VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP2015/2020	
CATCHWORDS	
RETAIL TENANCY DISPUTE:-whether to grant an interlocutory injunction to restrain the landlords from re-entering the demised premises and forfeiting the lease-whether a serious question to be tried arises-whether the demised premises are damaged, within the meaning of that term in s 57 of the Retail Leases Act 2003 (the RLA)-whether that issue has already been finally determined in a prior determination in this proceeding-whether concession that no notice has been given under s 26(3) of the RLA at an earlier hearing can be withdrawn- whether an estimate of outgoings given under s 46 of the RLA can be withdrawn -whether an affidavit filed after the conclusion of the hearing by the applicant should be considered.

APPLICANT	Link and Connect Pty Ltd	
RESPONDENT	Jimmy Poh Hock Seng, Penny Soai Ly Seng and Andrew Chun Hsien Seng as trustees for the JPA Seng Super Fund	
WHERE HELD	Melbourne	
BEFORE	Member C Edquist	
HEARING TYPE	Directions Hearing by videoconference	
DATE OF HEARING	28 July 2021	
DATE OF ORDER	10 September 2021	
CITATION	Link and Connect Pty Ltd v Seng (Building and Property) (No. 3) [2021] VCAT 1042	

Order
1.	The Applicant’s application for a permanent injunction preventing the Landlords from issuing any further notice under s146(1) of the Property Law Act 1958 in respect of the non-payment of rent and outgoings is dismissed;
2.	The Applicant’s application for an injunction to prevent the Landlords acting upon a s146 notice they issued on 19 July 2021 with respect to the non-payment of rent of $1,349.58 is dismissed;
3.	The Applicant’s application for an order adjusting the Tribunal’s Order 1 made 16 July 2021 is dismissed; and 

4.	The Applicant’s application for an order to refund to the Tenant all rent and outgoings paid in advance by the Tenant since 18 September 2020 is adjourned until the final hearing.

C Edquist 
Member			

APPEARANCES:		
For Applicant	Mr A Caspersz, director	
For Respondents	Mr N Young, solicitor	

Reasons
Background
1	The Applicant (‘the Tenant’) is the tenant of retail premises located in Middleborough Road, Box Hill South (‘the Premises’) in which it operates a real estate business. The Respondents (‘the Landlords’) are the registered owners of the land and building in which the Premises are located. 
2	Deputy President Riegler, when giving reasons on 7 July 2021 in respect of his determination of an earlier interlocutory application by the Tenant on 5 July (the Reasons of 7 July) said: 
It is common ground that the original document evidencing the Lease is in the form of a pro-forma lease published by the Law Institute of Victoria -May 2009 Revision entitled Lease of Real Estate and dated 21 October 2014. It is also common ground that this lease was renewed by agreement between the parties following a mediation facilitated by the Small Business Commissioner, although the parties are yet to execute a deed of renewal. Nevertheless, save and except for the amount of rent and the term of the lease period, the covenants set out in the document dated 21 October 2014 apply to the renewal.
3	The Tenant by an application dated 21 July 2021 seeks four orders against the Landlords. The application came on for hearing before me on 28 July 2021.The orders sought can be summarised as follows:
(a)	a permanent injunction preventing the Landlords from issuing any further notice under s146 (1) of the PLA (s146 notice) in respect of the non-payment of rent and outgoings;
(b)	an injunction to prevent the Landlords acting upon a s146 notice they issued on 19 July 2021 with respect to the non-payment of rent of $1349.58;
(c)	an order adjusting the Tribunal’s Order 1 made 16 July 2021; and
(d)	an order to refund to the Tenant all rent and outgoings paid in advance by the Tenant since 18 September 2020.
4	This is at least the fifth application for interlocutory relief made in this proceeding by the Tenant. The proceeding has been on foot since December last year. 
5	The substantive dispute was referred to by Deputy President Riegler in the Reasons of 7 July 21 in the following terms: 
9	Mr Caspersz [who appeared for the Tenant] explained that a major part of the Substantive Dispute concerns the installation by the Landlords of plant and equipment in the car park and external walls of the building, in which the Premises are located. He said that the Premises comprise the first floor of that building and that the lease agreement also gave the Tenant shared use of the car park area. Mr Caspersz advised that the plant and equipment was installed by the Landlords for the benefit of a second and unrelated tenant, who leased the ground floor of the building in which the Premises are located. Therefore, the car park area was to be shared between that tenant and the Tenant. According to Mr Caspersz, the installation of the plant and equipment has reduced the number of car spaces from what was originally five shared spaces to what is now two and a half shared spaces. Mr Caspersz contends that this has materially compromised the business being conducted from the Premises, to the extent that no business can be carried out. The hearing in February 2022, will determine whether the Landlords are entitled to install plant and equipment in the car park and external walls of the building, in addition to other matters, such as the Tenant’s claim for damages.
A short history of the Proceeding
6	On 9 December 2020, the Tenant applied for an injunction to protect it from being evicted for non-payment of rent. The injunction was granted on the basis that the Tenant paid rent in arrears. The proceeding was listed for hearing on 13 April 2021, with an allowance of one day 
7	At the hearing on 9 December 2020, the Tenant was represented by its director, Mr Adrian Caspersz and the Landlords were represented by their solicitor, Mr Neil Young. Mr Caspersz has continued to appear on behalf of the Tenant throughout the proceeding, and Mr Young has continued to represent the Landlords.
8	The Tenant, at the hearing on 9 December 2020, asked for the proceeding to be listed for a compulsory conference. That request was refused. Mr Caspersz did not accept the position and applied at a directions hearing on 11 February 2021 for a compulsory conference to be ordered. That application was also refused.
9	There was a directions hearing on 23 March 2021 which was primarily concerned with pleading points and applications to issue summonses.
10	The final hearing of the proceeding began on 13 April 2021. It quickly became clear that the listing of the hearing for one day only had been ambitious. Although Mr Caspersz, at the opening of the hearing, was not prepared to indicate the exact quantum of damages the Tenant was seeking, it was apparent from a demand made against the Landlords in September 2020 that the total claimed might exceed $2 million. It also became clear that the scope of the disputes between the parties was substantial. In an endeavour to expedite the proceeding, the Tribunal invited the parties to identify some discrete issues which could be determined, but no agreement could be reached. Mr Caspersz opened the Tenant’s case by calling and cross-examining for most of the day a former managing agent of the premises, a Ms Bonello. After the conclusion of the day, having regard to the size and complexity of the dispute, the proceeding was listed for a further seven days. Owing to the state of the list, the final hearing will resume on 28 February 2022. 
11	In a further endeavour to expedite the conclusion of the proceeding, the Tribunal, identified three discrete issues which it considered might be capable of determination as preliminary issues. These related to the issue of the basis upon which the Tenant was in possession, a dispute about the operation of s 146 of the Property Law 1958, and a dispute about whether clause 19 of the Lease was operable. The Tribunal listed a directions hearing for 27 April 2021. The intended purpose of the directions hearing was to discuss these proposed preliminary issues. 
12	At this directions hearing, Mr Caspersz raised the question of whether an injunction might be granted in order to secure rent relief for the Tenant on an interim basis pending the final hearing. Detailed orders were made regarding the provision of documents in respect of the preliminary questions and in relation to the application for an injunction. 
13	The Tenant made its first application on 26 May 2021 for an interlocutory order aimed at protecting it from having to continue to pay rent in respect of the Premises which it was continuing to occupy. The Tenant elected to press its application on the basis of ss 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). Section 97 requires the Tribunal to “act fairly and according to the substantial merits of the case in all proceedings”. Section 98(1)(a) provides that the Tribunal is bound by the rules of natural justice. The Tenant’s argument was that fairness and natural justice required the Tribunal to suspend its obligation to pay rent under the lease. The Tenant’s reference to these provisions was surprising as the Tribunal had already indicated at the directions hearing held on 27 April 2021 that reliance on these provisions was misconceived, as “The Tribunal has no jurisdiction to simply suspend the operation of the lease on the basis of one party’s conception of the notice of fairness or natural justice.” The application based on those sections was refused. 
