Applicant v Respondent

1 Q St Kilda Tenancy Pty Ltd (ACN 128 981 439) ('Q St Kilda') seeks leave to appeal, and if leave is granted, appeals from the decisions of the Victorian Civil and Administrative Tribunal ('Tribunal') made on 18 December 2025 ('first decision') in VCAT Reference BP1288/2024 ('first application') and on 19 February 2026 ('second decision') in VCAT Reference BP61/2026 ('second application'). Ms Gurr, the respondent in both proceedings, is the landlord under an undated lease agreement which first commenced on 16 November 2015 for an initial term of 5 years with four further options of five years each ('the lease') relating to a serviced apartment owned by her at Lot 11, 1A St Kilda Road, St Kilda ('the premises'). Q St Kilda is the tenant under the lease. In the first decision, the Tribunal held that Ms Gurr was entitled to refuse to renew the lease. In the second decision, the Tribunal ordered that Ms Gurr was entitled to immediate possession of the premises.

2 When the lease was made, Q St Kilda was associated with the Quest Apartment Hotel Group. In about May 2019, Amazing Accommodations Pty Ltd (ACN 143 120 932) ('Amazing Accommodations'), a company of which Pawan Sinha is the sole director and shareholder, purchased all of the shares in Q St Kilda. Q St Kilda has remained a subsidiary of Amazing Accommodations with Mr Sinha as its sole director.

3 Q St Kilda holds retail leases of a number of apartments at 1A St Kilda Road, St Kilda including the premises. Amazing Accommodations carries on the business of providing serviced accommodation on behalf of Q St Kilda. It advertises the apartments and allows customers to book stays at the apartments generally on a short term basis. Since at least 7 June 2024, there has been a dispute between Ms Gurr and Q St Kilda as to the condition of the premises, and as to who is responsible for the care and maintenance of the premises.

4 By a notice dated 10 July 2024 ('first s 146 notice') under s 146 of the Property Law Act 1958 (Vic), Ms Gurr required Q St Kilda among other things to repair and maintain the premises and equipment in the premises, and to insure the premises as required under the lease. The notice included a list of 41 lost, damaged or poorly maintained fittings throughout the premises.

5 In response on 10 July 2024, Q St Kilda commenced the first application: It filed points of claim dated 21 December 2024, affidavits of Mr Sinha dated 16 July 2024 and 9 December 2025, and a written submission dated 9 December 2025 seeking that the Tribunal declare that Q St Kilda was not in breach of the lease.

6 On 17 September 2025, Ms Gurr served on Q St Kilda a notice under s 28(1A) of the Retail Leases Act 2003 (Vic) ('RL Act') ('s 28 notice'). She conducted an inspection of the premises on 30 September 2025. On 10 October 2025, Q St Kilda gave notice to Ms Gurr that it intended to exercise its option to renew the lease ('renewal notice'). On 20 October 2025, Ms Gurr gave a second s 146 notice to Q St Kilda among other things alleging that Q St Kilda had failed to remedy the breaches identified in the first s 146 notice, and failed to maintain the cleanliness of the premises as observed at the inspection on 30 September 2025. Over 80 defects in the premises were listed in the second s 146 notice which also contained photographs of the walls and fixtures of the rooms of the premises as they were in 2021, 2024 and 2025.

7 Following directions hearings and an unsuccessful mediation, the first application came on for hearing before Senior Member C Edquist of the Tribunal on 18 December 2025. The Tribunal undertook a site inspection of the premises, and heard from the parties. Mr M King of counsel appeared for Q St Kilda. Ms Gurr appeared in person and was assisted by Ms K Squibb.

(a) whether Q St Kilda had failed to remedy a default under the lease about which Ms Gurr had given Q St Kilda written notice under s 27(2)(a) of the RL Act; and

(b) whether Q St Kilda had persistently defaulted under the lease throughout its term and Ms Gurr had given Q St Kilda written notice of the defaults under s 27(2)(b) of the RL Act.

9 Q St Kilda contended that under s 52 of the RL Act, Ms Gurr was responsible for repairing or replacing the defects or defaults alleged by her.

10 The Tribunal inspected the premises, received evidence and heard from the parties at length as to the breaches of lease alleged by Ms Gurr against Q St Kilda.

