Applicant v Respondent

LEASES AND TENANCIES - Retail leases - Forfeiture for non‑payment of rent - Whether Tribunal erred in exercising discretion to extend time for compliance with prior order - Tribunal exercising power conferred by equitable jurisdiction of the Court - Chandless‑Chandless v Nicholson [1942] 2 KB 321; [1942] 2 All ER 315 - Starside Properties Ltd v Mustapha [1974] 2 All ER 567 - Retail Leases Act 2003, s 89 - Victorian Civil and Administrative Tribunal Act 1998 ss 60, 98, 119, 120, 126, 130, 131 - Queensland Civil and Administrative Tribunal Act 2009, s 61.

1 This proceeding is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). The applicant, Paramount Investments Group Pty Ltd (the Applicant, Paramount or the Former Landlord), seeks leave to appeal the orders of Deputy President E. Riegler made on 15 July 2024 in the Victorian Civil and Administrative Tribunal (VCAT or the Tribunal), proceeding number BP1134/2023 (the 15 July Orders). VCAT published reasons for the making of those Orders,[1] on 15 July 2024 (Reasons). The Tribunal also published its reasons for orders made on 14 December 2023 (the 14 December Orders and December 2023 Reasons), at the request of the Applicant in this proceeding.[2]

2 The VCAT application was brought by Club Fogolar Furlan Melbourne (the Club or the Respondent), the tenant under a lease (the Lease) of 1 Matisi Street, Thornbury (the Premises). The Respondent's application to the Tribunal relevantly sought an interlocutory injunction restraining the landlord of the Premises, Paramount, from re‑entering, or alternatively, relief against forfeiture.

3 On 14 December 2023, the Tribunal dismissed the Respondent's application for an interlocutory injunction on the basis that Paramount had validly terminated the Lease, but ordered a grant of relief against forfeiture on the following conditions:

(a) By 12 January 2024, the Respondent pay to Paramount 65% of the rent arrears, set out in the notice of default dated 5 September 2024 (the Notice), being the sum of $168,244.48; and

(b) From 2 July 2023 until 14 December 2023, the Respondent must pay Paramount 80% of all rent and outgoings payable under the Lease.

(These conditions are, together, referred to as 'the Original Conditions'.)

4 The Respondent appealed the 14 December Orders insofar as those orders related to the determination of the Lease, but was wholly unsuccessful, with this Court refusing to grant leave to appeal. On 15 July 2024, following a further application by the Respondent made on 22 May 2024 under s 126(2)(a) (or s 98(3)) of the VCAT Act, the Tribunal made the 15 July Orders extending the time for the Respondent to meet the Original Conditions by more than six months, to 29 July 2024.

5 As part of the 15 July Orders for that extension of time, the Tribunal also ordered the Respondent to pay an additional amount on top of those amounts which the Respondent had been ordered to pay as part of the Original Conditions.

6 The Applicant now seeks leave to appeal the 15 July Orders (namely, orders 1 to 6), relying initially on four, but now three, proposed grounds of appeal by a Proposed Amended Notice of Appeal dated 12 August 2024 (and amended 15 January 2025) (the Amended Notice).

An application for leave to appeal to the Trial Division of the Supreme Court must be made -

(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.

8 It follows from these provisions 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'.[3] 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'.[4]

9 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:[5]

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'.[6] It also confers a discretion about whether to grant leave[7] 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.[8] It will ordinarily be necessary (in addition to a clearly articulated question of law)[9] for an applicant to make out a prima facie case[10] 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.[11]

10 An additional safeguard has since been imposed. Effective from 1 May 2018, the VCAT Act was amended to include s 148(2A).[12] The subsection provides:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

11 This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the Trial Division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists,[13] sometimes referred to as the Hulls test.[14] Instead, all applicants under s 148 are now subject to the same and more burdensome requirement: they must demonstrate that the appeal has a real prospect of success.[15] With respect to applications subject to the same test,[16] the Court of Appeal has said:[17]

The test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.

12 The more recent requirement of s 148(2A) makes express the restraint this Court ought to exercise when reviewing decisions of VCAT, a restraint long and more generally recognised in case authority. In considering applications 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:[18]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[19] 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.

13 Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:[20]

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,[21] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[22] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[23]

14 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.'[24]

15 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.[25]

16 Moreover, the authorities also indicate and emphasise that it is not the function of the Court on an application under s 148 of the VCAT Act to substitute its own views on the evidence which is before the Tribunal, its relevance, significance and inferences which might be drawn from it. Thus, the Court of Appeal in Hoskin v Greater Bendigo City Council[26] said, with respect to an appeal pursuant to s 148 of the VCAT Act:[27]

1. Such an appeal is limited to an appeal on questions of law.[28]
2. It is not open to this Court to entertain further debate as to the merits of the Tribunal's decision on the facts. It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.[29]
3. This Court's function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.

17 Leave to appeal is sought with respect to the following questions of law as put by the Applicant in the Amended Notice:

(1) Whether s 126(2)(a) or s 98(3) of the VCAT Act permits the Tribunal to amend the substantive conditions previously ordered for the granting of relief against forfeiture.

(2) Whether s 126(2)(a) or s 98(3) of the VCAT Act permits the Tribunal to extend the time by which conditions for relief against forfeiture may be met, in circumstances where the time by which those conditions were to be met had already passed.

(3) Whether the Tribunal erred in the exercise of its discretion to amend the time by which the conditions for relief against forfeiture could be met.

18 The Applicant relies on three grounds in the Amended Notice, which were presented in support of the appeal as follows.

Ground one - No power to make the 15 July Orders

19 The first ground the Applicant relied on in its submissions is the absence of any power of the Tribunal to make such an order. In this respect, the Applicant contends that the Tribunal did not have the power under either s 126(2)(a) or s 98(3) of the VCAT Act to conditionally extend the time limits set out in the Original Conditions, nor to extend those limits at all.

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may -

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

22 Section 126(2)(a) of the VCAT Act relevantly provides that the Tribunal may extend or abridge any time limit fixed by or under the VCAT Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding.

23 The Applicant contends that s 126(2)(a) of the VCAT Act does not give the Tribunal the power to amend, add, or substitute an order unless the order goes only to a time limit. It is submitted that by adding (or extending) the condition requiring the Respondent to pay rent that accrued after 14 December 2023, the Tribunal fell into error, as it made orders beyond its power under these provisions. In this context, reference is made to the Tribunal finding:[30]

[47] Having regard to the affidavit material, the written submissions and the oral submissions made by each of the parties, I find that the interests of justice weigh in favour of granting an extension of time to satisfy the Conditions, subject to the tenant also paying 80 percent of the rent and outgoings after 14 December 2023 until 22 February 2024.

24 With reference to these findings, the Applicant contends that the Tribunal did not explain in the Reasons why it took the view that it had the power to make the 15 July Orders (specifically orders 1 and 2 of those orders), saying only that '[i]t is not in contention that the Tribunal has jurisdiction to extend the time for satisfying the conditions upon which relief against forfeiture was granted'.[31]

25 The Applicant submits that the first ground of appeal requires an analysis of the scope of the Tribunal's powers under s 126(2)(a) of the VCAT Act. The Applicant observed that the High Court has reiterated, on multiple occasions, that the task of statutory construction must begin with an examination of the text itself. More particularly, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue the plurality said:[32]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

26 Thus the Applicant submits that, when determining the 'clear meaning of the text,' consideration must be given to the legislative context of the legislation in question, including the general purpose and policy of a provision,[33] and in particular the mischief[34] the particular statute or provision is seeking to remedy. The Applicant says the Tribunal's failure to explain why it believed it had the power to make the 15 July Orders leaves uncertainty as to whether the statutory purpose was considered when interpreting the powers under s 126(2)(a) or s 98(3) of the VCAT Act. However, understanding a provision's purpose does not allow a court or tribunal to disregard the plain meaning of the text, or interpret it in a way that extends powers not conferred by the relevant section.

27 The Applicant also refers to Certain Lloyd's Underwriters v Cross,[35] where French CJ and Hayne J noted that one of the dangers 'that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose'. Their Honours went on to state:[36]

The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra‑curially, correctly said:[37]

Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.

And as the plurality said in Australian Education Union v Department of Education and Children's Services:[38]

In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.

28 Consequently, it is contended that even if there were some understated overriding purpose which the Tribunal could consider to interpret s 126(2)(a), that consideration would not allow the Tribunal to simply ignore the plain meaning of the text and make orders which go beyond the powers granted to the Tribunal under s 126(2)(a).

29 The Applicant also contends that words cannot readily be implied into s 126(2)(a) of the VCAT Act. It is accepted that there are limited circumstances in which words may be implied into an Act, although it has been said that '[t]o read words into any statute is a strong thing, and in the absence of clear necessity, a wrong thing'.[39] Reference is made to the High Court decision in Esso Australia Pty Ltd v Australian Worker's Union, where the majority (Kiefel CJ, Keane, Nettle and Edelman JJ) said:[40]

The Court's ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have.[41] It is not the Court's function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court.[42]

30 The limit on the implication of words into statutes was also considered in Taylor v The Owners - Strata Plan No 11564 by French CJ, Crennan and Bell JJ, where their Honours said:[43]

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision.[44] It is answered against a construction that fills 'gaps disclosed in legislation'[45] or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.[46]

31 The Applicant contends that given the plain and express wording of s 126(2)(a) of the VCAT Act, implying words into those provisions which gives the Tribunal the power to conditionally amend a time limit (or to amend a time limit other than a time limit fixed 'by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding') is an interpretation of s 126(2)(a) which was simply not open to the Tribunal. The Applicant also refers to the principles of statutory interpretation identified by Lord Diplock in Jones v Wrotham Park Settled Estates,[47] which may be summarised as follows:[48]

(a) the Court must know the mischief with which the Act was dealing;

(b) the Court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved; and

(c) the Court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.

32 These three conditions referred to by Lord Diplock were adopted in Director of Public Prosecutions v Leys, where the Court of Appeal extensively reviewed numerous authorities in which courts had applied these conditions, before making the following observations:[49]

We are mindful that our constitutional role in this field is interpretative and that we should abstain from any course that might have the appearance of judicial legislation. A construction which departs from the literal meaning of a provision in order to give effect to the legislative purpose is available even where the words used are clear and unambiguous if the purpose of parliament is manifest, the error in drafting is plain (be it an omission or mistaken inclusion) and is contrary to the legislative purpose, and the words to be supplied are identifiable with sufficient exactitude.[50] It will not often be the case that these conditions can be satisfied.