14	At this point of the hearing, on 26 May, the Tenant fell back onto its alleged entitlements under the RLA. Prior to this interlocutory hearing, the Tenant had filed affidavits sworn by Mr Caspersz on 22 March, 8 April, 12 April, 26 April and 17 May 2021. The exhibits to the affidavits totalled almost 400 pages. Because of the volume of material filed by the Tenant, the Tribunal had ordered on 27 April 2021 
By 4.00 p.m. on 17 May 2021 the applicant must send the Tribunal and the respondent:

(a)	notification of any section of the Retail Leases Act other than s 57 upon which the applicant relies in seeking relief from payment of rent or outgoings under the lease for any period; 
(b)	a list of the paragraphs in each of the affidavits affirmed by Mr Caspersz which it says are relevant to the sections of the Retail Leases Act upon which it relies;
(c)	a list of the exhibits to the affidavits which it says are relevant to the sections of the Retail Leases Act upon which it relies;
(d)	any further affidavit which the applicant elects to file in respect of its application for relief from payment of rent and outgoings.
The evidence which the applicant is to refer to under this Order must be limited to the issues arising under s 57 of the Retail Leases Act or such other section of that Act upon which the applicant relies in making its application for relief from payment of rent and outgoings.

15	The Tenant flouted this order, which had been specifically made to assist it in the presentation of its application. Consequently, the Tenant was not a position to proceed efficiently with its application on 28 May. In particular, in relation to the first section of the RLA upon which the Tenant sought to rely, namely s 26, the Tenant could not identify in the voluminous evidence it had filed the notice from the Tenant to the landlord that the Tenant had not been given a disclosure statement, required by s 26(3). The Tribunal did not dismiss the applications based on s 26 and other sections of the RLA. The hearing was brought to an end without a decision being made concerning these applications. 
16	In an endeavour to assist the parties to resolve the dispute, the Tribunal after the first day of the hearing listed the proceeding for a compulsory conference. A compulsory conference was eventually held in early June 2021, but it was unsuccessful. 
17	There was a hearing about the 3 preliminary issues on 11 June 2021. The first two issues were determined in the Tenant’s favour. However, no agreement could be reached as to the facts or even the documents relevant to the determination of the clause 19 dispute. Furthermore, Mr Caspersz wanted to cross examine one of the respondents, Mr Andrew Seng. In these circumstances, the determination of the clause 19 dispute was left for determination at the final hearing.
The June default notice
18	On 22 June 2021, the Landlords served the Tenant with a Notice of Breach of Lease (the June Default Notice) under s146 of the Property Law Act 1958 (the PLA), in which it was alleged that the Tenant was in arrears of rent and outgoings totalling $6,065.08. The June Default Notice stated that if the alleged breaches were not remedied by 5 p.m. on 6 July 2021, the Landlords may re-enter the Premises. 
The application of 5 July 2021 
19	The Tenant sought an interlocutory injunction to restrain the Landlords from re-entering the Premises in reliance upon the June Default Notice. On 5 July 2021 Deputy President Riegler heard the application. On 7 July 2021 he issued an Order (accompanied by the Reasons of 7 July) restraining the Landlord from terminating the lease on the basis of the Notice until 4 p.m. on 14 July 2021.
The application of 8 July 2021
20	On 8 July 2021, the Tenant filed another application seeking injunctive relief to restrain the Landlords from re-entering the Premises and forfeiting the Lease in reliance upon the June Default Notice. Although the grounds set out in the application which had been determined on 7 July were largely mirrored in the second application, Deputy President Riegler found that there were additional facts, matters or circumstances that bore on the question of whether interlocutory relief should be granted, and he ordered that the second application be listed before him on 14 July 2021. 
The Tenant’s further submissions dated 15 July 2021
21	On 15 July 2021, the Tenant filed and served further submissions. In an introductory paragraph the Tenant explained that the reason for the further submissions was that it was “of the belief that the Tribunal may still be unclear as to its understanding of the Applicant’s position of the Respondents ‘damage’ to the subject leased property”.
The Tribunal’s Orders of 16 July 2021
22	On 16 July 2021, Deputy President Riegler issued orders with reasons (the Reasons of 16 July). In these Reasons he made no reference to the further submissions of 15 July 2021. The principal order made was Order 1 which read:
Subject to the Applicant [the Tenant] paying the arrears of rent described in Notice of Breach of Lease dated 22 June 2021 by 4:00 PM on 23 July 2021, the Respondents [the Landlords], their agents or servants are restrained from terminating the lease between the parties dated 21 October 2014 as renewed in July 2020 or from re-entering the premises, the subject of that lease, in reliance upon the Notice of Breach of Lease dated 22 June 2021.
The Tenant’s response
23	On 16 July 2021, the Tenant sent an email to the Tribunal which was copied to the Landlords which commented on the Orders issued on that day. The email made it clear that the Tenant disagreed with the findings made for a number of reasons including that the Reasons failed to make any comment regarding the further submissions sent on 15 July 2021.
The landlords’ further demand for rent 
24	Late in the afternoon of 16 July 2021, the Landlords, through their solicitor, wrote to the Tenant observing that the Orders issued on that day did not refer to the rent due on 20 June 2021. The email advised that rather than exercising a right to issue a further s146 notice in respect of that rent, the Landlords proposed to give the Tenant an opportunity to pay that rent. The email also advised that the ASL Real Estate (the Landlords’ managing agent) would be issuing “the requisite” statement of outgoings shortly and would then be seeking payment of outgoings.
25	The Tenant responded, asserting that the correspondence was “intimidating and threatening” on a number of grounds including that the letter presumed that the Tribunal would not alter its position as set out in the Orders issued on 16 July 2021 in view of the Tenant’s subsequent correspondence.
The July Default Notice
26	The Landlords, on 19 July 2021, issued another notice under s146 of the PLA alleging non-payment of rent of $1,349.58 (the July Default Notice). 
The application of 21 July 2021
27	On 21 July 2021, the Tenant issued the application with which this determination is concerned. As noted, the first order sought is a permanent injunction restraining the Landlords from issuing any further notice under s146 of the PLA with respect to non-payment of either rent or outgoings. The second order is aimed at preventing the Landlords from acting upon the July Default Notice. The third order sought is an order adjusting the Tribunal’s Order 1 made 16 July 2021, as that order required the Tenant to pay the arrears of rent referred to in the June Default Notice. The fourth order sought is an order to refund to the Tenant all rent and outgoings paid in advance by the Tenant since 18 September 2020. The application was supported by closely typed submissions running to 10 pages. 
The hearing on 28 July 2021
28	The application made on 21 July 2021 came on for hearing before me on 28 July 2021. In overview, Mr Caspersz sought to reopen the Tribunal’s dismissal on 16 July 2021 of the Tenant’s application for rent relief under s 26 of the RLA. He also sought to open up the determination of the Tribunal that the installation of plumbing plant and equipment in the car park area and on the external wall of the building did not constitute damage for the purposes of s 57 of the RLA. In respect of outgoings, Mr Caspersz raised an entirely new matter, which was that a notice of outgoings for the financial year 2021-2022 had been issued which had, in the circumstance, the effect of protecting the Tenant from having to pay outgoings until 1 July 2022.
29	It was it was put to Mr Caspersz in the early part of the hearing that the Tribunal could not open up findings which had already been made by Deputy President Riegler about relevant issues concerning the operation of s 26 and s 57 of the RLA. Mr Caspersz submitted that the Tribunal was not bound by the determinations made by Deputy President Riegler in his decisions of 7 July and 16 July 2021 concerning the operation of those sections. Because of the complexity and importance of that issue, the parties were given leave to file brief submissions regarding it.
30	In relation to the re-opening of the s 26 issue, it became clear that the Tenant wished to rely heavily on a notice of outgoings payable under the Lease for a 12 month accounting period which was contained in an email sent from the managing agent ASL dated 17 July 2021 (the Notice of Outgoings). The Tenant said that the relevant accounting period was for the financial year ending 30 June 2022 and that this accounting period had been accepted by it. The Tenant argued that this new notification of the commencement of the starting point of the accounting period operated to enliven in its rights under s 26. It was common ground that the Landlords, again through the managing agent ASL, had purported to withdraw the estimate of outgoings on 19 July 2021. The Tenant contended that this could not be done. Because of the importance of the novelty of the issue, the parties were given leave to file and serve brief submissions about the matter by 9 August 2021.
Receipt of further submissions in August 
31	The Tenant filed further submissions on both issues, together with a new five-page affidavit sworn by Mr Caspersz on 5 August 2021. The Landlords filed brief submissions on both issues, but did not file any further affidavit material.
