Plaintiff v Defendants

Mr A Hands (on 14, 16 May 2014). The plaintiff in person on 2 June 2014

1 The applicant seeks leave to appeal, out of time, from an ex parte order ("the relevant order") of the Victorian Civil and Administrative Tribunal constituted by Member J Wiseman made on 4 November 2013 in a residential tenancies dispute. That order was made four months after the Member had, in a contested proceeding, made a compensation order in favour of the tenants under the Residential Tenancies Act, and also made an order dismissing the landlord's cross application for unpaid rent. At all times the landlord was identified as Thao Thi Tran. She was the proprietor of the demised land, and was sufficiently identified therefore in the tenancy agreement as the landlord. The tenants identified her as the landlord in Tribunal documents as filed.

2 The Member made the relevant order on an informal request from the tenants to amend the landlord's name on the compensation order from Thao Thi Tran to Uyen Thao Thien Tran. In circumstances I shall have to explain later, the Member was induced ― wrongly it seems to me ― to think that such an order was called for under the slip rule as a "mistake in the description of any person".[1] But the Member apparently did something different. He added "Uyen" in front of the landlord's name so as to change the description to Uyen Thao Thi Tran. The consequences have been calamitous; but I hasten to say, that is not to say that is attributable to the Member. I will say the tenants (acting in person) instigated the muddle. For present purposes, there is no one by the name of Uyen Thao Thi Tran. That is certainly not the name of the landlord. The landlord has a daughter by the name of Uyen Thien Thao Tran. That is the name in which the daughter has commenced these proceedings and sworn affidavits. It is the name in her passport. But is not the name which the tenants sought to have substituted as landlord in the VCAT proceeding and the final order. Nor is it the name that the Member in fact substituted. Confusing as that is, I will attempt to make some sense of it later in these reasons.

3 It ensued that the tenants sought to enforce the VCAT compensation order against the landlord's daughter in the Magistrates Court (the fourth defendant), and more lately issued a warrant of seizure and sale which has the Sheriff (the third defendant) moving to sell the daughter's home in St Alban's where she lives with her three children in satisfaction of the judgment debt of the landlord.

4 The plaintiff, the daughter, seeks leave to appeal the relevant order out of time. But, she is not a party to the VCAT proceeding, even though she has been mistakenly identified and treated as the substituted landlord. Only a party to the VCAT proceeding can appeal. The landlord, her mother, could have done something about this at least for the sake of her daughter, but did not do so.

5 The originating process, draft notice of appeal and affidavits as filed for the first return date on the summons were deficient. On the first hearing of the summons before me on 16 May 2014, I directed both parties time to improve their materials and adjourned to a second hearing to enable that to happen.

6 More material was filed as a desultory collection. The Court has had to for itself try laboriously to piece together what has occurred in the VCAT proceeding. Apart from a cost of commencing these proceedings, there have been three hearings up to this point. All this over a compensation order for $6104.24. The costs must surely exceed the amount at stake. But, this is a bitter dispute and as I saw fit to remark in Court it has been bedevilled by disorder and, I am afraid to say, combativeness at the expense of good sense.

7 It is just as well I set out an account of the facts as best as I can understand them.

8 A transfer of land dated 26 October 2010 shows that Thao Thi Tran took a transfer of land known as Unit 1/24 Glendenning Street, St Albans as sole proprietor. A certificate of title for that land also names her as sole proprietor, and gives the same street address. She was registered on 1 November 2010.

9 I have bits and pieces of a residential tenancy. Doing the best I can, on 11 December 2010 a lease was made between "T. Tran" as landlord and Ibrahim and Guirguis as tenants. The premises were identified as 1/24 Glendenning Street, St Albans "Back". The commencement date of the tenancy was stated as 11 December 2010. The term was stated to expire on 11 June 2011. A document that looks like a condition report also refers to Thao Thi Tran as the landlord and identifies the same rented premises with the word "Back".

10 The registered owner of the demised premises was in fact Thao Thi Tran. Therefore, the person identified on the lease (as I have it), appears to be same Thao Thi Tran. It is with her that the tenants have legal rights and obligations. And it is against her that any claim for compensation may be made.

