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[2025] VSCA 206
General information, not legal advice.
Court of Appeal (Vic)
2025-08-29
Richards JA
Original judgment source is linked above.
[1] Stewart v Good Shepherd Australia New Zealand [2025] VSC 351 ('Reasons'); Order of Finanzio J in Stewart v Good Shepherd Australia New Zealand (Supreme Court of Victoria, S ECI 2023 00225, 18 June 2025).
[2] RT Act, s 3(1) (definition of 'temporary crisis accommodation').
[17] The superseded version included reg 6(1), which had prescribed a period of not more than six months for the purposes of paragraph (a) of the definition of 'temporary crisis accommodation' in s 3 of the RT Act. Regulation 6(1) was deleted from the RT Regulations on 29 March 2021, before Ms Stewart's occupancy of the property.
[25] (2023) 73 VR 21, 66 [136]-[137] (Kyrou, T Forrest and Hargrave JJA); [2023] VSCA 130.
[27] Stewart v Good Shepherd Australia New Zealand (No 2) [2025] VSC 495.
[29] Reasons, [32]-[38], [39](c).
[34] (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
[36] Application for leave to appeal, ground 4, particular (b); Applicant's written case, [40], line 4; Applicant's submissions (stay), [28], line 7.
[37] In particular, the references to Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 in application for leave to appeal, ground 4, particular (a); applicant's written case, [40], [41].
[38] Supreme Court of Victoria, Guidelines for Litigants: Responsible Use of Artificial Intelligence in Litigation, May 2024, [1]-[5], [9]; see also May v Costaras [2025] NSWCA 178, [12]-[17] (Bell CJ), [49] (Payne JA).
Stewart
Good Shepherd Australia New Zealand [2025] VSCA 206
Stewart v Good Shepherd Australia New Zealand [2025] VSC 351 (Finanzio J)
(a) His Honour erred in finding that the Appellant's continuous occupation of the property for a period 31 months, and nearly four years by the time of judgment, was "temporary" for the purposes of the RTA [, paras 32, 39(c)].
(b) His Honour erred by treating the First Respondent's status as a funded provider under Regulation 6(2) of the Residential Tenancies Regulations 2022 as the sole determinative factor in characterising the accommodation, thereby failing to give any, or any adequate, legal weight to the ordinary and natural meaning of the word "temporary" in s 22 of the RTA and the requirement in s 3(b) that the accommodation be provided on a "non-permanent basis".
(c) His Honour erred in law by concluding that the length of the Appellant's stay "could not be taken as evidence, by itself, that her occupation was not 'temporary crisis accommodation'". In so doing, his Honour misdirected himself as to the relevance of a key factual consideration in the statutory construction exercise, which requires an assessment of all relevant context, including the objective reality of the duration of the occupancy, as mandated by authorities such as Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355.
(a) His Honour erred in holding that the Charter did not furnish the Appellant with a defence to the claim for possession. In so doing, his Honour failed to properly consider the Charter's interpretive role under s 32 and its direct application to the Court as a public authority under s 6(2)(b), which required the Court to give proper consideration to the Appellant's rights to protection of family (s 17) and home (s 13) when exercising its discretion to make a possession order. Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559 authority that Charter may be raised in possession matters.
(b) His Honour erred in dismissing the Appellant's pleaded claims in estoppel and constructive trust as being incapable of conferring a right of possession. His Honour failed to consider that such equitable doctrines can create a personal equity that is sufficient to prevent or postpone the enforcement of a legal right to possession where it would be unconscionable to do so. [non-existent authority cited]
(c) His Honour erred in failing to give any, or any adequate, weight to the First Respondent's own characterisation of the agreement as a "sub-lease" in its notice to vacate, treating it as mere "nomenclature" rather than as an admission against interest with significant evidentiary value relevant to both the statutory and equitable claims.
(1998) 194 CLR 355
(1988) 165 CLR 107
(2011) 33 VR 559
(2023) 73 VR 21
(1936) 55 CLR 499