Plaintiff Seeks Possession of Property, Damages for Trespass and Costs

De Souza v Vavlitis [2021] VSC 554 (6 September 2021)

The parties entered into a residential tenancy agreement. When the defendant failed to pay rent, the plaintiff applied to the Victorian Civil and Administrative Tribunal for an order terminating the lease.  The plaintiff left Victoria to reside in Western Australia.  VCAT informed the plaintiff that her application was not accepted for filing as VCAT does not have jurisdiction to hear an application between residents of different States.  The Court, in deciding whether or not the plaintiff is entitled to judgment, observed the manner of service of notice to the defendant and relied upon the Residential Tenancies Act 1997 (Vic).

Facts:

Ms De Souza (plaintiff) owns a domestic premises which she previously leased to Ms Vavlitis (defendant).  On or around 9 April 2020 the plaintiff and defendant entered into a residential tenancy agreement to lease the Premises to the defendant.  The term of the lease was for six months commencing on 18 April 2020 and ending on 17 October 2020.  The rent was $1,629.00 per month.  When the defendant failed to pay rent, the plaintiff applied to the VCAT for an order terminating the lease.

The defendant still has not vacated the premises.  The plaintiff left Victoria to reside in Western Australia.  On 2 July 2021 the plaintiff commenced this proceeding seeking to gain possession of the premises and damages for trespass.  On 27 May 2021 the plaintiff applied to VCAT seeking orders for possession of the Premises.  On 3 June 2021 VCAT informed the plaintiff that her application was not accepted for filing as VCAT does not have jurisdiction to hear an application between residents of different States. 

On 2 July 2021 the plaintiff filed a writ and statement of claim in the Supreme Court of Victoria seeking possession of the property, damages for trespass and costs.  On 8 July 2021 the plaintiff arranged for the writ and statement of claim to be personally served on the defendant at the Premises.  At the time of service, the process server, Mr Hirons, confirmed that the person served was the defendant.  On 19 July 2021 the plaintiff filed an amended statement of claim maintaining the claims for possession of the Premises and damages for trespass, with a further claim (by way of amendment) seeking an order from the Court which directed the Residential Tenancies Bond Authority to pay the bond (provided by the defendant under the lease) to the plaintiff or alternatively that an officer of the Court on behalf of the defendant, or the defendant, make a claim to the Residential Tenancies Bond Authority (RTBA) requesting payment of the bond to the plaintiff and costs. 

The defendant has not filed an appearance in the proceeding within the time limit prescribed by the Supreme Court (General Civil Procedure) Rules 2015 (Rules).  Hence, the plaintiff has applied by summons dated 19 August 2021 for judgment to be entered against the defendant. 

Issue:

I. Whether or not the Supreme Court of Victoria has jurisdiction to hear the plaintiff's application. 

II. Whether or not the plaintiff is entitled to judgment. 

Applicable law:

Supreme Court (General Civil Procedure) Rules 2015 rr 6.03, 21.01–21.04 - provides in matters commenced by writ, where the defendant does not file an appearance within the time limit, the plaintiff may enter or apply for judgment against that defendant in accordance with that rule.  Where a claim is made other than for the recovery of a debt, damages or any property, whether or not a claim for such recovery is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with r 21.01 or 21.02, the Court may give judgment for the plaintiff, such judgment to be given upon the statement of claim.

Residential Tenancies Act 1997 (Vic) - does not afford the plaintiff a mechanism to obtain an order for possession in circumstances where the lease has already been terminated by order of VCAT under temporary amendments to the RTA by operation of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).

COVID‑19 Omnibus (Emergency Measures) Act 2020 (Vic) - inserted temporary sections into the RTA including Part 16, which came into effect on 29 March 2020, until it was repealed one year later on 28 March 2021.

Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021, Part 2 - enacted to address the jurisdictional issue of a proceeding involves a dispute between residents of different States.

Meringnage v Interstate Enterprises Pty Ltd & Ors [2020] VSCA 30 - the Court of Appeal found that VCAT was not a ‘court of a State’ within the meaning of Chapter III of the Commonwealth of Australia Constitution Act (Constitution), with the consequence that it does not have jurisdiction to exercise judicial power in a federal matter, within s 75 of the Constitution.

Gabor v Public Trustees of New South Wales [2007] VSC 410 - Mandie J considered the jurisdiction of both VCAT and the Supreme Court of Victoria in relation to the RTA.

Analysis:

The effect of s 448 of the RTA is that proceedings are not justiciable before the Court while the issue is the subject of a proceeding before VCAT.  Here the issue is not before VCAT.  On 20 July 2021, Mr Hirons left a sealed copy of the amended statement of claim and a further copy of the writ in the door handle of the front door. This was not in accordance with the requirements of r 6.03, because the documents were neither given to the defendant nor put down in her presence.  The provision on s 91P of the RTA precludes the plaintiff from gaining possession of the Premises otherwise than through the mechanisms available to her under the RTA.  Such mechanisms required the plaintiff to make an application for a possession order by 3 May 2021.

However, for the unamended claim, the process server, Mr Hirons, confirmed that the person served was the defendant.  This meets the requirements for ‘personal service’ as set out in r 6.03(1)(a), as these documents were given to a person identifying herself as the defendant.

Conclusion: 

The Supreme Court of Victoria has jurisdiction to hear and determine the plaintiff’s application.  The Court found that the defendant was not personally served with the amended statement of claim in accordance with the Rules.  As such, the plaintiff is not able to apply for judgment in default of appearance in respect of the amended statement of claim.  The defendant was personally served with the writ and statement of claim (unamended claim). 

The plaintiff’s claim, however, is out of time and she is thus not entitled to judgment in respect of the orders sought by the unamended claim.  The Court decided not to grant the plaintiff the relief she seeks.  No order is made in relation to the plaintiff’s principal proceeding as it is appropriate to give the plaintiff time to consider these reasons and to decide how she wishes to proceed.