33 The Applicant says these authorities make clear that, for the Tribunal to imply words into s 126(2)(a), in order to permit a form of order which goes beyond simply amending time limits (or the type of time limits expressly referred to in that section), it must first be satisfied that:

(a) the purpose of Parliament in drafting the VCAT Act, and in particular, s 126, could only be fulfilled by interpreting s 126 beyond the words used in the section;

(b) the failure to express the reach of s 126(2)(a) as going beyond the actual words used was a plain drafting error; and

(c) the words which Parliament intended to use are readily identifiable.

34 In this respect, the Applicant contends that s 126(2)(a) is clear in its wording which indicates that these provisions are intended solely to address a limited type of circumstance: namely, time limits which have not been met (or the type of time limits expressly referred to in the section). Its purpose is, the Applicant submits, to allow matters to be determined on their real and substantial merits, rather than on technicalities or slip‑ups.[51] In other words, it is said, the provision is intended to allow the Tribunal to extend a time limit which had previously been imposed (by one of a number of means) but which had been missed - it is not a provision which was ever intended to allow the Tribunal to amend, add or vary conditions to orders previously made by the Tribunal on the basis of what the Tribunal thought was the fair thing to do, or on some other (undisclosed) basis.

35 Consequently, the Applicant submits that the 15 July Orders cannot be justified by some unstated purposive approach, nor can there be any serious argument that Parliament simply overlooked giving the Tribunal the power to amend its orders in the way the Tribunal has done in the present circumstance.

36 Moreover, it is said that s 126(2)(a) deals only with time limits within the ambit of the language of these provisions, and so cannot be interpreted broadly and in such a manner as would allow the Tribunal to amend or add further orders which do not strictly go to time limits within the ambit of these provisions.

Section 126(2)(a) is directed towards only limited categories of 'time limits'

37 The Applicant contends that s 126(2)(a) is expressly limited to time limits set 'by or under this Act, the regulations, the rules, or a relevant enactment for the doing of any act in a proceeding.' Thus it is said these provisions do not apply to any time limit imposed by an order of the Tribunal. The Tribunal was aware of this issue when, after citing the wording of s 126(2)(a), it said, 'clearly, the making of an order setting a time limit to comply is not that_,_'[52] before stating that, 'I just don't see how section 126 applies to a time limit that's been imposed by an order.'[53] The Applicant says on this point, the Tribunal was entirely correct.

38 The Applicant also makes particular reference to the express grant of power to the Tribunal to order relief against forfeiture under sub‑s 89(1) and (2) of the Retail Leases Act 2003 (the RLA):[54] provisions which do not specify any time limits. Similarly, the Victorian Civil and Administrative Tribunal Rules 2018 (the VCAT Rules) are silent as to any time limits in the present context.

39 On these bases, the Applicant submits that even if the Tribunal were entitled under s 126(2)(a) to add conditions to previous orders (which it says it is not), the time limits to which the section applies are not those imposed by an order of the Tribunal, as the Tribunal itself recognised. Section 126(2)(a), the Applicant says, relates only to time limits set under the VCAT Act, the VCAT Rules, any relevant regulations of the Tribunal (of which it is said there are none), or the relevant enabling legislation (in this case, the RLA).

40 The Applicant also points to s 98(3) of the VCAT Act and contends that this section provides no assistance to the Respondent. The Applicant also says that it is unclear to what extent the Tribunal relied on these provisions to make the 15 July Orders; particularly since s 98(3) was not a provision relied upon in the Respondent's initial application or written submissions.[55] The Applicant contends that what is clear, however, is that the statutory powers granted to the Tribunal to regulate its own proceedings under s 98(3) cannot be used to alter or amend final orders. The powers of a court or tribunal to regulate its own proceedings 'are not an unbounded font from which to satisfy the supplication of an individual litigant.'[56] While interlocutory orders may be varied by a court or tribunal under these powers,[57] those powers cannot extend to final orders that have been perfected.

41 The Applicant refers, in this respect, to Bucic v Arnej Pty Ltd, where Incerti J (formerly Zammit J) reviewed various authorities addressing a court's authority to revisit final orders. Her Honour noted that 'a court has no power to vary or set aside its own [final] order, once perfected, except where the recorded judgment requires clarification, is to be altered in a minor and non‑substantive way, or where there has been a fraud, a breach of natural justice, or other circumstances that impeach the obtaining of the order or judgment.'[58]

42 The Applicant submits that none of the circumstances identified by Incerti J (formerly Zammit J) are present in the current proceedings. Nor, it is said, is there any basis for interpreting s 98(3) in a manner that would allow the Tribunal to amend its own final orders simply at the request of a party.

43 The Applicant accepts that some of the issues now raised were not fully explored in the proceeding before the Tribunal. However, where the question of the Tribunal's authority to make the 15 July Orders introduces new matters that were not thoroughly addressed, the Applicant seeks leave to present these arguments on appeal. The ability to raise new points on appeal is typically assessed by reference to the principles outlined in the Court of Appeal's decision in Medical Practitioners Board of Victoria v Lal,[59] where the Court stated:

It is necessary to restate briefly the principles to be applied in determining whether to permit a party to raise on appeal a ground not raised in the court or tribunal at first instance. They are as follows:

(a) the substantial issues between the parties are ordinarily settled at the trial;[60]

(b) where, had the issue been raised below, evidence could have been given which possibly could have prevented the point from succeeding, the point cannot be taken afterwards;[61]

(c) where all the facts have been established beyond controversy or where the new point is one of construction or of law, it may be expedient and in the interests of justice for an appellate court to entertain the point;[62]

(d) even when no question of further evidence arises, it may still not be in the interests of justice to allow a new point to be raised on appeal;[63] and

(e) where a tribunal is bound to take into account a matter that is material to its decision, but does not do so, that failure may be raised on appeal as a question of law even if it was wrongly conceded before the tribunal that the matter was not relevant and no submissions were directed to the point.[64]

44 The Applicant submits that legal arguments regarding the Tribunal's power under s 126(2)(a) or s 98(3) of the VCAT Act did not require new evidence at the Tribunal level. The Applicant now argues that justice requires this Court to decide on the Tribunal's authority, including matters not fully discussed below. While the Tribunal appeared to assume it had the power to amend the Original Conditions, this may have been based on a concession from the Applicant's Counsel, who acknowledged that the Tribunal could amend or vary its own interlocutory orders under s 98(3). However, the Applicant submits that this should not be taken to be an acceptance that s 126(2)(a) or s 98(3) permitted the Tribunal to vary the Original Conditions in the manner it did. The Applicant seeks leave to withdraw that concession on this appeal, for at least two reasons:

(a) First, a concession on a point of law cannot found jurisdiction,[65] and the extent to which all of the matters set out in their submissions were pressed below should not be determinative on the question of whether the Tribunal had the statutory powers to make the 15 July Orders, or indeed whether those orders should stand in the absence of such a power.

(b) Secondly, the extent to which VCAT's jurisdiction was not pressed below (or inadvertently conceded) are matters going only to legal argument, and the raising of them now is not inimical to the interests of justice, but rather will ensure both that justice is achieved, and clear guidance on the extent to which the Tribunal may vary final orders is given.

45 Relevantly, it is said by the Applicant, that in Lafranchi v Transport Accident Commission, in permitting the appellant to withdraw certain concessions made below, Maxwell P and Neave JA stated:[66]

In our opinion, it is consistent both with authority[67] and with principle that the question of whether a concession made below should be permitted to be withdrawn on appeal should be approached - as with any new point raised on appeal - by reference to the two propositions from Whisprun, as set out above. That is:

1. A party will not be permitted to withdraw on appeal a concession made at trial unless the appeal court is satisfied that the course of the trial would not have been affected in any way had the concession not been made.
2. Where the appeal court is so satisfied, permission to withdraw the concession will be granted if, but only if, the court considers that it would be in the interests of justice for the point to be reopened.

46 Finally, on this basis, the Applicant seeks leave to withdraw the concession. In the same manner that new matters should be allowed to be raised in this appeal, if the Court determines that a concession was made, the Applicant requests leave to withdraw it. For the reasons which follow, it is appropriate that leave be granted to withdraw any such concession. Moreover, for the reasons which follow, although I am of the view that the Applicant has established this ground of the proposed appeal, nevertheless, there was no need for the Tribunal to rely on any of the provisions of the VCAT Act in terms of this proposed grant of appeal as a source of power to make the 15 July Orders.

Ground two - The Tribunal was functus officio on the question of relief against forfeiture

47 The Applicant, on its second ground, contends that while s 126(3) of the VCAT Act provides that an extension of time on the limited matters set out in s 126(2)(a) can still be granted after the time for compliance had passed, s 126(3) cannot be relied on by the Tribunal where it is functus officio on the question of relief against forfeiture.

48 The nature of functus officio was described in CBI Constructors Pty Ltd v Chevron Australia Pty Ltd, where Jagot and Beech‑Jones JJ (in dissent) said:[68]

Functus officio is not a substantive legal doctrine or theory. Instead, it simply 'describes a conclusion [about] the legal authority of a person' to the effect that 'an exercise of power, or a performance of a function or duty, is complete and the person has no power left to exercise, or no function or duty left to perform'.[69] A conclusion that a body is functus officio must be justified, rather than asserted. Such a conclusion can only be 'reached by close examination of the particular circumstances, and the nature of the power, function or duty in question'.[70] This is so regardless of whether a public[71] or private[72] power or duty is exercised or performed and, in cases of public power, regardless of whether a court[73] or other body[74] exercises that power or performs that duty.

