Plaintiff (Applicant) v Defendant (Respondent)

1 On 17 April 2019, the Victorian Civil and Administrative Tribunal ('VCAT') made a possession order against Kornucopia Pty Ltd requiring it to vacate a property it leased at Collins Street, Docklands. VCAT also ordered it to pay the landlord, Ms Debbie Wong, rent owed at $5,711.13.[1] Kornucopia seeks leave to appeal on questions of law from VCAT's orders.

2 Kornucopia's proposed questions of law are as follows:

1. Did the learned Member err in making the orders, ostensibly under s 140 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in circumstances in which Notice to Vacate had not been served to the tenant at its registered business address?
2. The Member breached s 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by refusing to accept an application for reconstitution.

3 Kornucopia's counsel informed the Court on the first day of hearing that it was not pressing the first question but instead was seeking to add a procedural fairness question, which I consider below.[2] The Senior Member had provided detailed reasons about the validity of the service of the notice to vacate. At a supplementary hearing on 25 June 2019, Mr S Kuksal, a former director of Kornucopia and its effective owner through a trust, sought to reinstate the ground and referred to the limited time Kornucopia had had to prepare the argument. I allowed Mr Kuksal to address the Court that day because Kornucopia had ceased to retain its previous solicitors. I refused Kornucopia leave to reinstate that question. The Court had reserved its judgment on the basis that the ground was not being pressed and no good reason was shown for that position to be altered. The supplementary hearing of 25 June 2019 was to allow the parties to make submissions about the second proposed ground of appeal - the reconstitution ground - arising from the transcript of the VCAT hearing of 17 April 2019 having become available after the Court reserved judgment.

4 I will first consider the second proposed question of law, being the reconstitution ground, that was pressed at hearing. I will then turn to consider the additional proposed ground.

The proposed second question of law - the reconstitution ground

5 Kornucopia's proposed second question of law was that the Senior Member erred by failing to act in response to its request that the Tribunal be reconstituted. Reconstitution applications are made under s 108 of the Act, which provides:

Reconstitution of Tribunal

(1) At any time before the conclusion of the hearing of a proceeding -

(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or

(b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(2) If an application is made under subsection (1)(a) or notice is given under subsection (1)(b) -

(a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.

(3) If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.

6 There was a conflict of evidence at the hearing in this Court as to whether and when a reconstitution application was made. I decided to await the preparation of the transcript. The transcript shows that no application for reconstitution was made until after the Senior Member had delivered his reasons and was about to pronounce the order.

7 The relevant parts of the transcript, after the Senior Member gave ex tempore reasons deciding that service had been validly effected and had announced his intention to make a possession order, are as follows:

MS XU: Member, sorry, before you give your decision - - -

SENIOR MEMBER: I've given my decision and I'm about to read out the order.

MS XU: Well, we would request written reasons for why you did not consider our evidence under which - - -

SENIOR MEMBER: Yes, you are entitled to written reasons. It will be some time before you get them. I have a lot of other things to do.

MS XU: Well, your - - -

SENIOR MEMBER: I will note the order and then - - -

MR YULE: We believe this is not a reasonable decision and we request that you recuse yourself or a reconstitution.

SENIOR MEMBER: I'm sure you know what you can do about that.

MS XU: Yes. So we are - - -

SENIOR MEMBER: The Tribunal finds that the landlord gave the tenant not less than 14 days - - -

MR YULE: But to clearly state we believe this is an unreasonable judgment because we have - - -

MS XU: And we're requesting you to - - -

SENIOR MEMBER: Would you please be quiet while I read the order. The Tribunal finds that the landlord gave the tenant not less than 14 days to vacate when the tenant owed at least 14 days rent. The landlord is entitled to a possession order for rent which is $1,868 per calendar month that it has to paid to 14 January 2019 and the rent owed to today is $5,711.13. The bond is $1,868.

The Tribunal orders and directs that the tenant must vacate the rented premises by today. The principal registrar at the request of the person who obtained the possession order and on payment of the prescribed fee shall issue a warrant of possession to be executed within 14 days after the date of issue. Any request must be made no later than 17 October 2019. The tenant shall now pay the landlord rent owed of $5,711.13. I hope that is bring printed somewhere, although there has been no sign of it. Here, it's coming.

MS XU: Well, we are prejudiced and we're still requesting for a reconstitution.

SENIOR MEMBER: You're too late. I've made the order.

