Applicant v Respondent

2 The Applicant is the registered proprietor of the land situated at and known as 292 Lygon Street, Carlton ("the Premises"). The Applicant, as landlord, granted a lease of the Premises to Viva Zapatas of Brighton Pty Ltd ("the Previous Tenant") by a deed dated 22 October 2008 ("the Lease"). The Lease was assigned by the Previous Tenant to the Respondent, as tenant, on or about 10 March 2011. The Lease was renewed, and the present six year term is due to expire on 1 July 2017. The Respondent operated a Lebanese restaurant from the Premises known as "Min Zaman".

3 The Respondent instituted proceedings in VCAT against the Applicant on 7 April 2016. Broadly speaking, the Respondent alleged that the Applicant had failed to repair a leaking waste pipe at the side and rear of the Premises, a leaking canopy at the front of the Premises, and a damaged elevator designed to transport food between the first floor kitchen and the ground floor seating area - an elevator known as a "dumbwaiter". The Respondent's case, as tenant, was put on the basis that the Applicant, as landlord, had violated the repair obligation imported into the Lease by s 52(2) of the Retail Leases Act 2003 ("the RLA") and, or alternatively, that the Respondent, as tenant, was entitled to claim compensation or a reduction of rent under s 54(2)(e) and, or alternatively, s 57(1)(b) of the RLA. The Respondent also sought an order confirming that he had terminated, or was entitled to terminate, the Lease under the provisions of s 57(1)(d) of the RLA.

4 The proceeding was heard in the Tribunal by Senior Member Walker on 6 October and 13 December 2016. Reasons were delivered by Senior Member Walker, together with the Orders, on 22 December 2016.[2] The Tribunal found that the Applicant, as landlord, had failed to repair the leaking waste pipe.[3] The Tribunal did, however, find, that "it is very difficult to identify any damage that was suffered by the Tenant as a result of this neglect to carry out proper repairs".[4] Consequently, no remedy was awarded in respect of this aspect of this claim. In relation to the leaking canopy, conflicting evidence was placed before the Tribunal as to the cause of the leak. The Applicant pointed to the Respondent's failure to keep the rooftop gutters clear of rubbish, whereas the Respondent asserted that the leak emanated from a small hole in the guttering.[5] Senior Member Walker decided that "on the balance of the evidence I have to find that the cause of the leaking canopy was a combination of the hole in the gutter and the rubbish obstructing the downpipe... I am unable to say how much of the water penetration was due to one cause and how much to the other... I am not satisfied that the Tenant's claim in regard to water penetration through the canopy has been established".[6] The position reached with respect to the Respondent's claims before the Tribunal was, therefore, that aside from issues associated with the dumbwaiter, the Respondent's claim was dismissed. It follows that the issues associated with the dumbwaiter and the orders made by the Tribunal in this respect are the subject of this appeal.

5 In the interests of expedition and economy in terms of time and cost, this proceeding was heard as a combined or "rolled up"[7] application for leave to appeal the Tribunal decision and, if leave were to be granted, the hearing of the appeal itself.

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

It follows from this provision that any appeal is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that "VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal."[8] It follows that "[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal."[9]

7 The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position. As Pagone J said in Commissioner of State Revenue v Frost:[10]

The requirement for leave under s 148(1) of the VCAT Act "is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal".[11] It also confers a discretion about whether to grant leave[12] which an applicant must persuade the Court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.[13] It will ordinarily be necessary (in addition to a clearly articulated question of law)[14] for an applicant to make out a prima facie case[15] and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[16]

8 In considering an application of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:[17]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[18] The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties.

Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:[19]

This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal's decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[20] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[21] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[22]

Additionally, "[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons."[23]

9 In terms of the party's submissions, it is clear from the authorities to which reference has been made that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.

10 For the reasons which follow, I am satisfied that the Applicant has both established questions of law which warrant the grant of leave to appeal and, further, has been successful in this appeal. Were this simply an application for leave to appeal, I would, on the material to which reference has been made in these reasons, find that the Applicant has established the "justice of the case" as discussed in Secretary of the Department of Premier and Cabinet v Hulls,[24] and that leave to appeal should be granted.

11 The Amended Originating Motion between Parties filed pursuant to my order on 3 February 2017 identifies the orders sought in the following terms:

1. Should leave to appeal be granted, orders pursuant to s 148(7) of the VCAT Act:
   • (a) That the appeal be allowed, and the Tribunal's Orders be set aside; and
   • (b) That the proceeding be remitted to a differently constituted Tribunal for rehearing; or
   • (c) That proceeding BP210/2016 be dismissed;
2. An order that the Respondent pay the costs of this proceeding
3. Such other order as the Court deems appropriate.

12 The Proposed Notice of Appeal filed pursuant to my order made on 3 February 2017 identified the relevant questions of law on the grounds of appeal in the following terms:

1. As to the first ground of appeal, whether on its proper construction s 57(1)(d) of the RLA empowers VCAT to make an order entitling a tenant to terminate a retail lease in circumstances where the relevant damage to the retail premises has been repaired by the landlord.
2. As to the second ground of appeal, whether on its proper construction s 57(1)(b) of the RLA empowers VCAT to consider and determine a tenant's claim for an abatement of rent and outgoings in circumstances where VCAT has made no finding, and the tenant has failed to prove, that the tenant has not caused the relevant damage to the retail premises.
3. As to the third ground of appeal, whether on its proper construction s 57(1)(b) of the RLA requires that any assessment of reduction in use of retail premises (and any abatement of rent and outgoings) be commensurate with, or proportionate to, the economic loss suffered by the tenant in consequence of the relevant damage to the retail premises.
4. As to the fourth ground of appeal, whether on its proper construction s 57(1)(b) of the RLA empowers VCAT to make an order for the abatement of rent and outgoings that has prospective effect, and which is capable of operating after a landlord has repaired the relevant damage to the retail premises.

1. VCAT erred in finding that the Respondent ('Tenant') was entitled to terminate the lease dated 22 October 2008 ('Lease') of the premises at 292 Lygon Street, Carlton ('Premises') as against the Appellant ('Landlord') because:

(a) VCAT correct found at paragraph 58 of its reasons that the notice of termination dated 28 November 2016 purportedly given by the Tenant to the Landlord pursuant to s 57(1)(d) of the Retail Leases Act 2003 (Vic) ('the RLA') was ineffective to terminate the Lease due to its equivocal wording.

(b) VCAT correctly found at paragraph 58 of its reasons that in order to lawfully terminate the Lease, the Tenant was required to make a final election to do so, and issue a further notice of termination that was unequivocal in its terms.

(c) VCAT then found that the Tenant was entitled to serve a notice to terminate the Lease under s 57(1)(d) of the RLA, and made a declaration to that effect (see paragraph 58 of the reasons, and paragraph 1 of the Orders).

(d) In making the finding described in the previous paragraph, VCAT failed to appreciate that as a matter of law, any right to issue a further notice of termination that the Tenant possessed would only continue to exist whilst the elevator remained unrepaired, as the right of termination conferred by s 57(1)(d) of the RLA depended on the Landlord having 'fail(ed) to repair the damage' to the elevator.

(e) Accordingly, and as a matter of law, the only course open to VCAT in respect of the Tenant's termination claim was:

1. To dismiss the claim, and declare that the Lease remained on foot; or
2. To declare that the Tenant was entitled to serve a further notice terminating the Lease, but only whilst the damage to the elevator remained unrepaired.

(f) The elevator was repaired by the Landlord prior to the Tenant giving any further notice of termination under s 57(1)(d) of the RLA.

(g) As such, by making the finding described above at paragraph (c), VCAT erroneously permitted the Tenant to terminate the Lease where no such right of termination had arisen at law.

1. VCAT erred in finding that an abatement of rent and outgoings payable by the Tenant under the Lease could be ordered pursuant to s 57(1)(b) of the RLA because:

(a) On its plan and ordinary meaning, no abatement could be ordered under s 57(1)(b) of the RLA if the Tenant had damaged the elevator in a manner which caused the relevant reduction in the usability of the Premises.

(b) As a matter of law, the Tenant bore the burden of establishing before VCAT on the balance of probabilities that the Tenant had not damaged the elevator in a manner which caused the relevant reduction in the usability of the Premises, as this was an essential element of the Tenant's claim for abatement (see Charcoal Chicken & Souvlaki Xpress Pty Ltd v Stamatakos [2015] VCAT 1017 at paragraphs 32(d) to 34).

(c) During the hearing before VCAT, cogent and unchallenged evidence was adduced by the Landlord's witnesses to establish that the elevator had been deliberately damaged by the cutting of an electric wire and the removal of an electric fuse, and that this damage prevented the elevator from operating.

(d) VCAT concluded at paragraph 40 of its reasons that it was unable to make any finding as to whether the electric wire had been cut by the Tenant, or whether the cutting of the wire had contributed to the problems with the elevator that necessitated its replacement.

(e) VCAT made no finding, and did not consider, whether the electric fuse had been deliberately removed by the Tenant, or whether the removal of the fuse had contributed to the problems with the elevator that necessitated its replacement.

(f) Accordingly, VCAT erred in law by proceeding to consider and uphold the Tenant's claim for abatement in circumstances where the Tenant had failed to establish to VCAT's satisfaction that the Tenant had not damaged and disabled the elevator in the manner alleged.

(g) As a matter of law, VCAT should only have proceeded to consider the claim for abatement if the Tenant had positively established, and VCAT had found, that someone other than the Tenant had cut the wire and removed the fuse (and/or that this damage had not contributed to the problems with the elevator that necessitated its replacement).

1. VCAT erred in ordering a 50% abatement of the rent and outgoings payable by the Tenant under the Lease pursuant to s 57(1)(b) of the RLA because:

(a) Insofar as s 57(1)(b) of the RLA is triggered by the 'use' of the premises being 'reduced to some extent' by damage to the premises, these words should be construed as referring to a reduction in use that has caused, or will cause, economic loss to the retail business conducted at the premises.

