred consent. The email address permitted under the lease did not prevent inferred consent to another address being established. The email address nominated in the lease was inoperative or defunct.
39 Kornucopia must have known on 23 January 2019 when it received notice of the renewal application that a hearing would occur and that a notice of hearing would be sent to it. But on 6 February, it changed its registered office address, with effect on 13 February, two days before the Tribunal issued the notice of hearing. This raised an question of avoidance of service which was relevant to the first question of Kornucopia's reasonable excuse. Until 12 February 2019, its registered office was the office of BDO accountants. BDO could be expected to have forwarded the notice of hearing to Kornucopia, as it continued to act for it.
40 The Member had correctly decided that that if he had ordered a review he would have made a possession order in any event as rent was 14 days in arrears. The landlord submitted that the Member was entitled to conclude that Kornucopia had no case to oppose a possession order as there was no dispute that rent had been in arrears for 14 days and that Kornucopia had 'already acknowledged ...the service by turning up, so that's all water under the bridge'.[6]
41 Section 140 of the VCAT Act provides that for the purpose of that Act, a notice, order or other document may be served on or given to a person:
(b) if the person is a company incorporated under the Corporations Act -
(i) by delivering it personally to the registered office of the company; or
(ii) by sending it by post, facsimile or other electronic transmission to the registered office of the company; or
(iii) any other way of its service of documents may be affected on a body corporate.
42 Service of notices to vacate is dealt with by s 506(3) of the RT Act which provides:
(3) A notice to vacate given under Part 6 must be given -
(a) by delivering it personally to the tenant, resident or site tenant; or
(b) by sending the notice by registered post addressed to the tenant, resident or site tenant at the rented premises, room, site or Part 4A site; or
(ba) by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000 ; or
(c) in the manner ordered by the Tribunal.
43 Section 109X of the Corporations Act 2001 also deals with the service of documents and provides in relevant parts that:
109X Service of documents
(1) For the purposes of any law, a document may be served on a company by:
(a) leaving it at, or posting it to, the company's registered office; or
(b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or
(c) if a liquidator of the company has been appointed--leaving it at, or posting it to, the address of the liquidator's office in the most recent notice of that address lodged with ASIC; or
(d) if an administrator of the company has been appointed--leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC.
(2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary:
(a) in their capacity as a director or company secretary; or
(b) for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary.
(3) Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act 1992.
(6) This section does not affect:
(a) any other provision of this Act, or any provision of another law, that permits; or
(b) the power of a court to authorise;
a document to be served in a different way.
(7) This section applies to provisions of a law dealing with service whether it uses the expression "serve" or uses any other similar expression such as "give" or "send".
44 When considering the operation of this section, Young J in Howship Holdings v Leslie & Anor[7] stated that_:_
The ordinary meaning of "service" is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries, including Hope v Hope [1843-[1854] EngR 805; 60] All ER Rep 441 ; 43 ER 534 , 539-40; R v Heron (1884) 10 VLR 314 , 315; Pino v Prosser & Hassan [1967] VicRp 107; [1967] VR 835 , 838. Some of those cases were complicated by the requirement in the former statutes that a person serving initiating process had to endorse the initiating process, but the principle is clear from them.
If this were not so, one would get the absurd situation referred to by McInerney J in Pino's case at VR 837, that the conclusion would be one which is:
remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ ... should be held not to have been served.[8]
45 Kornucopia accepted that s 120 conferred a discretion on the Member and that it had to establish that he had erred in the exercise of that discretion in accordance with the principles in House v The King.[9]
46 Kornucopia raised, as a preliminary issue, that if the notice of hearing on 28 February 2019 had not come to its attention, VCAT lacked jurisdiction to hear and determine the possession order application. However, VCAT had jurisdiction to determine whether the notice of hearing had been served and the notice to vacate given, which in part, at least, involved questions of fact.
47 Under s 120(4) and (4A) of the VCAT Act, an applicant for review must have a reasonable excuse for not attending or being represented at the hearing. Normally the failure to properly serve the applicant would be sufficient to establish reasonable excuse.
48 The question of whether the notice of hearing was served on Kornucopia was ultimately a question of fact. I have set out the Member's findings. Especially significant are his findings of the role of Mr Kuksal in Kornucopia, his use of the email address director@kornucopia.com.au and the fact that its registered office address was the office of BDO accountants until 13 February 2019. It appears that VCAT sent its notices of hearing to Kornucopia on the following days, 14 or 15 February. BDO accountants continued to act for Kornucopia by again filing documents relating to a further change of its registered office in April 2019. It is likely that it would have forwarded mail to Kornucopia.