11 Following the hearing, the Tribunal published the first decision in the form of a Tribunal order which set out the following findings:

The Tribunal finds:

1. That even if written notice of any default under the Lease required by ss 27(2)(a) has been given only by email, that is sufficient notice for the operation of the subsection.
2. The date at which the issue of whether [Q St Kilda] has remedied any notified default for the purposes of ss 27(2)(a) is the date that [Ms Gurr] gave to [Q St Kilda] notice of [her] intention not to renew the Lease, namely 20 October 2025.
   1. As at 20 October 2025, the following defects (at least) which had been notified to [Q St Kilda] in the first breach notice issued under s146 of the Property Law Act 1958 (Vic) dated 10 July 2024 had not been remedied:

(i) missing fly screens

(ii) one laundry door

(iii) mouldy drip tray under the hot water service

(iv) cracked plaster in the laundry

(v) cavity door paintwork

(vi) inoperative electric towel rack

(vii) kitchen cabinet automatic opening functionality

(viii) loose range hood

(ix) damaged living room door frame

(x) dirty air conditioner

12 In the second application made to the Tribunal on 19 February 2026, Ms Gurr sought a possession order relating to the premises. The application was heard by Senior Member L Forde of the Tribunal on the same day. Ms Gurr appeared in person assisted by Ms K Squibb. Mr Sinha appeared for Q St Kilda.

13 At the commencement of the hearing Ms Gurr submitted that the lease had expired on 15 November 2025. She had served a notice to vacate on 23 December 2025 allowing Q St Kilda until 31 January 2026 to vacate. She contended that Q St Kilda had held over without entitlement for 19 days.

14 The Tribunal held on the basis of the first decision that an order for possession should be made. A short stay was granted.

15 Section 27(1) and (2) of the RL Act are concerned with options to renew, and provide:

(1) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the lease must state -

(a) the date until which the option is exercisable; and

(b) how the option is to be exercised; and

(c) the terms and conditions on which the lease is renewable under the option; and

(d) how the rent payable during the term for which the lease is renewed is to be determined.

(2) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the only circumstances in which the option is not exercisable is if -

(a) the tenant has not remedied any default under the lease about which the landlord has given the tenant written notice; or

(b) the tenant has persistently defaulted under the lease throughout its term and the landlord has given the tenant written notice of the defaults.

16 Section 52 of the RL Act makes provision for a landlord's liability for repairs. It provides:

(1) A retail premises lease is taken to provide as set out in this section.

(2) The landlord is responsible for maintaining in a condition consistent with the condition of the premises when the retail premises lease was entered into -

(a) the structure of, and fixtures in, the retail premises; and

(b) plant and equipment at the retail premises; and

(c) the appliances, fittings and fixtures provided under the lease by the landlord relating to the gas, electricity, water, drainage or other services.

(3) However, the landlord is not responsible for maintaining those things if -

(a) the need for the repair arises out of misuse by the tenant; or

(b) the tenant is entitled or required to remove the thing at the end of the lease.

17 Section 64 of the RL Act deals with notice of a landlord's intentions concerning renewal if there is no option to renew the lease:

(1) This section applies if the tenant under a retail premises lease does not have an option under the lease to renew the lease for a further term.

(2) The landlord must, at least 6 months but no more than 12 months before the lease term ends, give written notice to the tenant -

(a) offering the tenant a renewal of the lease on the terms specified in the notice (including a term setting out the rent); or

(b) informing the tenant that the landlord does not propose to offer the tenant a renewal of the lease.

(3) An offer to renew the lease cannot be revoked without the tenant's consent for 60 days after it is made.

(4) If the landlord fails to comply with subsection (2) -

(a) the landlord must give the tenant a notice containing the same information as the notice the landlord was required to give under subsection (2); and

(b) the lease continues (on the same terms and conditions as applied immediately before the lease term ends) until -

(i) the day specified in the notice that the landlord is required to give under paragraph (a) (which must be at least 6 months after the notice is given to the tenant); or

(ii) if the tenant gives the landlord a notice under subsection (5), the day specified in that notice.

(5) If the landlord fails to comply with subsection (2), the tenant may, whether or not the landlord has given the tenant a notice as required under subsection (4)(a), give written notice to the landlord terminating the lease from a day that is not earlier than the day on which the term of the lease expires.

18 Section 146(1) of the Property Law Act 1958 (Vic) provides for notices to be given in certain circumstances:

(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease or otherwise arising by operation of law for a breach of any covenant or condition in the lease, including a breach amounting to repudiation, shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice -

(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and

(c) in any case, requiring the lessee to make compensation in money for the breach -

and the lessee fails, within a reasonable time thereafter, or the time not being less than fourteen days fixed by the lease to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.

