VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP799/2021	
CATCHWORDS	
LANDLORD AND TENANT, retail lease, tenant’s entitlement to rent relief under the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (Vic) and Commercial Tenancy Relief Scheme Regulations 2021 (Vic), assessment of rent relief, estoppel, money had and received, restitution, whether landlord’s re-entry and termination of lease lawful, relief against forfeiture.	

APPLICANT	The Federal Cafe Restaurant Bar Pty Ltd as Trustee for The Federal Café Restauarnt Bar Family Trust (ABN 17 411 232 063) 	
RESPONDENT	Hamotran Pty Ltd ACN 122 967 131 AFT the Hamotran Unit Trust	
WHERE HELD	Melbourne	
BEFORE	Senior Member L. Forde	
HEARING TYPE	Hearing	
DATE OF HEARINGS	25, 26 and 27 July 2022	
DATE OF SUMISSIONS	Respondent’s submissions 8 August 2022
Applicant’s submissions 22 August 2022 and supplementary submissions 17 October 2022	
DATE OF ORDER	14 November 2022	
CITATION	The Federal Cafe Restaurant Bar Pty Ltd v Hamotran Pty Ltd (Building and Property) [2022] VCAT 1306	
Order
1	I find and declare that the applicant was entitled to rent relief under the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (Vic) for the period 28 March 2020 to 28 March 2021 in the form of a waiver of 93.86% of the rent that would otherwise be payable. 
2	I find and declare that the applicant was entitled to rent relief under the Commercial Tenancy Relief Scheme Regulations 2021 (Vic) for the period 15 November 2021 to 15 January 2022 in the form of a waiver of 69.04% of the rent that would otherwise be payable. 
3	I find and declare that the applicant is not entitled to recover monies paid to the respondent for electricity as money had and received.
4	I find and declare that the respondent’s re-entry on 22 May 2021 was lawful.
5	Subject to payment of outstanding rent and outgoings, the applicant is entitled to relief against forfeiture. 
6	By 30 November 2022 the parties are to file consent orders giving effect to order 5 hereof or if agreement cannot be reached, the applicant must apply to have the proceeding listed for further directions.

L. Forde 
Member			

APPEARANCES:		
For Applicant	Mr S. Hopper of Counsel	
For Respondent	Mr W. Gillies of Counsel	

Reasons
7	In 2013 the Hamilton Group purchased the 100-year-old 55,000 square meter Federal Woollen Mills site in North Geelong in a derelict state. Hamotran Pty Ltd (“the Landlord”), part of the Hamilton Group, developed the site which is now known as Federal Mills and accommodates some 50 tenants including the applicant (“Tenant”).  
8	In May 2021 the Landlord purported to terminate the Tenant’s lease after issuing the Tenant with a s 146 Notice of Default alleging arears of rent and outgoings. The Landlord re-entered and took possession of the premises following alleged noncompliance with the notice. The Tenant denies it was in breach of the lease but if it was, it seeks relief against forfeiture. 
9	In June 2021 the Tenant obtained an interlocutory injunction from the Tribunal allowing it back into possession of the premises until further order.
10	I must decide whether the Landlord was entitled to terminate the lease in May 2021 and if so, whether the Tenant is entitled to relief against forfeiture. 
BACKGROUND AND ISSUES FOR DETERMINATION
11	The Tenant entered into a retail premises lease (Lease) with the Landlord commencing 1 November 2018 with the option of four further terms of five years each. The Tenant operates a café restaurant and bar known as The Federal from the premises.
12	The Tenant seeks:
a.	orders for rent relief under the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (Vic) (“Omnibus Regulations”) and the Commercial Tenancy Relief Scheme Regulations 2021 (Vic) (“CTRS Regulations”); 
b.	a claim for money had and received for electricity charges paid under the mistaken belief that the Landlord was entitled to charge for electricity;
c.	a declaration that the Landlord’s re-entry was ineffective and did not terminate the Lease; and 
d.	alternatively, relief from forfeiture of the Lease. 
13	The Landlord claims:
a.	an order that the Tenant breached the Lease for non-payment of rent and outgoings;
b.	an order for possession of the premises;
c.	an order that the Tenant pay $121,099.07 for outstanding rent and outgoings; and 
d.	a declaration that the Landlord validly terminated the Lease;
14	The five issues I must decide are :-
a.	Issue 1 - Was the Tenant entitled to rent relief under the Omnibus Regulations and if so, what was the entitlement?;
b.	Issue 2 - Was the Tenant entitled to rent relief under the CTRS Regulations and if so what was the entitlement?;
c.	Issue 3 – Is the Tenant entitled to recover monies paid to the Landlord for electricity?;
d.	Issue 4 – Was the Landlord entitled to re-enter and terminate the Lease based on the s 146 Notice of Default dated 22 April 2021?; and 
e.	Issue 5 - Is the Tenant entitled to relief against forfeiture?
Issue 1 - Was the Tenant entitled to rent relief under the Omnibus Regulations and if so, what was the entitlement?
15	In December 2019 COVID-19 (coronavirus disease) was discovered and quickly spread around the word including Australia. It became known as the COVID-19 pandemic.
16	In response, the Australian government established the intergovernmental National Cabinet and declared a human biodiversity emergency. 
17	On 7 April 2020 the National Cabinet announced the 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) (“Omnibus Act”) and the Omnibus Regulations.
18	The Omnibus Regulations were pronounced on 1 May 2020 and came into operation retrospectively on 29 March 2020. The Regulations were initially in place until 29 September 2020. One objective of the Omnibus Regulations was to implement temporary measures to apply to landlords and tenants under certain eligible leases to mitigate the effect of measures taken in response to the COVID-19 pandemic. Those measures included mandated lockdowns, business closures, a ‘ring of steel’ around Melbourne and restrictions on patrons to restaurants, bars and cafes.
19	Amending regulations were introduced on 29 September 2020 and 22 December 2020 to extend and modify the operation of the Omnibus Regulations until 31 December 2020 and 28 March 2021 respectively. 
20	The Omnibus Regulations provided a mechanism whereby a tenant with an ‘eligible lease’ as defined in s 13 of the Omnibus Act, was entitled to avail itself of a rent relief regime and protection from eviction in certain circumstances.
21	Regulation 9 prohibited a landlord from evicting a tenant for non-payment of rent and outgoings during the relevant period if the tenant complied with regulation 10(1)–(5).
22	The Tenant accepts that it did not make a compliant request for rent relief under the Omnibus Regulations before 1 October 2020. On that basis the protections under the Omnibus Regulations would not ordinarily apply. The Tenant says for reasons that follow that the Landlord is estopped from denying that it is afforded the protection of the Omnibus Regulations.
23	Estoppel operates where a person (the Landlord) has caused another (the Tenant) to act on the basis of a particular state of affairs or assumptions. The Landlord is prevented from going back on the words or conduct which led the Tenant to act on that basis, if certain conditions are satisfied. In such a case the Landlord would be estopped from resiling from, or denying, the existence of that particular state of affairs or assumptions.
24	The requisite elements of estoppel were summarised by Brennan J in Walton's Stores (Interstate) v Maher in the following way:-
In my opinion, to establish an equitable estoppel, it is necessary for a plaintive to prove that (1)the plaintive assumed that a particular legal relationship then existed between the plaintiff and defendant or expected that a particular legal relationship would exist between them and, in the later case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant had induced the plaintiff to adopt that assumption or expectation; (3) the plaintive acts or  abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled;  and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
25	The Tenant says it assumed it was entitled to the protection of the Omnibus Regulations because of the following matters:
a.	the Federal Government’s announcement about rent relief and COVID-19 in late March 2022;
b.	the Landlord sending the Tenant a form for making a rent relief application on 31 March 2020 and the Tenant completing the form and returning it on about 1 April 2020;
c.	the National Cabinet publishing on about 7 April 2020 the National Cabinet Mandatory Code of Conduct: SME Commercial Leasing Principles During COVID-19 (“Code”);
d.	the Landlord sending the Tenant on about 17 April 2020 a subsequent rent relief form referable to the Code;
e.	Mr Hamilton, on behalf of the Landlord, on about 15 April 2020 telling Ms Moussi, on behalf of the Tenant, that the Tenant was not required to produce financials;
f.	the Omnibus Act came into operation on around 25 April 2020 and the Omnibus Regulations took effect around 1 May 2020; and
g.	following the introduction of the Omnibus Regulations the parties continued to negotiate rent relief and treated the Lease as being ‘under’ the Omnibus Regulations including attending a mediation at the Victorian Small Business Commission.
