Tse v Kornucopia Pty Ltd (Residential Tenancies) [2019] VCAT 537

1. The tenant's application for review is dismissed and the stay of the warrant specified in the Tribunal's orders of 12 March 2019 is set aside.
2. The Tribunal's orders of 28 February 2019 are confirmed.
3. The Principal Registrar is directed to send a copy of these orders by the most expeditious means to the officer in charge of the police station specified in the warrant.
4. The Principal Registrar is directed to send copies of these orders to the tenant by email to lulu@efektiv.com.au and to the agents by email to kdangov@nelsonalexander.com.au and sthomas@nelsonalexander.com.au.

Ms L Xu, Director and (for part of hearing) Mr R Yew, in-house solicitor

1. The tenancy the subject of these proceedings relates to apartment G02 at 889 Collins Street, Docklands (Rented Premises), which commenced on 1 March 2018, between Mr Tse as landlord and Kornucopia Pty Ltd (Kornucopia) as tenant. The landlord and Kornucopia entered into a Residential Tenancy Agreement on 26 February 2018 (Lease), which appears to have been signed for the tenant by Mr Shivesh Kuksal (a former director of Kornucopia). Nelson Alexander is the agent managing the property on behalf of Mr Tse.
2. On 21 December 2018, Ms Dangov of Nelson Alexander sent a notice to vacate (NTV) to Kornucopia on behalf of Mr Tse, with a termination date of 15 January 2019. The NTV was sent under section 246 of the Residential Tenancies Act 1997 (RT Act) due to the then rent arrears owed by the tenant (of $6,479.50) exceeding 14 days' rent. The NTV was sent by email to director@kornucopia.com.au and by registered post to three addresses being:

1. Collins Square Tower 4, Level 18, 727 Collins Street, Docklands Victoria 3008 (Collins Square); 2. 78 Australia Wharf, Docklands Victoria 3008 (Australia Wharf); and

1. GPO Box 5099, Melbourne Victoria 3001.
2. On 7 January 2019, Ms Dangov applied to the Tribunal 'seeking possession, rent and bond'. The application was also sent by email to director@kornucopia.com.au and by registered post to the three addresses identified in paragraph [2] above.
3. At the initial hearing on 21 January 2019, Kornucopia was represented by Ms Xu and Mr Kuksal. As payment of the rent arrears had been made, the member adjourned the hearing to a date no later than 21 April 2019, with the proviso that if the application was not renewed by the landlord giving notice in writing to the principal registrar on or before that date, the application would be considered withdrawn.
4. On 23 January 2019, a Mr Anderson (who would appear to be an employee of the agent) made a request to the principal registrar to renew the application. Also, on 23 January 2019, the agent sent a copy of the application for renewal by registered post to each of the three addresses identified in paragraph [2] above. Based on the Tribunal's file, a notice of hearing was generated on 14 February 2019 and sent to the parties on 15 February 2019.
5. A hearing of the renewal was held on 28 February 2019 and a possession order was made in relation to the Rented Premises on the same day, with a direction that the principal registrar issue a warrant of possession "at the request of the person who obtained the possession order" (28 February Order). The order records that there was "no appearance by or on behalf of the tenant at hearing scheduled at 11.30am on 28 February 2019".
6. On 1 March 2019, Ms Dangov applied to the principal registrar for a warrant of possession in accordance with the 28 February Order.
7. On 7 March 2019, a warrant of possession was issued to the Officer in Charge of the Police Station at Melbourne West.
8. On 12 March 2019, Madgwicks Lawyers submitted an Application to reopen an order under section 120 of the Victorian Civil and Administrative Act 1998 (VCAT Act) on behalf of Kornucopia. The application states that Kornucopia first became aware of the order (ie. the 28 February Order) on 8 March 2019 as 'a member of Victoria Police gave the tenant notice that a warrant for possession had been received and they were going to execute'. It further states that the reason Kornucopia did not attend the hearing on 28 February was that 'the Notice of Hearing and Application was not served on the Respondent' and that it has a reasonable case to argue because 'the Respondent was not served with any documents and is therefore unaware of what the other party's case is'.
9. I heard the application for review on Monday 1 April 2019.
10. At the commencement of the hearing, Ms Thomas (one of the agents) made application for me to recuse myself on the basis that I had heard and dismissed an application for possession relating to the same tenant (and of which Nelson Alexander were also the agent) on the preceding Friday. I rejected that application.
11. Ms Thomas then asked for written reasons for my decision. At the end of the hearing, I asked Ms Thomas if the landlord still sought written reasons. Mr Tse confirmed this and consequently I reserved my decision and extended the warrant.