19 Clause 5.1 of the lease contained Q St Kilda's general positive covenants and provided:

The Tenant HEREBY FURTHER COVENANTS with the Landlord that the Tenant will at the cost and expense of the Tenant in all respects from time to time and at all times:

5.1 Management

5.1.1 care for and maintain the Premises and in accordance therewith the Tenant will:

5.1.1.1 allowing for fair wear and tear, cause the Premises to be kept clean and free from dirt and rubbish (including external surfaces or windows walls and doors);

5.1.1.2 subject to the Landlords obligations under this Lease, paint the interior of the Premises and maintain and keep in good repair carpets as reasonably required during the Term; and

5.1.1.3 in the event that the Tenant is leasing or otherwise occupying all of the Apartments that comprise the Estate repair, cleanse, disinfect and put and keep in good repair order and condition to the reasonable satisfaction of the Owners Corporation all the rooms passages stairs floors windows walls ceilings closets and sewerage connections (except for water main and fire service mains) of the Estate and the Premises and take all other sanitary precautions.

5.1.2 supervise so far as is reasonably practicable the standard and behaviour of occupants of the Premises;

5.1.3 not without the prior written consent of the Landlord, whose reasonable consent will not be withheld, make any structural alterations to the Premises;

5.1.4 comply at the Tenant's own expense with all statutory requirements affecting the Premises PROVIDED THAT the Tenant will not be required to perform or carry out structural work unless such structural work is required by reasons of the neglect or default of the Tenant, the Tenant's servants, agents or invitees;

5.1.5 comply with all laws relating to the Estate and the conduct of the tenant's Business in the Estate; and

5.1.6 to properly and efficiently conduct the Tenant's business in accordance with the intended use of the Premises.

20 Clause 10.1 set out the tenant's repair, maintenance and replacement obligations and provided that:

The Tenant will at the Tenant's own expense repair and maintain (but not replace) the Fixed Equipment to the condition or standard commensurate with a serviced apartment facility and suitable for immediate use by succeeding tenants or occupiers.

21 The term 'Fixed Equipment' was defined in cl 1 of the lease dealing with definitions and interpretations to mean:

any fixture and/or fixed equipment at the Premises howsoever described and without limiting the generality of the foregoing includes all air-conditioning and heating systems, hot water service, stove/oven (and built-in microwave ovens) and dish washers;

22 Clause 11 of the lease set out the landlord's repair, maintenance and replacement obligations and contained the following provisions:

11.1 Subject at all times to Clauses 11.2, 11.3 and 11.4, in accordance with section 52 of the Retail Leases Act (if applicable), the Landlord is responsible for maintaining in good repair and/or replacing:

11.1.1 the structure of the Premises (and if applicable the external faces and roof) in a sound and watertight condition and maintain in a timely manner the structural soundness of the Premises);

11.1.2 the Fixed Equipment PROVIDED THAT any such obligation relates only to repairs and/or replacements which may be required which are of a capital nature;

11.1.3 the fixtures and the plant and equipment at the Premises; and

11.1.4 the appliances, fittings or fixtures provided under the lease by the Landlord relating to the gas, electricity, waste, drainage or other services.

11.2 The Landlord is not responsible for incurring any costs, which may be contemplated in Clause 11.1, in the event that the Landlord can demonstrate that the need for the repair arises out of misuse by the Tenant of the item in need of repair.

23 Parties to proceedings in the Tribunal may seek leave to appeal and if leave is granted appeal to the Court on a question of law from an order of the Tribunal.[1] Leave to appeal can be granted only if the Court is satisfied that the appeal has a real prospect of success.[2]

24 Appeals under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') are limited and confined to a question of law.[3] It is the question of law that is the trigger for an appeal, and the subject-matter of the appeal.[4] The existence of a question of law founds the jurisdiction of the Court.[5] The requirement to state a question of law is germane to the capacity of the Court to review questions of fact made by a Tribunal member. The 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 on appeal that was not raised before the Tribunal.[6]

25 It is well established that the Supreme Court in hearing an appeal under s 148 of the VCAT Act is not concerned with the merits of the case.[7] Section 148 provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged.[8]

