Scandi Pty Ltd v Wright [2000] VSC 254

5. Master Wheeler dismissed applications for leave to appeal which had been brought by the appellants pursuant to s.148 of the Victorian Civil & Administrative Tribunal Act 1998, seeking to review decisions of the Residential Tenancies Tribunal made, initially, on 23 March 2000 (when applications for adjournment of the proceedings were rejected) and on 3 April 2000 when, after a four-day hearing, the Tribunal made orders in favour of Mr Wright.

8. Mr Wright as owner of property at Unit 10, 58 Clarendon Street, East Melbourne, had leased the property to Scandi Pty. Ltd., and Mr and Mrs Guss occupied the premises as mere licensees. On 17 December 1999 notice to vacate the premises was forwarded to Scandi Pty. Ltd. Pursuant to s.258(1) of the Residential Tenancies Act.

Mr Wright brought proceedings for possession before the Tribunal and those proceedings first came on for hearing on 23 March and concluded with orders for possession made on 3 April 2000.

11. On 13 April 2000 the appellants brought proceedings by originating motions seeking leave to appeal the decision of the Tribunal and on the same day made application before Gillard, J. to stay the orders of the Tribunal. His Honour acceded to that application, although in doing so as a matter of urgency, and noting at the time in his reasons that adequate material had not been placed before him, His Honour expressed doubt as to whether the issues intended to be raised on the application for leave to appeal would justify a grant of leave.

14. On 8 May 2000, Beach, J., upon an application by Mr Wright, based on new material, dissolved the orders of Gillard, J., save for certain conditions of that order.

17. The decisions of Gillard, J. and Beach, J. provide a comprehensive history of these proceedings and it is unnecessary that I repeat what is there said.

20. The appeal from the decision of the Master, refusing leave to appeal, is a re-hearing de novo, and I therefore heard extensive argument from Mr Guss, who appeared on both matters. I also heard argument in reply by counsel for Mr Wright. The question which I must determine de novo is whether leave to appeal should be granted pursuant to s.148 of the VCAT Act.

23. The principles which should govern the court in deciding whether to grant leave to appeal under s.148 were extensively addressed by the Court of Appeal in Department of Premier & Cabinet v. Hulls [1999] VSCA 117 at [8] to [17]. An appeal under s.148 lies only on a question of law. Additionally, as Phillips, J.A. Concluded at [12], for there to be a grant of leave the decision below should be attended by sufficient doubt to justify the grant of leave to appeal.

26. In the application for leave to appeal brought by Scandi Pty. Ltd. The Amended Draft Notice of Appeal lists some fifteen grounds of appeal. Common grounds of appeal, although of lesser number, appear in the other matter.

29. Close examination of those grounds, after argument, discloses (as both Gillard, J. and Beach, J. had anticipated) that for the most part they identify issues of fact, not questions of law.

32. The discretion as to whether leave to appeal should be granted was held by Phillips, J.A. in the Hulls case to be one which cannot be fettered and as was held by Fullagar, J. in Leighton Contractors Pty. Ltd. V. Kilpatrick Green Pty. Ltd. [1992] VicRp 83; (1992) 2 V.R. 505, it has long been the practice of this court not to give reasons for granting or refusing leave in a given case. See too Department of Human Services v. Thwaites [1999] VSC 163 per Beach, J.

35. Having regard to the principles discussed above, and in so far as any of the grounds of appeal do indeed raise questions of law, and after considering the submissions made to me, I conclude that in neither application for leave to appeal on either originating motions are the decisions of the Tribunal attended by sufficient doubt to justify the grants of leave to appeal. The appeals against the decision of the Master will therefore be dismissed.

MR OSBORN: Yes, Your Honour. HIS HONOUR: Do you resist that, Mr Guss? MR OSBORN: And we say, given the history of the matter, those costs should be on a solicitor/client basis because the principal defect on which we rely has really been (indistinct) by Mr Justice Gillard and Mr Justice Beach and in turn the Master. We say there has to be a point at which really in fact the road becomes tougher. HIS HONOUR: Yes. MR GUSS: I can't resist an order for costs, Your Honour. I do resist in my submission solicitor/client costs. The situation that went before the Master was that, while a number of points were argued, it really went off on a preliminary point and that took up virtually 90 per cent of the time and that was the decision, although reasons of course aren't given. That was only one of the points that were dealt with here today and it was in those circumstances that all of the points of appeal really weren't substantially dealt with before the Master and the particular point was of critical importance to the outcome of these leave to appeal applications, so it's submitted that it was appropriate for the matter to be brought before a judge. It's been dealt with as expeditiously as possible and there has been nothing shown other than that the appellants have meaningfully felt that there have been errors of points of law and that they're entitled in these circumstances to have them considered by this court. In those circumstances, as there's been no other untoward delay or otherwise by the appellants, it's submitted that it's inappropriate for solicitor/client costs to be awarded.