(b) This is so because:

1. The overarching purpose of the RLA is to protect and regulate 'retail' tenancies, which involve the operation of a business from the leased premises.
2. As such, the provisions of the RLA that afford protection to retail tenants are ultimately intended to protect and preserve the retail businesses conducted by those tenants at the leased premises.
3. The specific purpose evinced by s 57(1)(b) of the RLA is to ensure that a retail tenant is not compelled to pay the full rental and outgoings reserved under a lease where the subject premises are damaged in a manner that causes economic loss to the business.
4. An interpretation of s 57(1)(b) that allowed a tenant to obtain an abatement of rent and outgoings in circumstances where the relevant retail business suffered no economic loss would confer a windfall gain on the tenant.
5. Accordingly, it would be absurd, arbitrary, and contrary to the legislative purpose of the statute to construe s 57(1)(b) as applying to reductions in use that have no adverse effect on the economic position of the relevant retail business.
6. Further, because an abatement under s 57(1)(b) is required to be to 'the same extent' as the relevant reduction in the use of the premises, if the said reduction in use is not treated as being commensurate with the economic loss suffered by the business, there would be no certain means of calculating the reduction and quantifying the abatement, as the concept of a 'reduction in use' has no sensible meaning unless it is treated as a reflection of the economic harm caused to the relevant business by the damage to the premises.

(c) In the premises, on its proper construction, s 57(1)(b) of the RLA required VCAT to:

1. Assess the economic loss suffered by the Tenant as a consequence of the damaged elevator, if any; and
2. Order an abatement that was designed to ameliorate any such economic loss by reducing the rent and outgoings payable during the period in which the reduction in use was occurring by a sum reflecting the economic loss suffered by the Tenant.

(d) VCAT correctly found at paragraph 65 of its reasons that the Tenant had not proven any economic loss as a result of the damaged elevator.

(e) Having made that finding, VCAT erred at paragraph 63 of its reasons by ordering a 50% abatement of rent and outgoings, as s 57(1)(b) of the RLA did not permit such an outcome in the absence of the Tenant having suffered economic loss as a consequence of the damaged elevator.

1. VCAT erred in finding that the abatement of rent and outgoings ought to continue until the termination of the Lease by the Tenant because:

(a) As a matter of law, any abatement under s 57(1)(b) of the RLA can only be ordered in respect of 'any period during which the use (of the Premises) is reduced' by the relevant damage.

(b) As a corollary, VCAT lacked jurisdiction to make any order for abatement under s 57(1)(b) in respect of any period after which the elevator had been repaired and the Premises were no longer damaged.

(c) Accordingly, assuming that VCAT was empowered to determine the claim for abatement under s 57(1)(b) adversely to the Landlord (which is denied for the reasons stated in the second and third grounds of appeal), VCAT ought to have confined the prospective operation of the abatement order to the period during which the elevator remained unrepaired.

[emphasis omitted]

13 As will be seen from the Amended Originating Motion between parties, the Applicant seeks an order from this Court pursuant to s 148(7) of the VCAT Act; that the Tribunal's order be set aside and that the proceeding either be remitted to a differently constituted Tribunal for rehearing or that the VCAT proceeding (BP210/2106) be dismissed.

14 The factual matters of relevance to the now live issues between the parties the subject of this appeal concern the dumbwaiter which, under the terms of the Lease, is one of the landlord's installations.[25] In order to appreciate the significance of the dumbwaiter for the conduct of the Respondent's business at the Premises, it is helpful to set out the Senior Member's overview in this respect:[26]

1. The bulk of the seating in the restaurant is on the ground floor at the front of the building. There is a stairway to a mezzanine floor where the toilets are situated and a further stairway up to the upper floor where the kitchen is situated and there is a private dining area overlooking Lygon Street.
2. The purpose of the dumb waiter is to carry meals prepared in the kitchen on the upper floor down to the eating area on the ground floor. In the absence of the dumb waiter it was necessary for staff to carry the meals down two flights of stairs, past the toilets to the dining area at the front of the restaurant. Photographs tendered show the stairways to be fairly narrow. Waiting staff carrying meals downstairs would be required to negotiate past anyone coming up the staircase in the opposite direction to visit the toilets. In addition, there would be a practical limit on how much a waiter could carry at a time. Consequently, to bring meals to a table containing a number of patrons would probably require several trips between the eating area and the kitchen. The operation of the dumb waiter was therefore a matter of considerable practical importance to the Tenant.

15 It is uncontroversial between the Parties that the dumbwaiter is an old piece of electrical equipment which has been installed and used at the Premises for the last 40 years or so. Unsurprisingly, there have been some problems with its operation, as found by the Senior Member:[27]

1. The Tenant said that, on 13 February 2014, the dumb waiter broke down. He said that he contacted the company that serviced the dumb waiter, which was Independent Lifting Services Ltd ("ILS"), but was told by the company that they were not prepared to further service the dumb waiter and that it was not safe to use.
2. Thereafter, the Tenant says that the dumb waiter worked intermittently, sometimes working and sometimes not and occasionally causing the power to the whole of the Premises to fail. He said that meals had to be carried down the stairs which caused difficulty and delay and extra expense because additional staff was required.
3. On 24 December 2015 the Tenant obtained a quotation from a dumb waiter company for a new dumb waiter. In this document, the author of the quotation pointed out that the manufacturer of the dumb waiter had ceased operation in the early to mid-1980s, that no spare parts exist, that it was in a very bad state and that it would continue to be a hazard and troublesome due to its age and design. The recommendation was for the replacement of the dumb waiter. A number of problems with the dumb waiter were also noted, to the effect that it was currently difficult to use and unsafe and that it exposed people to the risk of electrocution. Although I have no reason to suppose that comments expressed in this quotation were not made bona fide, I must bear in mind that it is a document prepared by someone seeking to sell a new dumb waiter.
4. This quotation was attached to the letter of 8 February that was sent to the agent by the Tenant's solicitors. The letter refers to the unsafe condition of the dumbwaiter and states that the Tenant would not permit the staff to use it.
5. At a directions hearing on 15 April 2016 I directed the Tenant to grant reasonable access to the Landlord and its tradesmen for the purpose of assessing the claimed defects in the Premises. On 24 April 2016 the Tenant, Mr Shiels and a technician, Mr Spalliera, inspected the dumb waiter. During this inspection, according to the Tenant, Mr Spalliera forced it to move in order to make it work. The Tenant said that, after they left, the dumb waiter would not move at all and when he had it inspected by an electrician, it was found that the motor of the dumb waiter had fused. Mr Shiel denied the Tenant's account and said that when the dumb waiter was inspected on that occasion it would not work because a fuse had been removed. He was supported in this account by Mr Spalliera who said that the fuse had been removed and that the dumb waiter could not run without it.
6. On 4 May 2016 the Tenant obtained a report from an electrician to the effect that he had tested and assessed the condition of the dumb waiter the previous day. He said that he tested the motor and the installation resistance of the motor windings which "gave a poor result". He said that after further inspection he noticed that the live 240 V contacts were easily accessible to anyone who could reach them and that this was highly dangerous. He said that he had ordered the circuit to be turned off and the main switchboard so that this danger could be avoided. He said that all the control gear is very old and faulty. He concluded that the motor and/or control gear should be replaced.
7. When the dumb waiter was ultimately inspected by Mr Augoustakis, he found that it was not operational because the motor had at least one winding that had failed and it was an open circuit. He said that the fuse for the door lock circuit was missing. He listed a number of other faults and it appears from his report that the problems with the dumb waiter were manifold and serious. During his investigation he discovered that one of the wires had been cut and pushed back into a conduit. I accept his evidence in this regard. The Tenant denies having cut the wire and since a number of persons have inspected and possibly dealt with this dumb waiter I am unable to make any finding on who cut it or find that this contributed to any of the problems that necessitated its replacement.

16 As appears from the latter part of the Tribunal's reasons set out above, questions have arisen as to how the dumbwaiter came to be in its inoperable state as a result of the damage to which Senior Member Walker referred.

17 The Parties had proffered differing explanations as to how the damage to the dumbwaiter was caused. The Applicant adduced evidence from a lift technician, Mr Tony Spalliera, who said:[28]

Someone had removed the electrical fuse which operated the lift motor control, and the dumbwaiter could not run without that fuse. I did not remove the fuse myself. It was missing at the commencement of the inspection [of 19 April 2016]. I believe that persons unknown to me removed the fuse prior to the inspection, disengaging the dumb waiter. This is the only explanation for what has occurred. If (as the Tenant says) the dumbwaiter was working prior to 19 April 2016, the electrical fuse must have been present within the machine, otherwise the machine could not possibly have operated. Therefore, the only conclusion available is that this component was removed, disabling the machine.

18 The applicant also called Mr Jason Augoustakis, the technician who had been carrying out the repairs to reinstate the dumbwaiter. Mr Augoustakis confirmed in his evidence that one of the wires in the dumbwaiter had been cut deliberately and placed back inside the conduit.[29] He also said that the dumbwaiter's "fuse had been removed and there was a piece of wire wrapped around to short the fuse out".[30] In terms of remediating the dumbwaiter, Mr Augoustakis confirmed that he had only 30 to 60 minutes of work left to perform before the repair works would be complete and the dumbwaiter restored to full working order.[31] The remaining works, according to Mr Augoustakis, consisted of "adjusting some componentry at the end of the job, just to finish everything off".[32] He also said that he had offered to attend the Premises on the morning of 13 December 2016 to complete the work, but that the Respondent refused to give him access.[33]

19 As appears in that part of the Tribunal's reasons previously set out, the Senior Member concluded his consideration of the state of the dumbwaiter and the reason for its inoperability with the statement that "[t]he Tenant denies having cut the wire and since a number of persons have inspected and possibly dealt with this dumbwaiter I am unable to make any finding on who cut it or find that this contributed to any of the problems that necessitated its replacement".[34] The Applicant contends that this finding by the Tribunal was made despite what is described in its submissions as "evidence of sabotage" adduced before the Tribunal.[35] The point is also made in the submissions that the Tribunal made no findings in connection with the removal of the fuse.