1. In relation to the application for review by Kornucopia, the main issues to be considered are whether it had a reasonable excuse for not attending or being represented at the hearing on 28 February 2019 and, if so, whether it has a reasonable case to argue.
2. Assuming that the application for review is granted, the main issue in relation to the landlord's application for possession is whether the landlord gave the tenant notice to vacate in the manner required. This turns on whether the service of the notice to vacate on the properties identified in paragraph [2] complied with the requirements in section 506 of the RT Act or, alternatively, the service of the NTV by email complied with those requirements.

1. Section 120(1) of the VCAT Act provides that a person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.
2. Section 120(4) of the VCAT Act provides that the Tribunal may hear and determine the application for review if the Tribunal is satisfied that:
   • the applicant (for review) had a reasonable excuse for not attending or being represented at the hearing; and
   • it is appropriate to hear and determine the application having regard to the matters set out in section 120(4A) being:
     • - whether the applicant (for review) has a reasonable case to argue in relation to the subject matter of the order; and
     • - any prejudice that may be caused to another party if the application is heard and determined.
3. In Avonwood Homes v Milodanovic (Avonwood),[1] Walker SM indicated that, under section 120 of the VCAT Act, 'before proceeding to deal with the matter [that is, the merits of the underlying application] I must be satisfied that the Respondents had a reasonable excuse for not attending or being represented at the hearing', and rejected a submission that 'the reasonableness or otherwise of the excuse is just one of the matters to be taken into account and that the strength of the application in other areas might make up for some weakness in [relation to the reasonable excuse] area'.[2]
4. In Avonwood, Walker SM accepted that generally a 'liberal approach' should be taken as to what amounts to a reasonable excuse.[3] However, he goes on to say that:[4]

There are many more letters said not to have been received and the circumstances are highly suspicious. No matter how lenient a view I take of the word "reasonable excuse" I cannot see that a party that behaves in this way and, as a result of such behaviour, becomes unaware of the hearing date has a reasonable excuse for not attending on the day fixed for the hearing.

1. In other words, the Tribunal was not satisfied that the applicant for review had a reasonable excuse in circumstances where it had effectively ignored the proceeding.[5]
2. By contrast, in Dwyer v Housing Industry Association Ltd,[6] Judge Harbison accepted that the applicant had a reasonable excuse based on his sworn evidence that he had not received the notice of hearing, despite the correspondence having been sent to his business address and his having received other correspondence from the Tribunal at the same address.[7]
3. It is evident from these decisions that the question of whether a party has a reasonable excuse will turn on close examination of all of the facts and circumstances.

Did Kornucopia have a reasonable excuse for not attending or being represented at the hearing on 28 February 2019?

1. Kornucopia says that it did not receive the notice of hearing for the hearing on 28 February 2019 because it was not sent to its then registered office.
2. As indicated at paragraph [5] above, the Tribunal's records show that the notice of hearing was sent to the parties on 15 February 2019. The Tribunal's records of the details for Kornucopia (as provided by the agent in its application for possession) show the three addresses referred to at paragraph [2] above and the director@kornucopia.com.au email address. The Tribunal's records do not, however, include details of which method(s) of communication was used to send the notice of hearing.
3. In response to a query as to why Kornucopia had appeared at the initial hearing on 21 January 2019, despite claiming not to have received either the NTV or the notice of hearing, Ms Xu stated that, because Kornucopia has many matters before the Tribunal, they are in the practice of checking the daily hearing list and attending if they are named.
4. At this point, it is necessary to explain the three addresses which were used by Nelson Alexander for the NTV and provided to the Tribunal in the application:

1. Based on the Tribunal's orders of 28 February 2019, the Collins Square address was the registered office of Kornucopia at that time the NTV was given. However, based on a company extract issued from the records of the Australian Securities & Investments Commission (ASIC) on 28 March 2019 (and handed up by the agent) (ASIC Search), Kornucopia's registered office had been changed to Unit 8, 331 Ingles Street, Port Melbourne on 13 February 2019 (being two days before the notice of hearing was sent). Mr Yew submitted that there was no obligation on Kornucopia to notify the Tribunal of that change or to redirect their mail. 2. The Australia Wharf address is listed in the ASIC Search as having been the principal place of business of Kornucopia since 22 May 2018. It is also listed in the ASIC Search as being the address of Ms Xu, being one of the two directors of Kornucopia. Further, Mr Kuksal gave evidence at the hearing that it was both a place of business of Kornucopia (eg. where guests staying in apartments operated by Kornucopia would check in and out, because they did not have an "independent reception"[8]) and his personal residential address.