Mr Caspersz’s affidavit of 5 August 2021 
32	Mr Caspersz’s further affidavit was filed without leave, and accordingly there is an issue as to whether I should have regard to it. If I ignore it, that may lead to another application being made. That would cause a delay in resolution of this interlocutory application as well as inconvenience, expense and almost certainly continuing anxiety for the individuals involved in the litigation on both sides. On the other hand, if I have regard to the affidavit and rely on it in relation to contentious matters without giving the Landlord’s an opportunity to respond, I will be denying them natural justice.
33	I have read the affidavit, and note its contents are in some respects uncontroversial. For instance, paragraphs 1 to 4 are merely introductory in nature. In paragraphs 5,6 and 7 Mr Caspersz deposes as to the nature of the affidavits and documents he has previously filed with the Tribunal. Paragraph 10 of the affidavit is to the effect that ASL are the authorised representatives of the Landlords, which is not disputed. Paragraphs 11,12 and 13 put into evidence correspondence which was put before the Tribunal by agreement at the hearing. 
34	However, in paragraph 8 of the affidavit, Mr Caspersz refers to the June Default Notice and deposes that it contains anomalies. That is an expression of opinion. Paragraph 9 of the affidavit refers to the July Notice of Breach of Lease. Again, Mr Caspersz deposes that this notice also contains anomalies. This too is an expression of opinion. 
35	Real difficulties with the affidavit arise in paragraphs 15, 16 and 18. In paragraph 15, under the guise of evidence, Mr Caspersz seeks to put forward an entirely new submission. The relevant passage begins:
36	However, on further review of the ’subject lease’, and reading other literature on the matter, it is clear now that the accounting period specified in the ’subject lease’ MUST be 30th June of each year, simply because … 
A detailed argument covering 9 lines of text is then set out.
37	In paragraph 16, Mr Caspersz, also under the guise of giving evidence, effectively makes a submission that the Tenant’s request for an immediate provision of an estimate of outgoings contained in an email of 21 December 2020 should be construed as a request for a disclosure statement in accordance with s 26(3) of the RLA.
38	In paragraph 18, Mr Caspersz makes a submission regarding the nature of damage in the context of s 57 of the RLA
39	In paragraph 19, Mr Caspersz makes a statement about the inability of the Tenant to derive revenue from the subject premises. 
40	Paragraph 20 addresses the issue of the financial impact on the Tenant and its directors and their children which it is contended will arise if the interlocutory injunction sought is not granted. This may be a belated attempt to provide evidence regarding the issue of where the balance of convenience lies. This view of the purpose of this section of the affidavit is reinforced by paragraph 21, which is a submission about the balance of convenience issue, looked at from the point of view of the Landlords. Paragraph 22 is also a submission on the balance of convenience, which makes specific reference to the Tenant’s intellectual property being at risk if the Landlords take possession of the Premises.
41	The contents of the affidavit are in many parts contentious. Much material which is ostensibly put forward as factual is on analysis seen to be an expression of Mr Caspersz’s opinions. Some of the material is not evidence at all, but constitutes submissions which Mr Casper seeks to make after the hearing is over.
42	In seeking to augment in this way the submissions he made in writing prior to the hearing on 28 July 2021, the submissions he made orally at the hearing and the 2 short submissions he filed with leave after the hearing, Mr Caspersz is repeating the tactic he adopted after the hearing on 14 July 2021. On that occasion, he sent further submissions to the Tribunal on 15 July.
43	In my view, the submission of further material after a hearing without leave is impermissible. In Hristovski v Chan, Member Sweeney had to deal with a situation where about three weeks after the conclusion of a hearing the applicant sent in an email referring to additional material and/or submissions. Member Sweeney declined to have regard to the contents of this email or any material or submission it sought to refer to. His reasons for this approach, set out at [151-155] were as follows:
151. The Court of Appeal of the Supreme Court of Victoria considered the principle and authorities applicable when a party sends additional material to the court after the hearing has been concluded. Whilst the decision is concerned with the conduct of an appeal, there is no reason why the principle enunciated should be so confined.
152. In Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178 (13 August 2012) per Warren CJ, Nettle JA and Beach AJA, a week after the hearing of the appeal and after the Court had prepared its reasons, the appellant sent an email to the Registry in which he stated that he had withdrawn his instructions to the senior counsel and solicitors who had represented him on the appeal, and enclosed 18 typed pages of ‘Further Submissions’.
153. The Court refused to have regard to the ‘further submissions’, stating:
                       ... they should not have been forwarded to the Registry. Neither the Rules of Court nor the applicable Practice Statements gave any authority for them to be forwarded without leave, and the court has not been asked to give or given leave for them to be filed. Moreover, if leave had been sought, we would have refused it, because, if we were to give leave, we would then have to give leave to the builders to file replies, with consequent delay in the business of the court.
As has been said repeatedly in the High Court and in this court, the idea that parties may, without leave, file supplementary written submissions after the conclusion of oral argument is misconceived. The time and place to present argument, whether wholly oral or as supplemented by written submissions, is the hearing of the appeal. Once the hearing of an appeal has concluded it is only in very exceptional circumstances, if at all, that the court will later give leave to a party to supplement submissions.
154. The Court of Appeal referred to the High Court decision of McHugh J in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28:
             Efficiency requires that the despatch of the court’s business not be delayed by further submissions reflecting the afterthoughts of a party ...
155. Whilst Frugtniet was concerned with a proceeding on appeal and recognising that there are differences in rules of procedure, this does not take away from more general application of the principle to a first instance hearing, such as the present proceeding before the Victorian Civil and Administrative Tribunal.
44	The robust approach of Member Sweeney in Hristovski v Chan of declining to have regard to submissions filed after the conclusion of the hearing was adopted by Member Feeney in the recent case of J Monasso Nominees Pty Ltd v ADZ Construction Pty Ltd. 
45	I can see no reason to take a different approach to that adopted by Members Sweeney and Feeney respectively. I can identify no exceptional circumstances which would justify a decision to have regard to the affidavit. On the contrary, it is to be remembered that in relation to this particular application, Mr Caspersz had an opportunity to file submissions prior to the hearing on 28 July, he had an opportunity to address the Tribunal at the hearing, and he was given a further opportunity to file short submissions on two topics following the hearing. All this is in a context where this is the fourth application that Mr Caspersz has made for interlocutory relief based on sections of the RLA. 
46	The Tenant’s right to be heard further must be weighed on the scales of justice against the Landlords’ entitlement to have this application determined as quickly as possible. If I were to have regard to the contents of the affidavit, it would be necessary to give the Landlords an opportunity to respond. There would be even more delay before a determination could be delivered. 
47	For all these reasons I decline to take the contents of the affidavit of 5 August into account in determining the present application. 
Consideration of the issues
48	Now that I have ruled on the admissibility of the affidavit, I turn to the submissions made by the parties prior and at the hearing on 28 July, and to the respective sets of submissions filed by the parties on 9 August 2021. 
Legal principles 
49	At the hearing, there was no detailed discussion regarding the relevant legal principles. They had been addressed in detail by Deputy President Riegler in his Reasons for decision of 7 July 2021 at [10-12]. For present purposes is sufficient to note that the Deputy President referred to the judgment of Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill, in which Gleeson CJ and Crennan J set out the test to be applied in an interim or interlocutory injunction. Deputy President Riegler then observed, at [11]:
In the many cases which have followed ABC v O’Neill, the second criterion, namely that the plaintiff will suffer loss for which damages are not an adequate remedy does not usually require separate consideration in the tenancy context. Therefore, there are only two questions which arise in a typical tenancy dispute where the courts or the Tribunal are considering whether to grant an interlocutory injunction. The first question is whether a serious question to be tried has been demonstrated to exist as to the relief sought. The second question is whether the balance of convenience favours the grant or refusal of the injunction.
50	The application before me proceeded on the basis that these were the two questions to be addressed.
Sequence for determination of the issues 
51	It is neither necessary nor desirable to deal with the respective applications for orders in the sequence in which they have been made. The application for the fourth order can be dealt with summarily, because the Tenant conceded at the hearing that any financial adjustments between the parties ought to occur at the conclusion of the final hearing. Furthermore, it is convenient to deal next with the third order sought, because it can be dealt with quickly. As between the first application, which is for a permanent injunction preventing the Landlords from issuing any further notice under s146 (1) in respect of the non-payment of rent and outgoings, and the second application, which is for an injunction restraining the Landlords from acting upon the July Default Notice with respect to the non-payment of rent of $1,349.58, it is logical to deal with the application for a permanent injunction first. This is because the outcome of that application will govern the outcome of the application concerning the July Default Notice. 
