In a condition consistent with the condition of the premises when the retail premises lease was entered into -

1. At this point it is appropriate to set Section 25 in the form in which it is now relied upon out in full:
   1. Landlord's liability for repairs

(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.

(4) The tenant may arrange for urgent repairs (for which the landlord is responsible under this section or under the terms and conditions of the lease) to be carried out to those things if -

(a) the repairs are necessary to fix or remedy a fault or damage that has or causes a substantial effect on or to the tenant's business at the premises; and

(b) the tenant is unable to get the landlord or the landlord's agent to carry out the repairs despite having taken reasonable steps to arrange for the landlord or agent to do so.

(a) the tenant must give the landlord written notice of the repairs and the cost within 14 days after the repairs are carried out; and

(b) the landlord is liable to reimburse the tenant for the reasonable cost of the repairs and may not recover that cost or any part of it as an outgoing.

(6) This section only has effect from 1 November 2003.

1. In his opening submissions Mr Greenberger on behalf of the applicant noted that Part 12 of the Retail Leases Act 2003 which inserted the amending provision which is now relied upon was repealed by the Statute Law Revision Act 2007. Item 58 of the schedule states with respect to the Retail Leases Act 2003 'Parts 12, 13 and 15 are repealed'. The Statute Law Revision Act was assented to on 26 June 2007 and by Section 2(1) came into force 'on the day after the day on which it receives Royal assent' viz. 27 June 2007. Hence said Mr Greenberger, reliance by Bretair on Section 25 of the 1998 Act for the events of either 2007 or 2008 was unavailing.
2. Mr Northrop, Counsel for Bretair contended that this approach was misconceived. He relied on Section 15(1) of the Interpretation of Legislation Act 1984 which provides:

(1) Where an Act or a provision of an Act, being an Act or provision that directly amended another Act or a subordinate instrument (whether by the insertion of words or expressions in that Act or subordinate instrument or the substitution of other words or expressions for words or expressions in that Act or subordinate instrument) -

(b) expires, lapses or otherwise ceases to have effect -

the repeal, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears, affect in any way the direct amendments made in the other Act or in the subordinate instrument or the operation or effect of those amendments.

1. The operation of this provision in the present instance according to Mr Northrop is as follows. Sub-section (1) should be read as follows:

Where an Act or a provision of an Act [that is Part 12 of the Retail Leases Act 2003], being an Act or provision that directly amended another Act [that is Section 25 of the Retail Tenancies Reform Act 1998] ... is repealed ... the repeal ... shall not, unless the contrary intention appears, affect in any way the direct amendments made in the other Act [that is the Retail Tenancies Reform Act 1998].

1. The effect therefore he said was that whilst Part 12 of the 2003 Act had been repealed the amendment which it had made to the 1998 Act remained. This issue is dealt with by Professor Pearce and Mr Geddes in their work Statutory Interpretation in Australia (6th Edition) at 261-2 [7.22] where the learned authors state:

An issue arises whether it is necessary for an amending Act to be continued in force after its initial commencement. It is arguable that the Act itself has served its purpose once the amendments that it has made have been inserted, as it were, into the principal Act. This argument is considered in Oliveri v Department of Transport [2001] NSWSC 45 in relation to the effect of the repeal of an amending Act by a statute law revision Act. However, the same position might well exist in relation to any Act that repeals an amending Act. If this is not the result intended, it is desirable for the position to be made clear ...

The Interpretation Acts of Queensland and Victoria make express provision for the continuation of the effect of amendments after the repeal of an amending Act [the reference is to Section 15 of the Interpretation of Legislation Act].