26 In the first notice of appeal relating to the first decision, Q St Kilda relies on the following questions:

1. The Tribunal has erred in applying s52 of the [RL Act] correctly. S 52 of the [RL Act] puts the obligation on Landlord to maintain the premises. This is further supported by clause 11 of the lease agreement. If the Landlord allege that the tenant is responsible for repair, Clause 11.2 of the lease agreement further puts the burden on the Landlord to demonstrate that need of repair arise out of misuse of the tenant. Tribunal had no evidence to support that alleged damages in the premises is because of misuse by the tenant.
2. It is common ground that the Landlord did not take any upgrade works in 2020 during renewal of lease as required by clause 16 of the lease agreement. As per p 14 and p15 of the affidavit of Pawan Sinha dated 9 December 2025, Tribunal had the evidence to demonstrate that it has at least contributed to several of the items alleged by Landlord as breach by tenant. As the new term was supposed to start soon, a fair and just finding by the Tribunal could have been to order Landlord to carry of the upgrade works at the commencement of new term.
3. The first s146 notice issued on 10th July 2024 was only sent by Email. Clause 24.2 of the Lease provides that service can only occur either by prepaid post or by being served personally. This information was available to the Tribunal as declared in p 32 of the affidavit of Pawan Sinha dated 16th July 2024. The respondent has not been able to provide any evidence to demonstrate that the notices were served on tenant as per clause 24.2 of the lease agreement or as per s 97 of the RL Act.
4. There was no condition report provided by the Landlord at the beginning of tenancy or at the beginning of new term in November 2020. Landlord has provided photos of condition of the unit in 2021, 2024 and 2025. It was not open for the Tribunal to infer from these photos that Tenant is responsible for any alleged damages to the premises.
5. Alternatively, Tribunal has ignored the good faith conduct of tenant in the proceeding. P12 of the affidavit of Pawan Sinha dated 9 December 2025, lists several items which were addressed by the tenant at its own cost. Tenant has also paid $2850 to the landlord in protest as asked by the s (146) notice.

27 The first notice of appeal is defective and does not set out any grounds. Where grounds were intended to be inserted, the notice set out extracts from decisions in this court dealing with the RL Act and relief against forfeiture.[9] Nonetheless I will address the questions in the notice of appeal.

28 The second notice of appeal contains the following questions:

1. The Tribunal has erred in applying s 149 of the VCAT [A]ct correctly. S 149 of the VCAT [A]ct states

(1) The Tribunal, on the application of a party or on its own initiative, may stay the operation of any order it makes pending the determination of any appeal that may be instituted under this Part.

(2) The Tribunal may attach any conditions it considers appropriate to a stay of an order under subsection (1).

It is clear from the transcript (Please refer to affidavit of Pawan Sinha dated 25th February 2026, pages 81-87) that the possession order made by [S]enior [M]ember Forde on 19 February 2026 was based on the orders made by Senior [M]ember Edquist on 18 December 2025 in proceeding BP1288/2024. Tribunal was aware of the fact that an appeal was filed in the [S]upreme [C]ourt against the orders made by senior member Edquist on 18th December 2025. The tenant raised the question related to application of s 149 of the VCAT [A]ct but the Tribunal did not provide any reasons on why s 149 of the VCAT [A]ct was not applied in this case.

1. In BP 1288, VCAT did not order a termination of lease or possession to Landlord, it just ordered that the Landlord is entitled to refuse the renewal of lease. The tenant argued via the written submission dated 27 January 2026, that even if there is no further term left, the Landlord is required to give a notice pursuant to s 64 of the Retail Leases Act 2003 (Vic). This point was also not addressed during the hearing, (Page 43 of the affidavit of Pawan Sinha dated 25th February 2026).
2. The tenant made the written and oral submissions to effect that if the possession order is made, the appeal in the supreme court will be futile. In written submission the tenant mentioned that the principles governing the stays are covered in Civil Trials Bench Book where the authors state, It is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant favourable exercise of the discretion: Alexander v Cambridge Credit Corp Ltd ....Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. The Tribunal did not provide any reasons as to why this case law was not applied.
3. The basis of the possession order in BP61/2026 was order of Senior [M]ember Edquist dated 18 Dec[ember] 2026. If the appeal in BP1288/2024 is successful and order of [S]enior [M]ember Edquist is set aside by this court, the order of Senior [M]ember Forde dated 19 February 2026 in BP61 must also be set aside.