The application for an order adjusting the Tribunal’s order made 1 July 2021 
52	The Tenant asks the Tribunal to amend its order made 1 July 2021 (the Order of 1 July). The power of the Tribunal to amend its own order is limited to the circumstances set out in ss 119, 120 and 120A of the VCAT Act. It was not suggested by the Tenant that the Order should be amended under the “slip rule” referred to in s 119. Obviously, s 120 is not applicable, because the Order was made in respect of the hearing at which the Tenant was present. The Tenant relies on s 120A of the VCAT Act. 
53	Section 120A is headed “Re-opening an order for enforcement reasons”. Relevantly, it provides: 
(1)	A person in whose favour an order of the Tribunal is made may apply to the Tribunal for review of the order to remedy a problem with enforcing or complying with the order. 
(2)	…
(3)	…
(4) 	The Tribunal may vary the order, or revoke the order and make any other order that the Tribunal could have made in the proceeding in which the order was made, if the Tribunal is satisfied that— 
(a) 	there are problems with enforcing or complying with the order; and 
(b) 	having regard to those problems, it is appropriate to vary the order, or revoke the order and make another order (as the case requires). 
54	The Tenant contended that the Tenant could invoke the provision because it was the beneficiary of the Order. It highlighted that the section applies where there is “a problem with enforcing or complying with the order.” It submitted that the issue in the present case was not one of enforcement, but that the Tenant and a problem with complying with the Order. The problem referred to was that the Tenant had to pay the arrears of rent described in the June Notice of Breach by 4:00 p.m. on 23 July 2021.
55	I think the Tenant’s application under s 120A is misconceived. Firstly, in my view, the provision is directed at the situation where an order made by the Tribunal is unworkable. The effect of the provision is to make it clear that the Tribunal retains in respect of its orders a supervisory jurisdiction which empowers the Tribunal to intervene if there is a practical problem with enforcement or compliance with an order. 
56	The Tribunal has considered the operation of s 120A of the VCAT Act on a limited number of occasions. An example is Zhang v Owners Corporation RP4292, in which Member Treble had to consider an application by the applicant to reopen an order she had made on 2 December 2019 that the respondent owners corporation should replace a portion of a boundary fence on the common property. The Member was satisfied that there were a number of issues that affect the compliance with her orders, “most notably the lack of response from the adjoining property owner, in circumstances where their agreement in relation to the fence line and/or the potential removal of the trees affecting the fence line is at issue.” She was prepared to make an order varying her original order. 
57	This decision is consistent with my view that s 120A is to be applied where there is a practical problem with enforcement or compliance with an order. There is no such problem here.
58	The “problem” to which the Tenant refers is the obligation placed upon it to pay the arrears of rent stated in the June Notice of Breach. That is an obligation which the Tenant clearly feels should not have been imposed upon it. However, the Tenant’s sense of grievance is not legally relevant. The Order complained of may be inconvenient. It may even be burdensome. However, the Tenant cannot say that there is a practical problem with complying with it. Indeed, when it became clear that the Tribunal was not going to intervene and make an order based on s 120A in the Tenant’s favour before the hearing on 28 July 2021, the Tenant paid the rent in arrears in order to achieve protection from eviction. 
59	A second difficulty which the Tenant faces, having paid the required rent, is that there is no utility in opening up the Order, because both the Tenant and the Landlords have complied with it. The matter is, as the Landlord submitted, “closed”.
60	For these reasons, I rule against the Tenant in respect of its application under s 120A and I will not amend the Order.
The tenant’s arguments regarding REOPENING orders made by Deputy President Riegler
61	The current application of the Tenant is for injunctive relief under s 123 of the VCAT Act. The Tenant submits that there is no difficulty in opening up a determination made by the Tribunal in a prior interlocutory application. The Tenant, in its written submissions of 9 August 2021 at [5], contends that:
The primary difference between an interlocutory order and/or reasons provided under s123 and a final order(s) and/or reasons after ‘main’ proceedings is that an interlocutory order and/or reason is predicated on maintaining the ‘status quo’ thereby NOT making final decisions and orders that would prejudice decisions to be made in the main (final) proceedings given that interlocutory orders are only predicated on determining ‘whether there is a serious question(s) to be tried’, and if yes, then consideration of the “balance of convenience. No ‘final’ decisions or orders made on any matter are made in [an] interlocutory application simply because that is reserved for the determination of final orders in the ‘main’ proceedings.
62	In support of its position, the Tenant refers to Waikato Pty Ltd v Kaplan where Gillard J said, at [33]:
An interlocutory injunction is merely provisional in its nature and does not conclude or determine any rights. Its object is to preserve the position which is in dispute in status quo until the hearing and determination of the dispute or further order. The Court does not in general seek to anticipate the determination of the right but merely gives its opinion as to whether or not there is a serious issue to be determined and if the case has been made out for the preservation of a right which has been breached or threatened.
63	The Tenant goes on to submit, at [6], that the decisions of the Tribunal made in the two previous injunction hearings (of Deputy President Riegler) are “interlocutory” and “interim” in nature, and therefore cannot be final decisions.
64	The Tenant refers to four cases in support of its submission. The first is the decision of the High Court in Australian Broadcasting Corporation v O’Neil [2006] HCA 36. This is relevant to the Tribunal’s two stage enquiry all when an interlocutory injunction is sought. It is not clear how the case advances the Tenant’s argument.
65	The second case relied on by the Tenant is Deputy President Riegler’s determination of 16 July 2021. Paragraphs 1-3 of the Reasons of 16 July are highlighted. In these passages, Deputy President Riegler says:
On 5 July 2021, I heard an interlocutory injunction application filed by the Applicant (‘the Tenant’), in which it sought an order to restrain the Respondents (‘the Landlords’) from re-entering retail premises located in Box Hill (‘the Premises’) in reliance upon a default notice dated 22 June 2021 (‘the Default Notice’). By orders dated 7 July 2021, I dismissed the interlocutory application, subject to an undertaking given by the Landlords that they would not exercise their right of re-entry prior to 4 PM on 14 July 2021 (‘the First Injunction Application’).
On 8 July 2021, the Tenant filed another application, again seeking injunctive relief to restrain the Landlords from re-entering the Premises and forfeiting the subject lease in reliance upon the Default Notice (‘the Second Injunction Application’). Although the grounds set out in First Injunction Application were largely mirrored in the Second Injunction Application, I found that there were facts, matters or circumstances that bore on the question whether interlocutory relief should be granted. Consequently, I ordered that the Second Injunction Application be listed for hearing before me for the purpose of considering those additional facts, matters or circumstances. The Second Injunction Application was heard on 14 July 2021.
The background facts are set out in detail in my determination and Reasons dated 7 July 2021. 
66	Two things are to be noticed about the introductory passages. In the first place, it is clear that the Second Injunction Application was made before the expiration of the undertaking which had been given by the Landlords that they would not exercise a right of re-entry before 4 PM on 14 July 2021. Secondly, it is clear from [2] that the purpose of the second hearing was to enable consideration of “additional facts, matters or circumstances”. (My emphasis). Accordingly, the hearing was not concerned with opening up matters previously decided. 
67	The third case relied on is P Dawson Nominees Pty Ltd v Australian Securities and Investment Commission (No. 2) [2009] FCA 413 (P Dawson Nominees). This was a decision of Goldberg J in the Federal Court. The case primarily related to a subpoena to produce documents and a claim for public interest immunity privilege (the PII issue) The PII issue had been determined at first instance and had been the subject of an appeal to the Full Court. The applicant sought to reopen the issue. Goldberg J ruled, at [49], that in order to make the application the applicant had to satisfy a threshold issue, namely it had to persuade the Court that one or more the following factors had been satisfied:
(a)	there is new material or new evidence which was not available, or reasonably available, to them at the time the first orders were made;
(b)	there has been a material change in the circumstances since those orders were made;
(c)	there are exceptional circumstances which warrant re‑consideration of the matter; and
(d)	as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter.
68	In my view, this decision is not relevant to the present application, which is concerned with the extent to which a finding made by the Tribunal at a previous interlocutory hearing can be reopened. The decision is concerned with the circumstances in which an interlocutory application concerning a particular issue can be remade. 