The other aspect is in so far as the 5052 appeal is concerned, that's taken very little time. It was really dependent upon the others (inaudible) but necessary to bring those grounds, and at all events that was so before the Master as before you, Your Honour. In those circumstances, certainly they should not be awarded against the appellants in the second case.

HIS HONOUR: Yes. The authorities on the question of whether costs by way of solicitor/client costs or indemnity costs should be awarded still require that there be something in the nature of exceptional circumstances, although that is not necessarily the word which is used.

46. This case comes exceptionally close to exceptional circumstances, but not quite, and in the circumstances I do not propose to make an order for solicitor/client costs.

The order I will make is that the appellants are to pay the respondent's costs in each action, to be taxed, including reserve costs.

There is another matter here which is by way of an affidavit from Mr Wright.

MR OSBORN: Yes, a summons I think. I believe there is a summons. HIS HONOUR: I haven't seen the summons but - - - MR OSBORN: I'm sorry, I'm wrong - no, I'm correct. HIS HONOUR: I had a feeling I did see one, actually. MR OSBORN: Yes, there is one. Essentially, Your Honour, what we seek to do is to have the question of the undertaking for damages sorted out in order to try and finalize matters today, if we possibly can. I was going to ask my friend to address you in respect of that. HIS HONOUR: I really don't think this is a matter which can be dealt with today. It seems to me it's - I saw there was an answering affidavit came in - I mean, if Mr Guss consented to have it dealt with today, well, I would certainly do so. Do you consent to have that dealt with today, Mr Guss? MR GUSS: The problem is Mr Campbell, who was present the other day before Justice Beach, made some suggestion to me which I haven't had the opportunity of taking further, but if there isn't agreement on it, it may be a matter of evidence. That's a bit difficult I would have thought. HIS HONOUR: The point really comes down to this. If you're willing to have this matter dealt with on the affidavits, I'm willing to deal with it. MR GUSS: I would have thought that it may not be able to be dealt with just on the affidavits, Your Honour. There are some quite disparate questions of fact and principle. My suggestion is that it be left for today. I will certainly talk to my learned friends about it and maybe it can be resolved. HIS HONOUR: Well, I would have thought if it could have been resolved, it would have been good if it was resolved before today. It's just racking up more costs as matters drift on. MR GUSS: Maybe if the matter can be stood down for five minutes? HIS HONOUR: I'll certainly stand it down for five minutes if it's possible to reach some resolution. MR OSBORN: Yes. HIS HONOUR: All right. I will leave the Bench for the moment and I will return when the parties ask me. (Short adjournment.) MR GUSS: Your Honour will read an amount - that's not the actual form of order, Your Honour. The orders of

Mr Justice Gillard in both matters are identical and "in other matters ... (reads) ... pay".

As to quantum, we have reached agreement, but it's a question of the order. I assume there would have to be two orders, and my submission is that it should follow the words of Mr Justice Gillard, that it would be the appellants in each case. It would just be the appellant.

HIS HONOUR: Well, I'm in the hands of counsel and the parties. It would seem to me, if an order for damages is to be made and it is by consent as to the quantum, then I am properly at large as to whether it's placed on one order under one summons or under both. Do you argue for one or the other? MR GUSS: Because there are different interests I'm in some difficulty and we have briefly discussed it at the Bar table but that's why we sent for Your Honour - - - HIS HONOUR: In effect, as I read the judgment, what was really anticipated would have amounted to a joint and several order. MR GUSS: It's not really, and there were two specific orders. I was responsible for drawing up the orders and His Honour asked me to amend it in this form so they would be identical. I would have thought it just should really say the appellants to follow the intention and form of

