VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP492/2021	
CATCHWORDS	
LANDLORD AND TENANT – COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (‘the Regulations’); Assessment of rent relief – whether a compliant request for rent relief made under reg 10(2) of the Regulations – whether more than document can constitute a single request for rent relief under the Regulations – whether documents accompanying a request for relief under the Regulations need to be sent contemporaneously with the request – meaning of ‘accompanied by’ in reg 10 of the Regulations.	

APPLICANT	HJJY Commercial Pty Ltd (ACN 611 301 458)	
first RESPONDENT	Peter Mathiopoulos	
SECOND RESPONDENT	Nick Mathiopoulos	
THIRD RESPONDENT	Diamanto Mathiopoulos	
BEFORE	Deputy President E Riegler 	
HEARING TYPE	Hearing via video link (Zoom)	
DATE OF HEARING	14 December 2021	
LAST DATED FOR FILING MATERIAL	11 February 2022	
DATE OF ORDER and reasons	25 March 2022	
CITATION	HJJY Commercial Pty Ltd v Mathiopoulos (Building and Property) [2022] VCAT 330	

Order

1.	Subject to Order 2 of these orders, the Applicant’s claim for rent relief made under the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 for the period commencing 18 September 2020 and ending 28 March 2021 is dismissed.
2.	Order 1 of these orders does not apply to any agreement made between the parties for rent relief.

3.	No order as to costs.

E Riegler 
Deputy President			

APPEARANCES:		
For Applicant	Ms L Wang, solicitor	
For Respondents	No appearance	

Reasons
preliminary MATTERS 
1.	The Respondents did not appear at the hearing on 14 December 2021. By correspondence dated 22 November 2021, the Tribunal was advised that the Respondents’ former solicitor no longer acted on their behalf. In that correspondence, the Respondents’ former solicitor provided an alternative address for service, including an electronic address for service. 
2.	The Tribunal’s orders dated 25 November 2021, which adjourned the hearing from 28 September 2021 to 14 December 2021, were served on the Respondents by electronic transmission (email) on 29 November 2021. That email correspondence also included details for joining the remote hearing on 14 December 2021. There was no response to that email correspondence. 
3.	At the commencement of the hearing on 14 December 2021, I asked the Applicant’s solicitor, Ms Wang, whether she had been in contact with the Respondents or whether she believed that they were aware of the hearing on that day. Ms Wang advised that she had been in communication with the Respondents’ leasing agent, who had confirmed, in writing, that it was aware of the hearing on 14 December 2021. 
4.	I also asked Ms Wang whether the Applicant still wished to proceed, given that the Respondents had not appeared on that day. Ms Wang advised that she was instructed to proceed.
5.	Based on the above, I indicated to the Applicant that, prima facie, I was satisfied the Respondents were aware of the hearing on 14 December 2021. 
6.	At the conclusion of that hearing, I made orders of the same date giving the parties leave to file any further affidavit material. Those orders provided that the Respondents were to file any further affidavit material by 14 January 2022.
7.	By correspondence dated 6 January 2022, the First Respondent requested further time in which to file any further affidavit material until 4 February 2022. To that end, I made orders dated 17 January 2022 extending the date by which the Respondents were to file and serve any affidavit material to 4 February 2022. 
8.	Despite the Tribunal’s orders dated 17 January 2022, no additional material has been filed by the Respondents. This is despite the fact that by correspondence dated 18 January 2022, Velos & Velos Lawyers advised the Tribunal that they had been engaged to act on behalf of the Respondents. 
9.	Notwithstanding the absence of any further material by the Respondents, I note that the Respondents previously engaged Mr Duggan of counsel, who prepared written submissions dated 27 September 2021, to which I have had regard. 