49 The power of the Tribunal to grant relief against forfeiture is, as indicated previously, contained in s 89 of the RLA. This power was exercised on 14 December 2023, when the Tribunal made the 14 December Orders that 'determined the rights of the parties on those parts of the action brought'[75] by the Respondent, which were the subject of those orders. The finality of the 14 December Orders regarding relief against forfeiture was itself acknowledged by the Tribunal when, at the request of the Respondent, it provided written reasons to accompany those orders, noting that 'the orders granting relief from forfeiture of the lease are also final orders and again, require the Tribunal to provide written reasons.'[76]

50 The Applicant also refers to the VCAT Act which provides limited avenues for revisiting final orders, such as s 119, which allows the Tribunal to correct certain mistakes, and s 120, which permits revisiting final orders when a party was not present when the order was made. However, it is observed that these sections would not be necessary if s 98(3) of that Act allowed the Tribunal to make any orders it deemed fit, regardless of the circumstances. It is submitted that none of these provisions apply in this case. The Tribunal exercised its statutory function under s 89 of the RLA on 14 December 2023 in favour of the Respondent. Once this power was exercised, there is, it is said, no provision in either the RLA or the VCAT Act for those orders to be revisited, meaning the Tribunal had fully and finally discharged its responsibilities regarding the application for relief against forfeiture on that date. Thus, the Applicant submits the Tribunal was functus officio from 14 December 2023 on the issue of relief against forfeiture and could not amend its orders in respect of this issue. For the reasons which follow, I do not accept this proposition as, in my view, the Tribunal had more than sufficient power to do so when, as it was, exercising the general equitable jurisdiction of the Court with respect to relief against forfeiture - as conferred by s 89 of the RLA. Consequently, this ground of the proposed appeal would fail.

Ground three - If the Tribunal did have power to make the 15 July Orders, the discretion was exercised in error

51 The third and final ground of appeal arises only if the Court finds that s 126(2)(a) or s 98(3) grant discretionary power to the Tribunal to vary the Original Conditions. In this event, it is contended that the Tribunal's discretion was exercised erroneously, and so the 15 July Orders should be set aside. Challenging the exercise of discretion by the Tribunal is acknowledged by the Applicant to be difficult, and there is debate about whether an appeal from a discretionary judgment under s 148 of the VCAT Act should follow the rule in House v The King, or be assessed based on the concept of legal unreasonableness as discussed in Minister for Immigration and Citizenship v Li.[77]

52 In Minister for Immigration and Citizenship v Li, Hayne, Kiefel and Bell JJ made the following observations:[78]

Lord Greene MR's oft‑quoted formulation of unreasonableness in Wednesbury[79] has been criticised for 'circularity and vagueness', as have subsequent attempts to clarify it.[80] However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided.[81]

53 Their Honours then considered a number of authorities on the question of unreasonableness, noting that 'an obviously disproportionate response' to a matter 'is one path by which a conclusion of unreasonableness may be reached' before stating:[82]

In Peko‑Wallsend,[83] Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that 'guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion'. House v The King[84] holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.

As to the inferences that may be drawn by an appellate court, it was said in House v The King[85] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion 'if upon the facts [the result] is unreasonable or plainly unjust'. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

54 More recently, in Medical Board of Australia v Liang Joo Leow, Niall JA considered legal unreasonableness in the context of an appeal under s 148 of the VCAT Act:[86]

If a decision, made in the purported exercise of a statutory power, is in breach of the standard of legal reasonableness, then the decision is outside the scope of the authority conferred by the statutory power. It is necessary to determine whether the exercise of power is seen by the supervising court as lacking 'an evident and intelligible justification'.[87] The Wednesbury[88] formulation of unreasonableness, namely that the decision is one that no reasonable decision maker could have arrived at, is a way of expressing the conclusion that the decision lacks an intelligible justification.

Any assessment of the legal reasonableness of a decision must occur within the particular statutory and factual setting in which the decision was made. Indeed, 'the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case'.[89] Usually, that assessment will be directed to either the process of reasoning adopted by the decision‑maker, as reflected in the reasons for decision, or the particular outcome of the exercise of power.

In considering whether the decision lacks an evident and intelligible justification, it is necessary to focus on both the outcome and the particular reasons for decision. Where there are reasons for the exercise of a power, generally it is those reasons to which supervising court should look in order to understand whether the power has been exercised in accordance with the legal standard of reasonableness.[90] That said, there may be cases where it is necessary to examine not just the ultimate conclusion, but also the anterior findings made by the repository of the power, in order to determine whether the decision lacks an evident and intelligible justification.

55 As submitted by the Applicant, it is apparent from these statements that there is considerable overlap between the relevant considerations under the test in House v King or on the basis of legal unreasonableness. In the present circumstances, the Applicant contends that the same result follows whichever test is applied. The misdirection at the heart of the exercise of the Tribunal's discretion is said to be manifest in a number of ways, each of which (both individually and collectively) should lead to a finding that the exercise of discretion, which resulted in the 15 July Orders, was legally unreasonable and should not stand. It is submitted that the Tribunal placed considerable weight on the suggestion that the Respondent 'did not sit on its rights,'[91] then stating:[92]

I accept that, given the Tenant's financial standing in January 2024, the Tenant may have held the view that there was little utility in seeking an extension of time for the payment of the Conditions prior to the date for payment; or that it was obligated to do so given that the 14 December Orders had been stayed pending the outcome of the Appeal. I also accept that it was reasonable to await until the outcome of the Appeal before offering to make payment of the Conditions (and 80 percent of the rent and outgoings to 22 February 2024), given that abandoning the Appeal may have had its own inherent risks.

56 Concluding, the Applicant submits that the Tribunal either failed to consider or gave grossly inadequate consideration to the fact that, at both the time when the Original Conditions were first due to be satisfied and when the so‑called 'offer' to pay was made, the Respondent was financially incapable of making the required payments. The Respondent was in no position to meet the conditions or the terms of any offer at those times. Thus, it is said that the only way the Respondent could have avoided failing to comply with the Original Conditions was by lodging an appeal, which was unmeritorious as leave to appeal was not granted. The Respondent only managed to meet the Original Conditions more than seven months after they were originally ordered, due to a claimed insurance payout following a fire at the Premises. Despite this, it is contended that the Tribunal ignored the Respondent's ongoing inability to meet the generous terms of relief from forfeiture and its failure to pay future rent,[93] even at a reduced rate. The Respondent's precarious financial state should, the Applicant says, have been the Tribunal's main concern, but it was largely disregarded.

57 The Applicant made reference to the Tribunal repeatedly stating that certain matters were not, of themselves, sufficient to lead the Tribunal to exercise its discretion in favour of the Applicant.[94] It is submitted that if this is correct, the Tribunal should not have separated each of the relevant considerations and viewed them only in isolation. In my view, having regard to the Reasons the Tribunal gave with respect to the exercise of its discretion to extend the time for compliance with the conditions, no error of law is established which would support this ground of the proposed appeal.

58 The Applicant submits that, the purpose of ss 126(2)(a) and 98(3) is not to provide a second chance to a party that was unable to meet the original deadline, particularly more than seven months later. Moreover, it says that the Tribunal's conclusions lacked any 'evident and intelligible justification', and the 15 July Orders should be set aside.

59 The Respondent refers to s 148 of the VCAT Act and observes that an appeal under this section is not available as of right. The section allows for the Court's discretion in deciding whether to grant leave.[95] The Respondent argues that leave to appeal should be refused, and the application dismissed with costs. The Respondent submits this on the basis of two grounds: standing and merits.

60 The Respondent observes that the Applicant is no longer the registered proprietor of the Premises, as ownership has been transferred to the current landlord, Matisi Street Pty Ltd, which is not a party to the current appeal, nor was it a party to the VCAT proceeding.[96] The Respondent submits that, as the former and current landlords are distinct and unrelated entities, this has significant implications for the present proposed appeal.

The applicant lacks standing to appeal and has no interest in the decision to be reviewed

61 The Respondent argues that while a party to a VCAT proceeding may appeal under s 148, the Applicant in this proceeding lacks standing to bring the proposed appeal and no longer has any interest in the decision to be reviewed. Hence it is said that, having transferred ownership of the Premises to the current landlord, the Applicant's continued status as 'applicant' in the VCAT proceeding is said to be merely vestigial and insufficient for the purposes of this proposed appeal. Under s 60A of the VCAT Act, the Tribunal may order that a party who is no longer a proper or necessary party, or who no longer has any interest affected by the proceeding, cease to be a party.[97] The Respondent submits it is difficult to see how further steps could meaningfully be taken in the VCAT proceeding without an order substituting the current landlord as the applicant.[98] The Respondent contends it remains unclear why the current landlord has not yet taken this step.

62 An appeal under s 148 is said to be akin to judicial review within the original jurisdiction of the Supreme Court.[99] At common law and under statute,[100] judicial review requires the Applicant to demonstrate an interest in, or to be affected by, the decision being reviewed. Standing has generally been conferred upon the public only by explicit statutory provisions, and typically in relation to public rather than private rights.[101] It is submitted that in the absence of clear statutory language to the contrary, the right under s 148 to seek leave to appeal should not be interpreted as extending to a party that no longer has any interest in or is no longer affected by the decision under review. There is nothing in the wording of s 148 to suggest a departure from this established principle.

63 Finally, it is submitted that even if the Court determines that the Applicant technically has standing to seek leave to appeal under s 148, such leave should be refused. This is said to follow because the orders being challenged pertain to the relationship between the current landlord and tenant concerning the premises. Following the transfer of the premises, the Applicant is now a stranger to that relationship. Thus it is said that it would be an unusual and inappropriate outcome if the Applicant were allowed to appeal orders that no longer affect it, but instead impact the current landlord, who is not a party to this appeal.

The current landlord cannot be substituted as a party to this appeal, as it is not a party to the VCAT proceeding

64 The Respondent submits that the Applicant's proposed solution to address its lack of any interest in the VCAT decision is to have this Court substitute it with the current landlord (Matisi Street Pty Ltd),[102] at the (proposed) appeal hearing. The current landlord would then seek leave to file a proposed amended notice of appeal.[103] However, it is unclear on what basis the Applicant can provide an undertaking on behalf of the current landlord, as they are distinct entities and the current landlord is not a party to this appeal or the VCAT proceeding.

65 The Respondent says, even assuming such an undertaking is valid, this proposed solution is ineffective as s 148 of the VCAT Act grants a limited statutory right of appeal only to 'a party to a proceeding' to appeal a tribunal order on a question of law. It is submitted that regardless of whether or not the Court substitutes the current landlord as a party to this appeal under its Rules,[104] it does not alter the parties to the original VCAT proceeding. Concluding, it is said that the current landlord, not being a party to the VCAT proceeding, has no right to appeal under s 148, and no order by this Court can change that. In other words, it is submitted that the Court's statutory function under s 148 is limited to the parties involved in the VCAT proceeding. It is difficult to see where this aspect of the Respondent's submissions takes matters as the Applicant was the landlord and a party to the VCAT proceeding at the hearing on 14 December 2023 and remains a party, though not the current landlord.