69	If the Landlords had at the hearing on 28 July 2021 raised the principles articulated in P. Dawson Nominees with me, I may well have been disposed to determine the application against the Tenant on the basis that the Tenant was now seeking to raise as new evidence facts which had been available to it at the time of the hearing of its third application on 14 July 2021. However, the Landlords did not raise the argument, and I do not determine the present application on the basis of it. I simply confirm that P Dawson Nominees does not assist the Tenant in its present application.
70	The fourth case referred to by the Tenant is the Tribunal’s decision in Davies v Diversiti Pty Ltd(Davies). The Tenant says that the case stands for the proposition that “there is no rigid rule that confines the capacity to bring a second interlocutory application, after the failure of the first seeking the same relief, to particular instances.” The point is well made, as this is precisely what the presiding member, Senior Member Vassie, said at [54], after referring to a number of authorities including P. Dawson Nominees and the decision of Hargrave J of the Supreme Court in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd.  
71	The decision in Davies no more assists the Tenant than did the decision in P Dawson Nominees. Like Goldberg J’s decision, it was concerned with the circumstances in which a second interlocutory application seeking relief on the same ground as a failed first application might be heard. It is not relevant to the question of whether a finding made at an interlocutory hearing can ever be regarded as final.
72	As none of the authorities referred to by the Tenant assist in the resolution of the issue. I turn to other authority. I consider that there is a fallacy in the Tenant’s line of argument, as sometimes it is appropriate for the Tribunal to make a finding of an issue on a final basis even at an interlocutory stage. 
73	Guidance on the point is provided by the Court of Appeal decision in Siemens Gamesa Renewable Energy Pty Ltd v Bulgana Wind Farm Pty Ltd (Siemens) This case involved an appeal from a decision of a judge of the Supreme Court at first instance not to restrain an owner, the respondent Bulgana, from cashing a bank guarantee provided as security under a construction contract by the contractor, Siemens. Siemens based its argument on an agreement which it said had been reached by an exchange of letters. Siemens contended that by the terms of the agreement Bulgana had agreed that it would not call the bank guarantee to obtain payment of delay damages, but would rely instead on its right to set off those damages against progress claims. The primary judge determined that he should construe the agreement on a “final basis”, applying an earlier decision of the Victorian Court of Appeal, Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd (‘Sugar Australia’). Siemens appealed. One of the grounds of appeal was that the judge had erred in determining the construction of a particular clause in the agreement on an “as if” final basis, as opposed to determining the construction of the clause on a prima facie case basis. In respect of this issue, the Court of Appeal referred to Sugar Australia as pointing towards“the desirability of finally determining the question of construction rather than granting interlocutory relief.”. However, it was recognised that there was no absolute rule to this effect.
74	It follows from Siemens that it may be legitimate for the Tribunal at an interlocutory stage of a proceeding, in an appropriate case, to determine an issue of construction of a document or a legislative provision on an “as if” final basis.
75	With this observation in mind, I now turn to the specific arguments raised in relation to s 26 and s 57.
The argument concerning s 26
76	Section 26 of the RLA relevantly provides:
Landlord’s disclosure on renewal of lease
(1) If –
(a)   a Tenant has exercised, or is entitled to exercise, an option to renew a retail premises lease granted under the lease; or
(b)   all of the parties to a retail premises lease enter into an agreement to renew the lease –
the landlord must (at least 21 days before the end of the current term of the lease in the circumstances referred to in paragraph (a) and no later than 14 days after the entering into of the agreement in the circumstances referred to in paragraph (b)) give the Tenant a disclosure statement in the form prescribed by the regulations...
(3) If the Tenant has not been given the disclosure statement before the expiration of the relevant period specified in subsection (1), the Tenant may, no later than 90 days after the expiration of the relevant period, give the landlord a written notice that the Tenant has not been given the disclosure statement.
(4) If the Tenant gives the landlord a notice in accordance with subsection (3) –
(a)   the Tenant may withhold payment of the rent until the day on which the landlord gives the Tenant the disclosure statement;…
77	Mr Caspersz submitted that the Landlords failed to provide the Tenant with a disclosure statement pursuant to s 26 of the RLA and that in those circumstances, s 26(4)(a)  permitted the Tenant to withhold rent. 
78	Central to the present dispute is the requirement contained in s 26(3) of the RLA that if the tenant has not been given a disclosure statement, the tenant must give the landlord a written notice to that effect. The Tenant at its first application for interlocutory relief based on s 26, on 17 May 2021, was unable to point to such a notice. The Landlords contended at that hearing that this was because it did not exist. 
79	The Landlords’ point was well made, because at the first hearing before Deputy President Riegler, Mr Caspersz conceded that no such notice had been given. As the right to withhold the payment of rent under s 26(4)(a) of the RLA only arises if the Tenant has given the landlord a written notice, within 90 days after the expiration of the relevant period, Deputy President Riegler found that the Tenant was not entitled to withhold the payment of rent on the basis of s 26.
80	At the second hearing before him, Deputy President Riegler was prepared to hear further evidence and receive further submissions concerning section 26(4). However, the evidence and submissions did not affect the finding he had made based on the concession. This is clear from his decision of 16 July 2021, at [17], in which he confirmed:
It is common ground that no disclosure statement has been given to the Tenant. It is also common ground that the Tenant has not given the Landlords a notice under s 26(3) of the RLA.
81	It is to be noted that there is nothing interim or interlocutory about the finding made by Deputy President Riegler based on that concession. The relevant underlying fact having been determined by the concession, there is no relevant issue of fact to be determined at the final hearing. In these circumstances it is hard to understand why the determination should not be regarded as final.
82	 A party to litigation before the Tribunal should not be allowed as of right to resile in a subsequent hearing from a concession made in an earlier hearing upon which a finding has been made. The party seeking to resile ought to make a formal application to this end. This would enable the other side to be heard, and all relevant factors to be weighed.
83	Although Mr Caspersz did not expressly say that this was what he was seeking to do, it must be acknowledged that he invited the Tribunal to reopen the s 26 issue on the basis that he contended that there was a new fact, which had just eventuated, that meant that the s 26 issue ought to be revisited. I will accordingly proceed on the basis that Mr Caspersz is seeking leave to resile from his concession that there was no s 26 notice in existence, and address his argument.
The Tenant’s new submission regarding s 26
84	Mr Caspersz contends that there is now available new relevant information, namely the fact that the day after Deputy President Riegler issued his second determination, that is to say on 17 July 2021, the respondents’ managing agent ASL sent to the Tenant an estimate of outgoings for the financial year 2021-2022. 
85	Mr Caspersz submits that this is important for two reasons. The first is that this is an irretractable statement to the effect that the accounting period is 1 July 2021-30 June 2022. I shall return to this submission shortly.
86	Secondly, Mr Caspersz contends that the communication from the managing agent on 17 July 2021 is the first time that the Tenant has been made aware of the Landlord’s accounting period for the financial year 2021-2022. He submits that under the RLA, the landlord must provide an estimate of outgoings in two sets of circumstances. One is under s 26 and the other is under s 46. Mr Caspersz argues that a landlord’s obligation to provide an estimate of outgoings under the RLA is embedded within the obligation to provide a disclosure statement in the circumstances governed by s 26. He contends that the purpose of the disclosure statement given under s 26(1) on renewal of lease is to outline any changes from any previously given disclosure statement. He says that in respect of the Lease, the previous disclosure statement was given on 21 October 2014. Mr Caspersz goes on to contend that the fact that the Tenant received advice only on 17 July 2020 that the accounting period was the financial year 2021-2022, ie 1 July 2021- 30 June 2022, means that the Landlords could only have responded to a request from the Tenant for an estimate of outgoings when it provided a disclosure statement under s 26(1) after renewal of the Lease. He submits that this means that it is appropriate to look again at the Tenant’s assertion that it has been requesting an estimate of outgoings since 9 December 2020 and that the Landlords have failed to appropriately respond. 
87	I have real misgivings about looking at this correspondence again. The Tenant is now asking the Tribunal to have regard to an exchange of emails which the Tenant seemingly failed to bring to the Tribunal’s attention at the appropriate time. In this connection, it is relevant to note the Tenant’s new submission, at [23] is that:
As documented extensively previously, the Applicant [the Tenant] has been requesting for an Estimate of Outgoings since 9th December 2020 and this was subsequently formally referenced to the specifics of the subject lease from 21st December 2020.
This sentence highlights that the relevant exchange of emails was before the Tribunal when Deputy President Riegler made both his decisions.