26	The Landlord admits the matters set out in the preceding paragraph other than subparagraphs (e) and (g). The Landlord does not admit that the Lease was being treated as under the Omnibus Regulations. The Landlord disputes Mr Hamilton told Ms Moussi that financials were not required. 
27	Ms Moussi says that on 15 April 2020 she had a telephone conversation with Mr Hamilton who told her the Tenant was not required to produce financials or other material given that the business was closed and earning no revenue.  This is disputed by Mr Hamilton. Ms Moussi says she was told that the Landlord would be more generous with rent relief if the Tenant made some rebranding changes to its business. 
28	Mr Hamilton says he also told Ms Moussi on 15 April 2020 that the Tenant must submit financial information once the Tenant was able to re-open. Ms Moussi cannot recall him saying this.
29	The parties agree that the Tenant submitted a compliant request for rent relief dated 1 October 2020 and received by the Landlord on 7 October 2020. It is common ground that a request for rent relief does not operate retrospectively. Consequently, the only way the Tenant will receive any protection under the Omnibus Regulations prior to this date is if it establishes its estoppel claim.
30	The Landlord and Tenant exchanged a series of emails regarding rent relief which can only properly be described as negotiations given that they contained offers and counteroffers. The communications included: -
a.	an offer by the Tenant to the Landlord on 15 April 2020 wanting 100% rent relief from 17 March 2020 and a refund of rent;
b.	an offer by the Landlord on the same day offering rent relief for the 3 month period from April to June 2020 and requiring the Tenant at the end of that period to provide certified copies of financials showing 100% downturn;
c.	a statement by the Landlord on 16 April 2020 that the previous offer could be improved if the Tenant committed to a complete relaunch and rebrand;
d.	the Landlord’s generic email of 17 April 2020 to numerous tenants which opened with the words: 
As you will know we have been working on how to best offer rent relief during what is an unprecedented time for all businesses, ours included. We've been doing our best to develop a process in line with government direction.... 
The below is an update to our process in order to align with the new national guidelines. We have been working as best we can through what we have received so far and will be in touch individually with how the below relates, if at all, to your existing applications and agreements. However, if your organisation falls outside these guidelines no rent relief will be applied at this stage. 
The letter goes on to set out what the Landlord was proposing noting that those that qualify will receive rent relief that aligns with government guidelines. The Landlord was proposing rent relief for six months starting 29 March 2020. The letter was sent before the Omnibus Regulations were passed.
e.	a reply email from the Tenant to the Landlord’s 16 April 2020 email dated 15 May 2020 confirming the Tenant wanted to relaunch and rebrand and asking to meet;
f.	an offer by the Landlord on 28 May 2020 after meeting with the Tenant for rent relief for the period April to August 2020;
g.	a follow up email from the Landlord on 15 June 2020 seeking a response to its 28 May offer;
h.	an email form the Landlord’s property manager Ms Donohue on 15 June 2020 in relation to electricity accounts which notes ‘I know you are currently negotiating with Cameron in relation to your rental payments and rebranding’. Cameron is Mr Hamilton;
i.	an email from Ms Moussi to Mr Hamilton on 18 June 2020 asking to discuss the offer and suggesting a percentage of revenue;
j.	a responding email from Mr Hamilton saying he is not prepared to move from the offer but is happy to readdress should further lockdowns eventuate. In further emails that day Mr Hamilton states he is happy to keep discussing the situation;
k.	an email from Ms Moussi on 3 July 2020 updating the Landlord on the rebranding and noting she had not received anything to finalise agreements;
l.	an offer by email of 7 July 2020 from the Landlord to the Tenant for rent relief for the period April 2020 to September 2020;
m.	a follow up email from the Landlord to the Tenant on 23 July 2020 trying to finalise rent relief;
n.	a further follow up email from the Landlord to the Tenant on 7 August 2022 trying to finalise rent relief;
o.	an offer from the Landlord on 13 August 2020 said to be due to changes to restrictions dealing with the period April 2020 to October 2020 and requesting a response by 14 August 2020. The offer did not require certified financial information to be provided by the Tenant;
p.	an email from the Landlord on 20 August 2020 advising the Tenant that the Landlord has applied the rent waiver as set out in the email of 13 August 2020;
q.	an email of 9 September 2020 from the Tenant replying to the Landlord stating the rent moratorium had been extended to March 2021 and the rent the Landlord has proposed ‘needs to change in light of’ that situation;
r.	a responding email on 14 September 2020 from the Landlord advising that the new offer is ‘in line with mandatory rent code’ and instructing Ms Donohue to organise mediation ‘because I suspect this is the only answer’; and 
s.	the Tenant’s acceptance of the mediation proposal on 17 September.
31	Having regard to the communications set out above, I find that it was reasonable for the Tenant to assume that the Landlord did not require it to submit a compliant request under the Omnibus Regulations once those regulations came into effect to qualify for rent relief. This assumption was reasonable because: -
a.	the Landlord negotiated with the Tenant for rent relief as set out in the email exchanges between them. The negotiations commenced before the Omnibus Regulation were passed. When the Landlord sent the Tenant a rent relief request form the Tenant completed and returned the form and the negotiations commenced;
b.	the offers made by the Landlord used language consistent with the Omnibus Regulations such as ‘waiver’, ‘deferral’, ‘rent relief’, and ‘mandatory rent code’;
c.	at no time during the negotiations was there any indication given by the Landlord to suggest to the Tenant that the negotiations were not ‘under’ the Omnibus Regulations and that the Tenant would need to submit a compliant request if it wanted to avail itself of the Omnibus Regulations; 
d.	the 15 April 2020 offer was the only offer by the Landlord which required financial information to be provided. Even if Mr Hamilton verbally referred to the need for financials, the Landlord made subsequent offers which did not repeat the requirement; and 
e.	Mr Hamilton instructed Ms Donohue to organise a mediation in September 2020. The Landlord then initiated a mediation at the Victorian Small Business Commission to negotiate rent relief under the Omnibus Regulations. This action is consistent with the Landlord treating the negotiations as being under the Omnibus Regulations. 
32	The fact that the Tenant obtained legal advice does not change the exchange of offers between the parties or the right of the Tenant to rely upon the conduct of the Landlord. 
33	The actions of the Landlord caused the Tenant to act based on an assumption that it was not required to submit a compliant request for rent relief under the Omnibus Regulations. The assumption was reasonable in all the circumstances.
34	 I find that the Landlord is estopped from resiling from or denying that the Tenant is entitled to rent relief under the Omnibus Regulations for the period 28 March 2020 to 30 September 2020.
35	The Tenant made a further request for rent relief on 1 October 2020 for the period 1 October 2020 to 31 December 2020 which was stated to be in addition to the request for rent relief for the period 1 April 2020 to 30 September 2020. The rent relief period was further extended by the Third Omnibus Regulations to 28 March 2021.
36	In R & D Health Clubs Pty Ltd v Lin Wang Pty Ltd , Deputy President Riegler considered the extension of the Omnibus Regulations and held that: 
48.	Therefore, I find that the primary objective of Amended Regulations was to extend the scheme, albeit that it also tightened entry for new participants and introduced other provisions dealing with how eligible lease disputes could be resolved or determined. However, I do not accept that the intent of the Amended Regulations or the Further Amended Regulations was to mandate that once a tenant had validly entered the rent relief scheme, it had to re-apply to continue to obtain the benefits under that scheme.  
49.	To interpret the Amended Regulations as requiring those tenants already entitled to claim rent relief under the scheme to submit a fresh request for rent relief, in circumstances where the amending regulations do not mandate for that to occur, leads to uncertainty, confusion and further disputation. It would require the parties to go through the rent relief process of request – offer – mediation again. Conversely, interpreting the Amended Regulations to allow a compliant request for rent relief to ‘roll on’ through a subsequent relevant period leads to continuity and certainty. In my view, an interpretation that leads to continuity and certainty is to be preferred to one that leads to uncertainty, confusion and further disputation.  