1. The relevant principles are described by his Honour, Judge Bowman in State of Victoria v Bradto as setting out the relevant test when considering an application to stay an order of the Tribunal:

Whether the correct section applicable be s.118 or s.149, the same principles will apply. Consideration must be given as to whether the granting of the stay, as I shall describe it whichever section may be utilised, will render a proposed appeal nugatory. As discussed by Hollin[g]worth J in Brown and Anor v A.E.P. Belgium S.A. and Anor, consideration should be given to the prospect of obtaining leave to appeal, the effect of a grant or refusal of the stay, and the balance of convenience...These principles were not applied to this case.

1. If there is no further term left, pursuant to s 64(4) of the Retail Leases Act, Landlord is required to give 6 months notice to the tenant. No such notice was provided.
2. As already referred to above, the principles established in Alexander v Cambridge Credit Corp Ltd ...Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. These principles were not applied in this case.
3. All the grounds of appeal mentioned in the Notice of Appeal dated 06 January 2026 for BP1288/2024 is applicable here. As the basis of possession order in BP61/2026 is BP1288/2024, if the appeal in BP1288/2024 is successful, there is no basis for the possession order.

30 In Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd, Croft J said:

Section 52 imposes what has been described as a "minimum obligation on a landlord." It does not prevent the parties from agreeing to a more extensive obligation on a landlord, and such agreements have been enforced. Moreover, s 94 does not cause s 52 to operate as a cap on the extent of a landlord's responsibility.

Section 52 of the Act now imposes on landlords a "keep in repair" covenant; as distinct from its imposition of a "put in repair" covenant prior to amendments made by the Retail Leases (Amendment) Act 2005. The condition of repair which s 52 obliges the landlord to maintain is, in the terms of the section, "a condition consistent with the condition of the premises when the retail premises lease was entered into". This, in turn, requires consideration of the meaning of the expression "entered into" in the context of the provisions of the Act.[10]

31 In the present case, high quality residential premises were leased to Q St Kilda when part of the Quest Apartment Hotel Group to be used as a serviced apartment. The landlord's obligations are found in s 52 of the RL Act with some additional obligations in cl 11. Q St Kilda's obligations as a commercial tenant are found in cl 5 and cl 10. Clause 5 provided for Q St Kilda to care for and maintain the premises including cleaning, removal of rubbish, painting the interior as required, and repairing carpets, as well as supervising as far as reasonably practicable the standard and behaviour of occupants.

32 Clause 10.1 provided for Q St Kilda at its own expense to repair and maintain (but not replace) the Fixed Equipment to a condition or standard commensurate with a serviced apartment and suitable for immediate use by succeeding tenants or occupants.

33 Despite these covenants, the reality was that the use of the premises for successive short stays by occupants took a heavy toll on the fittings and general standard at the premises. There were missing fittings, breakages and damage caused by the use of the premises as a serviced apartment. The condition of the premises rapidly deteriorated over time. This caused a significant dispute as to whether Q St Kilda or Ms Gurr was responsible for the replacement of missing items, and the rectification of breakages and general damage to the premises.

34 In the present case in assessing the missing fittings, breakages and damage resulting from the serviced apartment use of the premises, the Tribunal had to ask the questions:

(a) did the replacement or repair fall within the landlord's obligations in s 52(2) of the RL Act or under cl 11.1 of the lease?

(b) if not, did the replacement or repair fall within the tenant's obligations in cl 5.1 and 10.1 of the lease?

35 The answers to these questions involved an examination of the facts relevant to each missing fitting or damage to the premises having regard to the evidence before the Tribunal. This is what the Tribunal did. Only some of the items of damage listed in the s 146 notices were the subject of findings by the Tribunal.

First notice of appeal - question 1 - landlord's or tenant's obligations

36 Q St Kilda submitted that the obligation on the tenant in cl 5 of the lease should be read subject to the landlord's obligations as set out in cl 11, and that the Tribunal erred when it held these items to be the responsibility of Q St Kilda.

37 The Tribunal assessed some of the many breaches of lease alleged by Ms Gurr. They dated back to the first s 146 notice on 10 July 2024 which listed the missing fittings, breakages and damaged items. The evidence before the Tribunal included a photographic update conditions report setting out for comparison photographs of the individual rooms and the interior of the premises in 2015, 2024 and in 2025. The evidence included observations from a site inspection of the premises conducted on 30 September 2025. The Tribunal was constituted by a Senior Member very experienced in building and construction matters and who undertook an inspection of the premises on 18 December 2025 on the basis that the view was part of the evidence. The Tribunal also heard oral evidence from the parties as to the state of the premises at different dates over the relevant period.