20 As the Applicant observes in its submissions, despite this equivocation, the Tribunal went on to find that the Applicant's failure to repair the dumbwaiter entitled the Respondent to terminate the Lease. However, Senior Member Walker also found that a purported notice of termination served by the Respondent on 22 November 2016 was ineffective. He then simply declared that the Tenant was entitled to terminate the Lease, putting the position as follows:[36]

1. I am satisfied that the Landlord, being aware of the want of repair of the dumb waiter and the importance of acting quickly to repair it, has failed to do so and that consequently, the Tenant is entitled to determine the Lease. However the notice given by the Tenant was that he would leave if the repairs were not effected within seven days. He then extended that period by another week. The implication of that notice was that, if the repairs were effected in that period of seven days he would not leave. It does not seem to me that he has given the notice required by the section in order to effect a termination. If he wishes to determine the Lease in accordance with the section he must make a final election to do so and give a notice that is unequivocal. In this regard, one of the orders sought by Mr Epstein is a declaration that he is entitled to determine the Lease and I intend to make that order.

It will be observed that the Tribunal did not couch this declaration which is stated in very general terms with any indication or requirement that such right of termination could only occur if the right had arisen in accordance with the provisions of s 57 of the RLA and, further, subject to proper notice being given as required by those provisions. As is discussed in more detail in the reasons which follow, this is particularly significant when it is considered that the grant of declaratory relief of this nature, without any caveats with respect to compliance with the s 57 requirements, was made in the face of a finding that the purported notice of termination served by the Tenant on 22 November 2016 was ineffective.

21 When the Tribunal came to consider the appropriate form of relief to grant in addition to the declaration arising out of the inoperability of the dumbwaiter, the evidence apparently relied upon by the Senior Member was the state of the menu following the failure of the dumbwaiter. As the Tribunal's reasons indicate, the approach was very broad brush, to say the least:[37]

1. While the dumb waiter was able to be operated the Tenant complained that it would often cause the power in the restaurant to fail which was potentially dangerous to both staff and patrons considering that the toilets were accessed up a flight of stairs. There was also a risk of electrocution. When it was not able to be used at all, which appears to have been no later than 24 April 2016, it became very difficult to operate the restaurant business without it. The layout of the Premises and the nature of the stairs was such that the absence of the dumb waiter was going to prevent the delivery of meals from the kitchen on the upper floor down three flights of stairs to the restaurant area on the ground floor. The Tenant complained of having to engage additional staff but the evidence of the cost of that was less than satisfactory.
2. Possibly the best demonstration of the effect that the absence of the dumb waiter had on the business was what happened to the menu. The original menu of eight pages offered a range of meals and banquets at restaurant prices. The reduced menu which is now displayed on the front door of the restaurant is a single page snack and dessert menu at greatly reduced prices.
3. Any reduction that is ordered in the rent must be equivalent to a reduction in the usability of the Premises. The permitted and contemplated use of the Premises was that of a restaurant not a snack bar. I think that the extent of the reduction in the usability of the Premises was no less than 50% as from 24 April 2016. Before that date the evidence is unclear.
4. It is therefore appropriate to order that the rent and outgoings that would otherwise be payable pursuant to the Lease with respect to the Premises from and including 25 April 2016 until the termination of the tenancy be reduced by 50% and that any amounts paid by the Tenant for rent and outgoings in excess of that sum for that period be repaid to the Tenant.

22 It is trite that the assessment of loss and damage is often difficult and that in the assessment process something in the nature of a broad estimation may be required, as is made clear by Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd:[38]

The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann [(1971) [1971] HCA 52; 124 CLR 303 at 308], Menzies J went so far as to say that the 'assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation'. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.

[footnotes omitted]

23 Whilst evidence as to the "deteriorating" state of the menu following the inoperability of the dumbwaiter might well be a factor in an overall estimation of loss and damage, in the present circumstances, this assessment is in the face of the following statement in the Tribunal's reasons:[39]

1. In his submissions Mr Epstein sought an order for damages and costs totalling $266,684.73, which included lost wages, lost rent and loss in goodwill. However no accounting evidence was called in support of these claims. All that I had were assertions from the Tenant which are quite inadequate to justify the relief sought.

24 The critical legislative provisions in the present context are contained in s 57 of the RLA:

57. Damaged premises

(1) A retail premises lease is taken to provide the following if the retail premises, or the building in which the premises are located, is damaged -

(a) except where the tenant caused the damage, the tenant is not liable to pay rent, or any amount in respect of outgoings or other charges, that is attributable to any period during which the premises cannot be used under the lease or are inaccessible due to that damage; and

(b) except where the tenant caused the damage, if the premises can be used under the lease but that use is reduced to some extent by the damage, the tenant's liability for rent, and any amount in respect of outgoings or other charges, that is attributable to any period during which the use is reduced is decreased to the same extent; and

(c) if the landlord reasonably considers that the extent of damage makes its repair impracticable or undesirable and notifies the tenant in writing of that, the landlord or tenant may terminate the lease by giving not less than 7 days' written notice of termination to the other party; and

(d) if the landlord fails to repair the damage within a reasonable time after the tenant asks the landlord in writing to do so, the tenant may terminate the lease by giving not less than 7 days' written notice of termination to the landlord; and

(e) this subsection does not affect any right of the landlord to recover damages from the tenant in respect of any damage covered by this subsection.

(2) A provision of a retail premises lease is void to the extent that it has the effect of limiting the liability of a party to the lease to pay compensation to another party to the lease in respect of damage to the retail premises or the building in which the premises are located.

(3) Nothing in this section prevents the parties to a lease from terminating the lease by agreement if the retail premises or the building in which the premises are located is damaged or destroyed.

25 Also of relevance in light of the declaratory relief granted by the Tribunal and submissions made in relation to the power of the Tribunal to make such orders, are the provisions of s 124 of the VCAT Act. The provisions of s 124 are as follows:

(1) The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.

(2) The Tribunal's power to make a declaration under subsection (1) is exercisable by a presidential member or a member who is an Australian lawyer.

(3) The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under an enabling enactment to make a declaration.

The power of the Tribunal to grant declaratory relief in the circumstances in which it should be granted were considered by Judge Bowman sitting as a VCAT Deputy President in Victoria v Bradto Pty Ltd.[40] Without going into the details of that rather unusual case, in relation to the powers conferred by s 124 of the VCAT Act, his Honour said:[41]

1. In my opinion the application should be entertained. Section 124(1) of the Act gives to a presidential member the power to make a declaration "... instead of any orders it could make, or in addition to any orders it makes, in the proceeding". This power seems to me to be clearly broad enough to include an application in circumstances such as this. Indeed, the present situation seems to me to fall within both alternatives set out in s 124(1).
2. The power to make such a declaration is discretionary. It has previously been determined that this Tribunal will be influenced by the principles governing the making of declarations at common law when exercising its discretion pursuant to s 124 - see, for example, Moira Shire Council v Demaio (unreported, 7th September 1999), and I would fully agree with that proposition. If those principles are then applied, it seems to me that this is a situation of the type where an application for a declaration is appropriate. There is a real dispute in existence. It concerns real and established facts. The dispute is of practical importance, and the making of the declaration is of practical use. In my opinion, if persons face the risk of being charged with contempt should there be a misinterpretation of the requirements of an injunction issued by this Tribunal, it is entirely appropriate that such persons the subject of the injunction seek a declaration as to what constitutes a breach of it. That is particularly so when the President of the Court of Appeal has referred to the issue under consideration as being one that should be explored first and last by the tribunal whose order is sought to be enforced.
3. The circumstances in which a declaration should be granted have been the subject of considerable judicial consideration. In ASC v Ampolex Limited (1995) 38 NSWLR 504, Kirby P referred to the greater willingness of courts to provide declaratory relief as being "... a beneficial development, at least where there is a real, practical question in controversy, in being or in potential, which the intervention of the court may help to resolve". His Honour went on to describe the limits which might impinge upon the use of declarations, such limits including the request for a declaration which arises from a wholly theoretical concern or out of idle curiosity. That is not the situation here. The declaration sought is in relation to a real dispute; the outcome is of practical importance; the making of the declaration is of practical use. The application is not one made concerning a hypothetical situation or one made out of idle curiosity.

26 In contrast to the approach of Judge Bowman, a very restrictive interpretation was applied in Xiao v Perpetual Trustee Company Ltd,[42] where Vickery J said:

1. Another matter concerns the power to make declarations in this Court as opposed to the power of VCAT to make a similar order under the Victorian Civil and Administrative Tribunal Act 1998. Superior courts have inherent power to grant declaratory relief. As was said by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission:[43]

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise."[44]. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.[45] The person seeking relief must have "a real interest"[46] and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen"[47] or if "the Court's declaration will produce no foreseeable consequences for the parties".[48]

1. The inherent power of the Supreme Court to grant a declaration is supplemented by s 36 of the Supreme Court Act 1986 which provides:

36 Declaratory judgments

A proceeding is not open to objection on the ground that a merely declaratory judgment is sought, and the Court may make binding declarations of right without granting consequential relief.

1. The purpose of this provision is to put beyond doubt that the Court is not bound by the old Chancery practice where a Court of Chancery would not make a binding declaration of right unless a plaintiff demonstrated an entitlement to consequential relief, whether or not the plaintiff actually claimed such relief.[49]
2. In contrast, s 124(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the "VCAT Act") limits the jurisdiction of VCAT to grant a declaration only where the declaration is made "instead of any orders it could make, or in addition to any orders it makes, in the proceeding". Given that Mr Xiao does not claim damages, in order to enliven the jurisdiction of VCAT to grant a declaration, he would have needed to claim, or demonstrate that he was entitled to claim, other relief, for example by way of a permanent injunction pursuant to s 123 of the VCAT Act, before a declaration could be granted. Given that Mr Xiao is in a position to claim a declaration as of right in the Supreme Court, it is appropriate for his case to be heard and determined before this Court to enable all matters in dispute between the parties to be completely and finally determined.