49 While s 140 of the VCAT Act expressly permits service of a document on a company by sending it by post, facsimile or other electronic transmission to the registered office of the company, it is a facultative provision and not mandatory. It also permits service in any other way that service of documents may be effected on a body corporate. Section 109X of the Corporations Act is also facultative. At common law service of a document is effected if it has come to the notice of the person or company for whom it is intended.
50 The Member made a finding of fact that he did not accept that the notice of hearing was not received by Kornucopia. Findings of fact by a Tribunal cannot be challenged as questions of law unless the finding was not open or not reasonably open to the Tribunal.[10] Findings of fact cannot be impugned on a no evidence ground if there was some evidence or probative information supporting them.[11] The matters to which the Member referred which led him to conclude that notice must have come to the attention of Kornucopia provided a basis for his findings and do not reveal an error.
51 The Member also was satisfied on the balance of probabilities that the notice to vacate had been served in accordance with the requirements of s 506 of the RT Act. He found that there was either express or inferred consent to receiving email notices at the director@kornucopia.com.au email address, and that it followed that this was the email address designated by Kornucopia. The evidence produced by Ms Dangov showed that she sent the email at 6.18 pm on 21 December 2018. While Mr Kuksal said that he did not see the email, he provided no evidence that it was not delivered to the server for that email address and so became available for retrieval at that time or shortly after it was sent. These were findings of fact. The Member noted that under s 8 of the ET Act, a notice can be given electronically if the recipient has consented to receiving that particular type of information by electronic transmission, whether expressly or inferred from the conduct of the recipient.
52 There were additional significant reasons supporting the Tribunal's findings that the notice to vacate had come to Kornucopia's attention. Kornucopia attended the initial hearing on 21 January 2019 and it is likely that it then obtained or had access to a copy of the notice to vacate. Indeed, the Member in the order made that day found that the notice to vacate was given. There is no suggestion that Kornucopia disputed that finding. It cannot do so now. As the landlord's solicitor submitted, that issue was 'water under the bridge'.
53 The next question is whether the Member applied the correct test - whether Kornucopia had a reasonable case to argue in relation to the subject-matter of the order. He decided that it did not have a reasonable case to argue, in the sense that the argument would not succeed. He was deciding a matter of fact in circumstances where he had found that Mr Kuksal's account of his conversation with Mr Tse was not credible and reflected poorly on him as a witness. He considered that Kornucopia's case was not reasonably arguable because he was satisfied that service had occurred. His words are not to be over scrutinised.[12] His findings of fact meant that Kornucopia's submission was not a reasonable case to argue and would not succeed. In my opinion, the Member applied the correct test in determining Kornucopia's review application.
54 The Member also took into account the prejudice that might be caused to the landlord if a further review application were permitted. That was a relevant consideration under s 120. He said that would have made a new possession order in any event. The landlord's evidence was that substantial rent was owing and Kornucopia provided no evidence disputing that finding. The Member was exercising a discretion and the arrears of rent was a relevant factor to that exercise. In the exercise of his discretion under s 120, the Member was entitled to decide that it would be pointless and futile to order a new review hearing.
55 In the exercise of the discretion under s 148 of the VCAT Act as to whether to grant leave, I am entitled to take into account whether it would be just to do so.[13] In my opinion, in view of the Member's findings of fact and the apparent continued non-payment of rent, it would not be just to grant Kornucopia leave to appeal.
56 Kornucopia has not established any material error of law by the Member in the exercise of his discretion under s 120.
57 Leave to appeal is refused and the proceeding is dismissed.
[1] Tse v Kornucopia Pty Ltd [2019] VCAT 537.
[2] Residential Tenancies Act 1997 s 246 ('the RT Act').
[3] Transcript of Proceedings, Kornucopia v Li (Supreme Court of Victoria, 27, 29 May 2019) 295-296 ('T').
[5] [2019] VCAT 537, [42].
[7] [1996] NSWSC 314; (1996) 41 NSWLR 542 at 544.
[10] S v Crimes Compensation Tribunal [1998] 1 VR 83 at 91.
[11] Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322; (2014) 45 VR 540 [14].
[12] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
[13] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, [36].
Kornucopia Pty Ltd
Tse [2019] VSC 442
(1996) 41 NSWLR 542
(1936) 55 CLR 499
(2014) 45 VR 540
(1996) 185 CLR 259
(2007) 18 VR 48