1. Pending determination of the tenant's appeal, heard by the Supreme Court of Victoria in late May 2019, concerning VCAT's determination in this proceeding made on 17 April 2019, VCAT's order of 17 April 2019 is stayed and the time in which the warrant of possession issued by the Principal Registrar on 18 April 2019 may be executed is extended for the 30 days, being the maximum time allowed.
2. Pending determination of the tenant's above-mentioned appeal, the parties and their servants or agents are prohibited from enforcing any of the orders made on 17 April 2019 and/or executing the warrant of possession issued in this proceeding and direct that any party may bring this order to the attention of any person including any member of Victoria Police as sufficient evidence of the prohibition against enforcement and execution.
3. Direct the Principal Registrar to forward by the most expeditious means copies of this order to all parties and the Prothonotary of the Supreme Court of Victoria in matter S ECI 2019 01801 and to the officer in charge of the police station specified in the warrant.

1. On 17 April 2019, under section 330 of the Residential Tenancies Act 1997 (the RT Act), VCAT made a possession order in this proceeding based on a notice to vacate for the non-payment of rent concerning certain rented premises in Docklands. VCAT found that Ms Wong, the landlord, had given Kornucopia Pty Ltd (Kornucopia), the tenant, not less than 14 days notice to vacate, when Kornucopia owed not less than 14 days rent, that the landlord was entitled to possession and that the rent owed to that day was $5711.13.
2. VCAT ordered Kornucopia must vacate the rented premises that day, that the landlord may request a possession order to be issued by VCAT's principal registrar, and that Kornucopia pay Ms Wong rent owed of $5711.13.
3. VCAT's written reasons for making the possession order recorded, concerning the 17 April hearing:

There was only one issue at the hearing: whether the landlord had validly served the tenant with a notice to vacate and with the application. ...[1]

1. On 18 April 2019, Ms Wong's real estate agent requested and VCAT's principal registrar issued a warrant of possession against the rented premises.
2. On 26 April 2019, VCAT received notice that Kornucopia had sought leave from the Supreme Court of Victoria to appeal the possession order under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). According to the notice of appeal, the questions of law and grounds relied on were:
   1. Did the learned member are in making the orders, ostensibly under s 140 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in circumstances in which notice to vacate had not been served to the tenant at its registered business address?
   2. The member breached s 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) by refusing to accept an application for a reconstitution.
3. As was then VCAT's general practice, on 26 April 2019, having learned of the application for leave, without holding a hearing to hear from the landlord or the tenant on the issue, VCAT:

1. Stayed (suspended) the possession order, "pending the determination of the application for leave to appeal"; and 2. prohibited eviction at the rented premises, pending "the hearing of the tenant's application for leave to appeal in the Supreme Court of Victoria or other order"; and

1. extended the time in which the warrant of possession may be executed (which leads to eviction) for 30 days, the maximum extension permitted per extension under the RT Act.
2. On 22 May 2019, unrelated to this case, the Supreme Court of Victoria Court of Appeal decided Quick v Lam-Ly Pty Ltd [2019] VSCA 111.
3. The background to the Quick decision was that on 12 April 2019, the Trial Division of the Supreme Court of Victoria had dismissed Mr Quick's appeal against a January 2019 possession order made by VCAT on the basis of unpaid rent. Mr Quick lodged an appeal to the Court of Appeal, together with an application for stay. At the same time, Mr Quick sought, and on 26 April 2019 obtained from VCAT, a stay of VCAT's January 2019 possession order and an order prohibiting enforcing of orders, including by way of a warrant of possession.
4. Lam-Ly Pty Ltd sought leave from the Supreme Court to appeal VCAT's stay order to the Supreme Court, which came before Beach J. In his 22 May 2019 decision, Beach J said [at 11]:

Other than perhaps to preserve the status quo pending the hearing of the application for leave to appeal in this Court, the basis for the making of the order by VCAT on 26 April 2019 is not entirely clear. Disturbingly, the order was made without notice to Lam-Ly. Further, it was made without Mr Quick being required to give any undertaking as to damages or to at least secure the amount of rent then outstanding and rent payable pending the determination of the matter in this court. Additionally, the order was made by a deputy president, not the member who heard and determined the matter on 8 January. In the circumstances, it is unclear what (if any) consideration was given by the deputy president to the merits of Mr Quick's proposed appeal to this Court.