10.	I have also had regard to the Applicant’s Outline Submissions of the Applicant Tenant (undated), which responded the written submissions filed on behalf of the Respondents; and to the affidavit material filed on the Applicant’s behalf.
introduction
11.	This proceeding first commenced as an injunction application, wherein the Applicant (‘the Tenant’) sought to restrain the Respondents (‘the Landlords’) from re-entering retail premises located in Lonsdale Street, Dandenong (‘the Premises’). The Premises were and remain occupied by the Tenant, pursuant to a lease dated 20 November 2008, which was assigned to the Tenant under a Deed of Transfer dated 8 August 2016. The Tenant operates a liquor outlet business from the Premises. The original lease commenced on 18 November 2008 for a period of five years with five further options of five years each. The current term is due to expire in 2023.
12.	Like many other retail businesses within Victoria, the Tenant experienced a significant downturn in turnover with the onset of restrictions imposed because of the COVID-19 pandemic. This led to disputation between the parties which culminated in a mediation facilitated by the Small Business Commission. At the conclusion of that mediation, the parties entered into a settlement agreement (‘the Settlement Agreement’). The operative terms of that Settlement Agreement were, in part:
12. 	… For the six months from April to September 2020 inclusive, the Tenant will pay 50 percent of this Rent up front, and 25 percent in equal monthly instalments from October 2020. The Landlord will waive its entitlement to the remaining 25 percent.
13. 	The Landlord has received some rent and outgoing payments directly from the Tenant’s Sub-tenant, and the Landlord will credit these against the Tenant’s obligations towards Rent and Outgoings.
13.	Having regard to the terms of the Settlement Agreement, the amount of rent due under the Lease from April 2020 to the end of September 2020 was varied for this period. In addition, the dispute concerning the arrears of rent and outgoings was settled. 
14.	However, despite the Settlement Agreement, the parties again fell into dispute. This subsequent dispute focused on a disagreement as to what payments had been received by the Landlords from the Tenant’s sub-tenant. That later dispute culminated in the Landlords attempting to re-enter the Premises and ultimately resulted in the Tenant seeking injunctive relief to prevent re-entry. On 8 April 2021, an interlocutory injunction was granted preventing the Landlords from re-entering the Premises pending further hearing.
15.	Between April 2021 and this hearing on 14 December 2021, the parties reached common ground as to what was payable up until the end of September 2020, thereby rendering the final hearing of the injunction application otiose. 
16.	However, there remains ongoing disputation between the parties. Specifically, the Tenant contends that it is entitled to rent relief for the period 18 September 2020 to 28 March 2021. It submits that it has made subsequent requests for rent relief in accordance with reg 10 of the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (‘the Regulations’). 
17.	By written submission dated 27 September 2021, the Landlords dispute that the Tenant is entitled to any further rent relief, principally on the ground that the Tenant has failed to make a valid request for rent relief that complies with reg 10 of the Regulations.
18.	Consequently, the remaining issues for determination in this proceeding are:
(a)	Is the Tenant entitled to rent relief for the period from 18 September 2020 to 28 March 2021?
(b)	If the Tenant is entitled to rent relief, what is the amount of rent relief?
(c)	Is the Tenant entitled to an order that the Landlords pay the Tenant’s costs of and incidental to this proceeding?
The regulatory framework
19.	In Filomeno Nominees Pty Ltd v Crown Group Pty Ltd, the Tribunal helpfully set out the regulatory regime under which rent relief may be afforded to tenants of eligible leases. In that case, Forde SM stated:
The COVID-19 Regime
1.	On 7 April 2020 the National Cabinet announced a Mandatory Code of Conduct SME Commercial Leasing Principles During COVID-19. These leasing principles were given effect in Victoria through the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (the Act) and the Regulations. 
2.	The Regulations were pronounced on 1 May 2020 and taken to have come into operation on 29 March 2020.
3.	Amending regulations were introduced on 29 September 2020 to extend and modify the operation of the Regulations. Significant changes were made to reg 10.
4.	The Regulations provide a mechanism whereby a tenant with an “eligible lease” as defined in s 13 of the Act, is entitled to avail itself of a rent relief regime and protection from eviction in certain circumstances.
5.	Regulation 9 prohibits a landlord from evicting a tenant for non-payment of rent and outgoings during the relevant period if the tenant has complied with reg 10(1)–(5). 