Mr Justice Gillard's orders. HIS HONOUR: Well, I'll hear discussion about it. MR DELANEY: Your Honour, I should indicate that the amount agreed as to quantum was $6,000 and it would be our submission the appropriate order is as Your Honour actually foreshadowed, that the judgment be against the appellants jointly and severally for that amount, because it was quite clear that that is what Mr Justice Gillard had in mind when the undertaking was given, particularly in the circumstances where Scandi Pty. Ltd. Has a receiver and manager appointed - - - HIS HONOUR: How, though, could that be expressed so that it didn't constitute two orders of $6,000? MR DELANEY: It could be made, Your Honour, in the proceedings which Mr and Mrs Guss are the appellants, which is proceeding No.5052, that they be jointly and severally liable for the amount of $6,000, and an order could be made in the other proceeding, that's Scandi Pty. Ltd., Receiver and Manager appointed, be liable for the amount of $6,000 to the extent it is not satisfied by the appellants in the other proceeding. That would avoid any duplication, I think, Your Honour. In my submission that would be appropriate, given that really the driving force behind the applications has been Mr and Mrs Guss and the receiver and manager has taken no part really. HIS HONOUR: What do you say, Mr Guss? MR GUSS: Obviously the receiver and manager has taken no part but (inaudible) I would have thought that was inappropriate because the court has throughout this matter dealt with it as two separate orders, two separate matters, albeit identical orders, and in so far as the injunction granted by Mr Justice Gillard, it was really preserving the status quo and permitting access to deal with goods. Now, I don't discern any intention on