The Applicant's right of appeal was not a right capable of being assigned to the current landlord and has effectively been extinguished

66 The Respondent submits that even if the current landlord is substituted as a party to the VCAT proceeding by an order of the Tribunal, it cannot simply 'step into the shoes' of the Applicant for the purpose of this appeal. It is contended that the 'right of appeal' held by the Applicant was not transferred to the current landlord upon the transfer of the premises; but was, in effect, extinguished. If the current landlord intends to challenge the 15 July Orders, it is submitted that it must initiate a fresh appeal and demonstrate to this Court that it has standing to do so.

67 It is contended that the extinguishment of the Applicant's right of appeal stems from the nature of the right itself. A mere right of appeal is not assignable unless it is connected to an interest in money or property, such as a debt or a cause of action for damages that would arise from a successful appeal.[105] Here, the Applicant's right of appeal was not, it is submitted, associated with any such interest. Rather, it sought to challenge what is said to be a procedural order of the Tribunal extending the Respondent's time to comply with a conditional order for relief from forfeiture.[106] Furthermore, the substantive order, which granted the Respondent, as tenant, relief from forfeiture, did not confer any benefit to the Applicant but instead imposed a liability or obligation on it, restraining the Applicant from retaking possession of the Premises.

68 The Respondent relies on the reasoning in Cummings v Claremont Petroleum NL,[107] where the High Court held (in the context of the assignment of property to a trustee in bankruptcy) that a right to appeal against a liability or obligation imposed by a Court or Tribunal does not have a proprietary character:

A right to appeal may be a substantive right, but it is another question whether such a right has the character of property. Some rights created by statute can constitute property, but a right to appeal does not have the character of property merely because it is the creature of statute. A chose in action may be the property of the person entitled to enforce it, but a liability to satisfy a judgment enforcing a chose in action is not property of the person against whom the judgment is entered. A liability is not property of the person liable. Nor is a right to appeal against a money judgment property of the judgment debtor.

69 The Respondent submits that the right to seek leave to appeal held by the Applicant in relation to the Tribunal's decision to extend the tenant's time to comply with the conditions for relief from forfeiture is not a proprietary interest capable of assignment. Thus, it is said that upon the transfer of the Premises from the Applicant to the current landlord, the Applicant's right of appeal was effectively extinguished.

70 While it is possible that the current landlord may now have a fresh right of appeal under s 148, the Respondent does not concede this point. The Respondent argues that any such right must be asserted by the current landlord in a new appeal, which can only be initiated after it has been substituted as a party in the VCAT proceeding and demonstrates standing to bring the appeal.

Response to grounds one and two of the Applicant's submissions

71 The Respondent refers to the hearing before the Tribunal, where Counsel for the Club, as tenant, stated, 'the following submissions in support of an extension of time are made based on s 126 and, in the alternative, s 98(3)'.[108] As noted in the Reasons, it was not disputed during the hearing that the Tribunal had jurisdiction to extend time under either of these legislative provisions:[109]

The Tenant submitted that it was open for the Tribunal to extend the date for satisfying the Conditions either under s 126(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) or alternatively, pursuant to the Tribunal's general powers to regulate its own procedures under s 98(3) of that Act. It is not in contention that the Tribunal has jurisdiction to extend the time for satisfying the conditions upon which relief against forfeiture was granted.

However, the question remains whether the Tribunal should exercise its discretion to do so.

As I have indicated, it is appropriate to give leave to withdraw any such concession - though, for the reasons which follow, the more general proposition to which such concession goes is correct.

72 The Respondent argues that the Tribunal had the power to extend the time for compliance with the conditions under either statutory provision and that the Court should not override this discretion for the following reasons.

73 First, it is said that the Applicant expressly conceded that the Tribunal had jurisdiction to make the orders sought, despite their current contrary position. In its submission, the Applicant attempts to minimise this concession by arguing that 'the highest any concession about the Tribunal's jurisdiction reached was the observation by Paramount's Counsel that the Tribunal has the ability to amend its own orders.'[110] The Applicant suggests that this concession was made purely in the abstract. However, this argument separates the statement that 'the Tribunal has the ability to amend its own orders' from its proper context, which was a discussion between the Deputy President and the Applicant's Counsel about whether the Tribunal should exercise its discretion to extend the time for a party to comply with a self‑executing order.[111]

74 As the Court of Appeal highlighted in Patsuris v Gippsland and Southern Rural Water Corporation,[112] an appellant under s 148 must not only identify a threshold question of law, but that question must have been (a) actually raised before the Tribunal, and (b) involved in the Tribunal's decision. Read in its proper context, the concession meant precisely what the Tribunal interpreted it to mean in the reasons:[113]

The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself. It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal.

75 The Respondent submits that for these reasons, the Court should refrain from exercising its discretion to allow the Applicant to raise a legal question that was not presented to the Tribunal. In addition, or alternatively, attempting to relitigate this issue amounts to an abuse of process, and the Applicant should be stopped from pursuing it.

76 Secondly, the Tribunal not only has the power to issue self‑executing orders,[114] but also the power to set aside or vary those orders. The Respondent says this was upheld by the Court in Ng v Rockman.[115] Justice Beach, in that case, suggests that this power should be exercised in the interests of justice considering the respective prejudice to each party.[116] The Tribunal has, at times, relied on its powers under s 126(2) of the VCAT Act to extend the time within which an applicant could comply with a self‑executing order. However, a more 'plausible' source of this power is said to be the Tribunal's broad discretion under s 98(3) of the VCAT Act to regulate its own procedure, provided it does so consistently with natural justice.[117]

77 The Respondent submits that the Tribunal's statutory power to control its own procedure is analogous to the Court's inherent discretion to relieve a party from the consequences of failing to comply with a self‑executing order. As reiterated by the Court of Appeal in Jorgensen v Slater & Gordon Pty Ltd (Jorgensen),[118] the Court has broad discretion to address non‑compliance with such orders, with the guiding principle being doing what justice requires in each case. This establishes a clear precedent for tribunals and courts alike to exercise their discretion in the interests of fairness.[119]

78 Self‑executing orders are considered procedural in nature which, the Respondent submits, brings them within the Tribunal's broad statutory power under s 98(3) of the VCAT Act. This section allows the Tribunal to regulate its own procedure, including the ability to vary or set aside self‑executing or conditional orders. While Victorian authority on this point is limited, the approach in Queensland is said to provide valuable insight. The following observation by Member J R Forbes of the Queensland Civil and Administrative Tribunal (QCAT) supports the existence of such an implied statutory power under the Queensland equivalent to s 98 of the VCAT Act:[120]

The QCAT Act does not confer an express power to extend time to comply with a self‑executing order after it has taken effect. But if self‑executing orders are merely matters of procedure (as authority indicates), an extension of time in this case may be within the widely‑expressed discretion to vary procedural requirements, in section 61 of the Act.

79 Since s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (QCATA)[121] is similar to s 98 of the VCAT Act, it is contended that it is reasonable to apply this interpretation in the Victorian context. Section 61 confers on QCAT certain powers to control its own procedure, including the ability to waive compliance with procedural requirements. It should also be noted that, it is said, the authority for the proposition that 'self‑executing orders are merely matters of procedure' is the passage from Jorgensen referred to previously.[122]

80 Therefore, the Respondent submits the Tribunal's statutory discretion under s 98(3) and, or alternatively, s 126(2) clearly encompass the power to vary or set aside self‑executing orders, as such orders are inherently procedural. This power sits consistently with the broader principle that tribunals and courts should have the flexibility to ensure justice is served in matters of compliance with procedural orders. A critical question with respect to these submissions is whether the 14 December Orders are properly characterised as self‑executing orders in this context. For the reasons which follow, I am of the view that seeking to categorise an order for relief against forfeiture as interlocutory, self‑executing or otherwise is unhelpful having regard to its jurisprudential and jurisdictional base and the manner in which such orders are cast and operate.[123]

81 Thirdly, it is submitted that the Applicant's authorities, which are said to establish that courts and tribunals cannot amend a final order, or are functus officio, do not apply to the present case. It is contended that the Tribunal here did not disturb any substantive aspects of the 'final order', nor did it alter any findings of fact or law it had made. As Gaudron J observed in FAI General Insurance Co Ltd v Southern Cross Exploration NL,[124] a conditional order does not render a court or tribunal functus officio, even where the order is for the dismissal of the proceeding (which was not the case here):[125]

Although it has been common to speak of a conditional order for dismissal as self‑executing or of a proceeding upon which such an order has operated as 'dead', that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio.

82 Consequently, it is submitted that the Deputy President exercised his discretion correctly. Moreover, it is submitted, as discussed in greater detail below (in relation to ground three of the appeal), it is not the Court's role to second‑guess the exercise of this discretion, unless the decision exceeds the bounds of the statutory authority granted. The weight given to each of the four factors from Jorgensen was a matter for the Tribunal alone and is not subject to appeal under s 148.

83 Fourthly, s 130(1) of the VCAT Act provides that the Tribunal's power to make an order or decision includes the power to impose any conditions or further orders it deems appropriate. Section 130(2) outlines the types of conditions or further orders that may be made, including those necessary to give effect to an order. Additionally, s 131 allows any member of the Tribunal to vary an order or direction concerning the procedure to be followed in a proceeding at any time.

84 It is contended that the effect of ss 130 and 131 of the VCAT Act is clear: that subject to the Tribunal's duty to act fairly and according to the substantial merits of the case under s 97, the Tribunal possesses broad discretion to make orders or determinations with any conditions or further orders it deems appropriate. This power also extends to varying its own procedural orders and directions. This flexibility allows the Tribunal to ensure that its decisions are effective and responsive to the needs of each case, while still upholding the principle of fairness. Again, for the reasons which follow, the grant by the Tribunal of an order for relief against forfeiture, exercising the jurisdiction of the Court conferred by s 89 of the RLA does not involve or require reliance on the provisions of the VCAT Act addressed by the Respondent with respect to the grounds of the proposed appeal.