1. The last address was GPO Box 5099, Melbourne Victoria 3001. This is listed in the ASIC Search as the contact address for Kornucopia from 11 January 2018. In the ASIC Search, it is explained that the 'contact address is the address to which communications and notices are sent from ASIC to the company'.
2. It is also necessary to set out some background as to the email address. In clause 4A of the Lease, Kornucopia ticked the box that it:

consents to the electronic service of notices and other documents in accordance with the requirements of the Electronic Transactions (Victoria) Act 2000 at this email address:

1. In response to my query why the agents had used a different email address for the NTV, being director@kornucopia.com.au, Ms Dangov explained that the original email had ceased to work[9] and that thereafter they had been corresponding with Mr Kuksal of Kornucopia at director@kornucopia.com.au. This is certainly evidenced in the material handed up by the agents, which includes emails to that address on 23 November, 30 November and 11 December 2018 and 7 January 2019, each addressed to Mr Kuksal. At the hearing, the agents also handed up an email from Mr Kuksal from that email address on 12 December 2018 the signature block of which indicated that he was a director of Kornucopia.
2. I also note that, in the application for review made on 12 March 2019, Madgwicks Lawyers had identified director@kornucopia.com.au as the email address for Kornucopia.
3. Notwithstanding the above, Ms Xu and Mr Yew submitted that any service on that email address was ineffective because it was Mr Kuksal's email address and he was not a director of Kornucopia and did not pass on the message to Ms Xu or the other director.[10]
4. Given the significance of this email address for both the review and any determination of the possession application if the review was granted, I adjourned the hearing to the afternoon of 1 April 2019 to allow Kornucopia to call Mr Kuksal to attend and give evidence as a witness.
5. In summary, Mr Kuksal's evidence was that:

1. he controls the director@kornucopia.com.au email account but, because he has "dozens of email addresses", he "did not see" the notice of hearing and, in any event, had not obligation to look out for it;[11] 2. he is the "proprietor" of Kornucopia, which he went on to explain meant that he owns the tenant through another company Efektiv Pty Ltd, which acts as trustee of a discretionary trust (Icarus Foundation), of which he is a named beneficiary;

1. he ceased to be a director of Kornucopia in December 2018 or January 2019 and appointed Ms Xu to be a director as she had been involved in its day to day management for some time and so it was a natural transition;

1. although no longer a director, he continued to be involved in Kornucopia matters, including appearing at the initial hearing on 21 January 2019 and instructing Madgwicks Lawyers to lodge the application for review; and 2. Madgwicks Lawyers made a mistake in listing the email address of Kornucopia as director@kornucopia.com.au, and that despite him having been involved in instructing that firm, this was done without instructions.
2. Notwithstanding the submission that any service on Mr Kuksal's email would be insufficient because he is not a director, after Mr Kuksal had been excused as a witness, Ms Xu made a request for Mr Kuksal to be given permission to represent the company for the remainder of the hearing. I did not grant that permission.
3. While I cannot be certain as to whether the Tribunal sent the notice of hearing by post or email or both, I am satisfied that it would have been sent to at least one of the addresses or by email to director@kornucopia.com.au.
4. Having regard to all of the evidence, I do not accept the submissions that the notice of hearing was not received by Kornucopia or that it had a reasonable excuse for not attending the hearing on 28 February 2019. In relation to:

1. the address at Collins Square, there is no record on the Tribunal file of any correspondence to that address having been returned. As such, if the notice of hearing was sent to that address, then it must have been delivered. As to the submission that there is no obligation on a party to inform the Tribunal of a change to its address, I note that the question here is whether Kornucopia has a "reasonable excuse" for not attending the hearing. In circumstances where Kornucopia was represented at the initial hearing on 21 January 2019 and says that it was only aware of that proceeding by reason of checking the daily hearing list, but did not take any steps to inform the Tribunal of its address or the intention to change its registered office a few weeks later, it cannot be said to have a reasonable excuse; 2. Australia Wharf, there is again no record on the Tribunal file of any correspondence to that address having been returned. As such, if the notice of hearing was sent to that address, then it must have been delivered. Given Mr Kuksal's evidence that it is his residential address, and that it is also Ms Xu's address as indicated in the ASIC Search, I do not accept the evidence that it was not received as being credible. There being no other explanation for why Kornucopia did not attend, I find that it does not have a reasonable excuse;

1. the post office box at GPO Box 5099, Melbourne Victoria 3001, this is an address that Kornucopia has nominated to ASIC for important purposes (ie. receipt of ASIC notices). There is again no record on the Tribunal file of any correspondence to that address having been returned. As such, if the notice of hearing was sent to that address, then it must have been delivered and there being no other explanation for why Kornucopia did not attend, I find that it does not have a reasonable excuse; and

1. the email address, being director@kornucopia.com.au, the evidence was that it was sent and there is no evidence of it not having been delivered.

While Mr Kuksal may not have chosen to read it, I do not consider this to be a reasonable excuse in circumstances where Kornucopia was put on notice of an impending hearing by reason of the agent sending a copy of the request for renewal to Kornucopia. I also reject the suggestion that the sending of the notice of hearing to the email address controlled by Mr Kuksal was not sufficient because he is not a director. In this regard, there is compelling evidence that Mr Kuksal continues to act as a shadow director of Kornucopia, including his appearance at the initial hearing on 21 January 2019, his involvement in instructing Madgwicks Lawyers to make the review application and the request for him to be granted permission to represent Kornucopia after giving his evidence.

One further matter adds to this conclusion. Mr Tse gave evidence that the night before the hearing, he received a call from Mr Kuksal[12] suggesting that Kornucopia would only address the rent arrears if Mr Tse granted Kornucopia a proxy to represent him at the body corporate meetings relating to 889 Collins Street. Mr Kuksal responded to this suggestion by saying that Mr Tse is a "known crook and dishonest", although he did not provide any evidence to support his accusations. He went on to admit that, while he did call Mr Tse, he only suggested that "there was no point in constant acrimony" and that the matters between them "should be resolved amicably". He could not recall if he had mentioned the proxy issue, but said he did not say that the rent would not be paid if the proxy was not forthcoming. I do not accept that Mr Kuksal's evidence on this point is credible, and consider that it reflects poorly on him as a witness. In this regard, I note that the material filed by the agents includes a letter from Madgwicks Lawyers dated 27 November 2018, which was already seeking Mr Tse's agreement to appoint their clients (defined as Kornucopia Pty Ltd, Avant-Garde Ventures Pty Ltd and their Director, Shivesh Kuksal) "on your behalf as the proxy holder for the Unit". The timing of the call, on the eve of the review hearing, makes it probable that a link was being drawn by Mr Kuksal between the proxy issue and the rent arrears.

I also reject Mr Kuksal's attempt to characterise his role as a shareholder looking after its own interests. Rather, the level of personal involvement by Mr Kuksal in the day to day affairs of Kornucopia provide strong evidence that he continued to represent the company throughout the relevant period and it is reasonable for others to have relied on that.

1. For the above reasons, I find that Kornucopia did not have a reasonable excuse for not attending or being represented at the hearing on 28 February 2019 and therefore the review should not be granted. However, in case I am wrong, I go on to consider whether Kornucopia has as reasonable case to argue.

Does Kornucopia have a reasonable case to argue?