1. The result then appears to be even although Part 12 has been repealed, in the rather unusual circumstances described, Section 25 of the 1998 Act in its third version continues to have effect with respect to leases which the 1998 Act although repealed continues to regulate.
2. Following further consideration Mr Greenberger conceded the correctness of Mr Northrop's contentions on this point.
3. Mr Greenberger also conceded that an underground tank could be regarded as a fixture for the purposes of Section 25(2)(a). He stressed however that the situation here was complicated by the fact that the tank in question did not form part of the retail premises when the lease was entered into in 2000. The tank was installed in the circumstances described above at a time when the applicant lessor had no obligation either under statute or by contract to effect the installation. In those circumstances he submitted that the section did not apply to the tank.
4. Mr Northrop on behalf of Bretair submitted that the distinction contended for by Mr Greenberger found no support in the text of the section. He said the condition that needed to be referred to and maintained was not the condition of an individual fixture, item of plant and equipment or appliance but rather 'the condition of the premises when the retail premises lease was entered into'. It would be absurd, he said, if for instance, a particular appliance burnt out and was replaced at an early stage in the lease to interpret Section 25 as meaning that the landlord was discharged from any liability with respect to that appliance for the balance of the lease because the appliance in question was a replacement one and not an original.
5. I accept Mr Northrop's submission that the comparison is to be not with the condition of a particular fixture or appliance or item of plant and equipment but with the condition of the premises as a whole. To do otherwise would be to risk reaching the absurd conclusions that Mr Northrop suggested might otherwise apply. The condition of these premises generally at the start of the lease was that they had four operative underground tanks. There was no specific evidence as to the condition of any one of them including the condition of the one which was abandoned in 2002, however the evidence which I did hear relative to what occurred in connection with Tank 2 in 2007 indicates that there are strict regimes of regulation for these underground tanks. (For obvious reasons because any breakdown in their integrity could threaten serious pollution of the underlying soil or fire or massive explosion.) That consideration enables me to infer, I think, that at the commencement of the lease there were four fully operational and serviceable tanks. Based upon the manifestly appropriate concession by Mr Greenberger that Tank No. 2 is a fixture having been substituted for a now abandoned tank, the obligation imposed by Section 25 of the 1998 Act and implied into the lease on the part of the lessor to maintain the fixtures on the premises in the condition in which the premises were when the retail lease was entered into required the applicant to maintain Tank No. 2 in operative condition.
6. It is convenient at this stage therefore to consider whether upon the evidence it is demonstrated as contended on behalf of Bretair that the applicant was obliged to carry out the work and incur the expenditures relative to Tank No. 2 which it did in 2007. In my view the answer to that question is 'yes'. In so far as the lease included express repair obligations on the part of the tenant those obligations must be taken to be overridden by the repair obligation implied by Section 25. So much appears from Section 47 of the 1998 Act. It may be that in allowing the drain valve in the containment box to become jammed open, Bretair was guilty of a breach of covenant. On the other hand the obligation to maintain Tank No. 2 in an operative condition which I have held lay on the applicant obliged it for instance to repair the split PVC boot which enabled groundwater to enter the containment box. Moreover all of the experts who gave evidence about the operation of underground tanks agreed that one could not simply ignore an air leak which had been found both by Bretair's expert Tanknology and the applicant's expert OPEC. Both recommended work to excavate and expose the top surface of the tank. Again, once the audible leak was resolved by whatever means it was resolved, when a vacuum decay was found, the appropriate action, everybody seemed to agree was to remove some of the fuel to enable a new reading to be taken. This of course was a costly and time consuming exercise but no-one suggested it was other than the appropriate course to take. Certainly those giving evidence on behalf of OPEC who were the applicant's own experts agreed with this. It followed that in my view the applicant in doing what it did in 2007 was doing no more than acting in accordance with its obligations under Section 25.