The Applicant's submission that the Tribunal erred in the exercise of its discretion is misconceived (ground three)

85 The Respondent refers to the Applicant's submission that if s 98(3) or s 126(2)(a) conferred a discretion on the Tribunal to extend the time for the tenant to comply with the conditions, then this discretion was wrongly exercised and should be set aside.[126] As observed by Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd,[127] the role of a Court in reviewing an administrative discretion, such as a decision of VCAT, is limited:[128]

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has set in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

86 Two further principles are said to be particularly relevant to the Applicant's submissions on this point:

(a) An error of law is not demonstrated by the mere fact that the Tribunal 'gave to a matter more or less weight than the plaintiff would have liked the [Tribunal] to give to that matter';[129] and

(b) The relative weight to be given to relevant factors bearing on the exercise of a discretion does not raise a question of law unless the conclusion reached was not reasonably open.[130]

87 The Respondent submits the Tribunal appears to have applied the correct test from Jorgensen and considered the relevant matters it was required to assess in exercising its discretion. However, there are a few points raised by the Applicant that are directly addressed.

88 First, as a general observation, the Tribunal's reasons are clear and understandable. The submission that the manner in which the Tribunal reached its ultimate conclusion 'lacked any evident and intelligible justification' cannot be seriously sustained.[131]

89 Secondly, the Applicant mistakenly conflates the Tribunal's grant of relief against forfeiture on certain conditions (which is not the subject of this appeal) with the Tribunal's decision to extend the time for the tenant to comply with those conditions (which is the subject of this appeal). Accordingly, when the Applicant argues that the Tribunal 'largely, if not totally ignored' the Respondent's 'perilous financial condition,' which could impact its ability to pay future rent and that this 'should have been the most critical consideration,'[132] it is arguing past the point. However, for reasons which follow, this is to misunderstand the nature of the jurisdiction to grant relief against forfeiture and the nature of orders made on the evidence of that jurisdiction.

90 In line with the factors identified in Jorgensen, the Tribunal expressly considered whether extending the time for the tenant to comply with the conditions would prejudice the applicant.[133] The Respondent emphasises that the Tribunal was not required to revisit whether relief against forfeiture should have been granted initially. Instead, it needed to assess the factors from Jorgensen, including whether the extension would leave the applicant worse off, better, or in the same position. As the Deputy President observed:[134]

From a mathematical viewpoint, paying the Conditions now would not be materially different had the Conditions been paid by 12 January 2024 (leaving aside any question of interest on late payments) ...

What then is the prejudice suffered by the Landlord? In my view, the prejudice is the late payment of the Conditions, including rent and outgoings up to 22 February 2024. However, as Mr Andreou submitted, that prejudice can be easily compensated by an order for costs or compensation. In other words, the Landlord's position would not be materially different if the Landlord was compensated for the late payment of the Conditions.

91 Thirdly, by suggesting that certain matters were given 'inadequate' consideration or should have been the 'most critical consideration weighing on the Tribunal's mind',[135] it is said that the Applicant is essentially asking this Court to 'reweigh' the factors before the Tribunal and substitute its own discretion for that of the Tribunal. As established in Peko‑Wallsend, this Court is not empowered to do so.

92 Fourthly, the Applicant asserts that 'at the date the payment of the Original Conditions was due, and also when it made the so‑called "offer" to make payment, the Club was in no position to pay those amounts and could not have met the conditions or the terms of any offer_,_'[136] and further claims that:

[T]he Tribunal should instead have recognised that the only manner in which the Club could have avoided the inevitable failure to meet the Original Conditions was by lodging an appeal which, as counsel for Paramount below rightly submitted, was unmeritorious as leave to appeal was not even granted. There was simply no other option given that Club could not have met the Original Conditions as originally ordered.[137]

93 The Respondent says that through this submission, the Applicant is effectively requesting the Court to make a factual determination that at the time the undertaking was given, the Respondent was incapable of complying with it. Thus it is submitted that the request falls entirely outside the scope of the Court's power under s 148.

94 Moreover, it is submitted that no evidence has been presented to substantiate this claim, and it overlooks the uncontradicted testimony from the Respondent during its application for an extension of time. The Respondent explained that between 14 December 2023 and 12 January 2024, it was actively seeking finance to settle the outstanding rent and outgoings, but that 'the fire stifled our imminent financing_._'[138] In contrast to the Applicant's assertion, it is said to be far from certain that it was 'inevitable' that the Respondent would fail to meet the conditions. Even if there were an error of fact, which is not conceded, it was not an error so 'glaringly illogical' that it could be classified as an error of law.

95 Fifthly, it is said that the Applicant's submissions can be interpreted as implying that the appeal was merely a delaying tactic. This suggestion, the Respondent says, is both unfounded and inappropriate, and it ought to be withdrawn.

96 As with the present appeal, the Club (the tenant) was a party to a VCAT proceeding and was entitled to seek leave to appeal a question of law under s 148 in its application the subject of previous proceedings in this Court.[139] The Court exercised its discretion in these proceedings to deny leave to appeal. The Respondent says that does not, of itself, make the seeking of such leave 'unmeritorious'. Further, it emphasises that, Deputy President E Riegler himself said that 'the Tenant was entitled to make an application for leave to appeal the 14 December Orders, notwithstanding that the Appeal was ultimately unsuccessful',[140] and made no criticism whatsoever of the tenant's conduct in seeking a stay and extension.

97 In my opinion, the submissions of the Applicant and the matters relied upon in support provide the correct approach to the interpretation of the critical provisions of ss 98(3) and 126(2)(a) of the VCAT Act in the context of this dispute on the bases advanced. Issues with respect to the jurisdiction to grant relief against forfeiture do, however, raise different considerations. In analysing the parties' submissions, it is convenient to refer particularly to the two categories of arguments relied upon and highlighted by the parties in these submissions.

98 The first point to address is s 148 of the VCAT Act, which permits a party to a VCAT proceeding to appeal an order of the Tribunal to the Trial Division of the Supreme Court, on a question of law from an order of the Tribunal. This ensures that appeals focus solely on legal errors, such as misinterpretation or misapplication of legal principles, rather than disagreements over factual findings. Additionally, the party must demonstrate that the appeal has a real prospect of success, meaning there must be credible grounds establishing that an error or errors of law could materially affect the outcome of the case. The Respondent submits that as the Applicant is no longer the registered proprietor of the Premises, having transferred ownership to the current landlord (Matisi Street Pty Ltd), which is neither a party to the VCAT proceeding nor this appeal, the Applicant has no relevant interest in this appeal. It should be borne in mind though that the Applicant was the registered proprietor of the Premises at the VCAT hearing on 14 December 2023 and at the time the 14 December Orders were made and was represented at that hearing.

99 Although the Applicant is no longer the registered proprietor of the Premises, it is submitted that it, nevertheless, has a real interest in the outcome of the VCAT proceeding of which the 14 December Orders was but a part. It submitted that determination of the matters the subject of this proposed appeal have the real potential to affect its interests as, it is said, substantive claims are made and defences arise which are critically dependent on whether and, if so when, the Lease has been determined. Having regard to the matters raised in the ongoing VCAT proceeding, I accept, on the bases proffered by the Applicant, that it does have a relevant interest enabling it to pursue this proposed appeal. Moreover, there remains an active counterclaim against it in those proceedings.

100 Section 60 of the VCAT Act enables a person to be joined as a party to a proceeding. The Tribunal may make orders joining a party if it considers that the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding, or if it considers that the person's interests are affected by the proceeding, or if for any other reason it is desirable that the person be joined as a party. The Tribunal may take this step on its own initiative or on the application of any person. If the Tribunal considered that it was in the interests of justice that a person should be joined, it could join a person under that section. However, there would have to be a proceeding to which the person could be joined. Section 60 does not create the opportunity for such a person to start a proceeding where none already exists. In any event, for the reasons I have indicated, this issue does not arise.

101 In this case, although the Applicant is no longer the registered proprietor or landlord of the Premises, having transferred ownership to the current landlord, which is neither a party to the VCAT proceeding nor in this appeal, it has, for the preceding reasons, satisfied the Court that it does have a relevant interest in or will be affected by this proposed appeal. It is also not necessarily evident that the current landlord (Matisi Street Pty Ltd) has any interest in the VCAT proceeding; though that is not a matter that has been determined. Issues were raised by the Respondent with respect to difficulties which might follow as the result of payment of moneys by it in accordance with orders of the Tribunal if this proposed appeal were successful. As these reasons indicate, that eventuality has not occurred and so the issue does not arise.

102 The second point addressed is s 126 of the VCAT Act, which the Applicant relies upon in challenging the Tribunal's power to conditionally extend the time limits set out in the Original Conditions. As the Respondent observes, s 126, and particularly sub‑s (2), of the VCAT Act enables the Tribunal to extend the time within which an applicant must comply with a self‑executing order. Section 126(2) is a 'very wide' power, as noted in Leonora Group (Wonthaggi) Pty Ltd & Anor v Bass Coast SC,[141] and it can be exercised either on the application of a party or on the Tribunal's own initiative. The purpose of this provision, and similar provisions within the VCAT Act, is to ensure that matters are determined on their real and substantial merits, rather than on technicalities or procedural slip‑ups. In Leonora Group (Wonthaggi) Pty Ltd & Anor v Bass Coast SC, the Court noted:[142]

In relation to this Tribunal there are powers of amendment such as s 127 and Clause 64 of Schedule 1 of the VCAT Act that empower the Tribunal to make amendments that might be necessary for such purposes. Clause 62 of Schedule 1 and s 126(2)(b) of that Act also empower the Tribunal to disregard failures to comply with statutory or procedural requirements when it considers it in the interest of justice to do so. The purposes of these and other provisions is to enable matters to be determined, rather than avoided, and determined on their real and substantial merits, not on the basis of technical points or slip‑ups. That would be an appropriate attitude for the Tribunal to bring to its work in any event, but lest there be doubt, it is enjoined on the Tribunal by ss 97 and 98 [of the] VCAT Act.

103 Section 126 specifically allows for the extension or abridgement of time limits, including extensions to commence proceedings and the waiver of compliance with procedural requirements. Importantly, the procedural requirements under s 126(2)(b) apply to actions taken after the commencement of a proceeding in the Tribunal, as outlined in Bundy v Alberts & Anor,[143] and Galas v Vero Insurance.[144] However, s 126(2) cannot be invoked where its exercise would conflict with the underlying legislation that created the requirement, as seen in Sharma v Lantrak Pty Ltd.[145]

104 Also, s 98(3) of the VCAT Act is, as indicated previously, relied upon by the Respondent as supporting the Tribunal's discretion in managing time limits generally. It is emphasised that the provisions empower the Tribunal to grant extensions in specific circumstances, ensuring that the Tribunal has the flexibility necessary to ensure justice is done, particularly when rigid adherence to time constraints may result in an unjust or unfair outcome. Thus, the Respondent relies on s 126, when read in conjunction with s 98(3), as providing the necessary foundation for the Tribunal's capacity to exercise a discretion regarding time limits as it has said to have done in connection with and as a basis of the Orders the subject of this proposed appeal.