27 In my view, the interpretation of s 124(1) of the VCAT Act as applied by Judge Bowman is to be preferred, there being no suggestion in s 124 or other provisions of the VCAT Act that the Tribunal's declaratory making powers were to be, in substance, any different from the jurisdiction of the superior courts in this respect. Moreover, there is no suggestion that the Tribunal could provide anything in the nature of advisory opinions or answer "hypotheticals", or grant declaratory relief in the absence of any real dispute between the parties. In my view, Judge Bowman gave full force to the two limbs of sub-s 124(1) of the VCAT Act.[50] Moreover, with respect, I think that Vickery J has failed to give proper or any weight to the second limb of sub-s 124(1), which has resulted in a very restrictive interpretation of those provisions. In the context of para 35(a) of the Interpretation of Legislation Act 1984, which requires courts and tribunals to prefer a purposive approach to legislative interpretation, consideration might have been given in Xiao to the apparent purpose of s 124 of the VCAT Act. In the course of this consideration, the rhetorical question might have arisen, namely, why would it be supposed that Parliament would have wished to limit the declaration making powers of VCAT as compared to that of the superior courts, given the extent and nature of the VCAT jurisdiction under a broad range of legislation, including under the RLA.[51]

28 In any event, in the present context, I accept the Respondent's contentions that the power under s 124 of the VCAT Act is a very broad discretionary power, a position which I do not understand the Applicant to disagree with. However, it is, in my view, clear from the Bradto and Xiao decisions to which reference has been made and, of course, a vast range of other authorities, that the declaration making power does not enliven a power to make declaratory orders in the absence of a real controversy between the parties, and certainly not to make declaratory orders with respect to hypothetical situations.[52]

29 In Rugolino v Howard,[53] Bell J set out the principles which the Court applies in the exercise of its appellate jurisdiction in relation to findings of fact. As the Tribunal is not bound by the rules of evidence and can base its findings on any probative material, those principles apply equally here.[54] The principles may be summarised as follows:

(a) the question whether there is any evidence of a particular fact is a question of law. Therefore, a finding of fact is open to challenge as erroneous in law, but only if there is no probative evidence to support it;[55]

(b) the question is not whether the finding was 'reasonably open', for that implies the appeal court could test the finding against a reasonableness standard. The question is whether the finding was open at all.[56] Put another way, there is no error of law unless it can be shown that there was no evidence to support the finding;[57] and

(c) whether a finding is open on the evidence, or whether there is any or some evidence to support it, are different ways of expressing the same test.[58]

30 In this context, I turn now to the grounds of appeal.

31 The first ground of appeal is that VCAT erred in finding that the Respondent was entitled to terminate the Lease.[59] The first ground focuses on the Tribunal's findings as contained in the Tribunal reasons already set out, which are the basis for the Tribunal's declaration that the Respondent is entitled to determine the Lease.[60]

32 The Tribunal's determination to make a declaration that the Respondent is entitled to determine the Lease is, as the Applicant submits, in the face of the specific finding by the Senior Member that the Respondent's purported notice of termination was legally ineffective and that the Lease was therefore still on foot at the time the VCAT orders were made. The purported notice of termination was described by the Senior Member in the following terms:[61]

1. The Tenant gave evidence that he gave a notice in writing to the Landlord on 22 November 2016 that he was leaving if the repairs were not completed within seven days.

As the Tribunal held, and correctly in my view, such a notice was invalid, as s 57(1)(d) of the RLA requires notification of a clear and unequivocal election to terminate. This is clear from paragraph (d) of these provisions, which states:

[I]f the landlord fails to repair the damage within a reasonable time after the tenant asks the landlord in writing to do so, the tenant may terminate the lease by giving not less than 7 days' written notice of termination to the landlord ...

[emphasis added]

Clearly, as contended by the Applicant, the statutory language requires a notice "of termination", rather than a mere warning that the tenant might terminate if certain events do or do not occur. In this case, a conditional notice threatening to terminate if the repairs were not effected did not satisfy the requirements of the statutory provision. As the Applicant observes, and I accept significantly, the Respondent has not appealed this finding.

33 On this basis, the Applicant contends that the Tribunal erred in making a declaration in the terms that it did. The declaration, which is set out in paragraph one of the VCAT orders, is in unqualified terms, as follows:

Declare that the Applicant [i.e. the Respondent, the tenant] is entitled to serve a notice to determine the lease of the subject Premises pursuant to section 57(1)(d) of the Retail Leases Act 2003.

34 On its plain reading, the effect of this declaration was that the Respondent was given an unconditional power to issue a further notice to terminate the Lease under s 57(1)(d) of the RLA, regardless of whether the dumbwaiter was still damaged at the time the notice was serviced - in other words, regardless of whether or not there was any basis under the provisions of s 57(1) of the RLA to give any such notice. More particularly, in the present context, the declaration did not have regard to the fact that the repairs to the dumbwaiter were, on the evidence, imminent. In this respect, Mr Augoustakis gave sworn evidence on 13 December 2016 that the remaining work on the dumbwaiter was able to be completed within 30 to 60 minutes. As the Applicant observes, the fact was that, unknown to the Tribunal, the Applicant had completed the repairs to the dumbwaiter by 20 December 2016, which was two days before the VCAT orders were handed down.[62] The Respondent did not deny this evidence in his affidavit of 13 April 2017, and it would appear to be the position, as submitted by the Applicant, that he could not sensibly do so given Mr Augoustakis' evidence as to the advanced state of the works as at 13 December 2016.

35 The approach of the Respondent to the issues raised in this ground of appeal were, rather, more general and focused upon ongoing difficulties which had been experienced as a result of the state of the dumbwaiter, in the following terms:[63]

1. As to the first ground of appeal it is the attempt by the Landlord to insist that the dumbwaiter was 'damaged' that is at the heart of this leave to appeal; the dumbwaiter was not damaged; the dumbwaiter was over 40 years old, had exposed and dangerous wiring, regularly shorted out the electrics in the building and worked intermittently and often not at all.
   1. The inoperable dumbwaiter rendered its purpose; which was to transport food, completely ineffective. The Leased Premises was split over two levels which separated the restaurant floor on the ground level from the 1st level kitchen.
   2. The inoperable dumbwaiter resulted in a situation where because of the layout of the building use of the Leased Premises as a restaurant was compromised.
2. The Tribunal makes it plain to all that the problems with the dumbwaiter were manifold and serious;[64] meaning varied, not limited in number and of a serious nature to the point requiring extensive refurbishment.
   1. Further it was clear to the Tribunal the obvious failure on the part of the Landlord to repair the dumbwaiter despite commitments to make these refurbishments on numerous occasions both to the Tenant and the Tribunal.[65]
3. The VCAT Act section 124 states the Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.
   1. In these circumstances the Tribunal determined that a declaration was appropriate; this approach is in keeping with the greater willingness of the Tribunal and Courts to provide declaratory relief where there is a real, practical question in controversy and which the intervention of the court may help to resolve.
   2. In Savers INC (ARBN 075 452 185) v Herosy Nominees and Ors (Retail Tenancies) the Tribunal considered when a fixture is beyond mere normal repair and must be replaced. At 134 Senior Member M. Lothian said:[66]

'At some point items which deteriorate go beyond a "tipping point", after which steps must be taken to rectify or replace them. I find that such tipping points have been reached concerning the roof, in accordance with the conclusions below.'

1. At paragraph 58 the Tribunal determined the following:

'I am satisfied that the Landlord, being aware of the want of repair of the Dump Waiter and the importance of acting quickly to repair it, has failed to do so and that consequently, the Tenant is entitled to determine the lease.'

1. It is implied in every contract (as a matter of law) an obligation to do all such things as are necessary on the part of each party to enable the other party to have the benefit of the contract and this requires each party to take all reasonable steps; the Landlord took no reasonable steps and the facts of the delay in refurbishing the dumbwaiter reflects this.
2. It was clear during the hearing that the Tenant intended to terminate the lease because his quiet enjoyment and use of the Leased Premises had been disturbed by the inoperable dumbwaiter; and he told the Tribunal member just that:[67]

Tenant "But now I can't, you see our - my menu. I can't work with this menu anymore, and you couldn't fix the lift"....

Tribunal "When do you say you're going to leave? You're leaving at when, the end of December or the end of this week?"

Tenant " on the 15th"

Tribunal "Sorry?"

Tenant "On the 15th would be my last day. On the 16th I will submit the key."

Tribunal "so you're moving out on the 15th, are you?"

Tenant " yeah, after two days."

Tribunal "Regardless of what happens?"

Tenant "yeah. Good luck to them for the new tenants. Fix the lift for them or give them a new lift, good luck, but I'm going."

1. Further the Landlord shortly after the lease was terminated by the Tenant (Termination notice dated 1 December 2017) has since taken over the leased premises and refurbished it.

1. The Landlord has given no demand for rent and has accepted the termination by the Tenant by taking possession of the Leased Premises and refurbishing it. 2. The Landlord has mitigated (which is its responsibility) its loss by taking possession of the Leased Premises, refurbishing it and putting it on the market for lease.