1. Beach J described "stay application principles" [from 27]:

In deciding whether to order a stay of execution, the court has a wide discretion and is required to take into account all of the circumstances of the case. The party applying for a stay bears the onus of demonstrating that a stay is justified. Ordinarily, a successful party is entitled to the benefit (or fruits) of the judgment and the presumption that the judgment is correct.

As has been said many times before, the power to order a stay will generally not be exercised unless the party seeking the same demonstrates special or exceptional circumstances.

Special circumstances may be found to exist where the applicant is able to demonstrate that there is a real risk that it will not be possible to restore the applicant substantially to his or her former position if the judgment against the applicant is executed before the conclusion of the appeal. However, the prospect that the appeal may be rendered nugatory must be balanced against [the principle] that the successful party is entitled to the fruits of its judgment.

In order to justify the grant of a stay, an applicant should also demonstrate that there is at least an arguable ground of appeal. That said, ordinarily, the court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied upon in the application for leave to appeal. In such a case, unless there is no arguable ground of appeal, or the appeal is not bona fide, the court ordinarily will focus on matters relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.

1. After considering the evidence before him, Beach J lifted the stay granted by VCAT on 26 April and dissolved the related VCAT injunction. He said in part [at 45]:

... I am far from persuaded that Mr Quick has any arguable ground of appeal from the orders made by Garde J. Pending the hearing of Mr Quick's application for leave to appeal, Lam-Ly is entitled to the fruits of the judgment it has obtained. Mr Quick has not established the special or exceptional circumstances required by the authorities in order to justify the continuation of the stay ordered on 26 April (whatever the correctness of that order, or the appropriateness of its making, once Mr Quick's appeal to the Trial Division had been dismissed).

Moreover, even if I were persuaded that Mr Quick had a ground of appeal that was at least arguable, there is no basis in this case for staying the orders that have been made against him so that he may continue to 'adversely possess' the premises pending the hearing of his application for leave to appeal, without paying or securing the outstanding rent that has accrued (and continues to accrue).

1. While the decision in Quick related to an appeal from the Trial Division of the Supreme Court to the Court's Court of Appeal, VCAT regarded the principles described by Beach J as applicable concerning applications to it for the stay of orders where a party had appealed the orders of VCAT to the Trial Division of the Supreme Court. In particular, VCAT saw it as appropriate to provide landlords in this and other cases with the opportunity to make submissions concerning stay orders previously made where the Supreme Court had not yet decided the appeal.
2. Therefore, on 30 May 2019, VCAT made orders in this proceeding directing VCAT's principal registrar to list the return of the stay application to be heard on 14 June 2019. Similar orders were made in eight other proceedings where Kornucopia as tenant, or the State of Our Times Pty Ltd, a company related to Kornucopia, also as tenant, had appealed possession orders made by VCAT. The nine cases were scheduled for hearing on 14 June 2019 at various times during the day. This case was the first for the day, commencing at 9:30 am.
3. On 14 June 2019, the issue before me in each of the nine cases was whether the previous stay order should remain in force, or alternative orders should be made.
4. The evidence before me was that all nine appeals had, over 27 and 29 May 2019, been heard at the Supreme Court of Victoria by Ginane J. I understood the parties were telling me that Ginane J had reserved his decisions in the cases and called for transcripts of VCAT hearings, with decisions in the cases awaiting Ginane J receiving the transcripts. There was debate as to whether VCAT had authorised provision of the transcripts to the Court, or whether that was yet to be done.
5. My enquiries after the hearing, via VCAT staff, revealed the following situations concerning the nine cases and that the transcript issue affected only this case.
6. The Court's orders of 29 May 2019[2] related to the appeal of VCAT's decision in this case, required Kornucopia to, on or before 26 June 2019, file and serve the transcript of hearing conducted at VCAT on 17 April 2019 and allowed the parties three days after transcript is filed and served, to require a further hearing before the Court. At the hearing before me, the parties indicated no intention to seek a further hearing in this case.
7. My same enquiries led me to understand that it was not until Monday 17 June, that VCAT authorised release of transcript (there is no need here to go into details concerning confusion which had arisen), which will presumably result in the transcript soon being provided to Ginane J.
8. In eight other cases also before the Court on the same days, I am advised the Court has reserved its decision, making no other orders. There appears to be no issue concerning provision of transcripts related to those cases.
9. The eight other cases are:
   • S ECI 2019 01729, Kornucopia Pty Ltd v Tse (VCAT ref R2019/639);
   • S ECI 2019 01395, Kornucopia Pty Ltd v Li (VCAT ref R2019/4440);
   • S ECI 2019 01080, Kornucopia Pty Ltd v He (VCAT ref R2018/35130);
   • S ECI 2019 00729, Kornucopia Pty Ltd v Wang and The State of Our Times Pty Ltd (VCAT ref R2018/35148);
   • S ECI 2019 00730, Kornucopia Pty Ltd v Lu and The State of Our Times Pty Ltd (VCAT ref R2018/35087);
   • S ECI 2019 00731, Kornucopia Pty Ltd v Men and The State of Our Times Pty Ltd (VCAT ref R2018/35124);
   • S ECI 2019 00732, Kornucopia Pty Ltd v Weihong Zhu and The State of Our Times Pty Ltd (VCAT ref R2018/35086); and
   • S ECI 2019 00726, Kornucopia Pty Ltd v Zhang and The State of Our Times Pty Ltd (VCAT ref R2018/35104).
10. Based on evidence from the parties, I understand the hearing of the nine appeals had been expedited by the Court and that Ginane J has indicated he would give the decisions priority, so far as possible.