105 I accept that the matters raised by the Respondent support the view that provisions such as ss 126 and 98 of the VCAT Act read with other provisions of that legislation, such as ss 97, 130 and 131, do give the Tribunal broad powers to manage its proceedings with a view to addressing real issues in dispute and to do justice between parties in an environment of procedural fairness. This is not, of course, a unique and unknown environment. Rather it is one well known and practised by the courts, including this Court, as underpinned by legislation and court rules - and, particularly, legislation such as the Civil Procedure Act 2010. Indeed, this is the environment in which the English Court of Appeal considered issues presently relevant to the equitable jurisdiction to grant relief against forfeiture in Chandless‑Chandless v Nicholson[146] and Starside Properties Ltd v Mustapha.[147]

106 It is clear from the Tribunal Reasons and the orders that the Tribunal was exercising jurisdiction specifically conferred upon it to grant relief against forfeiture conferred by s 89 of the RLA. The presently relevant provisions are s 89(1) and (2) which provide as follows:

(1) The Tribunal has jurisdiction to hear and determine an application by any of the following persons seeking resolution of a retail tenancy dispute -

(a) a landlord or tenant under a retail premises lease;

(b) a guarantor of a tenant's obligations under a retail premises lease;

(c) a person who has given an indemnity to a landlord for loss or damage arising as a result of a breach by a tenant of a retail premises lease;

(d) a specialist retail valuer.

(2) In an application under subsection (1) for forfeiture or relief against forfeiture (whether or not for non‑payment of rent), the Tribunal has the same jurisdiction, including equitable jurisdiction, and powers as the Supreme Court has in relation to proceedings for forfeiture or relief against forfeiture.

These provisions make it quite clear that the jurisdiction being conferred in this respect is the same jurisdiction, including equitable jurisdiction, and powers that the Supreme Court has in relation to proceedings for forfeiture or relief against forfeiture.

107 It is also clear from earlier authorities with respect to the retail leases jurisdiction that such equitable jurisdiction and powers required an express legislative grant. So much is clear from the decisions of Ormiston J in Jam Factory Pty Ltd v Sunny Paradise Pty Ltd[148] and Klewet Pty Ltd v Lansdown.[149] True it is that these decisions were in the context of an arbitral dispute resolution scheme under the Retail Tenancies Act 1986 but, having regard to the jurisdiction to grant relief against forfeiture being a central and ancient part of the equitable jurisdiction, a matter clearly in the mind of Ormiston J, there is no doubt that a tribunal such as VCAT could not exercise any such jurisdiction without the enactment of provisions such as contained in s 89 of the RLA.

108 In a not entirely dissimilar circumstance as found in the present proceedings, the Master of the Rolls, Lord Greene (with whom Lord Clauson agreed), in Chandless‑Chandless v Nicholson, said:[150]

The court, in exercising its jurisdiction to grant relief in cases of non‑payment of rent is, of course, proceeding on the old principles of the court of equity which always regarded the condition of re‑entry as being merely security for payment of the rent and gave relief if the landlord could get his rent. If an order of this kind, in which relief is granted on terms to be observed within a limited time, is to be treated as one which the court has no jurisdiction to modify in point of time even though circumstances justify modification, then the order becomes as vicious as the original forfeiture clause itself. I hold the view without hesitation that notwithstanding the omission of the words 'liberty to 'apply' an order of this kind, which gives relief on terms to be performed within a specified time, is one in respect of which the court retains jurisdiction to extend that time if circumstances are brought to its notice which would make it just and equitable that extension should be granted. It is obviously desirable, as the argument in this case has shown, that liberty to apply should be expressly reserved. If it had been reserved this litigation would never have taken the course which it has, because Master Baker ought to have granted the relief on the lines on which this court is disposed on the present occasion to grant it.

...

Asquith J. took the view that he had no power to deal with an appeal from the original order on the ground, apparently, that the original order had not been complied with, the three months had elapsed, and that, therefore, he had no power to interfere. That again, if I may say so with great respect, was regarding these orders, which are to give equitable relief, as something so immutable that the court is deprived of doing what in the circumstances of the case it considers to be equitable. It is not, of course, to be understood from anything I say that lessees who obtain orders for relief are entitled to treat the conditions laid down in them lightly. Any lessee who has obtained relief on conditions cannot expect to get further indulgence from the court in the matter of time unless good grounds are shown. Lessees must not think for one moment that they are entitled to be slack or casual about the performance of terms. If they are so and then endeavour to get further indulgence from the court, the court will know how to deal with them, but in a case where on all equitable grounds a period of limitation ought in fairness to be extended and its extension will do no more than apply the principle that the condition of re‑entry is nothing more than security for the rent, there is no reason why equity should not lend its aid notwithstanding the original order. From that decision of Asquith J. the present appeal is brought.

109 And more recently, in Starside Properties Ltd v Mustapha, Edmund‑Davies LJ said:[151]

Chandless‑Chandless v. Nicholson [1942] 2 K.B. 321 related, as Judge Fife stressed, to relief from forfeiture for non‑payment of rent, this court holding that where such relief was granted on terms to be performed within a specified time it has jurisdiction to extend that time if the circumstances are such as to make an extension just and equitable. Its importance lies in the fact that the Court of Appeal appeared to entertain no doubt that there was power to extend the period of indulgence granted by an earlier order.

Lord Cairns LJ said that Chandless‑Chandless:[152]

is conclusive authority that the judge had jurisdiction to extend the time unless that case can be distinguished on one of two grounds submitted by Mr. Jacob: first, that the ruling in that case is confined to relief from forfeiture for non‑payment of rent under a lease of land; secondly, that the defendant was not in this case able to pay the outstanding debt on the day when the application for extension of time was before the court.

The possible qualification in this jurisdiction as referred to by his Lordship does not appear to have been a necessary bar to granting further relief but, rather, a matter to be weighed by the Court in the process of considering whether, in the circumstances, justice requires the granting of such relief. This, in my view, is made clear in statements of the other members of the Court of Appeal. Edmund‑Davies LJ said:[153]

The conclusion to which I have come in the light of the cases to which our attention has been directed is that, certainly in relation to the jurisdiction of the court to vary an order granting an extension of time by granting a further extension, no distinction is to be drawn between cases of relief against forfeiture for non‑payment of rent and other cases where relief against forfeiture is sought. The common feature in all these cases is that a penal provision is involved and the court grants relief against the forfeiture which would otherwise follow from it in such circumstances as justice requires, and it grants relief on such terms as are equitable in those circumstances. If it should later appear that the relief by way of an extension of time first granted ought to be extended, and that in fairness to the other party that can be done, I see no difficulty in holding that the court has the jurisdiction to do that which the justice of the case is seen to require. Naturally enough, the court will scrutinise with particular care an application for further relief and will be more reluctant to grant it than in the case of a first application, but that goes to the likelihood of the later application succeeding and not to the court's jurisdiction to entertain it. No case cited to us supports Mr. Jacob's submissions - certainly not Stockloser v. Johnson [1954] 1 Q.B. 476, nor the later cases to which we were referred, such as Galbraith v. Mitchenall Estates Ltd. [1965] 2 Q.B. 473 and Campbell Discount Co. Ltd. v. Bridge [1961] 1 Q.B. 445 and Chandless‑Chandless v. Nicholson [1942] 2 K.B. 321 affords support to the contrary submission advanced by Mr. Ellis. I am therefore of the view that the judge was in error in arriving at his reluctant conclusion as to jurisdiction.

The plaintiff's case was that once equitable relief had been given it could never be given again. In my judgment, this submission is contrary to precise and well established equitable principles. Once the existence of an equity is established the court clearly has jurisdiction to give such equitable relief as may be necessary to protect it. What is necessary will depend on the evidence in each case, and events may occur which may make necessary that which was not foreseen to be necessary at the beginning. In most cases the applicant for further equitable relief may have difficulty in establishing entitlement. As was pointed out in argument, however, cases can be envisaged where there would be manifest injustice if further equitable relief were not granted.

110 In the context of consideration of these authorities, with respect to the equitable jurisdiction to grant relief against forfeiture, I turn now to consider the content of the 14 December Orders. The operative parts of the 14 December Orders is as follows:

ORDERS [pronounced 14 December 2023]

1. Having regard to the notice of breach of lease dated 21 April 2023 (being the subject of the hearing listed for 10 October 2024) having been withdrawn, the Tribunal's orders dated 3 August 2023 are vacated (including the listed hearing date of 10 October 2024).

In relation to the applicant's application:

1. I find and declare that the lease dated 22 February 2021 between the parties ('the Lease') was lawfully forfeited by notice of termination dated 21 September 2023 and in reliance upon a notice of breach of lease dated 5 September 2023.

In relation to the respondent's application:

1. The respondent's application for an order in the form of an injunction restraining the applicant from forfeiting the Lease and re‑entering the leased premises, in reliance upon the notice of breach of lease dated 5 September 2023 and notice of termination of lease dated 21 September 2023 is dismissed.

2. The respondent is to be relieved from forfeiture of the Lease subject to the following conditions:

(a) By 12 January 2024 or such further time as may be agreed between the parties, the respondent must pay the applicant 65% of the rent in arrears, as set out in the notice of breach of lease dated 5 September 2023 ($168,244.48).

(b) From 2 July 2023 until 14 December 2023, the respondent must pay the applicant 80% of all rent and outgoings due and payable under the Lease.

1. For the avoidance of doubt:

(a) Order 4 of these orders, granting relief from forfeiture of the Lease, only comes into effect if the conditions set out in that Order are complied with; and

(b) if Order 4 of these orders does not come into effect (because the respondent has not complied with the conditions upon which relief from forfeiture is to be granted), then the Applicant will be at liberty to further its application for an order that the Tenant vacate and give up possession of the leased premises.

1. To give effect to these orders, Orders 2 and 3 are stayed until 12 January 2024.

2. The Tribunal's prima facie findings as to the quantum of rent abatement set out in these orders are interlocutory findings and solely for the purpose of giving effect to these orders. The precise quantum of rent and outgoings to be abated (if any) will be determined at the final hearing of this proceeding.