11 Amongst the papers is a VCAT order made on 7 December 2012 by Member D Calabro. It names Guirguis and Ibrahim as tenant. It names Thao Thi Tran as landlord. The Tribunal made a finding that the tenant had vacated the premises, and was entitled to a refund of the bond of $954

12 Sometime before February 2013, the tenants must have brought another application in the Tribunal seeking compensation against the landlord under s 210 of the Residential Tenancies Act. I do not have those papers. I have an order made by Member H. Barker on 13 February 2013 which names Thao Thi Tran as landlord. The premises are identified as Unit 1B/24 Glendenning Street, St Albans. (I think 1B means premises at the "Back"). Under that order, the landlord was ordered to pay compensation to the tenants of $6734.68. The order also shows that there was no appearance by the landlord. The order also notes that "...the tenant is to make a further claim for compensation by way of fresh application for the premises not being as advertised."

13 On 25 February 2013, the tenants filed an application in the Tribunal (using the same proceeding number) making a compensation claim against the landlord Thao Thi Tran for wrongly advertising the premises as a two bedroom unit. They sought compensation of $20,034 calculated at a rent of $954 per calendar month for 21 months.

14 On 9 April 2013, Member L. West adjourned the hearing of that application to enable the tenants to obtain certain documents, but a direction was made to the landlord to file and serve any cross application for compensation by 23 April 2013.

15 On 17 April 2013, the landlord named as Thao Thi Tran filed a cross-application seeking compensation for unpaid rent from January 2011 to September 2012 in the sum of $3631.55.

16 The next event is significant. A hearing of the application and cross-application occurred before VCAT Member Wiseman on 4 July 2013. At that hearing, the tenants appeared in person. The landlord's daughter, Uyen Thien Thao Tran, represented her mother at that hearing. Documents from the VCAT file acknowledge her as the daughter of the landlord, and as the person with whom dealings had taken place with the tenants. For ease of narration I will now refer sometimes to the landlord as "the mother" and Uyen Thien Thao Tran as "the daughter".

17 Member Wiseman made an order on 4 July that the mother pay compensation to the tenants for utilities bills for $6104.24. On the same day, that member made a separate order dismissing the mother's application "on the evidence".

18 For enforcement purposes, the tenants registered the VCAT order in their favour at the Magistrates' Court at Sunshine on 8 August 2013. Enforcement process must have issued from that court. Avoiding precise dates, the Sheriff attended a "warrant address" at 396 Main Road West, St Albans. That is the daughter's address. She is the owner of those premises. The landlord's address on the schedule to the tenancy agreement states that the landlord lives "care of" 63 Main Road West. Maybe that was intended to be a reference to 396. In any case, documents show that the Sheriff attended the daughter's home premises in September and October 2013 and reported that "the judgement debtor has returned overseas" and "No assets were sighted". That is a reference to the mother as landlord.

19 The next event is crucial. On 22 October 2013 Guirguis sent a handwritten letter to Member Wiseman. It said -

PLEASE I WANT YOUR HONOUR TO CORRECT THE NAME OF THE LAND LORD FROM: THAO THIE TRAN TO HER OFFICIAL NAME: UYEN THAO THIEN TRAN AND HER ADDRESS IS: 396 MAIN ROAD WEST SAINT ALBANS VIC 3021 AS PER THE ATTACHED DOCUMENTS.

20 It was not clear what "the attached documents" were. It now emerges, on the sworn evidence of Guirguis in this proceeding, that he sent a title search of the property at 396 Main Road West. The sole proprietor of that property is the daughter. Her name appears on the title search as Uyen Thao Thien Tran. Thus, in saying that he wanted to "correct" the official name of the landlord, what the tenant was really doing was seeking to substitute the daughter as the liable party, putatively as landlord. But she was not the landlord. Moreover, this informal application was made without notice to either the mother or the daughter.

21 Problems then ensued. Following on from the tenant's letter of 22 October, Member Wiseman made this order on 4 November 2013 in chambers or on the papers-

It having been brought to my attention that my determination dated 04/07/2013 is incomplete.

I amend the determination to add Uyen to the landlord's full name.

In all other respects the determination remains the same.

22 In addition, there came into existence an order made by Member Wiseman dated 4 July 2013 which identified the landlord as Uyen Thao Thi Tran. I suppose that was done to give the "corrected name" retrospective effect.

23 These events only confounded the situation. The tenant was looking to substitute the daughter's name which, faithful to the certificate of title for the daughter's property, was Uyen Thao Thien Tran. Member Wiseman inserted another name: Uyen Thao Thi Tran. That is, the Member added "Uyen" in front of the landlord's name Thao Thi Tran as it was previously stated. The absurd outcome is that there is nobody by the name of Uyen Thao Thi Tran as the judgment debtor. The daughter as applicant in the proceeding before this court is named as Uyen Thien Thao Tran. Thus in this calamity, the person named as landlord in the VCAT order does not exist.