6.	There are two main criteria for the rent relief regime for tenants:
a	Having an eligible lease – being an SME and qualification and participation in the Jobkeeper scheme; and
a	Compliance with reg 10(1)–(5) – qualification for negotiated rent relief.
20.	The Regulations were amended after the first relevant period, which was to sunset on 29 September 2020, and extended to 31 December 2021 and then amended again to extend the second relevant period to 28 March 2021.
21.	Regulation 10 of the Regulations as in force after 29 September 2020 differs considerably to reg 10 of the Regulations as first introduced. Importantly, it requires a tenant to disclose additional information in its request for rent relief in order to be eligible for rent relief. Regulation 10 of the Regulations requires that a request for rent relief must be in writing and be accompanied by:
10	Rent relief
…
(2)	a request under subregulation (1) must be in writing and be accompanied by – 
(a)	a statement from the tenant – 
(i)	that the tenant’s lease is an eligible lease; and
(ii)	that the lease is not excluded from the operation of these Regulations under section 13(3) of the Act; and
(iii)	setting out the tenant’s decline in turnover that is associated with the premises (and no other premises); and
	(b)	information that evidences that the tenant –
(i)	is an SME entity; and
(ii)	is an entity entitled under section 6, 11 or 12A of the jobkeeper rules to a jobkeeper payment, including –
(A)		the receipt number issued by the Commissioner of Taxation when the tenant elected to participate in the jobkeeper scheme; and
(B)		a copy of the tenant’s most recent notice under the jobkeeper rules to the Commissioner of Taxation;
(c)	information that evidences the tenant’s stated decline in turnover, including at least one of the following – 
(i)	extracts from the tenant’s accounting records;
(ii)	the tenant’s business activity statements relating to the relevant turnover test period;
(iii)	statements issued by an ADI in respect of the tenant’s account;
(iv)	a statement prepared by a practising accountant.
(2A)	For the purposes of sub regulation (2)(a)(iii), the tenants decline in turnover must be –
(a)	expressed as a whole percentage; and
(b)	calculated consistently with the actual decline in turnover test applying to the tenant relating to the most recent turnover test.	
22.	In Filomeno Nominees Pty Ltd v Crown Group Pty Ltd, the Tribunal found that the tenant had not  made a request for rent relief which complied with reg 10 of either version of the Regulations. Consequently, the tenant in that case was not able to call upon the remedial provisions of the Regulations to afford it with protection against eviction and the ability to claim rent relief.
The requests for rent relief
23.	In this proceeding, the Tenant has filed two affidavits in support of its application for rent relief. The first affidavit is dated 23 April 2021, in which the Tenant’s director, Jin Hou, deposes to the following:
3	On 24 August 2020, I, on behalf of HJJY took part in a mediation held by Victorian Small Business Commission with Nick Mathiopoulos, Diamanto Mathiopoulos and Peter Mathiopoulos (“Landlords”) regarding dispute over rental relief for the property at 247 Lonsdale Street, Dandenong, VIC 3175 (“Premises”). A Terms of Settlement (“Settlement Terms”) dated 24 August 2020 was entered into by the parties…
4	The Settlement Terms provides
a.	HJJY, as the tenant, will pay 50% of the rent from April to September 2020 no later than 24 September 2020, and 25% in 30 equal monthly instalments from October 2020;
b.	The Landlords waive the remaining 25%;
c.	The Landlords credit the rent and outgoings they have received from the Sub- tenant towards HJJY;
d.	The Tenant will meet all of its obligations to pay Outgoings according to the Lease (after the credits described above).
…
11	On or about 29 October 2020, Peter Paspaliaris delivered to me in person a handwritten letter from the Landlords. The letter alleged that I breached the lease, and I had 30 days to vacate the property…
12	Therefore, I instructed my solicitor to respond to the Landlords allegations in the letter dated 10 November 2020, rejecting that I have breached the lease and negotiated further rental relief. Annexed and marked “G” is a copy of the letter dated 10 November 2020.
13	Given that the Landlords did not respond to our letter and I could not reach an agreement with the Landlords regarding the amount of rent that needs to be paid starting October 2020, I had no option but to refer the dispute to VSBC on or about 27 November 2020.