7.[sic] This proceeding is listed for a further directions hearing before Deputy President E Riegler on 21 February 2024 commencing at 9:30am, with one hour allocated, at which time orders will be made as to the further conduct of this proceeding.

1. Liberty to apply.
2. Costs reserved.

111 The 14 December Orders are, on their face, and as indicated previously, clearly orders in the nature of orders for relief against forfeiture and subject to conditions - as is almost invariably the case.

112 Turning to the specifics of the 14 December Orders, order 2 establishes the fundamental premise, namely that the Lease was forfeited by notice of termination dated 21 September 2023. It follows that, absent further effective orders for relief against the forfeiture, the Lease term ended on that date. This consequence is avoided by order 4 which relieves against the forfeiture of the Lease in accordance with order 2, subject to the conditions specified in paragraph (a) and (b) of order 4. It is apposite at this point to bring to mind the approach of equity to the proviso for re‑entry in leases, which is treated or characterised as securing the covenant for payment of rent;[155] hence the basis of such relief is the equitable jurisdiction 'to grant relief against penalties'.[156] Order 5 is prefaced by 'for the avoidance of doubt' and hence must be read on that basis and, it would follow, is supportive and explanatory of, as its contents indicate, order 4. Its terms are considered in more detail shortly. Orders 6 and 7 (first appearing) are explanatory and order 7 (second appearing) is procedural. Order 8 provides, expressly, for liberty to apply and in this respect would seem to address the desirability or effect of such reservation as discussed in Chandless‑Chandless v Nicholson.[157] Order 9 is self‑explanatory.

113 Returning to order 5; paragraph (a) states a conventional proposition as to an order in the nature of that contained in order 4. Paragraph (b), on the other hand, is perhaps, not so clear unless read in light of the approach of equity to the proper order for relief against forfeiture, as explained in Janos v Chama Motors Pty Ltd by Young JA:[158]

In equity, if relief against forfeiture is granted and the lease has been determined by re‑entry, the proper order is that the landlord, at the tenant's expense, execute and deliver a new lease for the balance of the term of the determined lease: see Dendy v Evans [1909] UKLawRpKQB 203; [1910] 1 KB 263, 266. This is to be contrasted with the proper order where the tenant obtains relief against forfeiture after forfeiture but before the landlord has acted upon the forfeiture and determined the lease. In such a case, the court grants an injunction to prevent the landlord acting on the forfeiture. Of course the term 'forfeiture' in this connection means merely 'liable to be forfeited'.

The process described by Young JA may raise issues flowing from the sale of the Premise which invite consideration of the nature of the equitable claim for relief against forfeiture and, possibly, consideration of equitable and other priorities. However, these are not issues arriving in the present proposed appeal proceeding and so I express no views as to what the issues may be or how they should be resolved. That is a matter for the Tribunal.

114 The Court has an absolute discretion to grant or refuse relief against forfeiture and to mould any relief granted to the particular circumstances.[159] It follows that the same applies to the Tribunal in the exercise of the Court's jurisdiction to grant relief against forfeiture conferred by s 89 of the RLA. The Tribunal has, as discussed previously, clearly exercised the jurisdiction and, on the basis of the nature of this jurisdiction and the authorities to which reference has been made, was empowered to make the orders in the terms in which they were made. Moreover, I am of the view that there is no error in the exercise of the discretion by the Tribunal and the basis upon which the discretion was exercised and the matters considered. The exercise of this discretion took account of some factual matters which the Applicant contends were wrong or not supported by the evidence. However, in context, I do not regard these matters as providing any basis for finding an error of law which would justify these matters being entertained in an appeal such as this under s 148 of the VCAT Act. Moreover, I found no basis for finding any unreasonableness in the decision making of the Tribunal with respect to the exercise of the discretion and the orders for relief against forfeiture.

115 As the preceding reasons indicate, I am of the view that the provisions of s 126(2)(a) of the VCAT Act and other 'related' provisions to which reference has been made, provided no basis for the orders as these provisions were not applicable to orders by way of relief against forfeiture in the exercise of the Court's equitable jurisdiction, conferred by s 89 of the RLA. This does not, however, affect the validity of the 15 July Orders as they were made having properly considered matters required under the equitable jurisdiction. The fact that the basis for considering these relevant matters may have been described by reference to s 126(2)(a) of the VCAT Act (and other provisions of that Act) is not significant - it is the nature and substance of matters that were considered which is what is important. It follows that the Tribunal made no vitiating error of law as the 15 July Orders were, in any event, made within power and there is no basis to doubt their vitality.[160] Consequently, it would not be appropriate to set aside the Orders, on the basis of my findings with respect to the proposed grounds. VCAT always had power to make the orders in the form they were made.[161]

116 For the preceding reasons I find that the proposed appeal had no real prospect of success and, consequently, leave to appeal should be refused. In any event, on the basis of the preceding reasons, the proposd appeal would have been dismissed. The question of costs is reserved and I will hear the parties on this issue in the absence of agreement as to costs.

117 The parties are to bring in orders to give effect to these reasons.

1. [1] Paramount Investments Group Pty Ltd v Club Fogolar Furlan Melbourne (No 3) (Building and Property) [2024] VCAT 666 (Reasons).

[2] Paramount Investments Pty Ltd v Club Fogolar Furlan Melbourne (Building and Property) [2024] VCAT 169. The Tribunal had originally provided relatively detailed reasons in the written orders which were provided shortly after the hearing on 14 December 2023. However, following the lodgement of this appeal, the Tribunal provided written reasons at the request of the Applicant in this Court.

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

[4] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21, 26 [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; (2005) 13 VR 275.

[5] (2011) 83 ATR 832, 833-4 [3].

[6] Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd [2010] VSC 608; (2010) 81 ATR 682, 687 [10] (Davies J).

[7] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al‑Hakim v Monash University (unreported, Court of Appeal, Vic, No 3707 of 2003, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[8] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 475; [1987] HCA 50; 61 ALJR 588, 597; [1987] HCA 50; 28 A Crim R 48, 63-64; [1987] HCA 50; 74 ALR 161, 176-177 per Dawson J.

[9] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 333 [21]; [2010] HCA 24; 84 ALJR 528, 536 [21]; [2010] HCA 24; 267 ALR 231, 240 [21] (French CJ, Gummow and Bell JJ).

[10] _Morris v The Quee_n [1987] HCA 50; (1987) 163 CLR 454, 475; [1987] HCA 50; 61 ALJR 588, 597; [1987] HCA 50; 28 A Crim R 48, 63-64; [1987] HCA 50; 74 ALR 161, 176-‍‍177 per Dawson J; Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335 [10]; [1999] VSCA 117; 15 VAR 360, 366 [10].

[11] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335-336 [11]; [1999] VSCA 117; 15 VAR 360, 366 [11] per Phillip JA; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65, 69 [20], 77 [65] (Hollingworth J).

[12] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 s 31(3).

[13] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55 [28], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335.

[14] See Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022), 965-7.

[15] The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT Act with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022), 965-70.

[16] Section 63(1) of the Civil Procedure Act 2010 empowers a court to give summary judgment in a civil proceeding if the defence, inter alia, has 'no real prospect of success'.

[17] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29]. See also Kennedy v Shire of Campaspe [2005] VSCA 47, [3]-[14].

[18] [2005] HCA 40; (2005) 222 CLR 115, 136 [64].

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

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

[21] (1971) 38 LGRA 6, 18.

[22] (1980) 44 LGRA 65, 67-8.

[23] (1985) 62 LGRA 346, 349-50.

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

[25] And see Rysze International Pty Ltd v Yong [2021] VSC 786, [12]; Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208, [12].

[26] [2015] VSCA 350; (2015) 48 VR 715.

[27] [2015] VSCA 350; (2015) 48 VR 715, 720, [9]-[11]; and see Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176, 186 [22] (CA); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771, 782 [41], 805 [162] and [165] (CA); and Maund v Racing Victoria Ltd [2016] VSCA 132, [67].

[28] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 59 [44].

[29] S v Crimes Compensation Tribunal [1998] 1 VR 83, 88-93; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 59 [44].

[30] Reasons, [47] (Applicant's emphasis added).

[32] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[33] Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 (Dixon CJ), quoted with approval in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[34] Heydon's Case [1584] EngR 9; (1584) 3 Co Rep 7a, 7b; 76 ER 637, 638.

[35] [2012] HCA 56; (2012) 248 CLR 378.

[36] [2012] HCA 56; (2012) 248 CLR 378 at 390 [26].

[37] Spigelman, 'The intolerable wrestle: Developments in statutory interpretation', (2010) 84 ALJ 822, 826.

[38] (2012) 248 CLR 1 at 14 [28]. See also Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 at 459 [29].

[39] Footscray City College v Ruzicka [2007] VSCA 136; (2007) 16 VR 498, 501 [7] (Chernov JA, citing Stephen J in Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201, 251).

[40] [2017] HCA 54; (2017) 263 CLR 551, [52].

[41] See Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 per Lord Diplock; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304-305 per Gibbs CJ; at 310 per Stephen J; at 319-321 per Mason and Wilson JJ; at 336 per Aickin J_; Kingston v Keprose Pty Ltd_ (1987) 11 NSWLR 404 at 423 per McHugh JA; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 at 113-116 per McHugh J.

[42] Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 at 191 per Lord Simonds; Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 644 per Barwick CJ (McTiernan J agreeing at 646); at 649 per Stephen J (Menzies J agreeing at 646).

[43] (2014) 253 CLR 531, 548 [39].

[44] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 at 651-652 [9] per French CJ and Bell J.

[45] Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649 per Stephen J.

[46] Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution (a firm) [2000] UKHL 15; [2000] 1 WLR 586 at 592; [2000] UKHL 15; [2000] 2 All ER 109 at 11.

[47] [1980] AC 74, 105-106.

[48] See the summary by McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, [423].

[49] [2012] VSCA 304; (2012) 44 VR 1, 38 [110] (Applicant's emphasis).

[50] See, for example, Pravidur v Scental Pacific Pty Ltd [2010] VSCA 144; (2010) 28 VR 60 at [76] where such matters could not be established.

[51] Leonora Group (Wonthaggi) Pty Ltd v Bass Coast SC [2003] VCAT 233, [8].

[54] Retail Leases Act 2003 s 89(1) and (2).