50.	Consequently, I find that the Amended Regulations (and Further Amended Regulations) do not require that a fresh request for rent relief must be made for a tenant to be entitled to claim rent relief after 29 September 2020 until 28 March 2021, provided a compliant request was made under the Principal Regulations and no agreement had been reached between the parties. In other words, a right to claim rent relief which lawfully accrued under the Principal Regulations survives into the second and third relevant periods. 
37	For the reasons set out by Deputy President Riegler, I find that the Tenant was not required to submit a new application for rent relief when the regulations were further extended to 28 March 2022 by the Third Omnibus Regulations. The requirements for rent relief did not change. 
38	Having accepted that the Landlord is estopped from denying that the Tenant was ‘under’ the Omnibus Regulations for the period 28 March to 29 September 2020, there was no need for a new request for rent relief under the extended period to be made.
39	In any event it is common ground that a compliant request was made by the Tenant on 1 October 2020 which covered the extended period to 28 March 2021. 
40	For the reasons stated, I find that the Tenant was entitled to rent relief in accordance with the Omnibus Regulations for the period 1 April 2020 to 28 March 2021. As such, the Tenant was entitled to the protection in reg 9 of Omnibus Regulations.
41	Regulation 9 of the Omnibus Regulations provides that a tenant under an eligible lease is not in breach if they do not pay the amount of rent required to be paid  during the relevant period if they comply with regulation 10(1) to (5). 
42	Having found the Tenant was entitled to rent relief, I now turn to determine the relief entitlement. 
43	The Tenant submits that it is entitled to the following rent relief: 
a.	100% waiver of rent; 
b.	alternatively, 93.86% waiver being in proportion to its downturn in trade; 
c.	alternatively, 93.86% rent relief, half by way of waiver and half by way of deferral, accompanied by an offer to extend the term of the Lease in accordance with reg 13 of the Omnibus Regulations. 
44	The First Version Omnibus Regulations did not prescribe the amount of rent relief a tenant was entitled to receive, and the Second Version Omnibus Regulations prescribed a minimum entitlement but no maximum entitlement. 
45	The Landlord made no submission about the quantum of rent relief other than a denial that rent relief was available to the Tenant.
46	The unchallenged evidence is that the Tenant’s turnover declined by 93.86% compared with the same period in the previous year.
47	I find having regard to the Tenant’s circumstances and the Omnibus Regulations that the Tenant is entitled to rent relief for the period 28 March 2020 to 28 March 2021 in the form of a waiver of 93.86% of the rent that would otherwise be payable. 
Issue 2 - Was the Tenant entitled to rent relief under the CTRS Regulations and if so, what was the entitlement?
48	The Tenant seeks orders for rent relief under the CTRS Regulations based upon requests for rent relief dated 25 September 2021 and 5 November 2021.
49	The Landlord denies the validity of the requests because they did not include Victorian Government grants received by the Tenant.
50	The rent relief process under the CTRS Regulations is set out in reg 27 which provides in part:
	Rent relief
(1)	A tenant under an eligible lease may request rent relief from the landlord under the eligible lease.
(2)	A request under subregulation (1) must be in writing and be accompanied by a statement from the tenant—
(a)	that the tenant is an eligible tenant; and 
(b)	that the tenant satisfies the decline in turnover test, including setting out—
(i)	the tenant's turnover for the turnover test period, including the turnover test period used; and
(ii)	the tenant's comparison turnover, including stating whether the relevant comparison period or a specific alternative turnover method was used; and
(iii)	if an alternative comparison turnover method was used, how the comparison turnover was calculated; and
(iv)	the tenant's decline in turnover; and
(v)	the reduction in rent that would satisfy the minimum requirements of an offer under subregulation (8); and
(vi)	any other circumstances that the tenant would like the landlord to consider in making an offer under subregulation (8)(d)(ii).
(3)	Within 14 days after making a request under subregulation (1), the tenant must provide information to the landlord that evidences the turnover figures contained in the statement under subregulation (2), including at least one of the following— 
(a)	extracts from the tenant's accounting records;
(b)	the tenant's business activity statements;
(c)	statements issued by an ADI in respect of the tenant's account;
(d)	a statement prepared by a practising accountant—
and include a statutory declaration made by the tenant or an authorised officer of the tenant, stating that the tenant is an eligible tenant and that the information provided by the tenant under this subregulation and subregulation (2) is true to the best of the tenant's knowledge and belief.
(4)	If a tenant does not comply with subregulation (3) within 14 days after making the request under subregulation (1), the tenant's request for rent relief lapses.
(5)	Subject to subregulation (6), if a tenant's request for rent relief lapses, the tenant may make a new request for rent relief under subregulation (1).
(6)	If a tenant allows 3 requests for rent relief to lapse, the tenant cannot make a further request for rent relief under subregulation (1).
(7)	On receipt of a tenant's request under subregulation (1) which complies with subregulations (2) and (3), a landlord must offer rent relief to the tenant under an eligible lease within— 
(a)	14 days after receiving the evidence required under subregulation (3); or
(b)		a different time frame as agreed between the landlord and the tenant in writing.
(8)	A landlord's offer of rent relief under subregulation (7) must be in writing and—
(a)		relate to up to 100% of the rent payable under the eligible lease during the rent relief period; and
(b)	at a minimum, be proportional to the tenant's decline in turnover; and
(c)	provide that no less than 50% of the rent relief offered by the landlord must be in the form of a waiver of rent, unless a landlord and a tenant otherwise agree in writing; and
(d)	take into account—
(i)	part payments of rent under regulation 26(1)(a)(ii); and
(ii)	any other circumstances that the tenant would like the landlord to consider as stated in the tenant's request under subregulation (2)(b)(vi). 
(9)	To avoid doubt, if the rent charged under an eligible lease is inclusive of outgoings chargeable to the tenant with respect to the premises, the landlord must offer rent relief under subregulation (8) with respect to the rent payable inclusive of outgoings.
51	Regulation 25 of the CTRS Regulations provides:
Offence to provide false or misleading information
In providing any document or information under these Regulations, a landlord or a tenant under an eligible lease must not—
(a)	give information or make a statement that the landlord or the tenant knows or has reason to believe to be false or misleading; or
(b)	produce a document that the landlord or the tenant knows or has reason to believe to be false or misleading without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Penalty:	20 penalty units.
52	The following facts are not in dispute:
a.	the Tenant made a request for rent relief under the CTRS Regulations dated 25 September 2021 (“September Request”) although not received by the Landlord until 29 September 2021;
b.	the Landlord wrote to the Tenant on 8 October 2021 asking whether the Tenant disclosed Victorian Government grants in its turnover figures;
c.	the Tenant responded on 21 October 2021 by disclosing Victorian Government grants in the amount of $10,700;
d.	the Landlord wrote to the Tenant on 2 November 2021 stating that the September 2021 Request was invalid and did not make an offer of rent relief;
e.	on 5 November 2021 the Tenant submitted a further request for rent relief without admitting that the September 2021 Request was invalid (“November Request”);
f.	on 9 November 2021 the Landlord wrote to the Tenant requesting confirmation that no grants were received by it in August 2021; 
g.	on 15 November 2021 the Tenant wrote to the Landlord disclosing funding of $40,000 from the Licenced Hospitality Venue Fund, which was jointly state and federally funded and which had not been included in its turnover figures;
h.	by letter dated 18 November 2021, the Landlord stated that the November Request was invalid; and
i.	on 13 December 2021, the Tenant made a further request for rent relief (“December Request”) that the Landlord accepts as valid.
53	Ms Moussi says the failure to disclose the business support grants was inadvertent.
54	Regulation 3 of the CTRS Regulations requires a tenant to provide information to the landlord that evidences the turnover figures contained in the request within 14 days of submitting a request. 
55	The 14 day period runs from when the request is received. 
September Request 
56	The September Request was received by the Landlord on 29 September 2021. Accordingly, the Tenant had to provide evidence of the turnover figure by 13 October 2021.
57	The definition of ‘turnover’ is defined in the CTRS Regulations as:
turnover means the current GST turnover within the meaning of the GST Act as modified under regulation 11 plus all Victorian government COVID-19 business support grants received by the tenant during the relevant period
58	A tenant must include any Victorian government grant in its turnover figures.
59	The Tenant did not disclose Victorian Government grants of $10,700 until 21 October 2021 which is outside of the 14 day period provided by the CTRS Regulations.
60	The principles relevant to statutory construction require consideration by the Tribunal of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.