1. The basis on which Kornucopia says it has a reasonable case to argue is that it was not served with the NTV in accordance with the requirements of the RT Act.
2. Section 246 of the RT Act is the operative provision with respect to a NTV. It provides that a landlord may give a tenant a NTV if a tenant owes at least 14 days rent to the landlord. However, it is necessary that the notice "specify a termination date that is not less than 14 days after the date on which the notice is given".
3. Section 506 of the RT Act deals with service of notices under the Act. Generally, under section 506(1), a notice may be given to a company by sending it to the registered office of the company. However, section 506(1) is "subject to this section" and the more particular requirements of section 506(3) in relation to a NTV. In terms of postal delivery, section 506(3)(b) provides that a NTV "must be given ... by sending the notice by registered post addressed to the tenant ... at the rented premises".
4. If the agent had only sent the NTV by post to the addresses specified in paragraph [2] (none of which is the Rented Premises), then it is clear that the NTV would not have been given in accordance with the RT Act and so the requirements of section 246 of the RT Act could not have been satisfied. In such a circumstance, there would be a reasonable case to argue and leave would need to be granted and the application for possession dismissed. Indeed, this is the basis that I decided against the landlord in the other case involving Kornucopia on the Friday preceding the hearing.
5. However, section 506(3)(ba) of the RT Act, which was inserted in 2016, allows a NTV to be given "by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000". In this regard, at the hearing, Ms Dangov produced a copy of her email dated 21 December 2018 addressed to Mr Kuksal at director@kornucopia.com.au, attaching the NTV.
6. Under section 8 of the Electronic Transactions (Victoria) Act 2000 (ET Act), a notice can be given electronically if the recipient has consented to receiving that particular type of information by electronic transmission, either expressly or inferred from the conduct of the recipient.[13]
7. As already noted, at clause 4A of the Lease, Kornucopia provided its express consent to receiving notices electronically. The only issue in the present case is that the email address specified is director@zenithapartments.net.au rather than the email address used by the agents for sending the NTV, being director@kornucopia.com.au. In my view, it is implicit from clause 4A of the Lease that the consent is given generally and that it is open for the tenant to change its email address for the purposes of any electronic communication from time to time. Having regard to the pattern of electronic communications between the agent and Kornucopia, to and from the director@kornucopia.com.au email address, to the extent that consent was not express, I find it is to be inferred.
8. That Mr Kutsal was not a director of Kornucopia (or at least not on the record) by the time the NTV was sent is not to the point as the consent is by the company (and there was no suggestion that he was not authorised to consent at the time he signed the Lease on behalf of Kornucopia or that any consent had been withdrawn).
9. That Mr Kutsal may not have read the NTV or, if he read it, failed to pass it on to Ms Xu or others, is also not to the point. Section 13A of the ET Act provides that the time of receipt of an electronic communication is when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. Having found that there was either express or inferred consent to email notices to the director@kornucopia.com.au email address, it follows that this was the email address designated by Kornucopia. The evidence produced by Ms Dangov shows that she sent the email at 6:18pm on 21 December 2018. While Mr Kutsal says that he did not see the email, he provided no evidence to suggest that it was not delivered to the server for director@kornucopia.com.au - and so available for retrieval - at the time or shortly after it was sent.
10. Having regard to those matters, I am satisfied on the balance of probabilities that the NTV was served in accordance with the requirements of section 506 of the RT Act. As that is the only basis on which Kornucopia seeks to challenge the possession order, it follows in my view that it does not have a reasonable case to argue (in the sense that the argument will not succeed).

1. No prejudice was raised by the agents or landlord. However, I note that if I grant the review and make a new possession order, the landlord would incur additional cost (in terms of the fee payable for a new warrant) and may suffer further losses by reason of delay in the time to obtain the warrant and arrange its execution.

1. Having regard to the above, I refuse to grant review of the 28 February decision on the basis that Kornucopia does not have:
   1. a reasonable excuse for failing to appear or be represented at the hearing on 28 February 2019; or
   2. a reasonable case to argue.
2. However, in case I am wrong on both matters, and the review ought to have been granted, I go on to consider whether the landlord satisfied the relevant requirements to entitle it to a possession order.