1. Mr Greenberger stressed that success in a claim for misleading and deceptive conduct would not require the establishment on the part of the respondent of any intent to mislead or deceive and a claim may succeed even if the respondent acted reasonably and honestly. He referred to Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661, 666 per Mason ACJ, Wilson, Deane and Dawson JJ.
2. Mr Northrop submitted that there could be no question of Bretair engaging in misleading and deceptive conduct by despatching the letter of 31 May 2007. The letter asserted first, that water was getting into Tank No. 2 which was true and secondly that Tanknology had in a tank integrity test failed the tank. The report from Tanknology was attached to the letter. It was true, he said, that Tanknology had made the finding that it did and Bretair could not be regarded as having engaged in misleading and deceptive conduct where it had done no more than pass on information furnished by a third party. He referred to Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592. It may be added that the finding which Tanknology made, namely of an air loop was the same finding that OPEC commissioned by the applicant made. There is no reason to think therefore that the Tanknology conclusion was other than correct, albeit that it seems to have been made on the footing of an incorrect apprehension as to the level to which the relevant tank had been filled.
3. In Butcher's case the respondent estate agent, escaped liability for the content of a marketing brochure which it issued including a diagram of a property offered for sale that depicted a swimming pool as being entirely in the freehold land whereas in fact the swimming pool was partly outside the freehold. The majority of the Court, Gleeson CJ, Hayne and Heydon JJ held that a disclaimer in the marketing brochure was sufficient to exclude the agents' liability. In the present case there was no disclaimer. On the other hand it seems that the Tanknology report should not be regarded as misleading in the circumstances based on the later findings of OPEC. In any event their Honours in the majority appeared to approve a suggestion by Hill J of the Federal Court of Australia in Argy v Blunts and Lane Cove Real Estate Pty Ltd [1990] FCA 51; (1990) 26 FCR 112, 131-2 that a solicitor would not be guilty of misleading and deceptive conduct in annexing to a contract for sale of land a certificate issued by the local council which wrongly described the zoning of the land as long as the whole of the certificate was annexed. In Argy's case the problem was that a vital page was omitted [2004] HCA 60; (2004) 218 CLR 592, 614. The evidence before me established that the issue of certificates of integrity for underground tanks is a highly specialised field for which a certifier must himself be certified. Accordingly, for Bretair simply to annex a certificate from such an expert would not entail Bretair accepting, adopting or asserting the correctness of what the expert said. Bretair merely indicated that it had received the report in the appropriate form and the giving of that report including a fail test called for action on the part of the applicant.
4. Mr Delaveris himself does not appear to have been misled insofar as he gave careful attention to the Tanknology report and made complaint about Tanknology's assessment of the extent to which the tank was filled.
5. There was nothing untrue or misleading about the letter and the conclusion expressed by Tanknology, namely that there was an air loop turned out to be true. I am unable in the circumstances therefore to conclude that the letter of 31 May could be regarded as misleading and deceptive. Mr Greenberger said that the letter should be regarded as asserting a connection between the finding by Tanknology and the fact that water was to be found in the tank. The letter does not in terms assert such a connection. The Tanknology report does not refer to any water leak. The work done by PSS however was properly the applicant's liability because had the tank including the PVC boot been maintained as it should have been which was the responsibility of the lessor and had the vapour recovery valve been so maintained, the ingress of water would not have occurred. The work that PSS did therefore was no more than the applicant was obliged to do under the lease.
6. The claim for misleading and deceptive conduct therefore fails.

1. The essence of the economic duress claim is that by the use of illegitimate means the applicant says it was compelled to undertake expenditures which went beyond its legal obligations. Mr Greenberger relied upon the speech of Lord Scarman in Universe Tankships Inc. of Monrovia v The International Transport Workers Federation [1983] 1 AC 366. In that case the shipping company was held entitled to recover moneys which it had paid to obtain the release of a vessel or vessels from detention imposed by an illegal black ban. Mr Northrop said that a better guide to the law on economic duress was the judgment of McHugh JA (as His Honour then was) in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 46. It is unnecessary for me to go into the details of the law on economic duress or to consider the degree to which the judgment in Crescendo is consistent with Lord Scarman's speech in the Universe Tankships' case. What all the formulations have in common is that for a claim for economic duress to succeed it must be shown at least that there has been an illegal or improper pressure and loss or damage sustained. Mr Greenberger conceded that if it were found that the applicant was doing no more than it was obliged to do under its repair obligations imposed by Section 25 of the 1998 Act as amended, when it engaged OPEC Excavators and exposed the top of the tank and then backfilled and repaired the excavation then there would have been no damage suffered by his client and therefore no entitlement to recover.
2. It seems to me arguable first, that the withholding or at least delay of the payment of rent was justified and secondly, that there were no threats of illegal action which could be regarded as economic duress in the circumstances. It will be recalled that the covenant to pay rent under this lease was a covenant to pay 'without deductions'. The authorities are not at one as to whether the inclusion of these words is sufficient to prevent any equitable setoff being relied upon to impeach the demand for rent. For the reasons which I gave in Wytell Pty Ltd v Glowinski [2006] VCAT 454 the balance of authority in Victoria favours the view that the words 'without deduction' exclude a tenant from relying upon equitable setoffs to impeach the demand for rent. Here, however, the covenant which the tenant alleged was being breached was one which in accordance with Section 25 of the 1998 Act as amended, the lease was 'taken to provide', that is, it was a statutory implied covenant. Section 47 of the 1998 Act provides that a provision in a retail lease is void to the extent that it claims to 'exclude the application of any provision of this Act'. In my view, the inclusion of the words 'without deduction' in the covenant to pay rent is avoided by Section 47 to the extent that it limits the effect that the statutory implied covenant to repair would otherwise have, hence a breach of the repair covenant would be available as a setoff in the present case. Mr Greenberger drew attention to a lack of explanation as to how the amount of rent withheld was calculated. It certainly did not represent the amount of any outlay which had been made by the tenant itself to carry out the repair. I note however that ultimately the amount withheld or delayed was paid so this issue is perhaps not of great significance. Had these amounts remained unpaid there may have been ground for argument on matters of quantification. In the present case however it is clear that withholding rent in the circumstances described or delaying its payments was not a flagrant breach of the terms of the lease and obviously illegal. More pertinently since this step was taken to compel the lessor to do what I have held it was obliged to do any way under the terms of Section 25.
3. Similarly the threat to treat a refusal to repair as a repudiation. The issue of repudiation was not argued before me. The suggestion that a failure by the landlord to repair would constitute repudiatory conduct might be thought to be a little 'over the top', nevertheless I do not believe that making a threat or taking a position which is not flagrantly wrong could be regarded as sufficient to ground a claim for economic duress. Moreover the argument remains that what the applicant did was no more than it was obliged to do under the terms of the lease, hence, no loss has been suffered.
4. The claim for economic duress fails.