61	Regulation 1 of the CTRS Regulations sets out the objectives of the legislation as follows:
Objectives
The objectives of these Regulations are—
(a)	to implement temporary measures to apply to tenants and landlords under eligible leases under the Commercial Tenancy Relief Scheme Act 2021 to mitigate the effect of measures taken in response to the COVID-19 pandemic; and
(b)	to implement mechanisms to resolve disputes concerning eligible leases.
62	Counsel for the Tenant, Mr Hopper, submitted that the provision of information about the grant on 21 October 2021 is interconnected with the original grant. There is a temporal connection between the request for rent relief and the information supplied late by the Tenant. He summitted that the request should be treated as valid because:
a.	the Tenant’s failure to disclose that information was inadvertent;
b.	the Landlord requested disclosure of government grants;
c.	the Tenant disclosed that information in response to the Landlord’s request;
d.	the Landlord did not make an offer of rent relief based on incomplete material; and
e.	the provision of information about Government grants was in response to the Landlord’s request, creating a causal and temporal connection between the Tenant’s request for rent relief and the information that was provided late.
63	Unlike the CTRS Regulations, the Omnibus Regulations did not specify a time limit for when documents supporting a request were to be provided to a landlord.  
64	Regulation 10 of the Omnibus Regulations required a request to be accompanied by information to evidence certain matters specified in the regulations. That requirement ‘to be accompanied by’ has been interpreted by the Tribunal to mean that the reference to or incorporation of documents must be temporally tied or connected with a request. The information could be provided over a period depending upon the circumstances of the case and did not need to literally accompany the request. 
65	Mr Hopper relied upon the case law, considering the Omnibus Regulations requirement of information to accompany a request for rent relief, in support of his contention that the 14 day period under the CTRS can be extended if there is a temporal connection.
66	I do not accept the contention. The CTRS Regulations and Omnibus Regulations are not the same. Regulation 3 of the CTRS Regulations imposes a time period of 14 days in which a tenant must provide information to a landlord. The information must evidence the turnover figures. Regulation 4 then provides a consequence if a tenant does not comply with regulation 3 within 14 days of making a request. The Omnibus Regulations contained no set time period. 
67	One can only assume that Parliament intentionally included a time limit in the CTRS Regulations unlike the Omnibus Regulations. The CTRS Regulations deliberately set out a 14 day time period and what is to happen if the 14 day time period is not met. The request lapses and the Tenant may be eligible to make a new request. 
68	The Tenant did not, within the 14 day period of making its September Request, submit information that evidences its turnover figures. While the Tenant submitted information to the Landlord within the 14 day period, the information was false and did not evidence the Tenant’s turnover figures. 
69	Whether the failure to include grant information was deliberate or otherwise is not relevant for the purpose of determining if a compliant request was made in September 2021.  
70	The Tenant submits that the CTRS Regulations contain an over-arching obligation on both parties to an eligible lease to cooperate and act reasonably and in good faith in all discussions and actions associated with matters to which the CTRS Regulations apply. It submitted that this is consistent with there being some latitude in the provision of information and the application of the CTRS Regulations.  
71	I do not accept the submission. The CTRS Regulations do not allow for latitude in relation to the 14 day period. The latitude in the regulations is in allowing for further rent relief requests to be made in circumstances where a tenant’s request for rent relief lapses. Accordingly, the September Request was not a compliant request.
November Request
72	The November Request claimed a decline in turnover for the relevant period of 90.82 %. It is accepted that the request failed to include in the turnover figures a $40,000 grant received in August 2021. 
73	On 15 November 2021, within 14 days of making the Second Request the Tenant disclosed receipt of a grant to the Landlord.
74	The Landlord accepts that, taking into account the correct turnover figures, the decline in turnover is 69.04%.
75	The Landlord rejected the November Request by letter dated 18 November 2021 from its solicitors to the Tenant’s solicitors. The letter read:
Your client’s piecemeal disclosure of turnover during the Test Period is preventing our client from making an offer of rent relief.
76	I do not accept that the position adopted by the Landlord was tenable. Once the Landlord had clarification about the August 2021 grant which was provided within 14 days of the request, it had all the information it needed to make an offer of rent relief. 
77	I find the November Request to be a valid request for the following reasons:
a.	I accept Ms Moussi’s evidence that the failure to include the grants on each occasion was inadvertent. Accordingly, I accept that when she signed the declaration in support of the Second Request it was to the best of the Tenant’s knowledge and belief, correct;
b.	the fact that the information in the statutory declaration was wrong, does not invalidate the November 2021 Request; 
c.	the definition of turnover in the CTRS Regulations specifically included Victorian government COVID-19 business support grants but made no reference to federal grants;
d.	it is accepted that the $40,000 grant in August 2021 was from the Licenced Hospitality Venue Fund, a jointly funded state and federal fund; and
e.	the Landlord was provided with correcting information within 14 days of the Second Request being made.
78	In these circumstances, the Landlord was required under reg 27 (7) of the CTRS Regulations to offer the Tenant rent relief from the date of the November 2021 Request to the end of rent relief period. The rent relief period is defined in the CTRS Regulations as ending on 15 January 2022.
79	The offer should have been at a minimum proportional to the Tenant’s decline in turnover.
80	I find having regard to the Tenant’s circumstances and reg 27 of the CTRS Regulations that the Tenant is entitled to rent relief for the period 15 November 2021 to 15 January 2022 in the form of a waiver of 69.04% of the rent that would otherwise be payable.
December Request
81	The Tenant made another request for rent relief on 13 December 2021 following the Landlord’s rejection of its Second Request. The Landlord acknowledges that the Tenant made a compliant request for rent relief on 13 December 2021. The Landlord made an offer to the Tenant based on the 13 December 2021 request. The Landlord says the Tenant is deemed to have accepted its offer by reason of reg 27(11) as no response to the offer was received. 
82	I do not accept that the Landlord’s offer was deemed to have been accepted by the Tenant. Having found that the November Request was valid, the Landlord was required to make an offer of rent relief in response to the November Request. The December Request was unnecessary.
2022 CTRS Regulations
83	On 1 February 2022 the Commercial Tenancy Relief Scheme Regulations 2022 (Vic) (“2022 CTRS Regulations”) came into force with effect from 16 January 2022.
84	The Tenant’s written submissions claim an entitlement to rent relief under the 2022 CTRS Regulations.
85	The claim was not pleaded in the Further Amended Points of Claim and no application to amend its claim was made by the Tenant.  
86	I make no findings in relation to this claim, it not being part of the pleaded case.
Summary of CTRS Regulation rent relief entitlement 
87	The rent relief the Tenant is entitled to under the CTRS Regulations is a waiver of 69.04% of the rent that would otherwise be payable for the period 15 November 2021 to 15 January 2022.
Issue 3 – Is the Tenant entitled to recover monies paid to the Landlord for electricity?
88	The Tenant says that the Landlord has unlawfully sold electricity to the Tenant through an embedded network and that it is entitled to restitution for the sums paid for electricity.
89	An embedded network is an electricity network that is privately owned and operated that has been exempted from the requirements to register with the Australian Energy Market Operator and which serves multiple customers and is connected to another distribution system through a parent connection point.
90	The Tenant claims the Landlord’s sale of electricity to it was in breach of:
a.	s 16 of the Electricity Industry Act 2000 (Vic) (“Electricity Act”); and 
b.	s 11 (2) of the National Electricity Law.
91	The Landlord accepted in its opening submission that it did not use approved meters but says there is no suggestion that the Tenant had been overcharged for electricity.
Did the Landlord breach s 16 of the Electricity Act?
92	The Tenant says the Landlord failed to hold a licence or be exempted under the Electricity Act before selling electricity to it. 
93	Section 16 of the Electricity Act provides:
(1)	A person must not engage in the generation of electricity for supply or sale or the transmission, distribution, supply or sale of electricity unless the person—
(a)	is the holder of a licence authorising the relevant activity; or
(b)	is exempted from the requirement to obtain a licence in respect of the relevant activity.
94	Section 17 of the Electricity Act provides:
(1)	The Governor in Council may by Order in Council published in the Government Gazette exempt a person from the requirement to obtain a licence in respect of the activity specified in the Order in Council.
(2)	An Order under subsection (1) may:
…
(e)	be subject to such terms, conditions and limitations as are specified in the Order; and
95	It is common ground that the Landlord was selling electricity to the Tenant and that it was not licenced under s 16 before 6 October 2020. 