1. The Landlord should be estopped from making claims for anything beyond the date he entered into possession of the Leased Premises which unless proven otherwise appears to be 16 December 2016 (in fact the Tenant is deserving of a further refund of the remaining rent paid for that month).
2. This appeal is another example of the continuing unconscionable conduct of the Landlord where he delays the refurbishment of such an important fixture such as the dumbwaiter; then when the Tenant terminates out of necessity attempts to claim rent for the remaining period despite moving back into the Leased Premises. Well established principles of the characterization of conduct as "unconscionable" involves the making of a moral judgment where the term carries the meaning given by the Shorter Oxford English Dictionary, namely:
   1. Actions showing no regard for conscience; irreconcilable with what is right or reasonable.
   2. Section 77(1) of the Retail Leases Act 2003 provides:
      1. A landlord under a retail premises lease or a proposed retail premises lease must not, in connection with the lease or proposed lease, engage in conduct that is, in all the circumstances, unconscionable.
3. Balance of probabilities:

1. Without a working dumbwaiter the Tenant would not have accepted and agreed with the Lease; 2. The waiting staff are required to do considerable extra work without a working dumbwaiter;

1. The Tenant has lost staff and a profitable business because of the lack of a working dumbwaiter;

1. By refurbishing the Leased Premises and putting it back on the market for lease the Landlord has taken possession of the Leased Premises and accepted the Termination of the Lease by the Tenant.
2. Section 57 (1) A retail premises lease is taken to provide the following if the retail premises, or the building in which the premises are located, is damaged -

(b) except where the tenant caused the damage, if the premises can be used under the lease but that use is reduced to some extent by the damage, the tenant's liability for rent, and any amount in respect of outgoings or other charges, that is attributable to any period during which the use is reduced is decreased to the same extent; and

(d) if the landlord fails to repair the damage within a reasonable time after the tenant asks the landlord in writing to do so, the tenant may terminate the lease by giving not less than 7 days' written notice of termination to the landlord; and

1. As an alternative Building Act 1993 - Section 251 Occupier or registered mortgagee may carry out work

(1) If the owner of a building or land is required under this Act or the regulations to carry out any work or do any other thing and the owner does not carry out the work or do the thing, the occupier of that building or land or any registered mortgagee of the land or the land on which the building is situated, may carry out the work or do the thing.

(2) An occupier may -

(a) recover any expenses necessarily incurred under subsection (1) from the owner as a debt due to the occupier; or

(b) deduct those expenses from or set them off against any rent due or to become due to the owner.

1. It was clear to the Tribunal that the Tenant was going to terminate the Lease;

1. It was clear to the Tribunal that the reasonable time within which the Landlord could refurbish the dumbwaiter had come and gone; 2. It was clear to the Tribunal that the Tenant was suffering loss as a result of the inoperable dumbwaiter;

1. It was clear to the Tribunal that the Tenant had made numerous attempts since early 2016 to terminate the Lease but it had remained on foot as a result of false promises of the Landlord;

1. It was clear to the Tribunal that the Tenant considered the Lease terminated pursuant to the termination notice of 1 December 2016; 2. It was clear to the Tribunal it had the power to declare the Tenant could determine the lease; 3. It is clear the Tribunal did have the power to make the declaration.
2. The Tenant refers to the decision of Senior Member M. Lothian in Computer & Parts Land Pty Ltd v Aust-China Yan Tai Pty Ltd & Ors (Retail Tenancies)[68] where the Tribunal refers to the judgement of Dixon J in Larking v Great Western (Nepean) Gravel Ltd (In Liq) where his Honour said:[69]

If a covenantor undertakes that he will do a definite act and omits to do it within the time allowed for the purpose, he has broken his covenant finally and his continued failure to do the act is nothing but a failure to remedy his past breach and not the commission of any further breach of his covenant. His duty is not considered as persisting and, so to speak, being for ever renewed until he actually does that which he promised. On the other hand, if his covenant is to maintain a state or condition of affairs, as, for instance, maintaining a building in repair ... then a further breach arises in every successive moment of time during which the state or condition is not as promised...

1. It is the obligation to put the Premises into repair which bench-marked the Landlord's responsibility and purpose of the continuing obligation to repair under s 52.
2. It is well established law that where there is a dispute and the issue in dispute is not merely theoretical but real and of practical importance then the making of a declaration must be of practical use.

36 The matters raised by the Respondent in its submissions do not, however, address the issues arising in relation to the operation of s 57 of the RLA, and it is to these matters to which I now turn.

37 Having said that, I do accept the Respondent's submissions to the effect that s 124 of the VCAT Act, the declaration making power, is a very broad power and that declaratory relief may well be appropriate in circumstances where there is a real practical question in controversy between the parties and where the intervention of a court or tribunal, in granting relief of this nature, may assist in resolving the dispute. As to the "tipping point" issue raised with respect to Savers Inc v Herosy Nominees,[70] I am of the view that, for the reasons which follow, this is not relevant to addressing the issues with respect to the operation of s 57 of the RLA.

38 As already observed, the gravamen of the Respondent's submissions is as to the generally unsatisfactory state of affairs with respect to the dumbwaiter over a period of time without focusing on the authority of the Tribunal in the present circumstances to make a declaration in such expansive terms. In this respect, I should emphasise that this is not a question of the extent of the Tribunal's power under s 124 of the VCAT Act. As discussed, that power is, in my view, very broad, but it is a broad discretionary power which must, in its exercise, be referrable to some right or entitlement, statutory or otherwise. In the present circumstances, the only statutory provisions of relevance are the provisions of s 57(1)(d) of the RLA. The Respondent, in its submissions, does make reference to s 57(1)(b), but that is, as will be discussed further, a rent abatement provision in the circumstances set out in that paragraph, not a termination provision as provided for in paragraph (d).

39 Returning to the matter in hand, the entitlement of a party in the Respondent's position, as a tenant, to issue a notice of termination under s 57(1)(d) is circumscribed by the statutory provision itself, which plainly indicates that the right to issue a notice arises "[i]f the landlord fails to repair the damage within a reasonable time after the tenant asks the landlord in writing to do so". It follows that the factual premise upon which the sub-section operates is that the repair works relied upon for the purpose of exercising the termination power under these provisions have not been completed at the time the notice is issued. I entirely agree with the Applicant's submission that this is so obvious that it goes without saying and that any contrary interpretation would allow a tenant to terminate the relevant lease after the relevant repairs had been properly completed. This is precisely the possibility that the Tribunal's declaration entertains in the present circumstances. It is a declaration at large where, in the circumstances as established by the evidence in the VCAT proceeding, no valid notice had been given under s 57(1)(d) and, on the evidence, it would appear that the relevant repairs had, in all probability, been completed.

40 More specifically, the Applicant has specifically deposed that the Respondent did not give seven days' notice of termination after the last day of the hearing on 13 December 2016.[71] The Respondent has not denied this in his affidavit of 13 April 2017, though appears now to assert that he served a further notice of termination on 30 November 2016.[72] However, the position is that there was no such notice in evidence before the Tribunal, and the Applicant denies that such a notice was served. This notice is not exhibited in the affidavit of the Respondent dated 13 April 2017. In any event, even if such a notice was served and was in evidence before the Tribunal, it cannot be afforded any significance. The Tribunal did not mention the notice in its reasons or orders, and did not uphold its legal effect. The Respondent has not filed an appeal suggesting that the Tribunal erred in not finding that the Lease was terminated by a notice given on 30 November 2016. It follows that, given the nature of appeals of this kind, the Respondent is bound by the Tribunal's findings as to the invalid provisions of the notice which was considered by the Tribunal, and cannot now rely on the purported notice of 30 November 2016.

41 For these reasons, the position is that no valid notice has ever been given by the Respondent to terminate the Lease. Instead, the Respondent simply vacated the Premises on 15 December 2016 and has paid no rent or outgoings under the Lease since that time.[73] Given the Tribunal's unchallenged finding that the Lease was still on foot as at 22 December 2016 and the Landlord's unchallenged evidence that the dumbwaiter was repaired by 20 December 2016, the Tribunal's declaration would, on its face, empower the Tenant to determine the Lease after the required repairs have been effected. On the basis of this declaration, it would follow that the Respondent could exercise this right of termination at any time up until the expiry of the Lease on 1 July 2017. Plainly, there is no basis under the provisions of s 57(1)(d) of the RLA to authorise the making of such an order. In this respect, the Applicant submits that the Tribunal's declaration should have been rendered conditional on the dumbwaiter being unrepaired at the time, and that any further notice of termination was served; adding that in the absence of such a condition, the declaratory order was fatally flawed and must be set aside. Although it is not necessary to pursue the issue in great detail now, I think it is desirable to indicate that I think there would be significant difficulties, even with a declaration in this form. In my view, a conditional declaration of this kind would be verging on the hypothetical, as there would be no enlivened right in the Respondent, as tenant, to terminate the Lease unless and until proper notice under s 57(1)(d) of the RLA were given. That may or may not occur, hence the hypothetical quality. Moreover, a declaration of this kind is futile to the extent that it merely restates rights conferred by statute under the provisions of s 57(1)(d) but, of course, more significantly, it pre-empts the question whether a purported notice of termination under these provisions served subsequently by the tenant is in fact a valid notice for the purposes of those provisions. To the extent that a declaration of this kind purports to or has the effect of rendering this issue non-justiciable, it must be fatally flawed.

42 It follows, the Applicant contends, that the Lease has been on foot at all times since the VCAT orders were handed down on 22 December 2017 and that rent and outgoings have continued to accrue under the terms of the Lease and are presently payable.

43 On this basis, the Applicant invites the Court to make an order or declarations to the effect that the Lease has been on foot since 22 December 2017 and, further, that the Respondent is required to meet all of its obligations as tenant under the Lease until its expiry on 1 July 2017 or its earlier termination in accordance with law. It is further submitted that an order of this kind may be made pursuant to paragraph 5 of the amended summons and originating motion.[74]

44 I am, however, not prepared to make a declaratory order in such broad terms. Without venturing into the further issues raised during the hearing of this appeal, given the constraints on this appeal process, reference should be made to the submissions by the Respondent that there has, in any event, been what amounts to a re-entry by the Applicant, as landlord, in the event that the Lease does subsist beyond 22 December 2016. The Applicant responded that the provisions of cl 10(2) of the Lease would prevent the events relied upon by the Respondent as constituting a re-entry - that is, return of the keys and the taking of possession by the Applicant, as landlord - and hence the subsistence of the Lease was not affected. Consequently, much as it is desirable to resolve all matters in controversy between the parties as soon as possible, and my preference would have been to do so in this appeal proceeding, the question whether there has been a re-entry and consequent termination of the Lease after 22 December 2016 is a matter which goes beyond the scope of this appeal and is a matter for resolution by VCAT in its exclusive jurisdiction with respect to the RLA. Consequently, this is an issue which, if it is to be pursued by the Applicant, should be the subject of a remittal order to VCAT for determination by a differently constituted tribunal. It will be a matter for that tribunal to decide whether the question can be said to arise in the present VCAT proceedings or whether, if the matter is to be agitated, fresh proceedings need to be issued in VCAT. I am, however, prepared to make a declaration that the term of the Lease subsisted after 22 December 2016 and that, according to its terms, that term is due to expire on 1 July 2017 or its earlier termination in accordance with law and that, subject to further order or determination by VCAT or otherwise, the Respondent, as tenant, is required to meet all of its obligations under the Lease.