Mr Justice Gillard's part to have the damages vested in one or the other appellant in each case. He did specifically express the same order in both cases and I would have thought - - - HIS HONOUR: Well, would you be content with an order for $6,000 on each summons which would have the effect that if someone then sought to obtain $6,000 from one party, having obtained it from the other, presumably an argument would be open to be had that the judgment debt has been satisfied? MR GUSS: Yes. Maybe a rider could be added that "in other matters" - it could say the amount is the same in both actions. That would remove any doubt. Just a reference to the alternate action, "in other matters". HIS HONOUR: I would be prepared to make an order saying: in other matters, that as to the sum of $6,000 ordered against the appellants in proceeding, whatever it is, I note that an order to the same effect has been made in action number so and so. MR GUSS: Yes. HIS HONOUR: In so far as that sum remains unsatisfied as against this appellant, or words to that effect. But what I want to avoid is a situation where one might in effect point to the other and say "it was the other party that owed the $6,000", so it would be rather a ridiculous situation. MR GUSS: I'm not at all suggesting that. I was just suggesting that "other matters" - the cross-reference, so it would be clear that there is only one amount of $6,000. HIS HONOUR: In other words, there would be a $6,000 order made on each. It would therefore be open to a party to seek and enforce it as against either. The note in the remarks column would simply note that there is another file, if one was seeking it, against the appellants in Case A; it does not seem to me that it would be an answer to that to go against Party B first because you've got a right against Party A. MR GUSS: Yes. I would have thought just as long as it's a cross-reference it would be sufficient. MR DELANEY: I would agree with that, Your Honour, and unfortunately we haven't got the transcript - - - HIS HONOUR: I will order that the transcript of the discussions that we have just had be placed on the file in any event and on each action I will make orders which I will spell out in these terms. In Action 5052 of 2000, being Joseph Guss and Sandra McInnes Guss v. Wright, I will order that pursuant to the order of Gillard, J. of 14 April 2000, the appellants Joseph Guss and Sandra McInnes Guss pay damages to the respondent in the sum of $6,000. I note in the remarks column that in Action 5051 of 2000 a like order for damages in the sum of $6,000 has been made against the party Scandi Pty. Ltd., such order for damages to not be in addition to the sum ordered in Action 5052, but to be a joint and several debt. MR GUSS: I thought we were not using the words "joint and several", Your Honour, in the circumstances of different interests. I thought we agreed that, Your Honour. HIS HONOUR: Tell me why you don't want it? MR GUSS: Because there are different interests. HIS HONOUR: Which different interests? You mean Scandi as opposed to yourself? MR GUSS: Scandi and the two appellants in the other action, and the whole tenor of the orders - - - HIS HONOUR: All right. I will rephrase it. I will put it this way and I will invite comments if you wish. In the remarks column I note that in Action No.5051 of 2000 a like order in the sum of $6,000 for damages was made against the appellant - and in that case it will be Scandi Pty. Ltd. - and in the Action 5051 of 2000, pursuant to the order of Gillard, J. made 14 April 2000, I order that the appellant Scandi Pty. Ltd. Pay by way of damages to the respondent the sum of $6,000, and I note in the remarks column that in Action 5052 of 2000 a like order for damages in the sum of $6,000 was made as against the appellants Joseph Guss and Sandra McInnes Guss. Does that cover it? MR GUSS: Maybe if it could be said that such payment shall not be duplicated, or something like that? HIS HONOUR: I'm not sure what that means. MR GUSS: The intention - - - MR DELANEY: Can I perhaps indicate, Your Honour, I would urge upon Your Honour to use the terms Your Honour previously contemplated, which was that such sums be a joint and several debt, which overcomes any issue of duplication. It also gives effect to the observation included at p.14 of Mr Justice Gillard's reasons, which is that - I'll just read the paragraph: "Mr Guss ... (Reads) ... the appellants should pay", and in my submission it's quite clear His Honour had mind that it would be joint and several. HIS HONOUR: I've got no doubt that's right. MR DELANEY: I was just concerned with - my learned friend seems to have some difficulty with the concept of "joint and several" - I'm concerned that should there be an attempt to recover the money from one party, there will be a merry-go-round arrangement and everyone will say "it's not my debt, it's the other person's". HIS HONOUR: I am more concerned about the question of both Mr and Mrs Guss. Certainly it's a joint and several $6,000 liability as between those two. MR DELANEY: Yes, Your Honour. HIS HONOUR: And it should not be expressed in a way which gives an impression that somehow splits Mr and Mrs Guss and as between themselves as against Mr Wright. I mean, really I've got no doubt Mr Justice Gillard expected on each summons if the funds weren't recovered from either Mr Guss or Mrs Guss in their action, being $6,000, then it would be recovered from Scandi, or vice versa, if recovered from Scandi, neither Mr nor Mrs Guss would pay anything. MR GUSS: Maybe words to the effect of "satisfaction in one case shall be satisfaction in the other". That would cover it. Simple words which would be very clear. HIS HONOUR: What do you say as to that? MR DELANEY: Your Honour, I accept that's the intention. I don't know that what's suggested, that is, "satisfaction in one case shall be satisfaction in the other" - it's obviously not what Your Honour said - Your Honour concluded that such amount not be in addition to the sum. HIS HONOUR: I actually don't see why the party couldn't enforce it, if it had to come to enforcement - and hopefully it doesn't - could not simply go against one party on one action. MR DELANEY: I agree. HIS HONOUR: I mean, there are orders there. If someone wants to get up in this court and run an argument, after reading this transcript, that "no, His Honour was saying that we can escape it by ... " - well, they're braver souls than I would be and I am inclined to leave it at that. Are there any further orders required as to those summonses? Probably not. MR GUSS: Your Honour, could I just mention one matter? The question of the removal of these goods is still a vexed question and because nothing had happened effectively or with the continued refusal, I've lodged or filed an application in the Tribunal on Friday under s.397, which was the section, and served it and yet - - - HIS HONOUR: Can I just say, Mr Guss, that's the right place to be for a particular application, but I hope you don't turn up there, or anyone does. I would hope that a resolution of that is capable of being achieved. MR GUSS: The difficulty is that I have this morning as a response received a letter from Mr Wright and - - - HIS HONOUR: Mr Guss, I don't take this as being a matter before me. That's a matter for VCAT or the parties. I have nothing before me which involves me now determining any issue about what should happen about the property or access between now and then. If it's not agreed, that's the body. MR GUSS: It's just that there are limitations on their powers and jurisdiction, that's all. HIS HONOUR: One day I might have to decide that, but right now I don't. MR GUSS: It was just because the matter was in globo before the court. HIS HONOUR: There is nothing like a global experience - it can continue after a judge goes - and I would suggest, in the warm embrace of the globe, you try discussing it. MR GUSS: We have, but there is some difficulties, obviously, and while we were before the court - - - HIS HONOUR: Mr Guss, I've got enough to keep me going. These are disputes which shouldn't be before courts at all. Try and keep it that way. Have a discussion. If it doesn't get resolved, at least try a Tribunal rather than a court.