14	On or about 7 December 2020, Bill Paspaliaris sent an email. In that email, he wrote that “(r) for April to September 2020 we are in agreeance with the figures you have tabled”. I took this as the Landlords confirmation that I have fulfilled my payment obligations under the Settlement Terms for April to September 2020. In the same letter, Bill Paspraliaris wrote “(a)s we are now operating normally and not in lockdown we do not agree to offer of rent relief you have submitted…
…
21	It is my understanding (my lawyers have advised me) that, in order to seek rental relief under the Victorian COVID-19 scheme, I had to prove that my business is an employer of a small to medium enterprise, and receiving JobKeeper, and I should receive rental relief in proportion to the actual reduction in my turnover.
22	The size of my business is less than $50 million in turnover each year.
I have also been receiving JobKeeper payment since April 2020. Annexed and marked “N” is a copy of the JobKeeper application and the payment received from October 2020 to March 2021.
23	The latest account statements showed that for the quarter of October to December 2020, HJJY experience a decline of 65%; and for the first quarter 2021, a decline of 36%. I believe that in order to set up an efficient payment scheme, the percentage of rent relief each month should be calculated using the turnover figures from the latest quarter of my BAS. Annexed and marked “O” is the copy of BAS from October 2020 to March 2021.
24	I instructed my solicitor, in the letter dated 9 December 2020, 11 January 2021, on 15 March 2021, to convey the rental relief arrangements that HJJY proposes, namely that rental relief for the current months is calculated using the turnover figures from the month/quarter before, and the Landlords credit the surplus or HJJY make up the deficit the moth [sic] after…
24.	The second affidavit is dated 16 December 2021 and was filed pursuant to orders made at the conclusion of the hearing on 12 December 2021. In that second affidavit, the Applicant’s solicitor, Yimeng Weng deposes to the following:
…
4	On 7 December 2020, we received an offer letter from ASM including 2 offers, in which the Respondent Landlords offered a rent relief in accordance with the leasing principles of the National Cabinet Code of Conduct (the “Code”)…
5	On 9 December 2020, we were instructed to send a letter to ASM to accept the second offer made by the Respondent Landlords in their letter dated 7 December 2020. Namely, the rent relief is to be calculated in proportion to the actual decline of turnover that the Applicant Tenant suffered. As a result, a rent relief agreement concerning the period of 18 September 2020 to 17 December 2020 was reached between the parties.
	In the letter, the Applicant Tenant also urged the Respondent Landlords to grant a rent relief in accordance with the Code for the period from 18 December 2020 to 28 March 2021…
Further Documents in Support of the Rent Relief Application
6	On 15 January 2021, we were instructed to send a further letter to ASM following up on our letter to ASM on 9 December 2021. In the letter, we again stated that the second offer made on 7 December 2021 was accepted.
In the same letter, the Applicant Tenant again urged the Respondent Landlords to grant a rent relief in accordance with the principles in the Code.
The Applicant Tenant also provided the Respondent Landlords with:
•	The application for Job Keeper for Q1 2020; and
•	the latest Job Keeper payment sheet.
to evidence the Applicant Tenant’s continuous eligibility under the Job Keeper Scheme…
7	On 2 February 2021, we were instructed to further send a follow-up email to send the business activity statements of the period of October 2019 to December 2019 and October 2020 to December 2020 in supporting the Applicant Tenant’s rent relief application for the period of 18 December 2020 to 28 March 2021…
8	On 15 March 2021, we were instructed to send a letter to the Respondent Landlords reply to the Applicant Tenant’s rent relief application as soon as possible. In the letter, we stated in accordance with section 10(2)(a) of the COVD-19 [sic] Omnibus (Emergency Measures) Commercial Leases and Licences) Regulations 2020 that:
•	The lease between the parties is an eligible lease; and
•	The lease is not excluded from the operation of COVD-19 [sic] Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 under s 13(3) of the COVID-19 Omnibus (Emergency Measures) Act 2020.
Can several documents be considered collectively?