45 The second ground of appeal is that VCAT erred in finding that an abatement of rent and outgoings payable by the Respondent, as tenant under the Lease, could be ordered pursuant to s 57(1)(b) of the RLA.

46 As submitted by the Applicant, the second proposed ground of appeal focuses on the Tribunal's inability to determine the identity of the persons who had deliberately damaged the dumbwaiter, and the extent to which this sabotage contributed to the necessity to repair that machine. The Applicant readily concedes that the Tribunal was entitled, as a matter of law, to reach such an equivocal outcome on this question, concluding as it did that:[75]

The Tenant denies having cut the wire and since a number of persons have inspected and possibly dealt with this dumbwaiter I am unable to make any finding on who cut it or find that this contributed to any of the problems that necessitated its replacement.

47 As the Applicant submits, there will be times when a trier of fact is unable to reach a decision one way or the other on a particular factual controversy. As the Applicant submits, in such cases, the question is determined by reference to the burden of proof imposed at law, so that the outcome of the case will be resolved adversely to whichever party bore the burden of proof on that issue.

48 The submissions of the Respondent in relation to this ground do not, in my view, engage with the basis put by the Applicant in support of this ground. Rather, the Respondent's submissions[76] concentrate on matters in support of the more general proposition that the Respondent's evidence clearly states that the dumbwaiter was not damaged but that it was often completely inoperable, dangerous and shorted out the building.[77] More particularly, the Respondent submits:[78]

1. The Tenant clearly states in evidence that the elevator is not damaged; he says it is often completely inoperable; dangerous and shorts out the building.[79]

1. The Tenant says when he attempted to have it repaired the technicians said they could not repair it as it needed to be completely replaced. 2. The Tenant said that as early as 13 February 2014 the dumbwaiter was showing signs of being inoperable.

1. The Tenant was told by Independent Lifting Company that the elevator was not able to be serviced and was not safe for use.[80]
2. Further at paragraphs 34, 35 and 36 of the orders the Tribunal makes reference to these issues.

The Tribunal heard from Mr Augoustakis; an elevator technician and the witness of the Landlord. Further, at paragraph 40 of the orders the Tribunal found that the evidence of Mr Augoustakis was as follows; "When the dumbwaiter was ultimately inspected by Mr Augoustakis, he found that it was not operational because the motor had at least one winding that had failed and it was an open circuit. He said that the fuse for the door lock circuit was missing. He listed a number of other faults and it appears from his report that the problems with the dumbwaiter were manifold and serious".

1. Even when not in use, the dumbwaiter poses a risk to staff and patrons, as it causes the main power switch to turn off, two (2) - three (3) times a day.

1. When the power turns off, the Tenant was required to manually turn it on again using the main switch. 2. The power turns off mostly in the evening, including when patrons are dining in the restaurant at dinner time.

1. This causes an extensive amount of disruption for both staff and patrons, not to mention it being extremely dangerous for the lights to switch off suddenly.
2. Clearly, this shorting out that resulted from the wiring of the dumbwaiter issue presents risks to the occupational health and safety of staff, along with a significant amount of disruption to patrons.

1. However, it also poses a hazard to the food stored inside refrigerators and freezers at the Business. 2. The sudden changes in the temperature of the refrigerators and freezers caused by the electricity going out, could impact heavily on the freshness of the food, in particular; vegetables, meat and poultry. This in turn, could lead to food being prepared to a low standard, risking complaints and even food poisoning.

1. Should the power switch turn off while the Business is closed, the refrigerators and freezers will in turn, switch off, causing food to go off and become uneatable.

49 The Respondent also refers to what it says is the Applicant's attempt to convince the Tribunal that the Respondent, as tenant, had a motive for sabotage:[81]

1. At paragraph 24 of the Landlord's submissions he tries to elucidate that the Tenant had an obvious motive to sabotage the elevator. In response the Tribunal at paragraphs 25 and 26 of the orders acknowledges Mr Mackay's attempt to convince it that the Tenant had a motive.

Mr Mackay invited me to infer that the complaints of the Tenant in regard to this and other items on that date were contrived because, at that time the Tenant had agreed to lease other premises nearby. Mr MacKay suggested that the Tenant was attempting to get out of the Lease in order that he might move his business to these other premises.

1. The Landlord attempts to argue that because the Tenant had signed another lease in the vicinity he was trying to get out of the Lease and hence sabotaged the dumbwaiter.
   1. These submissions refer to the obvious flaws in that argument in that the dumbwaiter was no longer operational; not because of a missing fuse (which was only to the door mechanism) or cut wire (which is a simple replacement) but because it needed major and significant refurbishment to operate safely or at all; meaning nothing would have made it work again except an expensive, time consuming and difficult refurbishment as is reflected in the fact it ultimately was an expensive and difficult refurbishment that took many months.
2. The Tribunal rejected the sabotage argument by the Landlord and instead relied on the facts; because the Tenant had run multiple restaurants in the past it was his business model to always have more than one; hence the additional lease. At paragraph 26 the Tribunal says:

The complaint about the lease and the resulting damage appears from the photographs to be genuine. I do not think I can infer that the complaints about the leaking canopy and the other matters are contrived. I must deal with each complaint on its merits.

[emphasis omitted]

50 Finally, the Respondent submits that the Applicant's responsibility, as landlord, was to maintain the premises in good condition and that, under the requirements in this respect imposed by s 52, comes with it an underlying element and obligation that the landlord's obligation to repair is a liability that also relates to restoration by renewal or replacement of subsidiary parts that can include the reconstruction of the whole. As a general observation, the reference to reconstruction of the whole in these circumstances would appear to be a reference to the general position at common law with respect to repairs which, as a result of the state of the premises, require substantial or total reconstruction.[82] More particularly, reference is made to the particular repair issues to which it is said the Applicant, as landlord, is required to make good and, finally, it is contended that it is not good law, nor an appropriate application of the authority in Charcoal Chicken & Souvlaki Xpress Pty Ltd v Stamatakos[83] to place any other construction before this Court. I take this to be a reference to the matters upon which the Applicant seeks to rely in support of ground 2. However, this is the extent of the Respondent's written submissions, submissions which were elaborated upon only briefly at the hearing of this appeal.[84] It is also contended that, as a general proposition, it was not the Respondent's responsibility as tenant to prove the extent of the repairs were not due to any of its alleged actions. Additionally, it is said that the fact remains that it is undisputed by all witnesses from either party that the dumbwaiter needed significant repair because it was over 40 years old and its parts no longer worked, and that this is the reason, the sole reason, why the dumbwaiter ultimately stopped working and needed refurbishment.

51 The basis upon which the Applicant seeks to substantiate this ground of appeal is, as I have indicated, not engaged with to any meaningful extent by the Respondent, so I must consider the position put by the Applicant on its merits as I see them.

52 The Applicant submits that in this case, the Tribunal incorrectly imposed the burden of proof upon it as landlord in relation to the question whether the Respondent had itself, as tenant, damaged the dumbwaiter. The Applicant contends that the statutory cause of action upon which the Respondent relied to obtain abatement of rent could not be made out if the Respondent, as tenant, himself caused the damage to the dumbwaiter that necessitated its repair. It is said that as a matter of law, the Respondent bore the burden of proving that he did not damage the machine to an extent that necessitated its repair. Thus, the Tribunal's inability to resolve this controversy meant, simply, that the Respondent, as tenant, failed to meet his burden of proof. As a result, it follows, that the Tribunal should never have proceeded to uphold the claim for abatement of rent and that, instead, the Respondent's case should have been dismissed.

53 In support of this argument, the Applicant relies upon the observations of the Tribunal (Member Edquist) in Charcoal Chicken & Souvlaki Xpress Pty Ltd v Stamatakos in relation to the burden of proof applicable in a claim under s 57 of the RLA:[85]

1. ... On the basis of a plain reading of s 57 of the Act or clause 3, I consider that it is a matter for the tenant to establish that it did not cause the relevant damage. This is consistent with the usual rule that the legal burden of proving all the facts essential to a claim rests on the claimant. As explained in Cross on Evidence, 9th Edition, Australian Edition at [7060]:

[a] fundamental requirement of any judicial system is that the person who desires the court to take action must prove the case to its satisfaction*. This means that the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or the prosecutor in criminal proceedings.

* Dickinson v Minister of Pensions [1953] 1 QB 228 at 232; [1952] 2 All ER 1031 at 1033.

1. Furthermore, I consider that it does not matter that the burden of proof in this instance involves establishing a negative. In this regard, I quote Walsh JA in Currie v Dempsey [1967] 2 NSWR 532; 86 WN (Pt 2) (NSW) 460 (FC):

The burden of proof in the sense of establishing a case lies on a plaintiff if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, eg, if its existence is a condition precedent to his right to maintain the action.