88	It seems to me that the Tenant is using the fact that the managing agent sent the email of 17 July 2021 as a pretext to invite the Tribunal to have regard to the email of 9 December 2020 and the subsequent exchange of emails, which were in the evidence placed before Deputy President Riegler, because it failed to highlight the significance of the correspondence at the appropriate time. In other words, there is no new relevant evidence at all. 
89	In these circumstances, it seems that the Tenant is inviting the Tribunal to traverse old ground.
90	However, the reality is that the Tenant’s position is not improved because the relevant email relied on by the Tenant, when analysed, still does not meet the requirements of a notice under s 26(3). The critical email is that of 21 December 2020. It relevantly reads:
Further, it is highlighted per the attached relevant sections (5.4.3, 5.4.4, 5.4.5, 5.4.6,) of the [Lease] has not been complied with by the Landlords throughout our entire period of our tenancy of the said leased property to date. We are reasonably seek an ‘immediate’ rectification by the Landlords of these aspects of the applicable lease.
91	The Tenant highlights that clause 5.4 the lease is concerned with building outgoings, and that clause 5.4.3 provides that:
at least 1 month before the start of an accounting period, the landlord may (but if the Act require applies, the landlord must) give the Tenant an estimate of building outgoings for the accounting period.
92	As noted, the Tenant says that the only way in which non-compliance with clause 5.4.3 could have been cured is by the Landlords providing an estimate of building outgoings for the accounting period, and that this could only be done by way of a disclosure statement given under s 26(1). On this basis, the Tenant now contends that a notice of non-compliance for the purposes of clause 26(3) of the RLA has been given and that the precondition for abatement of rent under s 26(4) has been established.
93	I do not accept this submission. I do not think that the Tenant’s email of 21 December 2020 can be construed as a notice under s 26(3). The email makes a general statement of non-compliance regarding a number of subclauses of the Lease which relate to building outgoings. The subclauses do not expressly refer to a disclosure statement. A disclosure statement in the prescribed form relates to much more than building outgoings. Accordingly, I think there is no basis to make a finding (even if the Tribunal now has jurisdiction to do so) that a notice of non-compliance with a clause of the Lease relating to building outgoings is to be equated with a notice under s 26(3) that the Tenant has not been given a disclosure statement.
94	Furthermore, and most importantly, the email did not explicitly state that it was a notice given for the purposes of s 23(3). In my view, if the Tenant wishes to take advantage of s 26(4), it must draw the Landlords’ attention to that fact by making express reference to s 26.
95	For all these reasons, I find that the Tenant cannot rely on its new submission to establish that it can arguably rely on s 26(4) to establish an entitlement to abatement of rent.
The Tenant’s final submission about the importance of the notice of outgoings of 17 July 2021
96	By way of completeness, I acknowledge the submission put by the Tenant that it was only after 17 July 2021, when it became aware of the Landlord’s accounting period for the renewed Lease, that it could have notified the Landlords that they had not received a copy of the required disclosure statement.
97	I do not accept this argument. Under s 26(1) of the RLA, once the Tenant had exercised its option to renew the Lease, the Landlords became obligated at least 21 days before the end of the term of the old Lease to give the Tenant a disclosure statement in the prescribed form. The Landlords concede that they did not do this. It follows that under s 26 (3), the Tenant, no later than 90 days after the expiration of the relevant period, could have given the Landlords a written notice that it had not been given the required disclosure statement. The Tenant did not do this. The fact that the Tenant may have become aware of the Landlords’ accounting period for the renewed Lease only after 17 July 2021 is irrelevant.
The new argument concerning section 57
98	The Tenant submits that it is not obliged to pay rent or outgoings because the Premises have been damaged. It relies upon s 57(1)(a) of the RLA which provides:
(1) A retail premises lease is taken to provide the following if the retail premises, or the building in which the premises are located, is damaged –
(a) except where the Tenant caused the damage, the Tenant is not liable to pay rent, or any amount in respect of outgoings or other charges, that is attributable to any period during which the premises cannot be used under the lease or are inaccessible due to that damage; 
99	As a fallback, the Tenant may look to s57(1)(b) which reads:
except where the tenant caused the damage, if the premises can be used under the lease but that use is reduced to some extent by the damage, the tenant's liability for rent, and any amount in respect of outgoings or other charges, that is attributable to any period during which the use is reduced is decreased to the same extent;
100	The Tenant seeks to set aside Deputy President Riegler’s finding that there is no arguable case that it has an entitlement to withhold rent by reason of the operation of s 57(1) of the RLA. At the outset, it is appropriate to say that I do not think the Tenant can now ask the Tribunal to set aside that finding, in in circumstances where the Tenant is not relying on any new fact. The Tenant, as will be seen, is simply seeking to raise an argument which it could have raised at the two hearings before Deputy President Riegler, but failed to do so. However, in an endeavour to be thorough, I will address the Tenant’s new argument.
101	The Tenant’s new submission is based on the proposition that it is clear that there is at least an argument to be tried regarding the Tenant’s proposition that clause 19 of the Lease has no application. The significance of clause 19 is clear. By clause 19.3, the “landlord reserves for itself the use of all external surfaces of the building and areas outside the building.” By the opening words of clause 19.4, the “building, common areas and landlord’s installations remain under the absolute control of the landlord which may manage them and regulate their use as it considers appropriate.”. By sub-clause 19.4.4, the landlord may “install, repair and replace, as necessary, the pipes and conduits necessary or desirable for the provision of services to the various parts of the building…” 
102	It is common ground between the parties that a ruling that clause 19 is operable will mean that the proceeding ultimately must be disposed of in favour of the Landlords. Conversely, a ruling that clause 19 does not govern the tenancy will mean that the Tenant will be able to all establish that the placing of the air-conditioning compressor in the car park outside the building was unlawful. 
103	Because of the criticality of the issue to the Tenant’s new application, much of the 10 pages of submissions it filed are concerned with arguments as to why clause 19 of the Lease cannot apply. Without delving into the arguments, I am prepared to accept the Tenant’s overarching argument that there is an arguable case that clause 19 does not operate.
104	Section 57(1) proceeds on the basis that once it is accepted that there was arguable case that the installation of the air-conditioning units was unlawful, the Tribunal must accept that there is an arguable case that there has been damage to the Premises for the purposes of s 57(1). Accordingly, the argument runs, there is an arguable case that the Tenant is entitled to an abatement of rent and outgoings during a period that the Premises cannot be used under the lease or are inaccessible due to the damage. The fullback argument, under s 57(2), is that if there was a reduction to the extent to which the Premises can be used, the Tenant’s liability for rent and outgoings is to be decreased in a manner proportionate to the reduction of use.
105	Quite apart from the fundamental argument that the matter cannot now be reopened, I think the Tenant’s application fails at the following hurdles. Firstly, the placing of air-conditioning units in the car park does not constitute damage to the premises. Deputy President Riegler dealt with the issue in his first decision dated 7 July 2021 in these terms, starting at [27]
27.	Apart from the installation of the plant and equipment within the car park and the external walls of the building within which the Premises are located, there is no evidence of any current damage. Nevertheless, the Tenant contends that the interference with its right to use the car park constitutes damage for the purposes of s 57 of the RLA.
28.	I do not accept that proposition. In my view, damage means some form of destruction or disrepair. It does not mean an alteration to the demised premises. Although it may be the case that the Tenants quiet enjoyment of its leasehold interest has been compromised, that is not the same as damage to the retail premises.
29.	Further, I do not accept that the Premises cannot be used simply because one or possibly two car spaces are no longer available. In reaching this finding, I note that s 57(1)(b) of the RLA would, in the appropriate case, entitle a Tenant to a reduction in rent if the use of the leased premises is reduced due to damage caused to those premises. However, that is not the way in which the Tenant puts its case; nor is there any evidence as to how the reduction in car space proportionally impacts on the Tenant’s business, other than unsupported statements made by Mr Caspersz.
30.	Consequently, I find that s 57 of the RLA does not entitle the Tenant to an abatement of rent or outgoings, pending the final determination of the Substantive Proceeding.
106	The Tenant re-argued the position regarding damage in the second application before Deputy President Riegler. The matter was dealt with in the Reasons of 16 July 2021 in the following terms:
26.	It is common ground that plumbing plant and equipment has been installed in the carpark area and on the exterior wall of the building. It was installed for the benefit of the Tenant who leases and occupies the ground floor of the building in which the Tenant occupies the first floor. Although there remains a dispute between the parties as to whether the Landlords have an absolute right to deal with common property as they please,[2] it is clear that the installation of the plumbing plant and equipment has compromised the amount of parking space available in the area reserved for car parking.