25.	As outlined in the extracts of the two affidavits filed in support of the Tenant’s application, several letters were sent to the Landlords’ leasing agent which are said to collectively constitute a compliant request for rent relief. In my view, the only documents which might collectively constitute the request for rent relief for the period 18 September 2020 to 28 March 2021 are those letters which postdate the previously agreed rent relief period which concluded on 17 September 2020. Prior to that date, rent relief was governed by the Settlement Agreement between the parties. 
26.	The correspondence produced in this proceeding which relates to the request for rent relief for the period spanning 18 September 2020 to 28 March 2021 is:
(a)	the Tenant’s solicitors’ letter dated 27 October 2020;
(b)	the Tenant’s solicitors’ letter dated 10 November 2020;
(c)	the Landlords’ leasing agent’s letter dated 7 December 2020;
(d)	the Tenant’s solicitors’ letter dated 9 December 2020;
(e)	the Tenant’s solicitors’ letter dated 15 January 2021;
(f)	the Tenant’s solicitors’ email dated 2 February 2021; and
(g)	the Tenant’s solicitors’ letter dated 15 March 2021.
27.	Apart from the Tenant’s solicitors’ letter dated 15 March 2021, earlier correspondence did not completely satisfy all the requirements of reg 10(2) of the COVID-19 Omnibus (Emergency Measures) Commercial Leases and Licences) Regulations 2020 (Vic). Specifically, none of the correspondence which predated the Tenant’s solicitors’ letter dated 15 March 2021:
(a)	included a statement from the Tenant that the Tenant’s lease is an eligible lease; or
(b)	included a statement from the Tenant that the lease is not excluded from the operation of these Regulations under section 13(3) of the Act;
28.	It was only in the Tenant’s solicitors’ letter dated 15 March 2021 that those remaining two elements of a compliant request for rent relief were satisfied. 
29.	In Tzilantonis v S & C Thomas Holdings Pty Ltd, I considered whether a compliant request for rent relief required all documentation to be provided contemporaneously with the request or alternatively, whether it was permissible for there to be combination of correspondence, given at different points in time but read collectively. In that case, I stated:
19.	In Zeini v Inner Metrolpolis Holdings Pty Ltd, I heard an interlocutory injunction application where the issue of providing documents contemporaneously arose. I stated:
36.	Mr Peters submitted and I accept, that the financial documentation required under reg 10 of the Regulations needs to accompany the request. So much is clear from the express words of reg 10(2) of the Regulations…
37.	In my view, the remedial intent of the Regulations is not without limit. Indeed, a compliant request made under reg 10 requires a landlord to offer rent relief to the tenant within 14 days after receiving the request or a different time as agreed between the parties. Importantly, a compliant request for rent relief triggers protection against eviction under reg 9 of the Regulations, thereby depriving a landlord of exercising rights that might otherwise crystallise under the relevant lease. These factors indicate that the Regulations contemplated some immediacy to the provision of financial documents accompanying a request for rent relief. Whether that temporal connection requires documents to be submitted contemporaneously or whether some slippage is permissible remains uncertain and is ultimately a matter for trial. However, whatever the case, I do not consider that a delay exceeding two months after the initial request was made is contemplated by the Regulations… 
20.	This case is materially different to what I considered in Zeini. Here, the compilation of information was provided within days of each email. To some extent, this was inevitable, given that the April emails predated the introduction of the Regulations. In those circumstances, I accept that it would have been impossible to know with absolute certainty what the requirements were going to be prior to the Regulations being introduced on 1 May 2020. 
21.	In my view, all three emails are, in essence, interconnected to form the request for rent relief. Notwithstanding the use of the term accompanied by in reg 10(2) of the Regulations, I do not construe that provision as requiring all documents to be provided in one correspondence. Clearly, there will be instances where that may not be possible, either because of technological limitations or other factors which require documents to be sent individually and separated in time.
22.	However, the words accompanied by are not without any meaning. Clearly, there still must be some temporal connection between the request for rent relief and the provision of the relevant documents or information. So much is clear when one considers that a compliant request for rent relief crystallises rights which go much further than simply having a right to make a claim for rent relief. Section 9 of the Regulations imposes a moratorium against eviction in circumstances where a tenant makes a compliant request for rent relief. Therefore, there must be some temporal connection between the request for rent relief and provision of requisite information or documentation. If that were not the case, a landlord, purportedly exercising its rights of re-entry in the belief that the request for rent relief was non-compliant, may subsequently find that its conduct was unlawful if a tenant belatedly produced the required information or documentation many months after the re-entry had taken place.