1. It is alleged that the moneys paid to PSS totally $2,777.17 were recoverable based upon an alleged breach by the tenant of Clause 3.2 of the lease. Insofar as this clause and Clause 3.3.5 imposed repair obligations which Section 25 places on the landlord those clauses must be regarded as ineffective. Nevertheless, there is nothing which would invalidate the clauses insofar as they impose an obligation upon the tenant to clean. Here it will be recalled that the ingress of water occurred because according to PSS's finding there was rubbish holding the drain valve in the containment box open. The tenant's obligation to clean should have required the valve to be kept clean. Had that valve been kept clean the problem with the water would not have occurred and at least some of the PSS expenditure would not have been incurred. It would still have been incumbent upon the applicant to replace the split PVC boot.
2. Mr Northrop submitted that I should refrain from finding that the valve was jammed open by rubbish at any time before that finding was made by PSS. Given that no alternative explanation for the ingress of the water has been provided, the inference that the situation observed and rectified by PSS had existed for some time seems irresistible and I draw that inference. In my view the whole of Invoice No. 00001382 rendered by PSS on 16 June 2007 can be regarded as loss and damage suffered by the applicant as a result of a breach by the tenant. The invoice rendered on 21 June 2007, No. 00001388 is in different case. All of the items referred to are items of repair and maintenance covered by the lessor's Section 25 obligation. Mr Kurali's statement said that on 21 June 2007 part of the work that he did entailed cleaning up 'the valve in the fuel spill drain pipe so that it would close property'. The cost of doing this work would appear to be also damage suffered by the applicant by reason by a breach of covenant by the respondent tenant, nevertheless the invoice in question ascribes no particular charge to this aspect of Mr Kurali's work hence no amount may be recovered for it.

1. In light of what I have said about the operation of Section 25 of the 1998 Act it is clear that the applicant was under an obligation imposed by that section to maintain the door operator in the same order as it was at the beginning of the lease in 2000. There is no suggestion that the door operator was not functioning appropriately in the year 2000. This operator is I believe within the expression 'appliance' where used in Section 25. It became inoperative and required replacement. It is in accordance with well established practice to allow a setoff of the liquidated sum incurred by a tenant in meeting a repair obligation owed by the landlord and reducing the rental liability accordingly Lee-Parker v Izzet [1971] 1 WLR 1688, 1692-3 per Goff J. The amount of the outlay is liquidated and so the complication relating to unliquidated setoffs do not exist. The claim for possession fails.

1. It follows that the applicant's claim fails except for a minor damages claim for breach of covenant.