1. Section 330 of the RT Act provides that the Tribunal must make a possession order requiring a tenant to vacate rented premises on the day specified in the order if the Tribunal is satisfied that, in the case of an application where a NTV has been given, the landlord was "entitled to give the notice" and it has not been withdrawn.
2. For the reasons given above in relation to the 'reasonable case to argue' point, I am satisfied that the NTV was 'given' by electronic communication to Kornucopia.
3. Whether the landlord was entitled to give the NTV turns on the satisfaction or otherwise of the requirements in section 246 of the RT Act as set out in paragraph [37] above.
4. The summary of proof handed up by the agent (and which was not challenged by Kornucopia) states that, as at the day the NTV was sent, Kornucopia owed 51 days rent (for the period from 1 November to 21 December 2018), which is more than the minimum 14 days as required in section 246(1) of the RT Act.
5. For the reasons given above in relation to the 'reasonable case to argue' point, I am satisfied that the NTV was 'given' on the same day it was sent by the agent, being 21 December 2018. This means that the earliest termination date in compliance with the 14 day requirement set out in section 246(2) of the RT Act was 5 January 2019. The actual NTV provided for a termination date of 15 January 2019, which satisfies the relevant requirements.
6. Section 326 of the RT Act provides that an application for possession can be made at any time after the NTV is given, but not later than 30 days after the termination date specified in the notice. The application for possession was lodged with the Tribunal on 7 January 2019, which is after the NTV was given and before the expiry of the 30-day period. The application was sent to Kornucopia in the same manner as the NTV, ie. by registered post to the three addresses set out in paragraph [2] and by email to director@kornucopia.com.au.
7. An application for possession must be served in accordance with section 140 of the VCAT Act which, in the case of a company, can be delivered by post or electronic transmission to the registered office of the company. The ASIC Search shows the registered office of Kornucopia changed to the Port Melbourne address on 13 February 2019. The Tribunal's orders of 28 February 2019 include a finding that at the time the NTV was given, the Collins Square address was the registered office address of Kornucopia. I infer that this remained the case in the period prior to 13 February 2019, such that service of the application on that address satisfied the requirements of section 140 of the VCAT Act.
8. Section 331 of the RT Act provides that the Tribunal may dismiss or adjourn an application for a possession order in respect of a NTV given under section 246 if the Tribunal considers that satisfactory arrangements have been or can be made to avoid financial loss to the landlord.
9. As previously noted, such orders were made at the initial hearing on 21 January 2019 because the arrears had been caught up by the time of that hearing. However, no application was made by the tenant for a similar adjournment at the review hearing.
10. Further, as of the day of the review hearing, the rent (being $3,300 per month) was paid to 1 February 2019, with $120.50 on account, leaving rent owed of $6,281. At the hearing, the agent asked Ms Xu as to whether Kornucopia had any intention to repay the outstanding rent, to which she was non-committal. Further, I note the evidence of the landlord that Mr Kuksal had suggested there would be no payment forthcoming unless the landlord provided the proxy for the owner's corporation (which, of course, is not something the landlord is required to do under the RT Act). In these circumstances, I am not satisfied that satisfactory arrangements can be made to avoid financial loss to the landlord.
11. There is a power to postpone the issue of a warrant of possession under section 352 of the RT Act, which requires the balancing of hardship as between the landlord and tenant in relation to the postponement. No application was made by Kornucopia for postponement and, having regard to the amount of rental arrears, that the tenant is a company which appears to be operating a short stay business from the Rented Premises (and other premises it leases) and that the landlord is an individual, there are no facts presently before me to suggest that the hardship to Kornucopia of an immediate possession order outweigh the hardship to the landlord of any further delay in obtaining possession to stop the losses under the current Lease and enable the landlord to seek a tenant that will pay its rent. As such, I would decline to exercise that discretion even if invited to do so.
12. In conclusion, if I ought to have granted review, then I would have made a new order for possession.

[1] [2005] VCAT 1297.

[2] [2005] VCAT 1297 [33] and [34].

[3] [2005] VCAT 1297 [27].

[4] [2005] VCAT 1297 [30].

[5] E Nekvapil, Pizer's Annotated VCAT Act (6th Ed, Thomson Reuters, 2017) [VCAT.120.105].

[6] [2009] VCAT 411.

[7] Dwyer v Housing Industry Association Ltd [2009] VCAT 411 [20]-[25].

[8] This is based on the evidence given by Mr Kuksal at the hearing. He said that Ms Xu would attend to guests seeking to check in and out in the living room of the apartment.

[9] At the hearing, Ms Dangov showed me an automated message on her phone where an email to the director@zenithapartments.net.au had been rejected.

[10] Mr Dennis Clark, who was only appointed a director on 15 February 2019.

[11] I note that this answer was given after some considerable circumlocution by Mr Kuksal who, when asked by Ms Xu whether he had received the notice, responded with comments on the "foreseeable exposure to the outcome of an event" and noting his position as a "stakeholder", rather than representative, of Kornucopia.

[12] Mr Tse showed me his phone which indicated that he had received a call from Mr Kuksal which lasted 7 minutes.

[13] Dimov v Cagorski [2017] VCAT 1055 [45]-[46].