96	The Landlord claims to have been exempted relying upon the exemption provided in Government Gazette entry S390 of 15 November 2017 (“Exemption”).
97	The Tenant says there are two problems with the Landlord’s reliance on the Exemption. The Exemption requires the site to have less than 10 customers for the exemption to apply which it says is not the case at Federal Mills and the Landlord failed to comply with the conditions of the Exemption.
98	The Exemption states that:
4. 	Deemed exemption of retailers
(1) 	A person carrying out an activity set out in Table 1 is exempt from the requirement to obtain a licence under section 16 of the Act in respect of that activity if:
(a) 	the electricity the person sells is obtained by the person as the customer of a licensed retailer; and
(b) 	in the case of the sale of metered electricity, the premises of each customer of the person is separately metered.
(2) 	The exemption is subject to the conditions set out in Division 3 of this Part.
99	Table 1 in the Exemption contains the following:
Table 1 Retail activity deemed exemption
Persons selling metered electricity to fewer than 10 small commercial/retail customers within the limits of a site that they own, occupy or operate.
100	Division 3 of the Exemption contains the following condition:
8. 	Compliance with Retail Code or Distribution Code
It is a condition of an exemption under this Part that the exempt person must comply with the provisions of the Retail Code or the Distribution Code that are specified by the Essential Services Commission in the relevant Code as provisions applicable to an exempt person of that category or class.
101	Further, Division 3 of the Exemption also contains the following condition:
9. 	Informed consent and provision of information
(1) 	It is a condition of an exemption under Division 1 that the exempt person must obtain the explicit informed consent of the customer to an arrangement for the sale of electricity to that customer.
(2) 	It is a condition of an exemption under Division 1 that the exempt person must provide the following information, in plain English, to the customer before obtaining the consent referred to in subclause (1):
(a) 	that the customer has the right to elect to purchase electricity from a licensed retailer of their choice, and information on the options for metering that would allow this choice;
(b) 	that the exempt person is not subject to all the obligations of a licensed retailer and the customer will not receive the same protections as it would if it were purchasing from a licensed retailer;
(c) 	the customer’s rights in relation to dispute resolution including:
(i) 	the contact details of the exempt person as the initial point of contact for disputes; and
(ii) 	the exempt person’s procedures for handling disputes and complaints; and
(iii) 	from 1 July 2018, the right that the customer has to access an external dispute resolution service approved by the Essential Services Commission;
(d) 	the forms of assistance available if the customer is unable to pay electricity bills due to financial difficulty, as well as the process the customer should follow to seek these forms of assistance;
(e) 	the electricity tariffs and all associated fees and charges that will apply to the customer in relation to the sale of electricity;
(f) 	the flexible payment options that are available to the customer in relation to the sale of electricity, such as arrangements for payment by periodic instalments (bill smoothing);
(g) 	contact numbers in the event of an electricity fault or emergency.
(3) 	It is a condition of an exemption under this Part that an exempt person must also provide the information set out in subclause (2):
(a) 	at any time at the request of the customer or the Essential Services Commission; and
(b) 	annually to the customer.
102	The term ‘explicit informed consent’ is also defined in the Exemption as follows:
explicit informed consent means consent is given by a customer to an exempt person where: 
(a) 	the exempt person, or a person acting on behalf of the exempt person, has clearly, fully and adequately disclosed, in plain English, all matters relevant to the consent of the customer, including each specific purpose or use of the consent; and 
(b) 	the customer gives the consent to the arrangement or transaction, 
(i) 	in writing, signed by the customer; or 
(ii) 	verbally, if the verbal consent is evidenced in a way that it can be verified and recorded; or 
(iii) 	by electronic communication generated by the customer;
Does the Exemption apply to the Landlord?
103	As stated in Table 1, the Exemption applies only when there are less than ten customers on a ‘site’.  There is no definition of ‘site’.
104	The Landlord submits that Federal Mills precinct is two ‘sites’, being East and West, and relies on there being less than ten customers in the western part of the Federal Mills precinct where the premises is located in order to fit into the Exemption.
105	The Landlord relies upon an expert report of Connor James. Mr James holds a Bachelor of Science and Master of Laws and has worked in the energy industry since 2007. The report states: -
(a)	there is no formal definition for a ‘site’;
(b)	the ‘norm in jurisdictions in that the boundaries of the site are defined by reference to land title’;
(c)	he declines to give an opinion on whether the Federal Mills precinct is one site or two; and
(d)	in his opinion the relevant regulatory bodies would consider the precinct to consist of one site, noting that this is consistent with email correspondence from the regulator.
106	The Tenant obtained an expert report from Dr Andrew Nance. Dr Nance holds a Bachelor of Engineering (Electrical) and Doctor of Philosophy (Energy Policy). Dr Nance stated that: 
a.	there were separate connections for the East and West side of the precinct;
b.	while there may be multiple electrical networks, the arrangements are treated as one embedded network for the purpose of the regulatory framework; and
c.	there is no meaningful basis for distinguishing the East and West networks when considering the threshold of 10 customers.
107	When put to Dr Nance in cross examination that Mr James contends that it is up to the regulatory authority to determine whether the precinct is one site or not, Dr Nance disagreed. He said it was unambiguous and the purpose of the framework was to administer the activity of the Landlord. The fact that there were two networks does not exonerate the Landlord. 
108	The evidence is that there were at all relevant times more than ten tenancies on the Federal Mills site (both East and West), so that if Federal Mills is to be taken as one site, the Exemption did not apply.
109	I find that for the purpose of the Exemption the Federal Mills is one site for the following reasons:
a.	the site sits within one land title; 
b.	the norm referred to by Mr James is that the site would be one site given it sits within one title;
c.	Mr James was of the opinion that regulatory bodies would consider the site to consist of one site; and 
d.	Dr Nance was of the opinion that there is no meaningful basis for distinguishing the East and West networks when considering the threshold of 10 customers.
110	 As the site had more than 10 customers, it falls outside of the Exemption.
111	In relation to the claim that the Landlord did not comply with the conditions of the Exemption, it is common ground that it did not. The Landlord neither sought nor obtained the Tenant’s explicit informed consent, nor provided to the Tenant the information required in the conditions imposed by clause 9 of the Exemption.
112	The Tenant submits and I accept that it follows that the Landlord has failed to fulfil the conditions of the Exemption.   
Did the Landlord breach s 11 (2) of the National Electricity Law?
113	The Tenant says the Landlord breached the National Electricity Law as it was not a Registered participant or exempted before selling electricity to it.
114	Section 11(2) of the National Electricity Law provides:
(2) 	A person must not engage in the activity of owning, controlling or operating, in this jurisdiction, a transmission system or distribution system that forms part of the interconnected national electricity system or that forms part of, or is directly or indirectly connected to, a regulated stand-alone power system unless— 
(a) 	the person is a Registered participant in relation to that activity; or 
(b) 	the person is the subject of a derogation that exempts the person, or is otherwise exempted by the AER, from the requirement to be a Registered participant in relation to that activity under this Law and the Rules.
115	It is not controversial that The Landlord was not a ‘Registered participant’ for the purposes of sub-s 11(2)(a).
116	Section 13 of the National Electricity Law provides:
13	Exemptions for transmission system or distribution system owners, controllers and operators 
(1) 	A person engaged or proposing to engage in the activity referred to in section 11(2) may request the AER to exempt that person from registering as a Registered participant in relation to that activity for the purposes of this Law and the Rules. 
(2) 	A request under subsection (1) must be in accordance with the Rules. 
(3) 	On receipt of a request under subsection (1), the AER may, subject to the Rules, grant the person the exemption. 
(4) 	An exemption granted under subsection (3) may be subject to such terms and conditions as the AER considers appropriate in accordance with the Rules.
117	There is no evidence before me of an exemption under s 13 having been granted to the Landlord.
118	Section 14 of the National Electricity Law provides: 
14	Evidence of registration or exemption 
(1) 	A certificate signed by an authorised officer certifying that a person named in the certificate is a Registered participant or has been granted an exemption from registration under section 12 or 13 is evidence of the registration or exemption.
119	There is no evidence before me of a certificate under s 14 having been issued.
120	The Tenant says that even if the Landlord were to obtain an exemption under s 13 of the National Electricity Law, then it would be required to comply with the Electricity Network Service Provider – Registration Exemption Guideline, which it did not.