54 The Applicant submits that this reasoning is plainly correct and that the Respondent, as tenant, was required to prove that he did not damage the dumbwaiter to an extent that necessitated its repair before he could obtain an abatement under s 57(1)(b) of the RLA. Turning to the provisions of that sub-section it is emphasised that it begins with the words: "except where the tenant caused the damage", and then follow the operative provisions, "if the premises can be used under the lease but that use is reduced to some extent by the damage, the tenant's liability for rent, and any amount in respect of outgoings or other charges, that is attributable to any period during which the use is reduced is decreased to the same extent". As such, the Applicant says, the entitlement to the abatement is specifically prefaced by the first seven words of the sub-section. Thus it is contended that it is "condition precedent to [the Tenant's] right to maintain the action" that the Respondent, as tenant, demonstrate that those seven words did not apply in the present circumstances. Put simply, the Respondent, as tenant, was required to prove that the dumbwaiter was damaged, but not by him. In this respect it probably should be emphasised, returning to the Tribunal's reasons and the ultimate finding on this issue, that it is not a finding either way as to how the damage was caused. No general inference can be drawn in this respect in relation to the state of the premises or the state and age of the dumbwaiter as emphasised in the Respondent's submissions on this issue. The point with respect to this second ground of appeal is that there is no finding one way or the other as to the cause of the damage, and none can be inferred from the Tribunal's reasons having regard to the Tribunal's specific statement as to inability to make any finding.

55 Returning to the authorities, the Applicant submits that although the remainder of the statement of principle by Walsh JA in Currie v Dempsey, which was referred to by Member Edquist in the passage from Charcoal Chicken set out above, was not quoted in those reasons, it is relevant. The remainder of the statement is:[86]

The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an 'avoidance' of the claim which, prima facie, the plaintiff has.

Thus it is said that the statutory language employed in s 57(1)(b) of the RLA does not operate so that the tenant has a vested entitlement to an abatement that is extinguished if the tenant is found to have caused the relevant damage. To the contrary, it is contended that the first seven words of s 57(1)(b) make it clear that the entitlement to an abatement will not exist at all in the first place if the tenant has caused the relevant damage. As the language of the section does, in my view, make clear, the entitlement is to exist, and only exist, "except where the tenant caused the damage". Consequently, it follows that the entitlement will not exist at all in the stipulated circumstances. This means that proof that the tenant did not cause the damage is an indispensable component of the claim itself that must be established before the right to the abatement is triggered in the first place.

56 Moreover, as the Applicant submits, approaching the matter from another angle, the exception in s 57(1)(b) relating to damage by the tenant affects the nature and quality of the damage that must be proved by the tenant in order to substantiate a claim under that sub-section. Mere proof of damage is not enough, as the sub-section plainly distinguishes between two different types of damage - damage caused by the tenant, and all other forms of damage. One of the two forms of damage confers an entitlement to an abatement of rent, and the other does not. It follows, as the Applicant submits, that as a matter of logic, proof of damage per se cannot be sufficient to activate the right to an abatement, subject to proof by the landlord that the tenant had deliberately damaged the premises. Instead, no entitlement to an abatement can arise in the first place unless the Tenant proves damage to the premises that was not of his own making. Moreover, the Applicant contends that no difficulty is created by construing s 57(1)(b) as imposing a burden on tenants to prove a negative. It is said that this is so for two reasons. First, as was made clear by Walsh JA in Currie v Dempsey, the fact that an essential component of a cause of action requires proof of a negative does not cause the burden of proving that fact to shift to the defendant. As Bowen LJ said in relation to proof of the absence of reasonable and proper cause in an action for malicious prosecution: "[i]f the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff".[87] Secondly, the question of whether a tenant has damaged the demised premises is something that is peculiarly within the knowledge of the tenant. The tenant is the party who has the best capacity to adduce the evidence relevant to that question. Accordingly, a construction of the statute that places the burden of proof on the party with the best capacity to discharge that burden in practical terms is to be preferred over an interpretation that would have the opposite result.

57 For the preceding reasons, I accept the Applicant's submissions with respect to the proper construction of s 57(1)(b) of the Act in that an essential ingredient of any "cause of action" under those provisions is proof by the claimant, the tenant, that the damage the basis of the relief claimed was not caused by the tenant. I turn now to the application of this finding to the present case.

58 It is clear that, in the present case, the Tribunal did not make the necessary finding to enliven the remedial power granted by s 57(1)(b) of the RLA, namely, that the Respondent, the tenant, had not damaged the dumbwaiter to an extent necessary to warrant its repair. Moreover, it is clear that the allegation of sabotage was "front and centre" in the Applicant's case, as landlord, in the VCAT proceedings. As a consequence, there was clearly a "live issue" before the Tribunal as to whether the Respondent, as tenant, had damaged the dumbwaiter, thereby disentitling him to relief under s 57(1)(b) of the RLA. As submitted by the Applicant, the allegations which it made in this respect in the VCAT proceedings were not faintly pressed or unsupported by evidence. To the contrary, the contention of sabotage was forcefully put, and was, the Applicant submits, supported by cogent evidence. In the circumstances, the Tribunal could not simply fail to grapple with the issue but nonetheless uphold the claim for abatement of rent. Moreover, the Applicant contends that the Tribunal was not authorised to grant such relief without a positive finding that the repairs were not necessitated by the Respondent's, the tenant's, damage. In support of these arguments, the Applicant relies upon four matters as follows:[88]

1. First, the Tenant had an obvious motive to sabotage the dumbwaiter. In an email to the leasing agent of the Premises dated 22 June 2015, the Tenant stated: 'The area is getting so quiet, and not much crowds as before'.[89] The Tenant indicated in the email he would not be renewing the Lease. The Tenant then signed an offer to rent alternative premises in Lygon Street on 21 October 2015,[90] some 20 months before the expiry of the Lease. The first complaint about the dumbwaiter followed shortly thereafter on 11 November 2015.[91] Accordingly, the Tenant had a motive to raise complaints about the state of repair of the Premises, as it would assist him in obtaining a premature end to the Lease.
2. Second, the allegation of sabotage was put clearly and frequently by the Landlord throughout the course of the proceeding. The Landlord's counsel plainly stated in his opening submission that the Tenant had disabled the dumbwaiter by removing the fuse.[92] During cross examination, it was put to the Tenant that he (or an electrician he had engaged) had removed the fuse and cut the wires. The Tenant denied this.[93] However, after further questioning, the Tenant changed his evidence, conceding that an electrician engaged by him had indeed removed the fuse.[94] The Landlord's counsel put to the Tenant that he was raising issues 'that were inconsequential because you were trying to get out of your existing lease?'[95] As such, the learned Senior Member would have been aware that the issue of sabotage was being vigorously pressed by the Landlord.
3. Third, there was cogent evidence to support the allegations made by the Landlord. The evidence suggested that the dumbwaiter had been disabled because of the deliberate removal of a fuse in or about April 2016. As noted above, Spalliera's expert report stated: 'Someone had removed the electrical fuse which operated the lift motor control, and the dumbwaiter could not run without that fuse. I did not remove the fuse myself'.[96] As already stated, the Tenant ultimately confessed that he had engaged an electrician to remove the fuse. In re-examination, Spalliera confirmed that the effect of the fuse's removal was to entirely disable the machine: '(Counsel for the Landlord) At the beginning of your examination by my learned friend, you were asked whether the elevator was working at the time of the inspection, you said no it wasn't working. Can you just confirm why it wasn't working at that time?---(Spalliera) It wasn't working, I had a quick chat. And I said "Is the dumbwaiter working," he says "No, I've got to turn the circuit breaker on," which he did. And after that I tried to, I pressed the button, it still wouldn't work. And then when I had a look up in the machinery there was a fuse missing, and I thought, well, this is not going to run without that fuse. Like a car won't run without a battery.'[97] Accordingly, there was a compelling basis to conclude both that the Tenant had damaged the dumbwaiter, and that the relevant damage had necessitated the relevant repairs.
4. Fourth, during the hearing before VCAT, no effort (or insufficient effort) was made by the Tenant to establish that the required repairs were needed due to defects that had not been caused by sabotage. To the contrary, Spalliera gave evidence in re-examination which suggested that the dumbwaiter had not been tested for defects other than the removed fuse because that act of sabotage had rendered the machine inoperable and untestable: '(Landlord's counsel) So in other words, to determine whether or not the machine can or should be used, there's got to be a further test that needs to be carried out to work out what, if anything, is wrong with it?---(Spalliera) Yes...(Landlord's counsel) This full inspection that you're describing, would it have been possible to carry out such an inspection without the fuse being installed into the motor?---(Spalliera) No, I couldn't carry out the full inspection, especially the motor and gearbox. I couldn't determine, I wasn't able to ascertain whether it was in good condition or fair or poor.'[98] As such, Spalliera could not say whether the machine would have needed to be repaired in the same way even if the fuse had not been removed, as this was impossible to determine. Augoustakis' evidence was even less favourable to the Tenant on this point. Augoustakis was asked by the Landlord's counsel: 'Can you say whether or not any of those defects you found...were or may have been related to the deliberate damage to the machine of the kind you've just identified?---(Augoustakis) Definitely the motor, because of the overload and the situation we had there. So there was no protection or safety devices in circuit that would stop the lift from running, if it was able to operate. And therefore you would burn out the motor, and possibly damage other components.'[99] The motor was the single largest and most expensive item of repair. Augoustakis was then asked whether any of the defects he had identified with the machine were not likely caused by sabotage, and he could only point to a single defect (the door lock fuse).[100] There was no suggestion from the Tenant (or any witness) that this single component was responsible for the machine becoming entirely inoperable so as to justify an abatement of rent. As such, there was little evidence available to the Tribunal to support the conclusion that the repairs were required to fix damage that had not been deliberately inflicted.

59 With respect to these four matters, the Applicant contends that in all the circumstances, it was incumbent on the Tribunal to make a finding that the repairs were necessitated by damage to the dumbwaiter that was not caused by the Tenant's sabotage before an abatement could be granted. It says that this was plainly the critical issue raised on the evidence and submissions connected with the dumbwaiter. It is, of course, neither necessary nor appropriate in the context of this appeal to purport to resolve questions of fact arising out of the evidentiary matters and arguments to which the Applicant now points. The matters to which it does refer under these four heads does, however, certainly reaffirm the position that the question of causation of the damage and, particularly, whether the Tenant caused the damage, was, "front and centre" in the Applicant's case at the VCAT hearing and was a matter for consideration and determination by the Tribunal. The important point in light of the application of the principles with respect to burden of proof is, however, the finding by the Tribunal that it was unable to make any finding as to this causation.