27.	In my determination and Reasons dated 7 July 2021, I found that damage in the context of s 57 of the RLA means some form of destruction or disrepair, rather than an alteration to the demised premises. I stand by that view, notwithstanding the additional submissions made by the Tenant.
28.	In my view, the submissions made by the Tenant erroneously obscure the concept of “damages” with building damage. The concept of building damage was discussed in Sun v Younan, where the Tribunal found that premises falling into disrepair constituted damage within the meaning of s 57 of the RLA:
In the normal parlance it is used to refer to accidental damage but it seems to me that the section envisages any state of disrepair which render the Premises unable to be used or inaccessible. If rented premises fall into such a degree of disrepair than I think the section applies. For example if a landlord so neglected his obligation to make structural repairs that the premises fell down it could not sensibly be said that the premises were not damaged. Where the consequences of disrepair are less serious the premises are nonetheless damaged. It is a matter of degree. The want of the repair is the cause. The damage is the effect.
29.	In this case, I do not accept that the installation of plumbing plant and equipment raises a triable issue that the Premises have been damaged, as that concept is to be understood under s 57 of the RLA. Although the Tenant may have suffered damages in the sense that its quiet enjoyment of its leasehold interest has been adversely affected, that is a different concept to building damage such as physical damage or disrepair to the Premises.
30.	I note that in the Tenant’s written submissions, Mr Caspersz refers to painting and unfinished repairs (holes and patchwork painting) impeding on the Applicant’s legal access to entitlements... However, there is little or no detail provided as to what this relates to, nor is there any evidence that painting and unfinished repairs, of themselves, lead to a situation where the Premises cannot be used for their intended purpose. In other words, the submissions made by Mr Caspersz have primarily focused on the availability, or lack thereof, of car spaces within the common property as being the basis upon which he contends that the Premises cannot be used for their intended purpose.
31.	Consequently, I find that this ground does not entitle the Tenant to withhold rent.
107	Mr Caspersz’s present complaint is that Deputy President Riegler made no express reference to his clause 19 argument. I consider this complaint to be misconceived. This is because Deputy President Riegler clearly did have the clause 19 argument in mind when he made his second decision. This is apparent from the reference to a footnote appearing in the Reasons of 16 July, at [26], when he referred to a dispute remaining between the parties as to whether the Landlords have an absolute right to deal with common property as they please. The footnote reads:
The Clause 19 Dispute referred to in paragraph 2 of the determination and Reasons dated 7 July 2021
108	In any event, the issue of whether there has been damage of a type such as to enliven s57 of the RLA has been determined, in my view, on a final basis by Deputy President Riegler. His decision on the meaning of damage turns on the wording of the provision, and not on to the evidence regarding the damage incurred. It is accordingly not a determination which is liable to be affected by further evidence. As I regard the determination to be on a final basis, I find that the determination cannot now be reopened.
Other defences available to the landlords
109	If the finding I have just made is wrong and Deputy President Riegler’s determination is merely interlocutory in nature and can be opened up, there are other reasons for not disturbing his conclusion that there is no arguable case for rent relief based on s 57. 
110	Even if the Tenant, at the final hearing, could establish that clause 19 of the lease does not apply to its tenancy and that the installation of the plant and equipment was accordingly unlawful, then the Tenant will fail in the present application for an injunction because I, independently to Deputy President Riegler, consider that a finding that the installation was unlawful would not mean that there was damage of a type which enlivened s 57. In my view, in order for s 57 to operate there must be damage to the Premises in the physical sense.
111	Furthermore, the Tenant will fail as there is no evidence that the installation of the plant and equipment has actually prevented the Tenant from using or accessing the Premises completely or even partially. The Tenant asserts that this is the case, but has not demonstrated that it is in fact the case.
The Tenant’s argument that the Landlords’ notification of THE ACCOUNTING PERIOD cannot be withdrawn
112	The Tenant’s argument under s 26 of the RLA was made in favour of an application for an injunction protecting it from an obligation to pay rent. The Tenant’s submissions concerning s 57 were made in support of injunction protecting it from an obligation to pay either rent or outgoings. At the hearing the Tenant raised a new argument based on the operation of s 46 of the RLA which is aimed at protecting it from an obligation to pay outgoings at any point earlier than 1 July 2022.
113	To give context to the argument, I set out s 46 of the RLA. It provides:
Estimate of outgoings 
(1) A retail premises lease is taken to provide as set out in this section. 
(2) The landlord must give the tenant a written estimate of the outgoings to which the tenant is liable to contribute under the lease that itemises those outgoings. 
(3) The tenant must be given the estimate of outgoings— 
(a) before the lease is entered into; and 
(b) in respect of each of the landlord's accounting periods during the term of the lease, at least one month before the start of that period.  
(4) The tenant is not liable to contribute to any outgoings of which an estimate is required to be given to the tenant as set out in this section until the tenant is given that estimate.
114	The Tenant’s argument is based on the Notice of Outgoings issued on 17 July 2021 as an email by the managing agent ASL. The Notice concerned an estimate of outgoings for “First Floor, 167 Middleborough Road, Box Hill South” i.e. the Premises, for the financial year 2021-2022. Mr Caspersz submits that the Notice in effect advises that the accounting period is 1 July 2021-30 June 2022. That is critical, he contends, because the Landlords cannot rely on it to recover outgoings from the Tenant because in breach of s 46(3)(b) it was not issued at least one month before the start of the stated accounting period. Moreover, Mr Caspersz contends that the Notice cannot be withdrawn, and that the Landlords must wait until the expiration of the accounting period without recovering any outgoings. Only when an effective notice is issued one month before the next accounting period will outgoings be recoverable, with effect from 1 July 2022.
The argument that the accounting period has become a condition of the Lease
115	The Tenant’s first argument that the Notice of Outgoings cannot be withdrawn is based on the proposition that after the Notice was issued by ASL, the accounting period was accepted by the Tenant on 19 July 2021. Accordingly, Mr Caspersz contends, it became a condition of the Lease.  Mr Caspersz also submits that once an accounting period has been adopted, there is no provision in the Lease which enables the accounting period to be changed or amended.
116	The difficulty with this argument is that the Notice of Outgoings was not issued at least one month before the commencement of the purported accounting period. It clearly did not comply with s 46(3) of the RLA. Accordingly, it is ineffective, at least initially. The Tenant goes further, and makes a submission that the notice is entirely ineffective, contending: 
the [Tenant) is still NOT liable to contribute to any FUTURE outgoings (on the above basis) given the Tenant (cabinet) is still yet to be given an Estimate of Outgoings ‘as set out in this section ‘at 46(3)(b) with the Estimate NOT being provided within the set timeframe.
117	The Tenant’s argument that the Notice of Outgoings is entirely ineffective is inconsistent with its argument that the Notice has been accepted.  
The argument based on estoppel
118	The Tenant put forward alternative argument as to why the Notice of Outgoings could not be withdrawn, based on estoppel. The Tenant put forward no legal principles regarding estoppel, but it is clear from its submissions that it was aware of the required elements. In order to give some context of the argument put forward by Mr Caspersz on behalf of the Tenant in his supplementary submission, I proceed on the basis that in order to establish that an estoppel has arisen, the Tenant will have to demonstrate the following:
(a)	a relationship existed between it and the Landlords;
(b)	the Landlords made a representation to the Tenant; 
(c)	the Tenant acted or abstained from acting in reliance upon the representation; 
(d)	the Landlord knew or intended the Tenant to do so;
(e)	the Tenant’s reliance on the representation will cause it to suffer detriment if the representation is not fulfilled;
(f)	the Landlords’ action was unconscionable.
The Tenant’s submissions as to estoppel
119	The Tenant’s position can be summarised as follows:
(a)	The issuing of the notice by the managing agents on 17 July 2021 constituted a representation that the accounting period for the Lease ended on 30 June 2022.
(b)	The Tenant accepted the representation on 19 July 2021 by initiating at the Tribunal and serving an application which raised the issue. 
(c)	The Tenant places great emphasis on the timing of its notification of the application. The application was filed and served at 9.00 a.m. on 19 July 2021. It was referred to again in an email sent at 2.08 p.m. on 19 July 2021.
(d)	At 4.43 p.m. on 19 July 2021, the Landlords by email withdrew the estimate of outgoings, and gave reasons for doing so. 
