Plaintiff v Defendant

2 For the reasons provided below, I have decided that AML's application for summary judgment should be dismissed.

3 AML lives in a rented property provided by Longden. The property is a unit located on the top floor of a five story building. There is a restaurant located on the ground floor. The restaurant operates an exhaust fan located on the roof which emits noise that disturbs AML.

4 The Residential Tenancies Act 1997 (Vic) (RTA) sets out the general duties of residential rental providers. These duties include a duty to take all reasonable steps to ensure that the renter has quiet enjoyment of the rented premises during the residential rental agreement.[1] They also include a duty that the residential rental provider ensure the rented premises are provided and maintained in good repair and in a reasonably fit and suitable condition for occupation.[2]

5 The RTA provides a process whereby a renter can issue a breach of duty notice to a person in breach of that duty.[3] If the residential rental provider does not comply with the breach of duty notice, the person who gave the notice may apply to VCAT for a compliance order.[4]

6 Under s 75 of the RTA a renter may apply to VCAT for an order requiring the residential rental provider to carry out specified non-urgent repairs. Certain statutory conditions must be met before the s 75 application may be made.

7 AML made an application to VCAT under s 75 of the RTA which he later amended to include an application under s 209 of the RTA for a compliance order. On 7 March 2022 Member Daly of VCAT dismissed AML's application. The VCAT member was not satisfied that AML's quiet enjoyment of the rented premises was being interfered with. The VCAT member also decided that if he was wrong about that, he was nevertheless satisfied on the evidence that Longden had taken all reasonable steps to ensure AML's quiet enjoyment of the rented premises.

8 AML has commenced a proceeding in this Court under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) seeking leave to appeal the order made by Member Daly on 7 March 2022 dismissing his application.

9 An application for leave to appeal under s 148 of the VCAT Act is limited to a question of law.

10 AML has identified the following questions of law relevant to his appeal:

(a) Was the member in error in effectively saying that nuisance, under the Public Health and Wellbeing Act 2008 (Vic), and quiet enjoyment are equal?

(b) Were there inadequate reasons on how [the member] considered the EPA limit, nuisance and the evidence of [AML] about the effects of the noise to quiet enjoyment?

(c) Did [the member] make a finding on no evidence, that the landlord talked to the restaurant about why the restaurant was working the fan up to 11:00 pm when it shuts at 10:00 pm, and why the restaurant will not reduce the speed of the fan? Thus [the member] was in error in finding that the landlord took all reasonable steps under s 67 of the RTA?

(d) Were there inadequate reasons given as to why [the member] didn't make an order that "[t]he rental provider must refrain from committing a similar breach", given there was evidence showing that the landlord was in breach of s 67 of the RTA on many occasions previously?

11 On 27 April 2022 AML filed an affidavit he affirmed on that date. AML's affidavit includes his application to VCAT, notices and written submissions filed in the VCAT proceeding. It also includes the transcript of the VCAT hearing on 7 March 2022, including the ruling and orders made by Member Daly.

12 On 22 June 2022 Keith JR convened a directions hearing and made orders (June 2022 orders) for the preparation of AML's application for trial and set a trial date of 20 June 2023. The trial preparation orders included orders for the parties to file and serve affidavits and submissions and to prepare a court book and combined list of the authorities the parties intended to rely upon.

13 On 23 November 2022 Keith JR convened a further directions hearing and made further orders (November 2022 orders). In the Other Matters section of the November 2022 orders, Keith JR:

(a) noted that other than AML filing written submissions, the parties had not complied with the June 2022 orders;

(b) noted that AML had filed a new proceeding, S ECI 2022 03618 against Longden, in which AML seeks to appeal orders made by VCAT in respect of the residential property the subject of the appeal in this proceeding;

(c) noted that in S ECI 2022 03618, AML seeks to appeal VCAT's order that he vacate the property by 2 September 2022;

(d) noted that Longden had filed an application for summary judgment in S ECI 2022 03618 that had been listed for hearing on 21 February 2023; and

(e) made an order dispensing with compliance with the June 2022 orders to the extent that those orders required a step to be taken in the proceeding on or before 28 February 2023, i.e. pending the outcome of Longden's summary judgment application in S ECI 2022 03618.

14 On 2 December 2022 AML filed a summons seeking summary judgment under ss 61 and 63 of the Civil Procedure Act 2010 (Vic) (CPA).