60 It follows, for the preceding reasons, that as the Tenant bore the burden of establishing either that he had not damaged the dumbwaiter and, or alternatively, that any deliberate damage did not ultimately necessitate the repairs in question absent proof of these matters, the Respondent, as tenant, did not establish a precondition to obtaining relief under s 57(1)(b). In this respect, it should be observed also that not only did the Tribunal find itself unable to make any finding as to who caused the relevant damage, but it also failed to make any finding that the repairs in question were required for reasons other than the deliberate damage caused to the dumbwaiter. For the preceding reasons, I accept that it had no power to ignore these questions and proceed to order an abatement of rent. It follows that the Tribunal erred in law by granting an abatement of rent under s 57(1)(b) of the RLA and that, accordingly, the second ground of appeal is made out.

61 The Applicant does not press this ground, and it is withdrawn.

62 The fourth ground of appeal is that VCAT erred in finding that the abatement of rent and outgoings ought to continue until the termination of the lease by the Tenant.

Order that the rental and outgoings that would otherwise have been payable pursuant to the lease with respect to the premises from and including 25 April 2016 until the termination of the tenancy be reduced by 50% and that any amounts paid by the tenant for rent and outgoings in excess of that sum for that period be repaid to the tenant.

[emphasis added]

64 As a consequence of the emphasised words, the continuation of the abatement was not linked with the continuation of the repair breach in connection with the dumbwaiter, so that the rent reduction would last only whilst the dumbwaiter remained unrepaired. Instead, the abatement was to continue until the termination of the Lease.

65 Thus, the Applicant contends that the Tribunal erred in law by failing to link the continuation of the abatement with the continuation of the relevant repair breach. I accept that the statutory language utilised in s 57(1)(b) of the RLA makes this clear beyond doubt. The subsection provides:

except where the tenant caused the damage, if the premises can be used under the lease but that use is reduced to some extent by the damage, the tenant's liability for rent, and any amount in respect of outgoings or other charges, that is attributable to any period during which the use is reduced is decreased to the same extent.

[emphasis added]

66 As contended by the Applicant, I accept that the emphasised words indicate that any abatement of rent is to last for the duration of the period in which the use of the premises is affected by the repair breach. In this case, the only effect on the "use" of the Premises identified by the Tribunal was the Respondent's inability, as tenant, to use the dumbwaiter during the period that it was not operational. It follows that once the dumbwaiter was repaired, the Tribunal's power to abate the rent under s 57(1)(b) ceased to exist. Despite this, the Tribunal has structured the relevant order so that the rent reduction will last for the entire remaining term of the Lease, unless it is lawfully terminated earlier.

67 Concluding, the Applicant submits that the error is not merely one of theoretical concern. It says that as matters have transpired, the Respondent has not validly terminated the Lease and that the Lease remains on foot and may well remain on foot until its expiry on 1 July 2017. As indicated previously, the dumbwaiter was fully repaired by 20 December 2016. The Applicant says that if the rent reduction was to operate until termination of the Lease, it would prevent the Landlord from recovering the full arrears of rent for the period from 20 December 2016 to 1 July 2017 - a period in which the Premises were entirely undamaged.

68 The Respondent's submissions with respect to the fourth ground do not address the issues relied upon by the Applicant.[101] Rather, they focus on the state of the premises and the notice of termination as of 1 December 2016 and that the Respondent, the tenant, was planning on being out of the Premises as of 15 December 2016. In many respects, the submissions further address the question whether the Tribunal was empowered to, or should have, made the declaration it made with respect to the tenant's entitlement to terminate the Lease. These matters have been discussed and resolved in the preceding reasons, and nothing in these submissions with respect to ground 4 raises any further matters affecting or relevant to the earlier discussion on this issue.

69 Consequently, I am of the opinion that the fourth ground is made out.

70 For the preceding reasons, leave to appeal is granted on grounds 1, 2 and 4, and the appeal allowed on each of these grounds.

71 Having regard to the position I have reached as indicated in the preceding reasons, I am of the opinion that, with one reservation, it is not appropriate that the matter should be remitted to the Tribunal, a position contended for by the Applicant. The delay and expense of a remit of this nature is not warranted and, on the basis of the position I have reached, the issues the subject of this appeal are resolved by an order that the VCAT proceeding be dismissed.

72 The one reservation with respect to any remit to VCAT arises with respect to the Applicant's seeking a declaration, broadly speaking, as to the subsistence of the Lease for the remainder of its term. For the preceding reasons, there are difficulties with the breadth of broad declaratory relief in this respect and issues may arise, in consequence, of such relief being pursued which require a remit.[102]

73 The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs and will hear further submissions accordingly.

[1] Guirguis v Casa Di Iorio Investments Pty Ltd (Building and Property) [2016] VCAT 2209 (22 December 2016) ("Reasons").

[2] The VCAT orders of 22 December 2016 are as follows:

1. Declare that the Applicant is entitled to serve a notice to determine the lease of the subject Premises pursuant to section 57(1)(d) of the Retail Leases Act 2003.

2. Order that the rental and outgoings that would otherwise have been payable pursuant to the lease with respect to the premises from and including 25 April 2016 until the termination of the tenancy be reduced by 50% and that any amounts paid by the tenant for rent and outgoings in excess of that sum for that period be repaid to the tenant.

[7] An expression now well understood: see R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).

[8] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 and Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55 [28].

[9] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21, [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198.

[10] (2011) 83 ATR 832 at 833-4 [3].

[11] Commissioner of State Revenue v STIC Australia Pty Ltd [2010] VSC 608; (2010) 81 ATR 682 at 687 [10].

[12] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (Unreported, Victorian Supreme Court of Appeal, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[13] See Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 475.

[14] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 at 333 [21].

[15] Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 475; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[16] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20], 77 [65].

[17] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[18] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597. Cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[19] (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.

[20] (1971) 38 LGRA 6 at 18.

[21] (1980) 44 LGRA 65 at 67-8.

[22] (1985) 62 LGRA 346 at 349-50.

[23] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59].

[24] [1999] VSCA 117; [1999] 3 VR 331.

[28] Witness statement of Tony Spalliera (16 September 2016) [6]-[7].

[31] VCAT Transcript, 271.31 and 273.25.

[34] Reasons, [40] and, see above, [15].

[35] Applicant's Written Submissions (26 April 2017), [7].

[38] [1991] HCA 54; (1991) 174 CLR 64 at 83.

[40] [2006] VCAT 1864 ("Bradto").

[41] [2006] VCAT 1864, [55]-[57].

[42] [2008] VSC 412, [18]-[21].

[43] [1992] HCA 10; (1992) 175 CLR 564, 581-2.

[44] Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 (Gibbs J).

[45] See In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257.

[46] Forster v Jododex Aust Pty Ltd (1972) 127 CLR at 437 (Gibbs J); Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 (Lord Dunedin).

[47] University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 10 (Gibbs J).

[48] Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 (Mason J); see also at 189 (Aickin J); 18 ALR 55 at 69, 71 respectively.

[49] See Coleman v Miller [1906] ArgusLawRp 104; [1906] VLR 622.

[50] See Bradto [2006] VCAT 1864, [55].

[51] And see Croft, Hay and Virgona, Retail Leases Victoria (LexisNexis, loose-leaf), 114, 111-115, [240, 135].

[52] See, generally, P W Young, Declaratory Orders (2nd ed, Butterworths, 1984).

[53] [2010] VSC 590.

[54] Rugolino v Howard [2010] VSC 590, [10]-[12]; See also Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207, [247].

[55] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197 at 199; Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508 at 517, 520; S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90; ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447.

[56] S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at 59 [43]-[44].

[57] Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139 at 151.

[58] State of Victoria v Subramanian [2008] VSC 9; (2008) 19 VR 335 at 347 [32].

[59] The grounds of the appeal and the basis of each ground are set out above, [12].

[60] Reasons, [58]; set out above at [20].

[62] Affidavit of Vincenzo Di Iorio (1 February 2017), [9].

[63] Respondent's Written Submissions (5 May 2017), [15]-[29] (with the quoted passage having been revised to the extent of substituting the erroneous expression "Dump Waiter" with the word, "dumbwaiter").

[66] [2011] VCAT 1160.

[68] [2010] VCAT 2054.

[69] [1940] HCA 37; (1940) 64 CLR 221 at 236.

[70] [2011] VCAT 1160.

[71] Affidavit of Vincenzo Di Iorio (1 February 2017), [10].

[72] Affidavit of Mina Guirguis (13 April 2017), [36].

[73] Affidavit of Vincenzo Di Iorio (1 February 2017), [11].

[74] See Braham v Stephan [2015] VSC 87, [43] (Hargrave J). A request for orders in the form of paragraph 5 of the amended summon and motion can plainly support a diverse range of substantive orders even if they are not expressly sought.

[75] Reasons, [40]; see above, [15], where this paragraph is set out.

[76] See Respondent's Written Submissions (5 May 2017), [30]-[40].

[78] See Respondent's Written Submissions (5 May 2017), [31]-[34].

[80] VCAT Transcript, 233; [14]-[19].

[81] See Respondent's Written Submissions (5 May 2017), [36]-[38].

[82] See Bradbrook Croft and Hay Commercial Tenancy Law (3rd ed, LexisNexis Butterworths, 2009), [10.8].

[83] [2015] VCAT 1017.

[84] See Respondent's Written Submissions (5 May 2017), [40] and, as to the oral submissions in this appeal, Transcript, 45-7.

[85] [2015] VCAT 1017, [32](d)-[33].

[86] Currie v Dempsey [1967] 2 NSWR 532 at 539 (Walsh JA).

[87] Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 457.

[88] Applicant's Written Submissions (27 April 2017), [24]-[27].

[94] VCAT Transcript, 240.19 and 240.31.

[101] See Respondent's Written Submissions (5 May 2017), [41]-[48].