38 As to the specific matters listed in the Tribunal's determination, the Tribunal concluded that:

39 Flyscreens for the office and second bedroom windows of the premises were missing as at 11 July 2024. They were also missing in the site inspection report of 30 September 2025. They had been replaced when the Tribunal inspected the premises on 18 December 2025. The Tribunal determined that the removal and non-replacement of the fly wire screens was a failure to maintain and not a structural defect.

40 As at 11 July 2024, a laundry door was missing. It was present as at 30 September 2025 but missing again on 18 December 2025. The Tribunal decided that the removal of the laundry door was a failure to maintain under cl 5.1 and not a structural defect under s 52.

41 As at 11 July 2024, there was a mouldy drip tray under the hot water unit. The drip trap was replaced by a differently coloured drip tray on 30 September 2025. It was missing again on 18 December 2025. The Tribunal rejected Q St Kilda's submission that the drip tray as a part of the hot water unit was the landlord's responsibility and held that the condition of the drip tray resulted from a failure to clean by Q St Kilda rather than a structural defect. The Tribunal found that the mouldy drip tray was a maintenance matter for the tenant.

42 Ms Gurr gave evidence that the plaster was cracked along the back wall of the laundry and was in a putrid condition. She said that the cracking was due to the removal of the dryer, maybe incorrectly, and a lack of care around the hot water tank. She produced a photograph of the cracked plaster. The Tribunal observed that there were geometric lines in the cracking including a perpendicular crack and a horizontal crack along two water lines along the course of the brickwork. The Tribunal concluded that the cracked plaster was a maintenance item for the tenant.

43 The Tribunal noted that cl 5.1.1.2 required Q St Kilda to paint the interior of the premises during the term. Ms Gurr gave evidence that there was paint peeling off the handle of the cavity door. She provided a photograph of the cavity door which was listed in the first s 146 notice. The Tribunal found that the cavity door had not been painted and that Q St Kilda was still in breach.

44 The Tribunal observed that the heated towel rack in the bathroom was detached. Ms Gurr gave evidence that it did not work, and had been ripped off the wall leaving big plaster marks. She said that she sanded the plaster back, repatched and painted behind it. She said that the heated towel rack still did not function. Ms Gurr observed that cl 10.1 of the lease required Q St Kilda to repair the fixed equipment to a condition or standard commensurate with a serviced apartment, suitable for immediate use by succeeding tenants or owners. The Tribunal held that the item was the tenant's responsibility.

45 Ms Gurr gave evidence that the doors of the kitchen cabinet started to open freely due to damage, referring to photographs. She said that she had replaced the doors. The Tribunal held that there was a clear breach on the part of the tenant as the doors in the kitchen cabinet were not being maintained properly.

46 The Tribunal observed that during the inspection the rangehood was loose on the ceiling. He queried whether the rangehood could be affixed to the ceiling by putting in two or four small brackets at the top to stabilise the rangehood. The Tribunal concluded that the defect was a clear maintenance issue, and the responsibility of the tenant.

47 Ms Gurr gave evidence as to the sliding patio door frame. She said that at the time of inspection on 10 July 2024 the locks were damaged and needed replacement. The top door runners were bent and damaged, and still were. The fly screen was missing, and the fly screen lock had been ripped off the wall. Some of these matters had been rectified using substandard material. The Tribunal said that some of the damage it had seen today was caused most likely by someone with a screwdriver or jemmy. The top edge of the runner where the door hangs had been interfered with by someone trying to force the door out of the runner. The Tribunal held that there was certainly a breach by the tenant as the door frame had not been fixed.

48 Ms Gurr submitted that the air conditioner had mould and dirt on all the grid. When turned on, the air conditioner blew out a load of dirt. Mr Sinha had had the air conditioner professionally cleaned in November 2025. The Tribunal held that a maintenance breach by the tenant was established as at July 2024.

49 These findings by the Tribunal are findings as to matters of fact. The Tribunal had the considerable benefit of an inspection of the interior of the premises, photographs at various times and evidence from Ms Gurr and Mr Sinha. It was well placed to determine whether particular defects or missing items were in breach of the tenant's obligations under the lease, or related to items for which the landlord was responsible under s 52 of the RL Act or cl 11.1 of the lease. The breaches of the lease found by the Tribunal to have occurred related to poor or deficient maintenance, damage to fittings occasioned through the commercial use of the premises as a serviced apartment, or by the physical removal of fittings.