30.	I reiterate what I said in Tzilantonis v S & C Thomas Holdings Pty Ltd – that the reference to or incorporation of documents or correspondence must be temporally tied or connected to the request. What constitutes sufficient temporal connection to the request will depend on the circumstances of each case. 
31.	The Tenant drew my attention to the Tribunal’s determination in Solitaire Mode Pty Ltd v Diakonidis, where the Tribunal accepted that three emails could collectively constitute a compliant request for rent relief. The Tenant submitted that Solitaire Mode Pty Ltd v Diakonidis supported its contention that it was open for the Tribunal to consider several correspondence as all forming part of the single request by the Tenant for rent relief.  
32.	In my view, the facts in Solitaire Mode Pty Ltd v Diakonidis are different to what is currently before the Tribunal. In Solitaire Mode Pty Ltd v Diakonidis, the three emails in question were dated 9, 18 and 19 June and were held to be sufficiently connected to the single request for rent relief.
33.	By contrast, the fragmented dissemination of information adopted by the Tenant in this case spreads over an extraordinary long period of time. Moreover, the various correspondence, said to comprise the request for rent relief, is inconsistent and in many respects, unclear as to what is being sought. For example:
(a)	The Tenant’s solicitors’ letter dated 27 October 2020 sought rent relief amounting to 80 percent of the total rent that would otherwise be payable, with 60 percent of the rent relief waived and 40 percent deferred; 
(b)	The Tenant’s solicitors’ letter dated 10 November 2020 sought rent relief linked to the Tenant’s actual decline in turnover for the period October 2020 until March 2021. 
(c)	The Landlords’ leasing agent’s letter dated 7 December 2020, which offered rent relief amounting to 50 percent of the total rent that would otherwise be payable over the period 18 September 2020 until 17 December 2020, with 25 percent of the rent relief waived and 25 percent deferred or alternatively, rent relief over that period calculated in accordance with the leasing principles of the National Cabinet Mandatory Code of Conduct; 
(d)	The Tenant’s solicitors’ letter dated 9 December 2020 agreeing to accept the Landlord’s offer, although not indicating how much of the rent relief was to be waived and how much was to be deferred. Moreover, the letter refers to s 8(3)(ab) of the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Miscellaneous Amendments Regulation 2020. Leaving aside the erroneous reference to a provision of an Act, the provision of that Regulation did not exist. Further, that letter also requested rent relief for the whole period spanning 18 September 2020 until 18 March 2021, which was inconsistent with the offer made by the Landlord.
(e)	The Tenant’s solicitors’ letter dated 15 January 2021 reiterated that the Tenant accepted the Landlords’ offer, although not specifying how much of the rent relief was to be waived and how much was to be deferred.
34.	The above examples reinforce my finding that where a combination of correspondence or documents are advanced as constituting the request for rent relief, the correspondence or documentation must have some temporal, clear and relevant connection to that request. Where the documentation is unclear, contradictory, or inconsistent, it will be difficult to establish the requisite connection to a request for rent relief to satisfy the regulatory requirement of accompanying the request. 
35.	In the present case, I find that the correspondence, taken collectively, did not constitute a valid request for rent relief, notwithstanding that the letter dated 15 March 2021 may have arguably (and finally) satisfied all the regulatory elements of a compliant request for rent relief. In my view, the documents are too fragmented, unconnected in time and to some extent, inconsistent with each other, for me to be satisfied that by 15 March 2021, the Tenant made a compliant request for rent relief. 