121	The Electricity Network Service Provider – Registration Exemption Guideline states that:
4.1 	General requirements
Words in italics are primarily intended as commentary to assist understanding of a condition but also form part of the condition. 
…
1. 	All meters used for the measurement of electrical energy whether delivered to, or exported by, a customer must comply with the requirements of the National Measurement Act, 1960 (Cth) and regulations made under that Act for electricity meters and sub–meters and with the requirements set out in schedule 7.4 of the NER. 
This condition applies to all metered energy situations. It does not apply if an unmetered supply is permitted by the AER.
122	It is common ground between the parties that the meters used at the Premises are not pattern approved as required by the National Measurements Act 1960 (Cth). Unless the meters are ‘grandfathered’, the Landlord could not obtain an exemption as the meters at the precinct are non-compliant.
123	In his report Mr James relies on the possibility that the meters used at the Premises were installed prior to 1 January 2013 and were ‘grandfathered’. 
124	The evidence does not support this assumption because: -
a.	the Landlord acquired the Federal Mills on 21 October 2013;
b.	the Landlord’s solicitor gave instructions to Mr James that metering was installed gradually over a three year period commencing in 2014;
c.	photos of the metres shown to Mr James during cross-examination have markings ‘2015-8’. 
d.	the manufacturer of the meters has confirmed by email that ‘2015-08’ is the date of manufacture and the rest of the numbers are believed to be a serial number. The manufacturer makes reference to the product being ‘discontinued for some time so I can’t confirm’. It is unclear what cannot be confirmed. Based on the email from Ms Moussi that the manufacturer is responding to, it seems more likely than not that the manufacture is certain that 2015 was the date of manufacture but uncertain if the numbers following the date are the serial number for the meter in question. If the meter was manufactured in 2015, it can not have been installed at the site in 2013; and 
e.	Mr James agreed during cross examination that in all probability it is likely that the meters were manufactured in 2015.
125	I find for the reasons stated that the meters were not ‘grandfathered’ and the Landlord would not have been entitled to an exemption had it applied for one.
126	In the circumstances the Landlord has breached the National Electricity Law by not being a Registered participate or being subject of a derogation or otherwise exempted by the AER when supplying electricity to the Tenant.
Is the Tenant entitled to restitution for money paid?
127	There are covenants in the Lease that the Tenant must pay 100% building outgoings including electricity. Between May 2017 and October 2020, the Landlord invoiced the Tenant and the Tenant paid outgoings said to represent electricity charges. 
128	I have found that the sale of electricity by the Landlord to the Tenant was:
a.	before 6 October 2020, in breach of s 16(2) of the Electricity Act; and
b.	at all times in breach of the s 11(2) of the National Electricity Law (“the electricity statues”).
129	The Tenant says that because of these breaches, the Landlord was not lawfully able to recover electricity costs from it. It says the charge was pursuant to an unlawful contract and the money was unlawfully received. 
130	The Tenant seeks a declaration that the Landlord was prohibited from charging for electricity in the period in question and a set-off or credit to its account for amount paid for electricity. 
131	I accept Ms Moussi’s evidence that the Tenant made payments for electricity before October 2020 under the mistaken belief that it was liable to make those payments not realising that the Landlord was selling electricity without the lawful registration.
132	The Tenant referred me to the Federal Court decision of Derrington J in Pipe Networks Pty Ltd v 148 Brunswick Street Pty Ltd (Trustee) (“Pipe Networks”) in support of its restitution claim. The remaining issue in dispute at the hearing arose from the landlord’s cross-claim and concerned the interpretation of a service charges clause in a lease. The clause regulated the amount the lessor could charge the lessee for various utilities including electricity. The central question was the rate at which the lessor could charge for electricity it supplied to the lessee. The Tenant submitted that while the Court was not required to consider a claim for restitution, its reasoning suggests that such a claim would succeed.
133	The lessor for a particular period of time was in breach of s 88 of the National Energy Retail Law (Queensland) (“NERLQ”)for selling energy without an authorisation or exemption, in contravention of s 88. The lessor subsequently obtained registration. 
134	Section 88 of the NERLQ provides:
(1) 	A person (the seller) must not, in this jurisdiction, engage in the activity of selling energy to a person for premises unless— 
(a) 	the seller is the holder of a current retailer authorisation; or 
(b) 	the seller is an exempt seller.
135	Derrington J made findings as to how the clause was to be interpreted and more specifically the rate the lessor could charge the lessee for electricity. Her Honour interpreted the clause in a particular way and as a consequence of her construction of the Service Charges clause, the cross-claim seeking the alternative construction was dismissed.
136	Having determined the issue in dispute her Honour went on to say:- 
It is therefore not strictly necessary to resolve the question of whether the claimed unpaid electricity charges were otherwise unenforceable, however it is appropriate to briefly set out some conclusions in the event a different view were taken as to the correct construction of the clause.
137	Her Honour found that selling electricity to the tenant in the period in question contravened s 88.
138	The question considered was whether the contractual obligations relating to the charges were unenforceable because of illegality.  
139	The Court adopted the principles in Equuscorp Pty Ltd v Haxton and found that a clause in a lease that allows recovery of electricity costs in breach of that section is unlawful and unenforceable.
140	In Equuscorp, French CJ, Crennan and Kiefel JJ  identified the three recognised categories of cases where an agreement (or part thereof) may be unenforceable for statutory illegality:
(i)	the making of the agreement or the doing of an act essential to its formation is expressly prohibited absolutely or conditionally by the statute;
(ii)	the making of the agreement is impliedly prohibited by statute. A particular case of an implied prohibition arises where the agreement is to do an act the doing of which is prohibited by the statute;
(iii)	the agreement is not expressly or impliedly prohibited by a statute but is treated by the courts as unenforceable because it is a ‘contract associated with or in the furtherance of illegal purposes’.
In the third category of case, the court acts to uphold the policy of the law, which may make the agreement unenforceable. That policy does not impose the sanction of unenforceability on every agreement associated with or made in furtherance of illegal purposes. The court must discern from the scope and purpose of the relevant statute ‘whether the legislative purpose will be fulfilled without regarding the contract or the trust as void and unenforceable’. As in the case when a plaintiff sues another for damages sustained in the course of or as a result of illegal conduct of the plaintiff, ‘the central policy consideration at stake is the coherence of the law’. (footnotes omitted)
141	The court in Pipe Network went on to say:-
161. 	Section 88 in its statutory context conditionally prohibits the carrying out of the seller’s obligations in a contract for the sale of energy (being supplying and charging for energy), rather than the making of such a contract.  Thus the case would seem to fall within the second category of illegality identified in Equuscorp above:  the making of the agreement is impliedly prohibited as the agreement is to do an act the doing of which is conditionally prohibited by statute.
162. 	However, as there is no express reference to contracts or agreements in the provision, it is necessary to consider the broader legislative scheme to confirm a conclusion which has the effect of rendering the electricity charges unenforceable (if there is no effective retrospective exemption).
142	In the present case, the covenants in the Lease required the Tenant to pay all charges for electricity. 
143	While I am not bound by Pipe Networks I accept the principles set out by Derrington J. Her Honours’ decision is not however authority for the proposition that the Tenant is entitled to restitution because the electricity supply was unlawful.
144	This is not a case where the Landlord is seeking to recover electricity costs unlawfully rendered to the Tenant. Had it been, the Landlord could not succeed as the covenants would be unenforceable as they would be associated with or in the furtherance of illegal purposes.
145	This is a case where the Landlord has charged the Tenant for electricity unlawfully supplied by it and the Tenant seeks restitution for the sums paid. This issue was not determined in Pipe Networks.
146	In relation to restitution, the Tenant relies upon Equuscorp where the plurality held that: 
[33]	Failure of consideration as a basis for a claim for money had and received may arise from a number of causes.  One cause is illegality.  Where a payment is made under a contract which is unenforceable for illegality, the unenforceability of the agreement may constitute a failure of consideration which is capable of supporting a claim for recovery of the payment.  It is not necessary for present purposes to expatiate upon the concept of "total failure of consideration" debated in the submissions to this Court, its amelioration by the concept of apportionment of consideration and the question whether "total failure of consideration", however understood, is necessary to a claim for money had and received based upon failure of consideration.  What is important for present purposes is the interaction between the foundation for the claims for money had and received in this case and the policy of the common law which renders unenforceable an agreement made for the furtherance of an illegal purpose. 