1. The hearing commenced at 9:30am, with the landlord's agents Ms Raffaele and Ms D'Ambrosio present. With no one present on behalf of Kornucopia, I started to hear evidence and submissions on behalf of the landlord.
2. At about 9:40am Ms Xu a director of Kornucopia arrived, apparently to represent the company. I summarised what had occurred. At about 9:50am, Mr Youl arrived on behalf of Kornucopia. Ms Xu appeared content that he present Kornucopia's case. At about 10am Mr Kuksal arrived, again on behalf of Kornucopia. Ms Xu appeared content that he present Kornucopia's case. He requested that VCAT provide an interpreter for Ms Xu. An interpreter by telephone was arranged. At about 11am, Mr Kuksal on behalf of Kornucopia, made an application under section 108 of the VCAT Act that the Tribunal be reconstituted, on the basis that I had exhibited bias against Kornucopia. Another VCAT deputy president arrived at the hearing to hear the reconstitution application. At about noon he dismissed the reconstitution application. I resumed the hearing, heard further submissions and reserved my decision.
3. It is convenient to record here that over the balance of the day I heard and reserved seven of the remaining eight cases scheduled on the day, except the VCAT case related to Supreme Court case S ECI 2019 01080, Kornucopia Pty Ltd v He (VCAT ref R2018/35130).

Parties' evidence and submissions in this case

1. As the appeal of Wong v Kornucopia is currently before the Supreme Court, it would be, "a gross injustice for VCAT to supersede the Court's authority"; 2. While the Court is well aware of VCAT's stay order of 26 April 2019, it has left the stay in place pending the Court's decision and had made no orders concerning payment by Kornucopia of rent claimed by the landlord, either to the landlord or into trust;

1. Kornucopia has an arguable case before the Court concerning VCAT's jurisdiction given submitted defects in the landlord's service of the relevant notice to vacate on Kornucopia as tenant; and

1. Kornucopia does not owe the landlord any rent, in fact the landlord owed money to Kornucopia.
2. Evidence was given on behalf of the landlord, that with a residential tenancy agreement in place between the parties since October 2017, Kornucopia had not paid rent since 14 January 2019. The agents agreed with my calculation, based on VCAT's findings of rent owed on 17 April 2019 ($5711) that rent owed on 14 June 2019 was approximately $9,250, ignoring Kornucopia's claim as to rent owed.
3. The landlord also submitted:

1. The landlord has suffered and continues to suffer severe financial hardship due to Kornucopia's non-payment of rent; 2. On 17 April before VCAT, Kornucopia had not contested that it owed rent, nor before Ginane J, (Kornucopia submitted it was contesting the rent owed before the Court); and

1. Kornucopia had no real grounds or prospect of success before the court and had not established the special or exceptional circumstances required by the authorities in order to justify the continuation of the stay.