(e)	On 20 July 2020, the Landlords, through the managing agent, asserted that an accounting period of 30 June would effectively prevent the Landlords from issuing an estimate of outgoings until May 2022 which would have the effect of enabling the Tenant to avoid paying outgoings until July 2022.
(f)	The only reason for the subsequent withdrawal of the Notice was to enable the Landlords to commence seeking reimbursement of outgoings under s 46 of the RLA after re-issuing the notice of outgoings. This is unconscionable.
Discussion
120	There is no issue concerning the first element. The parties are in a relationship of landlord and tenant. There is no issue with the second element either, as there is no dispute that the managing agent ASL had the authority of the Landlords to issue the Notice of Outgoings to the Tenant.
No relevant representation
121	The first issue for the Tenant arises in connection with the making of a representation. As noted, the representation which the Tenant relies on is that the accounting period in respect of the Lease ended on 30 June 2022. The Tenant argues that the Landlords cannot rely on the Notice of Outgoings as it was not issued at least a month before the start of the relevant accounting.  The Tenant says that the Notice is ineffective. Notwithstanding that, the Tenant also says that the Landlords cannot withdraw the Notice.
122	In my view, the Tenant cannot have it both ways. Either the Notice is effective, or it is not. 
123	That the Notice of Outgoings was ineffective was immediately apparent to the Tenant. This is why the Tenant was so quick to issue its application on 19 July 2021. As the Tenant knew that the Notice was ineffective, it cannot treat it as a representation upon which an estoppel can be founded.
No reliance
124	A further issue for the Tenant is that it did not rely on the Notice of Outgoings. Specifically, it did not pay any outgoings as a result of it.
No unconscionable conduct by Landlords
125	Another obstacle on which the Tenant’s argument of an estoppel founders is that there is nothing unconscionable about the Landlords’ actions in seeking to withdraw the notice in order to put itself in a position where in due course it could issue another notice of outgoings upon which it could rely. I say this for the following reasons.
126	The Tenant does not endeavour to say what it means by unconscionability. Possibly the Tenant intended to refer to the term as it is understood in equity. As Mason J observed in The Commercial Bank of Australia Ltd v Amadio:
relief on the ground of “unconscionable conduct” is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, …
In my view, there is nothing unconscionable in the Landlords conduct in this sense.
127	Having regard to the application of the RLA to the Lease, it is also possible that the Tenant intended to invoke the statutory definitions of unconscionable conduct to be found in s 77. The Tenant makes no express reference to that provision, and does not couch its submission in terms of any of the following elements which might be relevant to the Tenant making a claim under section 77(2) of the Act:
•	abuse of bargaining position (ss 77(2(a));
•	unreasonable conditions (ss77(2)(b));
•	failure to understand the documents (ss 77(2(c));
•	undue influence or pressure (ss 77(2)(d));
•	failure to reflect market conditions (ss 77(2)(e));
•	inconsistency with the Landlords’ negotiations with other tenants (ss 77(2(f));
•	the requirements of any industry code (ss 77(2)(g); 
•	nondisclosure of intended conduct by the Landlord or risk (ss 77(2)(i));
•	the Landlords’ willingness to negotiate further with the tenant (ss 77(2)(j); 
•	lack of good faith by the Landlords (ss 77(2)(k));
•	an unreasonable requirement regarding rent (ss 77(2)(l));
•	abuse of the tenant’s information (ss 77(2)(m));
unreasonable fit out costs (ss 77(2)(n));
In my view, no claim for unconscionability within the meaning of s 77 is made out. 
128	I confirm that there is nothing unconscionable in the Landlords seeking to rely on their entitlement to recover outgoings under the Lease. They are entitled to do so provided a proper notice is given under s 46. The Landlords may at an appropriate point in the future take steps to ensure that a proper notice regarding outgoings under s 46 is issued.
129	For these reasons, I find that an estoppel is not made out.
The Tenant’s fallback argument
130	In the auxiliary submissions it filed after the hearing, the Tenant articulates an argument that the accounting period was embedded in the Lease prior to the issuing of the notice. The argument, as I understand it, goes as follows:
(a)	Because of the definition of accounting period in the RLA, the accounting period specified in the Lease must have been 30 June because the commencement of the lease was 21 October 2014. 
(b)	The accounting period could not have been from the outset, and accordingly a different accounting period would have been required to have been specifically stated in the Lease or in the requisite disclosure statement.
(c)	Neither the Lease nor the disclosure statement specify an accounting period other than 30 June. By default, the accounting period must have been the 30 June after the commencement of the Lease.
131	I do not accept this argument. The Tenant’s submissions confirm that no accounting period was specified in the initial lease commencing 21 October 2014 nor in the disclosure statement associated with that lease. It was necessary for the Landlords to issue a notice regarding the accounting period. The Tenant gives no evidence and make so submissions as to the existence of any such notice until the managing agent issued the disputed Notice of Outgoings on 17 July 2021.
Summary
132	As all its arguments based on the Notice of Outgoings have failed, the Tenant is not entitled to a permanent injunction protecting it from termination of the Lease by reason of its non-payment of outgoings.
Balance of convenience
133	The Tenant asserts that the balance of convenience lies with it, but it did not advance any submissions at the hearing on 28 July as to why this was the case. 
134	The issue does not arise unless I am satisfied that there is a serious issue to be tried which warrants restraining the Landlords from exercising their rights under the Lease in the event of non-payment of rent or outgoings. 
135	The approach taken by Deputy President Riegler in the Reasons of 7 July 2, at [48], was that it was not necessary for him to consider whether the balance of convenience would otherwise favour the granting of an injunction as he was not satisfied that a serious question to be tried existed. The Deputy President adopted a similar approach in his second determination, at [43].
136	In this application, I also have formed the view that there is no triable issue which would justify the granting of an injunction on any of the bases argued by Mr Caspersz on behalf of the Tenant. Accordingly, is not necessary for me to consider where the balance of convenience now lies.
137	However, I point out that the situation is now markedly different from that which existed on 9 December 2020 when I granted the Tenant an injunction restoring it to possession of the Premises, having concluded that the balance of convenience favoured the Tenant. In support of its application for an injunction restoring possession the Tenant gave the usual undertaking as to damages, and also undertook to pay arrears in rental and pay rental in respect of the current month.
138	The situation now is that the Tenant remains in possession of the Premises but is seeking an injunction from the Tribunal to protect it from the obligation to pay rent and outgoings. It is seeking the injunction even though its evidence now is that it is not using the Premises to carry on its business. 
139	In these circumstances it is hard to see how the balance of convenience continues to favour the Tenant.
SUMMARY
140	There is no basis to grant a permanent injunction restraining the Landlords from issuing further notices under s146 of the PLA in future in respect of non-payment of rent. 
141	Regarding outgoings, the position is more complex. In Deputy President Riegler’s Reasons of 16 July, at [14], he observed that in his earlier determination (of 7 July) he had accepted:
that there were both legal and factual issues regarding the application of s 46 of the RLA which raise a serious issue to be tried.
He then confirmed that his view remained unchanged.
142	Accordingly, there would be a basis for issuing an injunction to restrain the Landlords from seeking to terminate the Lease on the basis of non-payment of outgoings if they were threatening to do so. However, at the hearing on 28 July 2021, Mr Young on behalf of the Landlords said that they would not seek to terminate the Lease on the basis of non-payment of outgoings until the situation regarding outgoings was regularised. 
143	There is no basis to issue a permanent injunction restraining the Landlords from seeking to determine the Lease on the basis of non-payment of outgoings because the Landlords might, at an appropriate time, issue a notice of outgoings compliant with s 46 of the RLA.
144	It follows that the permanent injunction sought by the Tenant to restrain the Landlords from issuing further notices under what s 146 of the PLA in future in respect of non-payment of rent or outgoings will not be granted.
145	There is no basis to issue an injunction to restrain the Landlords from re-entering the Premises on the basis of non-payment of rent as claimed in the July Default Notice. (I note here that the Tenant had initially contended that there were issues of form in that notice, but at the hearing Mr Caspersz conceded that he was not relying on those arguments as they were relatively unimportant).
146	 The Tenant’s application for an order adjusting the Tribunal’s Order 1 made 16 July 2021 is to be dismissed, for the reasons explained above.
147	Finally, with the consent of the Tenant, the Tenant’s application for an order to refund to the Tenant all rent and outgoings paid in advance by the Tenant since 18 September 2020, is adjourned until the final hearing.

C Edquist
Member