[34]	The outcome of a restitutionary claim for benefits received under a contract which is unenforceable for illegality, will depend upon whether it would be unjust for the recipient of a benefit under the contract to retain that benefit.  There is no one-size-fits-all answer to the question of recoverability.  As with the question of recoverability under a contract affected by illegality the outcome of the claim will depend upon the scope and purpose of the relevant statute.  The central policy consideration at stake, as this Court said in Miller, is the coherence of the law.  In that context it will be relevant that the statutory purpose is protective of a class of persons from whom the claimant seeks recovery.  Also relevant will be the position of the claimant and whether it is an innocent party or involved in the illegality. 
147	The Tenant says that to refuse restitution would frustrate that purpose of the electricity statutes (consumer protection) and allow the Landlord to retain the benefit of an unlawful contract and an unlawful activity.   
148	The Tenant says that payments for electricity should be treated in the same way that payments for land tax were treated in Richmond Football Club Ltd v Verraty Pty Ltd. That case concerned outgoings and land tax payments. 
149	Senior Member Riegler (as he was then) held that most outgoings could be retained by the landlord in the absence of a s 46 estimate, but that land tax was in a different category and could not be retained. 
150	With respect to land tax, the Senior Member held that:
[93] 	In my view, this is analogous to the imposition of land tax, given that there was no obligation to pay land tax, nor could there be because s.50 expressly prohibited a landlord from recovering land tax through the lease agreement. It was not possible for the landlord to pass on its obligation to pay land tax as a term of the lease agreement. 
[94] 	However, the payment of land tax is distinguished from the payment of outgoings. It is possible, under the provisions of the RLA, for a lease to provide that outgoing are to be paid by the tenant, subject to certain requirements being met. Given that distinction, I comment on each of these aspects of the claim separately
151	I do not accept that the electricity charges rendered by the Landlord are in the same category as land tax for the reasons that follow.
152	Section 50 of the Retail Leases Act 2003 (Vic) makes void a provision in a retail lease that makes a tenant liable to pay land tax. Under no circumstances can a landlord lawfully recover land tax from a tenant. 
153	The electricity statutes do not prohibit out right the supply of electricity by the Landlord or the charging by the Landlord of the Tenant for electricity supplied by it. Electricity can be lawfully supplied provided certain requirements are met as set out in the electricity statutes.
154	The provisions in the Lease allowing the Landlord to charge for electricity are not rendered unlawful by reason of the electricity statutes. What is unlawful is the Landlord supplying electricity without meeting the requirements of the electricity statutes. There is a distinction between charging for electricity supplied in breach of the electricity statutes and charging for land tax which is totally prohibited in all circumstances.
155	The Electricity Act and Essential Services Commission Act 2000 (Vic) contain provisions in relation to breaches of the electricity statutes. These include the imposition of penalties and orders for compensation to a person who has suffered loss as a result of the contravention. Ultimately it is a matter for the Regulator to deal with the Landlord.
156	Both parties made submissions in relation to Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd where the Court of Appeal dealt with the circumstance where a disclosure statement was not provided as required by s 46 of the Retail Leases Act 2003 and the tenant claimed restitution for rent paid.
157	Chernov JA held (Nettle and Ashley JJA agreeing):
[20] 	Although it may be said that the principles of restitutionary relief have not yet been exhaustively or definitely stated by the High Court (which is unsurprising given the nature of the remedy) there is, nevertheless, guidance that is apparent in the authorities to which I have referred as to when such relief is available and, in particular, what may constitute a good defence to a claim for money paid under a mistake. As I understand the cases, once a prima facie entitlement to restitution is made out by the payer, it is for the payee to show that it would not be unjust or unconscionable for it to retain the money if the payer is to be denied restitutionary relief. Thus, in those circumstances, it is for the respondent to demonstrate, for example, that it has given good consideration for the payment. Whether it had done so is to be judged from the perspective of the payer, in this case, the tenant. Moreover, in a context 4 such as the present, it would also be relevant, I think, to consider whether the respondent has a “counter restitutionary” claim against the payer for use and occupation of the premises. 
[21] 	As I have said, I consider that the landlord has a good defence to the tenant’s restitutionary claim and that is because, broadly, it seems to me, it would not be unjust or unconscionable for it to retain the money in question notwithstanding that it was paid under a genuine mistake. I say this for the following reasons. First, I think that, unlike the position of the payers in David Securities and Roxborough, the tenant here has received good consideration for the money it paid, namely, exclusive possession of the premises that were obviously of use and benefit to it, as is demonstrated not only by the fact that it occupied them since entry for its business purposes, but also by its continued possession of them after it became entitled to terminate the lease pursuant to s.8(2)(c) of the Act. And it is irrelevant that the landlord might have been under an obligation to provide the premises under the lease. The question is not whether the landlord was under such an obligation, but rather whether the tenant gained or accepted a benefit in the form of exclusive use of the premises (as a quid pro quo for the payments in question). As I have said, on the evidence, it is apparent that the tenant received such a benefit and, thus, from its point of view, it received good consideration for its payments. Moreover, it has not been suggested that the contents of the disclosure statement had any relevant bearing on the benefit that the tenant secured under the lease. For instance, there was no suggestion that the statement revealed that the premises, or any matter relating to them, have been misdescribed in the lease, or during the negotiations leading to its execution, such that it would now be unconscionable for the landlord to retain the money. 
[22] 	The second, and additional, reason for my conclusion that it would not be unjust for the landlord to retain the money notwithstanding that it was paid under mistake is that I consider that the landlord has a sound claim against the tenant for use and occupation of the premises for the relevant period, in an amount broadly equal to the rent reserved under the lease. As is explained  in Woodfall’s Laws of Landlord and Tenant, a restitutionary claim based on use and occupation arises where the respondent has been given permission by the claimant to occupy its land without there being any binding term as to payment. The essential element of this cause of action were described in Australia Provincial Assurance Association Ltd v. Rogers and Zegir v. Woop, in slightly different terms, namely, the existence of an agreement between the parties – express or implied – to the effect that the occupant/respondent will be the tenant of the claimant and shall pay for the occupation. In my view, there is no difference of substance between those tests. In any event, I think that each is made out in the present case, given the existence of the lease and lack of any suggestion by the tenant that there was an agreement that it was to occupy the premises rent free. And, in my view, there is no statutory prohibition against such a claim. It seems to me that, on its proper construction, s.8 of the Act is of a like character to that considered in Pavey, in that it merely renders the rent covenant void for the period in question. The section says nothing of the landlord’s rights at common law to compensation for use and occupation of the premises, and a prohibition depriving the landlord of such compensation cannot be implied into it. If Parliament intended to achieve that result it would have said so in terms in that section as it did, for example, in s.11 in relation to “key-money” which specifically prohibits a lessor from, amongst other matters, retaining keymoney that has been paid to it. And, as has been recognised in Pavey, the landlord could establish the amount of compensation to which it was entitled for use and occupation by relying on the rental provisions in the lease as evidence of what was fair and reasonable in that regard. It is true that, ordinarily, proof by the defendant of a demise under seal will provide a good defence to a claim for use and occupation, but as Sholl, J. explained in Specktor v. Lees , the rule is predicated on the claimant being able to sue for rent on the covenant in the deed. In this case, although the lease was made under seal, as the tenant contended, the covenant to pay rent was void for the relevant period and, consequently, the ordinary rule of a deed being a good defence to a claim for use and occupation would not have operated.
158	And Nettle JA said: 
[33] 	The position in this case is different. Whereas in Davids Securities the borrower got nothing in return for its payment of the grossing up amount, and in Roxborough v Rothmans of Pall Mall the tobacco retailer got nothing in return for its payment of the tobacco licence fees, in this case the respondent got the benefit of the use and occupation of the demised premises in return for the rent which it paid. As I see it, that is the benefit which it had in view - the benefit for which it bargained - when it agreed to pay the rent. It is true that the respondent was not under a legal duty to pay the rent and, therefore, it is true that the payment of what it perceived to be rent did not discharge it from an obligation to pay rent. But as I have said, I do not consider that s.8(2) prohibits the lessor receiving or recovering any consideration in respect of the lessee’s use and occupation of the demised premises. There does not seem to be any statutory imperative for concluding that the tenant was intended to have the benefit of free use and occupation. And it is to be noted that no other basis has been suggested. It follows, in terms of a 7 conventional analysis, there has not been a total failure of consideration. 
