Tenancy

Transfer from court to VCAT

Sometimes, parties may commence proceedings in a court rather than at VCAT. It is possible to request the matter be stayed and enable to parties to apply to VCAT (s 188 the Australian Consumer Law and Fair Trading Act 2012 (Vic)). In exercising this discretion, the court must have regard to the costs, duration and advantage and disadvantage to the parties. This cannot be done if the matter has been transferred from VCAT to the court.

Transfer from VCAT to court

Similarly, sometimes parties may commence proceedings at VCAT rather than a court. It is possible, pursuant to section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act‘), for VCAT to strike out a matter if it thinks it can be more appropriately dealt with by another body or court. VCAT may do this upon request or at its own initiative (s 77(4) VCAT Act).

As set out above (see ‘Interstate parties’ under ‘Compensation claims by the renter’ in ‘Compensation claims related to tenancy‘), Part 3A of the VCAT Act is likely to affect the willingness of the Magistrates’ Court to hear the matter and refuse the transfer to VCAT. The magistrate needs only to be satisfied there is doubt about VCAT being the correct forum (for the reasons found in the Meringnage case) for there be a substituted proceeding. It is important to be clear about the application of Part 3A, rather than the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act‘) being the source of the originating motion or complaint. This is because Part 3A contains costs protections, and an action based solely on the Magistrates’ Court Act does not.

Appeals are highly complex and may not necessarily provide a practical long-term or economic resolve in a rental matter. Comprehensive advice should always be sought before appealing a VCAT decision.

Appeals of VCAT orders are made pursuant to section 148 of the VCAT Act. The appeal itself is regulated (Supreme Court (General Civil Procedure) Rules 2015; Supreme Court (Miscellaneous Civil Proceedings) Rules 2018).

For more information about appeals, see Pizer’s Annotated VCAT Act (7th edn) or contact a lawyer. See also the Supreme Court’s website (www.supremecourt.vic.gov.au/going-to-court/representing-yourself/appeal-or-review-a-decision/appeal-a-decision-made-by-vcat).

Appealing a possession order

If a possession order is based on an error in law and the warrant of possession has not yet been executed, there may be grounds for an appeal to the Supreme Court. If the warrant has been validly executed, it appears unlikely that the Supreme Court can reinstate the rental agreement (see Re Cokyavuz [2016] VSC 370 (28 June 2016)).

Time limits

If a party is seeking to appeal a VCAT decision, they must file an appeal within 28 days from the date of the VCAT order, or the provision of reasons for the decision, whichever is later (s 148(2) VCAT Act). It may be possible to apply outside of the 28 days, with the court’s permission.

Until the order in question is stayed by VCAT (s 149 VCAT Act), or interim orders are made by the Supreme Court, parties are expected to comply with the order and warrants may be executed. This means, for example, while a possession order may be appealed against, the warrant may still be executed according to the terms of the order until a stay in granted suspending the warrant. Therefore, generally, the filing of an appeal with the Supreme Court must be done before the warrant is executed. This may be earlier than 28 days as a time limit to file the originating motion.

Grounds for appeal

Appeals may only be lodged on an error of law (s 148(1) VCAT Act). They cannot be lodged simply because VCAT made a finding of fact that the parties disagree with. Whether a decision contains an error of law is a complex question, and legal advice should be sought as soon as practicable. (See, for example, Tidd v Jeffcott [2020] VSC 861 (17 December 2020): regarding the incorrect construction of the law; and Gauthan v Panwar [2021] VSC 157 (25 March 2021): regarding the denial of procedural fairness and natural justice.)

Generally, in order for a lawyer to be able to review the grounds for appeal, written reasons for a decision should be requested at the time of the hearing (s 117 VCAT Act). Alternatively, if this has not been done, parties may request a copy of the audio recording from their hearing.

Further, when filing an appeal, while not strictly required, it is generally necessary to obtain a transcript of the proceeding. Currently there is no fee waiver available for this service. Costs are estimated at around $200–$300 per hour of transcription. Refer to VCAT for approved services and quotes.

Costs

Supreme Court appeals are subject to the costs of the jurisdiction. That is, where at VCAT, parties generally bear their own costs of the proceedings (s 109 VCAT Act), in the Supreme Court costs ‘follow the event’. Costs in appeals can range immensely and again legal advice should be sought to give a reasonable estimate.

If a party is successful, they may recover their costs from the other side. If they are not successful, they may need to pay their own lawyers (subject to any conditional costs agreements). Unsuccessful parties may also have to pay the other side’s costs (which can be substantial), subject to the orders and discretion of the court. 

Indemnity certificate

In some cases, where a party is the respondent to an appeal, they may choose to defend VCAT’s decision. If the defence of the decision is unsuccessful, they may be entitled to be indemnified for their costs (s 4 Appeal Costs Act 1998 (Vic) (‘AC Act’)). Indemnity certificates are capped at $50 000 for each respondent (s 5(2) AC Act).

However, it should be strongly noted that there is no guarantee that a party will be entitled to such a certificate, and that it should not be expected to protect them from the costs of the proceeding. 

It is also important to note that if the respondent does anything that causes the discontinuance of the appeal, this may be grounds to be refused an indemnity certificate to protect the respondent against the other parties’ costs of the appeal (s 10 AC Act). Accordingly, parties who are the subject of an appeal should seek legal advice immediately (see Chapter 2.4: Legal services that can help) and consider other mechanisms to protect themselves against adverse cost orders.