MR YULE: We did request it before the order was made.

MS XU: Yes.

SENIOR MEMBER: Ladies, I'll keep the whole thing if I may.

MS AMBROSIO: Sure, of course. Thank you.

MS RAPHAEL: That's fine.

MS XU: Member, it is apparent prejudice if you keep looking down and ignoring us. Is there any particular reason you can't answer our question?

SENIOR MEMBER: I'm not here to answer your questions, ma'am. I'm here to give a decision - - -

MS XU: Yes, but you - - -

SENIOR MEMBER: - - - and I've heard you fully before making the decision. All right. That's all for today, thank you.

8 Kornucopia submitted that if a reconstitution application was made to a Member, s 108(2)(a) requires the Member to stand the proceeding down and have the application heard by a presidential member.[3]

9 The landlord submitted that the transcript revealed no basis for a reconstitution application. The substantive hearing was completed at the time the application was made. Reconstitution would have had no effect.

10 The application for reconstitution was made after the Senior Member had completed reading his decision and had stated that he was going to make a possession order. At the time the reconstitution application was made, the hearing of the application had been completed.

11 Reconstitution would have had no effect because a newly constituted Tribunal could not have been asked to repeat the steps that the Senior Member had already taken. A decision to reconstitute the Tribunal has only a prospective effect and has no legal effect on decisions taken previously by the Tribunal.[4] Section 108 cannot be used to achieve a de facto review or appeal of what has happened in the proceeding.[5]

12 The second proposed question of law therefore cannot succeed.

13 The proposed additional ground by way of replacement of proposed ground 1 was:

That the learned Member erred in ordering the tenant to vacate the rented premises by 17 April 2019 by reason of the Member's failure to grant the tenant natural justice and by reason of the Tribunal's failure to comply with s 108 of the VCAT Act by failing to grant an adjournment.

14 The basis of this argument was that Kornucopia had sought an adjournment for a reasonable period to allow it to respond to the proceedings and the issue of service of documents.[6] As mentioned, an adjournment was sought and granted for a short time. No further adjournment was requested.

15 Having received the transcript, it is clear that there was no application for an adjournment save for the short adjournment that the Senior Member granted.

16 Ms Xu, the director of Kornucopia, told the Senior Member that the company had a problem with service and that the documents had not been sent to its registered business address. Kornucopia asked for a 'moment to confirm' and the Senior Member said he would adjourn for a short time. When Kornucopia's representatives returned, Ms Xu again said that the company was questioning service.

17 No application was made for a further adjournment and so there is no substance in that aspect of the natural justice or procedural fairness argument.

18 Kornucopia's affidavits filed by Ms Xu and Mr D Youl also made allegations about the Tribunal's conduct of the proceeding. No application was made during the hearing before the decision was read for the Senior Member to recuse himself.

19 At the further hearing on 25 June 2019, Mr Kuksal expanded on these matters at great length. None of his points were supported by the transcript or the audio recording of the hearing. His suggestion of ex parte communications during the short adjournment has no substance when the relevant passage is read in context. The Senior Member's comments during that short period were innocuous.

20 The Senior Member determined questions of service of documents that were argued before him. There was nothing to suggest that he did not conduct the hearing fairly and in accordance with natural justice.

21 I therefore would not allow the amended proposed substituted first question of law because it lacks substance. If it had been included in the original notice of appeal, I would not have granted leave to appeal in respect of it.

22 Leave to appeal is refused and the proceeding is dismissed.

[1] Wong v Kornucopia Pty Ltd [2019] VCAT 648.

[2] Transcript of Proceedings, Kornucopia v Wong (Supreme Court of Victoria, 27 May 2019) 80 ('T').

[3] Kornucopia referred to cases including Chopra v Department of Education and Training [2019] VCAT 174 ('Chopra') and Lillas & Loel Lawyers Pty Ltd v Celona [2014] VSCA 19; (2014) 43 VR 1.

[4] See, for instance, Seachange Management Pty Ltd v Bevnol Constructions & Development Pty Ltd ( 2008) 29 VAR 278 [31].

[5] See Metrospan Developments Pty Ltd v Whitehorse CC [2000] VCAT 44, [13] and Legal Services Commissioner v Johnson [2012] VCAT 1482 and Chopra [10].

[6] Kornucopia relied on Leon Holdings Pty Ltd v O'Donnell [2009] VSC 430; (2009) 25 VR 569.