[34] 	An alternative way of looking at the matter is in terms of the lessor’s right to recover or retain a reasonable satisfaction for the tenant’s use and occupation of the premises and, correspondingly, the lessor’s right to retain so much of the rent paid as does not exceed the amount of a reasonable satisfaction. For the reasons already given, I do not consider that s.8(2) prohibits a lessor from receiving or retaining a reasonable satisfaction for use and occupation dehors the lessee’s express contractual obligation to pay rent. Accordingly, in my view, this is the sort of situation in which the restitutionary principles essayed in Pavey & Matthews Pty Ltd v Paul may apply.
159	The Tenant contends that the purpose of the electricity statutes regulating the sale of electricity is to prevent people from selling electricity from an embedded network without a permit or exemption for the purpose of consumer protection. I agree that consumer protection is a focus of the legislation.
160	The Tenant says that to allow a landlord without a valid permit to retain money unlawfully charged would entirely frustrate that purpose. I do not accept that proposition.
161	I find that it is not unjust or unconscionable for the Landlord to retain the monies paid by the Tenant for electricity supplied by it unlawfully for the following reasons:-
a.	the Tenant received good consideration for the money it paid, namely a supply of electricity. This is not a situation where the Tenant received no benefit;
b.	the Tenant needed a supply of electricity to operate its business; 
c.	the electricity statutes do not prohibit the supply of electricity by the Landlord per se. The situation is not analogous to the imposition of land tax. Electricity could have lawfully been supplied provided certain requirements were met as set out in the statutes;
d.	the provision in the Lease requiring the Tenant to pay for electricity supplied to the premises is not prohibited by the electricity statutes. The agreement is of the second kind referred to in Equuscorp. The making of the agreement is not expressly or impliedly prohibited by statute but is to be treated as unenforceable because it is a ‘contract associated with or in the furtherance of illegal purposes’;
e.	The Landlord failed to meet the requirements of the electricity statutes and as such was in breach of the statutes. There are statutory consequences for noncompliance set out in the electricity statutes and the Essential Services Commission Act 2000 (Vic) including compensation for an aggrieved party; and 
f.	allowing the Landlord to retain the payments made for electricity does not defeat the purpose of the electricity statutes.
162	I find that the Tenant is not entitled to recover amounts paid for electricity.
Issue 4 – Was the Landlord entitled to re-enter and terminate the Lease based on the s 146 Notice of Default dated 22 April 2021?
163	The 22 April 2021 Notice of Default alleged that the Tenant had breached the Lease by failing to pay rent in outgoings due for the period 1 January 2021 to 30 April 2021.
164	I have found that the Tenant is entitled to rent relief for the period 28 March 2020 to 28 March 2021. 
165	As such, the Tenant was entitled to protection from re-entry under reg 9 of the Omnibus Regulations. That regulation provides that a tenant under an eligible lease is not in breach of the eligible lease if they do not pay the amount of rent required to be paid under the eligible lease during the relevant period provided certain requirements are met.
166	Given the Tenant had the protection of reg 9, the Landlord could not re-enter based upon the alleged outstanding rent for January, February and March 2020 as this period was within the period of protection covered by the Omnibus Regulations. 
167	The only other amount claimed for rent in the 22 April 2021 Notice of Default was for April 2021. The monthly rent was $11,239.60.
168	The Tenant did not pay the April 2021 rent and was not entitled to any covid rent relief for April 2021. 
169	There is a long line of authority to the effect that a notice of default which requires a tenant to do something which the tenant is not required to do, but which otherwise properly refers to breaches by the tenant that have otherwise occurred, is good.
170	As such the Landlord’s re-entry was lawful.
Issue 5 - Is the Tenant entitled to relief against forfeiture?
171	The Tenant seeks relief against forfeiture and agrees to pay any amounts found to be outstanding.
172	The Landlord opposes relief against forfeiture on the basis that even if the Landlord is restored to its position for outstanding electricity and rent, the relationship between the Landlord and Tenant is ‘poisonous’.
173	The Landlord relies upon the decision of Pembroke J in All Destination Marketing Pty Ltd V Horizons Snowy Mountains Pty Ltd . His Honour observed a breakdown in the relationship between the parties and said such a deterioration in the relationship between the lessor and lessee is a recognised critical factor in the exercise of the discretion to relieve against the consequence of a breach that would otherwise preclude the lessee from an entitlement to an option.
174	The Landlord also relies upon the decision in Allsvelte Pty Ltd v Cassegrain Wines Pty Ltd  which also involved relief against loss of an option to renew a lease. His Honour did not agree with the suggestion that the fact the relationship between the parties has soured and is likely to remain disputatious should carry far greater weight in the case of an application for relief against forfeiture in respect of a renewal of an option than it does when considering relief against forfeiture of an existing lease. His Honour went on to say:-
Where the breach on which the forfeiture is based is a non-payment of rent, and arrears of rent have been paid, there is a heavy burden on the lessor to demonstrate why equitable relief should not be granted and would typically require “demonstrating that, by reason of the conduct of the lessee, or otherwise, the grant of relief would be inequitable”: per Brereton J in Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited [2007] NSWSC 92 at [72].
175	The two cases relied upon by the Landlord are NSW Supreme Court decisions concerning options to renew. 
176	The leading case in Victoria on relief from forfeiture remains Jam Factory Pty Ltd v Sunny Paradise, which establishes that:
a.	relief from forfeiture after termination for non-payment of rent is available to a tenant who tenders the arrears;
b.	relief will only be denied in exceptional circumstances; 
c.	the onus is on the Landlord to establish that exceptional circumstances exist.
177	While the Landlord did not specifically make submissions on any exceptional circumstances, by implication I take it that the assertion of a ‘poisonous’ relationship may be taken as falling into this category.
178	Neither party referred me to any Victorian decision where the toxicity of a relationship between landlord and tenant was taken to have been a consideration in a relief against forfeiture application. 
179	In most cases before the Tribunal where relief against forfeiture is sought, there is a ‘soured and is likely to remain disputatious’ relationship between the parties. It is not a reason to refuse relief against forfeiture.
180	There is nothing in the evidence before me that would lead me to conclude that a future working landlord/tenant relationship between the parties was impossible. Furthermore, given the parties are corporate entities the relevance of poisonous relationships between individuals is of less relevance. 
181	The Landlord also says in closing submissions in opposition to relief against forfeiture that the Tenant has been in continual breach of the Lease. It says the use of the premises as a function centre is an issue of contention. It submits that the Landlord did not want a function centre but rather wanted a food and drink premises to service office workers. 
182	The Landlord accepts that the Tenant operated the premises as a wedding venue/ function centre as well as restaurant since the start of the Lease which was verbally consented to by the Landlord. The Landlord says the Tenant was then told there should be an event/consent nomination form completed but that the tenant had not made a request to use the common areas for functions or weddings. 
183	The landlord contended that the use by the Tenant of the premises to conduct functions was outside the use authorised under the applicable planning scheme. This contention was not supported by the evidence of Mr Loader, the town planner called by the Landlord during cross-examination. After being taken to the evidence given by Ms Moussi about the number of functions at the premises and use of the premises, Mr Loader accepted that use of the premises was within the planning scheme. 
184	The Tenant has applied for a planning permit for a function centre. Mr Loader accepted that the fact that another tenant holds functions at the precinct would weigh in favour of the Tenant’s application being approved as there is precedent. Mr Loader qualified this by saying other factors will also be taken into account such as impacts to heritage.
185	On the evidence before me I do not find that the Tenant’s past use of the premises to hold occasional functions was in breach of the Lease. 
186	The Landlord further submits that the Tenant has repeatedly breached the Lease since March 2020. The Landlord issued six breach notices during this period. The breaches complained about included failing to pay rent on time or reimburse for outgoings and electricity, failing to remove rubbish and failing to carry on the business of the permitted use efficiently and during business hours. 
187	The period complained of is the period of the COVID-19 pandemic.
188	The breaches complained about do not warrant the Tenant being precluded from relief against forfeiture. Any relief will be conditional upon all outstanding rent and outgoings being paid. The other alleged breaches were minor in nature.
189	I am satisfied that there are no exceptional circumstances to justify refusing to grant relief against forfeiture on the condition that all outstanding rent and outgoings are paid. 

L. Forde
Member