[55] See the Club's Outline of Submissions dated 4 June 2024, and in particular the order sought at [8] of those submissions.

[56] Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2011] WASC 207 (Edelman J, where his Honour was considering the inherent jurisdiction of the Court to regulate its own proceedings).

[57] Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405, [48].

[58] (No 4) [2019] VSC 527, [28]. And see her Honour's discussion of the relevant authorities from [21]-‍‍[38].

[59] [2009] VSCA 109; (2009) 23 VR 702, 713 [41].

[60] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7.

[61] Water Board v Moustakas (1988) 180 CLR 491, 497; Coulton [1986] HCA 33; (1986) 162 CLR 1, 7-8; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 461 [51].

[62] Moustakas (1988) 180 CLR 491, 497.

[63] Whisprun [2003] HCA 48; (2003) 200 ALR 447, 461 [51].

[64] Transport Accident Commission v Bausch [1998] 4 VR 249, 263; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, [40]-[41].

[65] Masters v McCubbery [1996] 1 VR 635, [658] (Callaway JA).

[66] [2006] VSCA 81; [2006] 14 VR 359, 365 [26].

[67] See also Australia Pacific Airports (Melbourne) Pty Ltd v Nuance Group (Australia) Pty Ltd [2005] VSCA 133 at [11].

[68] (2024) 98 ALJR 1096, 1113 [72].

[69] Minister for Indigenous Affairs v MJD Foundation Ltd [2017] FCAFC 37; (2017) 250 FCR 31 at 67 [155].

[70] Minister for Indigenous Affairs v MJD Foundation Ltd [2017] FCAFC 37; (2017) 250 FCR 31 at 67 [155]; see also Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 603 [5]-[6]

[71] See, for example, Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311, 317; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; (2006) 25 VAR 449 at 472 [80], 474 [89]

[72] See, for example, Barry v Heider [1914] HCA 79; (1914) 19 CLR 197 at 220-221; Kirby v Duke of Marlborough (1813) 2 M & S 18 at 22 [1813] EngR 572; [105 ER 289 at 291].

[73] See, for example, NH v Director of Public Prosecutions (SA) [2016] HCA 33; (2016) 260 CLR 546 at 588 [95]; Jovanovic v The Queen [1999] FCA 1008; (1999) 92 FCR 580 at 586 [32]; Director of Public Prosecutions v Edwards [2012] VSCA 293; (2012) 44 VR 114 at 161-‍162 [230], [235]-[237].

[74] See, for example, R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 312, 324-326; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; (2006) 25 VAR 449 at 472 [80], 474 [89]; Independent Liquor & Gaming Authority v 4 Boys (NSW) Pty Ltd (2023) 112 NSWLR 196 at 221-222 [110], [113]

[75] Mason v Fraser [2021] VSC 461, [15].

[76] Reasons, [7] (Applicant's emphasis).

[77] [2012] HCA 61; (2013) 249 CLR 332. And see Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022), [VCAT.148.360].

[78] [2012] HCA 61; (2013) 249 CLR 332, 364 [68].

[79] [1947] EWCA Civ 1; [1948] 1 KB 223 at 230.

[80] See Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat and Live‑Stock Corporation [1990] FCA 139; (1990) 96 ALR 153 at 166 per Gummow J, referring to Allars, Introduction to Australian Administrative Law (1990), p 187 [5.52].

[81] (1936) 55 CLR 499.

[82] [2012] HCA 61; (2013) 249 CLR 332, 366-67 [75]-[76].

[83] (1986) 162 CLR 24 at 41-42, referring, inter alia, to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230 and Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 328.

[84] (1936) 55 CLR 499 at 504-505.

[85] (1936) 55 CLR 499 at 505.

[86] [2019] VSC 532, [116]-[118].

[87] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ), 373 [98] (Gageler J), 375 [105] (Gageler J).

[88] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[89] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, 447 [48].

[93] Direct Food Supplies (Victoria) Pty Ltd v DLV Pty Ltd [1975] VicRp 34; (1975) VR 358; Tannous v Cipolla Bros Holdings Pty Ltd [2001] NSWSC 236, [38] (Barrett J).

[95] Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208, [8] (Croft J), quoting Commissioner of State Revenue v Frost (2011) 83 ATR 832, 833-4 [3] (Pagone J); and see above, [7]-[16].

[96] Applicant's Outline of Submissions (15 January 2025), [9]; Respondent's Outline of Submissions (24 January 2024), [4].

[97] Victorian Civil and Administrative Tribunal Act 1998 s 60A.

[98] Victorian Civil and Administrative Tribunal Act 1998 s 60.

[99] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 79-80 [15] (Gaudron, Gummow, Hayne and Callinan JJ).

[100] Administrative Law Act 1978 s 11.

[101] See, for example, 'any person' may bring proceedings for breaches of the Environmental Planning and Assessment Act 1979 (NSW), per s 9.45(1).

[102] Applicant's Outline of Submissions (15 January 2025), [9], Respondent's Outline of Submissions (24 January 2024), [13].

[103] Applicant's Outline of Submissions (15 January 2025), [9]; Respondent's Outline of Submissions (24 January 2024), [13].

[104] Supreme Court (General Civil Procedure) Rules 2015 r 9.06(c).

[105] Land Enviro Corp Pty Ltd (In Liq) v HTT Huntley Heritage Pty Ltd [2017] NSWCA 207, [17]-[20] (Bathurst CJ).

[106] Respondent's Outline of Submissions (24 January 2024), [33]-[35].

[107] (1996) 185 CLR 124, 133 (Brennan CJ, Gaudron and McHugh JJ).

[108] Transcript of Proceedings, Paramount Investments Group Pty Ltd v Club Fogolar Furlan Melbourne (BP1134/2023, Deputy President E Riegler, 5 June 2024) 19.8-10 (Transcript); Respondent's Outline of Submissions (24 January 2024), [24].

[110] Applicant's Outline of Submissions (15 January 2025), [52]; Respondent's Outline of Submissions (24 January 2024), [27].

[112] [2016] VSCA 109.

[113] Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, [43]-[44] (Garde AJA, with whom Tate and Kyrou JJA agreed) (Respondent's emphasis).

[114] Tsiavis v Transport Accident Commission [1999] VSC 471, [34]-[38] (Beach J). See also Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022) [80.60] 460.

[115] Ng v Rockman [1999] VSC 470, [9]-[13] (Beach J).

[116] Ng v Rockman [1999] VSC 470, [9]-[13] (Beach J).

[117] Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022) [126.130] 858, citing Towie v Victorian Lawyers RPA Ltd (2001) 17 VAR 287; Haintz Building Group Pty Ltd v Dodd [2002] VCAT 294; Jessup v Transport Accident Commission [2004] VCAT 1453.

[118] Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110.

[119] Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110, [9] (Maxwell ACJ and Forrest AJA).

1. [120] Smith & Anor v Novena Leasing Pty Ltd (as trustee for) The Elliott Property Trust [2015] QCATA 33, [9].

[121] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61.

[122] Jorgenson v Slater & Gordon Pty Ltd [2008] VSCA 110, [9] (Maxwell ACJ and Forrest AJA), [34].

[123] See, particularly, [113] below.

[124] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268.

[125] FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, [13].

[126] Applicant's Outline of Submissions (15 January 2025), [66]; Respondent's Outline of Submissions (24 January 2024), [50].

[127] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 (Mason J).

[128] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 40-41 (Mason J).

[129] Maleckas (LKQ) v Secretary, Department of Justice [2011] VSC 227; (2011) 34 VR 23, 37-8 [82] (Kyrou J).

[130] Psychology Board of Australia v Mair [2010] VSC 628, [61] (Osborn J).

[131] Applicant's Outline of Submissions (15 January 2025), [83]; Respondent's Outline of Submissions (24 January 2024), [54].

[132] Applicant's Outline of Submissions (15 January 2025), [80]; Respondent's Outline of Submissions (24 January 2024), [56].

[135] Applicant's Outline of Submissions (15 January 2025), [80]; Respondent's Outline of Submissions (24 January 2024), [58].

[136] Applicant's Outline of Submissions (15 January 2025), [75]; Respondent's Outline of Submissions (24 January 2024), [59].

[137] Applicant's Outline of Submissions (15 January 2025), [76]; Respondent's Outline of Submissions (24 January 2024), [59].

[138] VCAT Proceeding, Affidavit of Patricia Corelli (21 May 2024), [10]-[14]. See also Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208; Affidavit of Patricia Corelli (7 March 2024), which goes into greater detail about the attempts to obtain financing, and the arson attack.

[139] Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208.

[141] Leonora Group (Wonthaggi) Pty Ltd & Anor v Bass Coast SC [2003] VCAT 233, [66].

[142] Leonora Group (Wonthaggi) Pty Ltd & Anor v Bass Coast SC [2003] VCAT 233, [8].

[143] [2007] VSC 90; V Conv R, 54-735 [17].

[144] (Domestic Building) [2006] VCAT 456, [12]

[145] (Building and Property) [2018] VCAT 911, [19]

[146] [1942] 2 KB 321; [1942] 2 All ER 315.

[147] [1974] 2 All ER 567.

[148] [1989] VicRp 54; (1989) VR 584.

[149] [1989] VicRp 85; (1989) VR 969.

[150] [1942] 2 KB 321, 323-325.

[151] [1974] 1 WLR 816, 821.

[152] [1974] 1 WLR 816, 824-5.

[153] [1974] 1 WLR 816, 823-4.

[154] [1974] 1 WLR 816, 826.

[155] See Chandless‑Chandless v Nicholson [1942] 2 KB 321; [1942] 2 All ER 315, 323 (Greene MR).

[156] See Starside Properties Ltd v Mustapha [1974] 1 WLR 816; and Austin v United Dominions Corporation Ltd [1984] 2 NSWLR 612.

[157] [1942] 2 KB 321; [1942] 2 All ER 315, especially at 323-5 (Greene MR).

[158] [2011] NSWCA 238, [6].

[159] See the authorities referred to in this respect by Croft, Hay and Virgona, Commercial Tenancy Law (5th ed, LexisNexis, 2024), 676 [19.5].

[160] See PBU & NJE v Mental Health Tribunal [2018] 56 VR 141, [243]; and also the decisions referred to in Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022), 1023-24 [VCAT 148.485].

[161] See, similarly, Shearman v Owners Corporation No 1 417405Y [2016] VSC 551, [52], [57]-[58].