50 Q St Kilda submitted that the breaches of lease which had been found by the Tribunal were minor, or did not involve the expenditure of a great deal of cost. While this may be so, the Tribunal was entitled to take into account the impacts on the premises caused by the serviced apartment use, and consider the breaches of lease collectively as well as individually.

51 Q St Kilda also submitted that there were no expert reports provided to the Tribunal. While this is so, the Tribunal was well equipped with photographs and evidence of the state of the premises over a number of years. It had the benefit of the evidence of the parties and the documents they produced, as well as the benefit of having conducted a view of the premises.

52 In its written and oral submissions, Q St Kilda referred to previous decisions of the Court dealing with tenancy matters[11] and with numerous cases in the Supreme Court, Federal Court and Tribunal generally. None of the authorities cited alters the position as far as the grounds of appeal are concerned.

53 Under s 148 of the VCAT Act, an appeal to this Court is confined to an appeal on questions of law which arose during the VCAT proceeding.[12] It does not provide an opportunity for a rehearing on the merits.[13] It has not been shown that the Tribunal had misconstrued any clause of the lease or misunderstood the language or purport of s 52 of the RL Act. The expert Tribunal was well placed to make findings of fact as to the nature and category of the defects which it observed and had before it. The Court has not observed the state of the premises or heard evidence from witnesses. It is not the role of the Court to second-guess the Tribunal's factual conclusions.

First notice of appeal - question 2 - absence of upgrade works

54 It is not in dispute that Ms Gurr did not undertake any upgrade works in 2020 and was not asked by Q St Kilda to do so. Ms Gurr's evidence was that the premises were in a five-star condition when the lease commenced. The matter was one of fact for the Tribunal. The weight to be given to factual matters is for the Tribunal to determine. There was no failure to consider this matter, and no error of law by the Tribunal.

First notice of appeal - question 3 - service by email

55 In addition to the method of service set out in cl 24.2 of the lease and s 97 of the RL Act, documents may be served electronically under the Electronic Transactions (Victoria) Act 2000 (Vic) ('ET Act'). The giving of a notice is a 'transaction' as defined in s 3 of the ET Act. Under s 7, for the purposes of a law of the jurisdiction, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications.

56 Under s 8(2)(b), it is necessary for the person to whom the information is to be given to consent to the information being given by means of an electronic communication.

57 Q St Kilda submitted that it had not consented to service of notices by electronic communication, and the electronic service of notices was not authorised in the lease. It submitted that the Tribunal was wrong to dismiss the point because it was too late in the proceeding to open it up.

58 Q St Kilda admitted that it had received the cover letter, the first s 146 notice and annexure at 3.25pm on 10 July 2024.[14] There was no dispute that the notices served by email by Ms Gurr had been received by Q St Kilda.

59 Section 3(1) of the ET Act is the definitions section and relevantly defines 'consent' to include:

consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with.

60 In Legal Services Board v Forster, Emerton J (as the President then was) inferred that there was 'consent' in the circumstances of the case before her based on the conduct of the receiving party which acted on the basis of the information communicated.[15]

61 In the present case, it is plain that consent to the service of notices by email can reasonably be inferred from the conduct of the parties. The inference is not dependent on whether or not the receiving party welcomed the electronic communication, or disagreed with its contents. Mr Sinha is the sole director and shareholder and the controlling mind of Q St Kilda. As a legal practitioner he is highly familiar with the use of email providing his email address on all of the documents filed by him in the course of proceedings in VCAT since 2024 and in proceedings in the Court.

62 Email communications were at all relevant times the standard form of communication between Mr Sinha and Ms Gurr concerning the premises. The evidence shows that there were numerous emails from the parties and their legal advisers concerning the premises dealing with a wide range of subjects affecting the premises including inspections, work at the premises, financial hardship, a rent increase, rent relief, service of documents, s 146 notices, urgent injunction application, offer to purchase the premises, sale of the premises, legal proceedings, health issues, s 28 notice, dishwasher replacement, rental arrears, mould in the premises, cleaner's works, new hot water system, insurance, and a notice to vacate. There are over 25 emails or email chains between the parties and their advisers concerning the premises commencing in 2022.

63 I conclude that Q St Kilda by its conduct consented to service of notices and communications concerning the premises by email.