Protective cost orders

In the decision of Bare v Small [2013] VSCA 204 (9 August 2013), the court considered protective costs orders (PCO). A PCO is made pursuant to section 24 of the Supreme Court Act 1986 (Vic). A PCO caps the costs associated with a proceeding, on terms seen fit by the court. A PCO may be granted where the court determines that the matter is important, in the public interest, the applicant is not seeking compensation or damages, the applicant lacks resources, the likely costs of the dispute, and that the applicant will likely discontinue with the proceeding because of the issue of costs (despite merit, though the latter is not clearly attended to by the decision).

A PCO can be sought at any time during a decision once an originating motion and summons have been filed. A PCO requires an interlocutory hearing. Generally, if a party is seeking a PCO, it is beneficial to make the application at the earliest stage possible. 

For more information, seek legal advice (see Chapter 2.4: Legal services that can help) or contact the Supreme Court Self-litigant Coordinator (see ‘Contacts’ at the end of this chapter).

Effect of the appeal

The effect of the appeal will depend upon the orders sought by the parties in their application. It is possible, if an appeal is successful, that the court could effectively substitute its own decision. However, most commonly given the appeal is based on the grounds of questions of law, the court will give reasons for its decision and order that the matter be reheard at VCAT.

VCAT may make a decision that is still not favourable. However, VCAT is bound by the decision and reasoning of the Supreme Court. Generally, the matter should resolve according to the principles set out by the Supreme Court decision. Often matters settle before being reheard formally at VCAT.

Practical considerations

Before lodging an appeal, parties should consider:

• the length of an appeal as appeals can take a number of months;
• the costs of appeal (while there are application fee waivers) – lawyer costs at the Supreme Court can be substantial;
• the fact that other rental rights remain intact may undermine the purpose of the appeal;
• that if the appeal is successful, the matter may be reheard and have the same or similar outcome.

Supreme Court Self-litigant Coordinator

The Supreme Court offers excellent procedural advice about how to file an appeal. Self-help information kits and forms about filing a Supreme Court appeal are available on the Supreme Court’s website (www.supremecourt.vic.gov.au).

However, the coordinator cannot provide legal advice (e.g. identifying the merit of an appeal). For the coordinator’s contact details, see ‘Contacts’ at the end of this chapter.

There are numerous offences in the RT Act. Offences are reportable to CAV. Upon receiving a complaint, CAV may caution a party, issue an infringement notice (s 510C RT Act) or prosecute (pt 13).

The most notable of the offences in the RT Act are:

• It is an offence for a person to make false or fraudulent representations about a RT Act provision, or a term included or to be included in a rental agreement, or a matter affecting a person’s rights or duties under the RT Act, or a rental agreement or a proposed tenancy agreement (s 501).
• It is an offence for a person, by threat or intimidation, to persuade or attempt to persuade a person to not exercise their rights to take or continue proceedings under RT Act (s 502).
• A rental provider/rental provider’s representative must not, except in accordance with the RT Act, require, compel or attempt to compel a renter to vacate the rented premises (s 229).
• A rental provider/rental provider’s representative must not obtain or attempt to obtain possession of a rented premises by entering them, whether the entry is peaceable or not, unless there are reasonable grounds to believe the renter has abandoned the premises (s 91P(2)).
• A rental provider/rental provider’s representative who obtains possession of a rented premises in respect of which a Notice to Vacate that has been given under sections 91ZY–91ZZB of the RT Act, must not let the premises to a person for use primarily as a residence before the end of six months after the date on which the notice was given (s 91ZZH), with the exception of the named family member in a section 91ZZA notice.
• A person to whom a determination of the tribunal under this Act applies must comply with that determination (s 480).
• A property must meet the minimum standards and be reasonably clean and vacant on the move-in date (ss 65, 65A).
• A rental provider must lodge the renter’s bond with the RTBA (s 406).
• A rental provider or agent must not ask a prospective renter for certain information when they are applying for a property (s 30C).
• A rental provider must tell a renter certain things about the property before they rent it (s 30D).
• A rental agreement must be in CAV’s standard form (s 26).
• A rental agreement must not include prohibited terms (s 26A).
• A rental provider or agent must advertise the premises for a fixed price and must not engage in rental bidding (s 30F).
• A rental provider or agent must not make a false or misleading statement about the rent of the premises (s 30G).
• A rental provider or agent must not engage in deceptive of misleading conduct to get a renter to enter into a rental agreement (s 30E).
• • A rental provider must not use the renter’s information for a reason other than assessing the rental application, or any other requirement of the RT Act (s 30B).
• • A rental provider must give notice to the database operator if they become aware that information is wrong, incomplete, ambiguous, out-of-date, or relates to family or personal violence (s 439G).
• A database operator, when notified by a rental provider, must remove tenancy database listings that relate to family or personal violence, or are out-of-date and must amend listings that are wrong, incomplete or ambiguous (s 439H).

CAV also oversees licencing and regulation of the Estate Agents Act 1980 (Vic), and may elect to investigate and take action in relation to misconduct by a real estate agent.

If parties are seeking to give CAV the best opportunity to ensure compliance with the RT Act, they should write an affidavit and exhibit any relevant documents. In the example of a non-lodgment of bond, an affidavit may include the lease, a copy of the receipt to evidence bond receipt, and an email from the RTBA to say they have no bond on record for the premises. Affidavits are not required, and complaints can be made over the phone. CAV will not always prosecute, but in severe cases of non-compliance, CAV will take action.