15 On 14 December 2022 Keith JR ordered that AML's application for summary judgment be listed for hearing on 21 February 2023, together with Longden's summary judgment application in S ECI 2022 03618. Keith JR made orders for the parties to file materials in respect of AML's summary judgment application in advance of the hearing.

16 AML filed an affidavit he affirmed on 12 January 2023 in support of his application for summary judgment. The substance of this affidavit is essentially limited to a statement that Longden has no real prospect of success.

17 Longden filed the affidavit of Anthony Norman Murdoch sworn 2 February 2023. Mr Murdoch deposes that:

(a) he is not clear of the basis upon which AML seeks summary judgment, but has inferred from correspondence from AML to the Court that it may be because of Longden's failure to comply with the Court's timetabling orders made in the June 2022 orders; and

(b) the November 2022 orders dispensed with any requirement for either party to comply with the timetabling orders made in the June 2022 orders.

18 On 13 February 2022 AML filed the following written submissions:

(a) The questions of law and grounds are shown in the Notice of Appeal and 16 September 2022 submissions; and

(b) On all 4 questions of law and grounds, the respondent has no real prospect of success.

19 As I understand AML's summary judgment application, it is based on AML having put his application and all supporting material, including written submissions before the Court and Longden's failure to put its case before the Court. AML submitted that Longden failed to put its case both by the time it was originally ordered to do so by the Court on 22 June 2022 and when ordered by the Court to file material in response to AML's summary judgment application on 14 December 2022. Additionally, AML submitted that his grounds of appeal are so evidently correct, and that Longden could not conceivably raise a defence that has any prospect of success.

Statutory provisions and legal principles relevant to summary judgment applications

20 A plaintiff may apply for summary judgment in a proceeding on the ground that a defendant's defence or part of that defence has no real prospect of success.[5]

21 Subject to s 64 of the CPA, the Court may give summary judgment if it is satisfied that a defence has no real prospect of success. Section 64 provides that even if a Court is satisfied that a defence has no real prospect of success, the Court may order that the matter proceed to trial because it is not in the interests of justice to dispose of it summarily or because the nature of the dispute necessitates a full hearing on the merits.

22 The Court of Appeal, in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[6] provided the following guidance on the application of the summary judgment test:

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a "real" as opposed to "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail test" essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

23 In my view AML's application for summary judgment is misconceived and must be dismissed.

(a) the November 2022 orders relieved Longden of any requirement to file affidavits and submissions until at least 28 February 2023;

(b) given those orders relieved Longden of the obligation to file material disclosing its case, it is yet to file its case and therefore there is no basis for the Court to assess whether Longden's defence has no real prospect of success;

(c) the orders made by Keith JR on 14 December 2022 required Longden to file material in response to AML's application for summary judgment, not to file a defence to AML's proceeding;

(d) the material that Longden might file to meet the test for summary judgment is very different from the material Longden might file in defence of the substantive proceeding, and Longden was not required to file material disclosing its defence to AML's substantive proceeding;

(e) the questions of law raised by AML's proceeding require careful analysis of the evidence before VCAT, the member's path of reasoning and the wording of his reasons;

(f) notwithstanding AML's confidence in the correctness of his case, the questions of law raised by the proceeding are clearly complex. For example, AML's first question of law, "Was the member in error in effectively saying that nuisance, under the Public Health and Wellbeing Act 2008 (Vic), and quiet enjoyment are equal" requires consideration of what the member actually said, and whether that was what AML is suggesting the member effectively said. To the extent that the member may have incorporated references to the evidence before VCAT, that task is made yet more complex. It is not possible, nor desirable, given the caution the Court must exercise before terminating a proceeding summarily, for the Court to embark on that level of analysis at this point in the proceeding, to find that any defence would have no prospect of success; and

(g) in the circumstances, it would be fundamentally unfair to deprive Longden the opportunity to present its case in the usual way.

25 I will order that AML's summons dated 2 December 2022 is dismissed. I ask the parties to confer on the question of costs. If the parties are unable to agree on the terms of any costs orders within seven days of the date of this ruling, the matter will be listed for short oral argument.

[1] RTA, s 67.

[2] Ibid s 68.

[3] Ibid s 208.

[4] Ibid s 209.

[5] CPA, s 61.

[6] [2013] VSCA 158; (2013) 42 VR 27, [35].