24 What matters and what eventually informs the outcome of this state of affairs is that not only were the names wrong, but what was presumably received as an application under the slip rule to correct an error had a far more serious and unwarranted effect. It was not an error in description or a mistake in the name of a party. The landlord was always the mother. That goes outside the slip rule or the amendment rule: see Bridge Shipping v Grand Shipping.[2] It is not correcting a mistake or description; it is changing an identity.

25 The consequences multiplied. On 27 December 2013 the Sunshine Magistrates' Court issued a summons for an oral examination returnable on 24 February 2013. Then, on 8 January 2014, the Magistrates' Court issued a Certificate for the Supreme Court under s 112(3) of the Magistrates' Court Act to deem it to be a judgment of this court. On the faith of that, on 24 January 2014 a warrant of seizure and sale was issued in this court for $6675.35. These documents were all issued against the name of Uyen Thao Thi Tran. That person does not exist.

26 On 13 February 2014, the daughter attended the oral examination at Sunshine Magistrates' Court. She says she tried to explain to the magistrate that she was not the proprietor of the demised premises (her mother was) and that she was a different person. She says the magistrate adhered to the VCAT order as I suppose he was bound to and I doubt if his Honour had to unravel the facts of what occurred, as I have had to.

27 On 14 February 2014, the daughter says she attended the VCAT Registry, filed a statutory declaration explaining her identity and sought to have things rectified. I have not seen those papers. She says she was told at the Registry it would take up to three weeks to amend the order. She says she chased it up and was told it might take six weeks to retrieve the file.

28 I am not sure of the dates but sometime in February the warrant of seizure and sale in this Court must have been served on the daughter. The daughter says she attempted in vain to explain to the Sheriff that she was not the person named in the warrant. In the meantime, a non-attendance at the resumed oral examination resulted in a warrant for her arrest, for which she had to pay $200 bail and agree to attend the Sunshine Court on 23 April 2014.

29 A barrister, Mr Alan Hands, then became involved. The documentation shows that on 18 March 2014 he asked the Tribunal for an urgent hearing, but was told on 26 March 2014 that "the order stands". On 3 April 2014 the Sheriff gave a notice that unless the debt was paid by 14 April 2014 he would put up the daughter's house for sale. On 4 April 2014 Mr Hands asked VCAT for a stay of Member Wiseman's order pending appeal to this court, and he asked for reasons (I take it for the ex parte "correction order" initially made by Mr Wiseman on 4 November 2013).

30 On 9 April 2014, the daughter filed the originating motion seeking leave to appeal under s 148 of the VCAT Act. Two days later the Tribunal responded to the daughter's application made at the Registry on 14 February 2014. The letter said in substance that her correspondence had been referred to Member Wiseman who had declined to make the amendments to the order as requested. The letter refers to s 120 of the VCAT Act which gives a right to apply for a review to re-open a case if a party was not present at the hearing. Alternatively, the letter says a party could appeal to this court on a question of law. And there is the problem. The daughter was never a party to the VCAT proceeding. The attempt to substitute her as a liable party was also erroneous in that it did not properly cite her name, putting to one side that it was made ex parte and wrongly sought to impose liability on someone not the landlord.

31 Later on, by a letter from a Registrar of VCAT on 2 May 2014 (by this time, this proceeding was underway) the daughter was told that Member Wiseman's order of 4 November 2013 was made under the Tribunal's equivalent of the slip rule: see s 119 of the VCAT Act. That rule, as is well known, empowers the Tribunal to correct an order if, amongst other things, it contains a clerical mistake or an error arising from an accidental slip or omission or a mistake in description. As I see the situation, it was none of those things. Putting aside the question of the daughter's standing, there is I think a question of law here. On all objective facts, the mother is the owner and the landlord of the demised premises and the liable party. The application to "correct" the name should have been on notice to both the mother and the daughter.

32 I do not know the tenant's subjective intentions and I will assume the Member was led into error. Guirguis has sworn an affidavit saying:[3]

It was my view ... that I should attempt to clarify the correct identity of the person for the purpose of enforcement of the VCAT order notwithstanding the confusion and obfuscation created by the present applicant [i.e. the daughter] about who was the landlord in the VCAt (sic) proceeding, and when I searched the title to the landlord's street address of 396 Main Road West, St Albans Victoria I saw that the registered proprietor of that property was recorded as "Uyen Thao Thien Tran". I thereupon searched for the correct name of the person that I believed to be the landlord and the judgement debtor in the VCAT proceeding based on the applicant's numerous appearances in the VCAT hearings at each of which she claimed to be the landlord, based on who I saw was the same person that I observed on various occasions entering and leaving the subject property.