36.	That being the case, I find that absent any agreement as between the Tenant and the Landlords, the Tenant is not entitled to rent relief pursuant to the Regulations for the period 18 September 2020 to 28 March 2021. As to whether there is any agreement for rent relief for a shorter period, there is insufficient material before me to make a finding one way or the other. Indeed, the Tenant has not prosecuted its claim on the basis that it claims rent relief for any period shorter than the period spanning 18 September 2020 to 28 March 2021, notwithstanding that the Landlords may have offered rent relief for the period 18 September to 17 December 2020, which on one view, may have been accepted by the Tenant.
costs
37.	The Tenant also seeks an order that the Landlords pay its costs of the proceeding. Section 92 of the Retail Leases Act 2003 states, in part:
(1)	Despite anything to the contrary in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998, each party to a proceeding before the Tribunal under this part is to bear its own costs in the proceeding.
(2)	However, at any time the Tribunal may make an order that a party pay all or a specified part of the costs of another party in the proceeding but only if the Tribunal is satisfied that it is fair to do so because –
(a)	the party conducted the proceeding in a vexatious way that unnecessarily disadvantaged the other party to the proceeding; or
(b)	the party refused to take part in or withdrew from mediation or other form of alternative dispute resolution under this Part.
38.	There is no evidence to substantiate any allegation that the Landlords conducted the proceeding in a vexatious way, despite the Tenant’s contention that the Landlords have failed to comply with previous orders made by the Tribunal. 
39.	However, in his affidavit dated 23 April 2021, the director of the Tenant, Jin Hou, states that the Landlords refused to participate in a mediation that was to be facilitated by the Small Business Commission. Exhibited to that affidavit is a certificate issued by the Victorian Small Business Commission dated 10 March 2021 which states, in part: 
Reasonable attempts have been made to arrange mediation or other form of alternative dispute resolution but have been unsuccessful because Peter Mathiopoulos refused to take part in mediation.
40.	Consequently, I find that the Tribunal’s jurisdiction to award costs is enlivened. However, that does not mean that a party is automatically entitled to an order for costs. Costs remain to be determined pursuant to s 109 of the Victorian Civil and Administrative Tribunal Act 1998. That provision states, in part:
(1)	Subject to this Division, each party is to bear their own costs in the proceeding.
(2)	At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3)	The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to –
(a)	whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as –
(i)	failing to comply with an order or direction of the Tribunal without reasonable excuse;
…
(b)	whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)	the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
…
41.	Section 109(3) Victorian Civil and Administrative Tribunal Act 1998 sets out factors which the Tribunal must take into account in exercising its discretion to award costs. Having regard to those factors, I do not accept that it is fair for costs to be awarded in this case. I have formed that view based on several factors. 
42.	First, it is unclear whether the Applicant has succeeded in its application, notwithstanding that a part of what was originally claimed has been conceded by the Landlord, leading to a narrowing of the issues in dispute.
43.	Second, I am not satisfied that the Landlords have conducted the proceeding in a way that unnecessarily disadvantaged the Tenant. This is so notwithstanding that the Landlords did not appear at the hearing on 12 December 2021 and were late in filing their submissions.
44.	However, I note that the Tribunal was experiencing significant delay in listing matters during 2021. This was because of resourcing issues caused or exacerbated by the restrictions imposed due to the COVID-19 pandemic. Indeed, the listing date of 28 September 2021 was vacated and relisted for 14 December 2021 at the Tribunal’s own initiative, rather than because of non-compliance of orders by the Landlords.
45.	Further, I am of the view that the non-appearance by the Landlords at the hearing on 12 December 2021 did not disadvantage the Tenant. Indeed, one might argue that their non-appearance made for a speedy and efficient hearing. 
46.	The Tenant submits that it incurred additional costs by reason of it having to answer the Landlords’ unfiled draft submission and then again respond to the filed Outline of Submissions dated 27 September 2021. I do not accept this to be a factor that warrants an order for costs in favour of the Tenants. Specifically, if the draft submission was unfiled, there was no requirement to respond to it.
47.	The other factors raised by the Tenant relate to matters that predate this proceeding or relate to without prejudice matters that are now irrelevant. 
48.	Therefore, having considered the Tenant’s submissions on the question of costs, I am not persuaded that it is fair in the circumstances for costs to be awarded. There will be no order as to costs. 

E Riegler
Deputy President