1. Continue the VCAT stay and related orders, extending the life of the warrant of possession each 30 days, until the Court decides the appeal; 2. Continue the VCAT stay and related orders, subject to Kornucopia paying an amount of rent owed to the landlord or into a trust account, failing which the stay would come to an end and the landlord would, subject to the Court intervening, presumably have the warrant of possession executed by Victoria Police such that the landlord would regain possession of the rented premises; or

1. End the stay and related orders whereby the landlord would, subject to the Court intervening, presumably have the warrant of possession executed by Victoria Police such that the landlord would regain possession of the rented premises. In this scenario a very short extension of the stay would probably be allowed to provide Kornucopia with time to quickly seek that the Court by its orders, not VCAT orders, prevent Kornucopia from being evicted from the rented premises until the Court makes final orders.
2. This case and the other eight cases, as a group, discussed above are probably unique because:

1. It appears the final hearing before the Supreme Court in late May 2019 is at an end, with the Court's decision effectively reserved, subject to any party, in this case only, seeking a further hearing as contemplated in Ginane J's orders of 29 May; and 2. It appears that during the hearing of the nine cases over the two days, the Court was aware that the VCAT stay and related orders were in place and apparently continuing, noting it is unclear whether the Court was aware of Beach J's decision in Quick;

1. But for the Quick decision, VCAT would not have returned to this issue by scheduling a further hearing concerning continuance, or not, of stay orders;

1. The Court left the VCAT stay orders, in all the cases, in place and made no orders concerning payment of rent in the interim period between the end of the Court hearing and it delivering its decision; and 2. Ginane J appears to have indicated he would give his decision concerning these appeals priority, so far as his other duties allowed.
2. VCAT made the existing stay orders under section 149 of the VCAT Act, which is the basis of the discretion available here to decide the future of the stay.[3]
3. Of the three options available at this point, in my view two options are not appropriate.
4. It is not appropriate to at this stage grant an interim stay, so that Kornucopia may seek an ongoing stay from the Supreme Court. It is well past the point where VCAT, on being advised of Kornucopia's application to the Court for leave to appeal, might have taken the conventional approach of granting a short stay to enable Kornucopia to make application to the Court for an ongoing stay until the issues before the Court were decided. In that situation, it would have been for the Court to decide the terms of any ongoing stay, including whether rent owed or potentially owed should be paid to the landlord and/or paid into trust.
5. It is not appropriate to discontinue the stay at this point. If that was done and the landlord regained possession of the rented premises, Kornucopia's appeal to the Court will likely be rendered nugatory (worthless from Kornucopia's perspective) at a late stage in the Court's proceeding. If Kornucopia is evicted, VCAT will no longer have jurisdiction to make any orders in this proceeding concerning the rented premises. This will be in the context that the Court has left the VCAT stay order in place until it decides the appeal.

1. Related to discontinuing the stay, it would not be appropriate to create the scenario where Kornucopia may then apply to the Court for stay of the possession order, given that the Court in late May left the VCAT stay order in place.
2. Therefore, this leaves the other, in my view appropriate, option to, in this unique situation, continue the VCAT stay until the Court decides the appeal related to this proceeding.
3. Subject to any contrary order from the Court, VCAT will continue to periodically extend the life of the warrant of possession, until the outcome of the appeal is known.

The other eight stay hearings heard on 14 June

1. Given the great similarity between the situation in this case and the other eight VCAT cases I dealt with on 14 June, in all but the VCAT case related to Supreme Court case S ECI 2019 01080, Kornucopia Pty Ltd v He (VCAT ref R2018/35130), I have reached the same conclusion and ordered the stays to continue.
2. I will direct the principal registrar to provide a copy of these reasons to the parties in those cases, saying that unless they seek individualised reasons in a particular case, these reasons will stand as the reasons with respect to the orders made in those cases continuing the stay. If they make such application, I will provide short individualised reasons in the relevant case or cases, referring but not repeating the principles set out in this decision.
3. Concerning the VCAT case related to Supreme Court case S ECI 2019 01080, Kornucopia Pty Ltd v He, where I have not heard submissions from the parties, I have ordered that unless within seven days, either of the parties in that case seeks a further hearing to make oral submissions, the stay in that case will also continue.

[1] Reasons dated 7 May 2019 requested by Kornucopia.

[2] Concerning this case, the Supreme Court case number is S ECI 2019 01801.

[3] This statement is made being aware of the debate set out in the Annotated VCAT Act, Sixth Edition, pages 936 to 938, preferring the view that the Tribunal has jurisdiction to stay orders under section 149, once informed a party intends to appeal a decision to the Court (where only a short stay would be appropriate) to enable the application to be made where an application has been made to the Court for leave to appeal and where leave to appeal has been granted.