33 Guirguis seems to be asserting that throughout the conduct of the VCAT proceeding, the daughter was holding herself out as the landlord. I need not look into this "holding out" assertion. The daughter certainly denies it and the objective evidence suggests she was there as nothing more than her mother's representative. (At this hearing she informed me she was admitted to practice in Victoria in 2005 and had practised for a short time until 2009.) What matters is that the mother owns the land and made the lease.

34 As I have said, when the matter first came before me on 16 May 2014 the material from both sides was in a most unsatisfactory state, and I adjourned the matter asking the parties to reconsider their analysis of the case. It seemed to me that what had occurred was a change of identity rather than the correction of a name and it should not have occurred ex parte. Whilst my account of the facts might lead a reader to think that the daughter was the victim of an injustice, the problem was that for the purposes of s 148 she was not a "party to the proceeding". It is only a "party to a proceeding" that may appeal on a question of law from an order of the Tribunal. The parties to a proceeding are defined in s 59 of the Act and the daughter does not fall within it. The parties were the landlord (her mother) and the tenants. Her daughter did not become a party by reason of Member Wiseman's correction of the name because that corrected name did not correctly refer to the daughter.

35 This state of affairs led me to remark on the first hearing that thought should be given to an application for judicial review for an order in the nature of certiorari on the basis that the daughter would have standing as a person aggrieved. What occurred has had a real impact on her and she has a direct, and not an intermeddling, interest to give her standing

36 Between that last occasion on 16 May 2014 and yesterday, the daughter's lawyers ceased acting. The tenant's lawyers ceased acting and were replaced by Messrs Minter Ellison. Yesterday, Mr Dai Nguyen from Messrs ADN Lawyers sought leave to cease acting for the daughter. He asked me to especially note that the daughter's affidavits and the mother's affidavits showing his firm's name were never shown to him and were never his responsibility. This became a real saga.

37 The most constructive development was that on 20 May 2014 the tenant's new solicitors sent an open letter to the daughter and the mother inviting them to sign a consent order to be made by the Tribunal so that the name "Uyen" be removed from the landlord's name in the title of the VCAT this proceeding, so that the landlord's name would be reinstated as "Thao Thi Tran" as if the Member's order had never been made.

38 That offer was a complete and sensible solution. The daughter could do no better even if she was competent to bring this appeal and if the appeal was allowed; or if she had sought certiorari and such an order was made. But on 24 May 2014 the daughter refused to consent to such a correction, complaining that she had been put to expense for something which the tenants should never have done. As I see it, the tenants should not have done it; certainly not ex parte. But the problem for her was that she had commenced proceedings under s 148 in this Court for which she had no standing and which were therefore legally incompetent. As it turned out ultimately, the daughter produced in court on the hearing before me on 2 June 2014 an affidavit which exhibited the minutes of consent order prepared by the tenants' solicitors which were signed by her mother as landlord on 30 May 2014. Thus, the tenants' solution will be carried out.

40 I think to quell all this, I ought make some determinations.

41 My first determination is that this proceeding should be dismissed as the plaintiff lacks standing. She was not a party to the proceeding and therefore cannot bring an application for leave to appeal under s 148. There was no application for judicial review.

42 My second determination is that the plaintiff should pay the tenants' costs of the proceeding except the costs of the (second) hearing on 16 May 2014. On that day I think the materials on both sides were in such a state of disorder that there should be no order for costs. As for the third hearing on 2 June 2014, I think it was unreasonable for the daughter not to have immediately acceded to the complete solution offered by the tenants and avoided the costs of the third hearing. She submitted that she could not act immediately as her mother needed to obtain independent legal advice. I do not accept this. The daughter has been acting as her mother's representative throughout this dispute. She is a lawyer. She told me that she obtained her mother's signature to the minutes, and she explained them to her mother. There is no basis to say that somehow her interests conflicted with her mother's or that her mother was in no position to conserve her own interests. Their interests coincided. The consent order does nothing more than reinstate the mother as the correct respondent.

43 The collateral effect of what has occurred is that the judgment in this Court transmitted from the Magistrates Court ought be set aside, and with it the warrant of seizure and sale. They are both against someone who does not exist. I have made those orders in the proceeding in which that warrant was issued.

[1] See s 119 of the VCAT Act, esp s 119(1)(c).

[2] [1991] HCA 45; (1991) 173 CLR 231.

[3] Sworn 29 May 2014 - see paragraph 3.