First notice of appeal - grounds 4 and 5 - no condition report - tenant addressed some items

64 The absence of a condition report at the beginning of the tenancy or new term in November 2020 is a matter of fact for the Tribunal which had the benefit of numerous photographs at different dates. The Tribunal was well aware of the items that had been addressed by Q St Kilda as well as those which had not. The Tribunal had a photographic report of the rooms of the premises made on 14 December 2021 containing over 13 photographs. It was open to the Tribunal to arrive at the factual conclusions which it did.

Second notice of appeal - grounds 1 and 3 - absence of a stay

65 In making the second decision, the Tribunal granted a stay of 3 days. In grounds 1 and 3 of the second notice of appeal, Q St Kilda contends that the failure to grant a longer stay was an error of law as there was a risk that an appeal to the Supreme Court might prove abortive if Q St Kilda were to succeed on appeal.

66 The transcript of the hearing of the second application shows that the Tribunal considered that the appropriate place to seek a stay of the VCAT orders was the Supreme Court as by then an appeal had been lodged with the Court.

67 On 18 February 2026, Q St Kilda applied to Lorenz JR of this Court for a stay but the application was unsuccessful.

68 Subsequently at a hearing on 20 February 2026, I indicated that I was prepared to grant a stay pending the hearing and determination of an application for leave to appeal which was at that time yet to be issued. However, Q St Kilda experienced filing difficulties. No new application for leave to appeal the second decision was accepted for filing until about 17 March 2026.

69 In the event, none of this mattered. Ms Gurr did not take, and still has not taken possession of the premises. No stay is needed, as Ms Gurr is awaiting the decision of the Court in these proceedings before taking any further step. No disadvantage has been suffered by Q St Kilda which has not been prejudiced in any way by the Tribunal's decision not to grant a stay.

Second notice of appeal - ground 2 - does s 64 of the RL Act apply?

70 Section 64 of the RL Act applies where the tenant of retail premises does not have an option under the lease to renew the lease for a further term. In the present case, the lease contains options to renew the lease for further terms with the result that s 64 does not apply. Pt 4 Div 2 of the RL Act which includes s 27 applies to a lease where there is an option to renew. The Tribunal acted under s 27(2) of the lease which is the correct provision.

71 Ground 4 adopts all of the grounds in the first notice of appeal. In the event, no ground of the first notice of appeal is sustained. Ground 4 must also be dismissed.

72 For the reasons that I have given, all grounds of appeal in both notices of appeal fail. I am not satisfied that any ground on which Q St Kilda relies had a real prospect of success.

73 The applications for leave to appeal must be refused. Both proceedings will be dismissed.

[3] Osland v Secretary, Department of Justice No 2 [2010] HCA 24; (2010) 241 CLR 320, 332 [19] (French CJ, Gummow and Bell JJ).

[4] Hoe v Manningham City Council [2011] VSC 37, [4] (Pagone J).

[5] Fraser v Sperling [2017] VSCA 53, [55] (Maxwell P, Santamaria and McLeish JJA).

[6] Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167; [2016] VSCA 109, [43]-[44] (Tate and Kyrou JJA, Garde AJA); Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197 (Young CJ, McGarvie J).

[7] McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [4] (Maxwell P, Priest and McLeish JJA).

[8] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 181 ALR 307, [15] (Gaudron, Gummow, Hayne and Callinan JJ).

[9] The decisions were: Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2015] VSC 515 (Croft J) ('Versus'); Caltex Australia Petroleum Pty Ltd v Agtan Pty Ltd [2017] VSC 593 (Digby J); Xiao v Perpetual Trustee Company Ltd [2008] VSC 412 (Vickery J); and V & O Princi Pty Ltd v Prestige Holdings Group Pty Ltd [2010] VSC 627 (Mukhtar AsJ).

[10] Versus, [49]-[50] (citations omitted).

[12] Secretary of the Department of Justice and Regulation v OUX ('A Pseudonym') [2018] VSCA 178, [36]; Patsuris v Gippsland and Southern Rural Water Corp (2016) 218 LGERA 167' [2016] VSCA 109, [43].

[13] Spilkin v Rosenberg [2011] VSCA 128, [42].

[14] Affidavit of Pawan Sinha deposed on 16 July 2024 [20] and Points of Claim [14] filed in the first application.

[15] [2010] VSC 102; (2010) 29 VR 277, [42].