(a) hear and determine the application if it is satisfied that -

(i) the applicant had a reasonable excuse for not attending or being represented at the hearing; and

(ii) it is appropriate to hear and determine the application having regard to the matters specified in subsection (4A); and

(b) if it thinks fit, order that the order be revoked or varied.

(4A) For the purposes of subsection (4)(a)(ii), the matters are -

(a) whether the applicant has a reasonable case to argue in relation to the subject-matter of the order; and

(b) any prejudice that may be caused to another party if the application is heard and determined.

(4B) The Tribunal may hear and determine an application under this section despite subsection (4A)(b) if the Tribunal is satisfied that any prejudice that may be caused to a party may be addressed by an order for costs under section 109 or an order for reimbursement of fees under section 115B or both.

1. The applicant was the tenant of a shop in a regional Victorian town. The first respondent was the landlord and I will refer to him by that description.
2. On 8 August 2025 the landlord served a notice on the applicant under section 146 of the Property Law Act 1958 (Vic), in which he asserted that 'the Tenant is in breach of clause 2.1 and items 9 & 10 of the Schedule of the Lease, the Tenant has failed to pay to the Landlord all rent due in advance for the period 20 October 2023 to 24 January 2025 and outgoings in the amount of $13,579.93 plus GST'.
3. Recitals E, F and G in the Notice stated that by clause 7.1 of the Lease, the landlord may terminate the Lease by re-entry or notice of termination if the rent is unpaid after the day on which it falls due for payment (cl. 7.1.1), or the tenant does not meet its obligations under the Lease (cl. 7.1.2); that by clause 7.3 of the Lease, for the purpose of section 146(1) of the Property Law Act 1958 (Vic), 14 days is fixed as the period within which the tenant must remedy a breach and pay reasonable compensation; and that by clause 7.5 of the Lease, before the Landlord exercises the right to terminate the Lease for repudiation or any breach to which section 146(1) does not extend, the landlord must give the tenant a written Notice of Breach and a period of 14 days in which to remedy the breach.
4. Then in a section headed 'Notice', the landlord asserted that the lease had been broken and the breaches complained of were that the tenant had failed to pay the rental arrears of $5,078.58 and the six months' rent in advance as per clause 2.1 and item 9 & 10 of the Schedule of the Lease, being the sum of $8,907.24, and that the tenant had failed to pay the building outgoings pursuant to clause 2.1.5 & 5.4 and item 13 of the Schedule of the Lease amounting to $2,827.43.
5. The landlord then stated that he required the tenant within (14) fourteen days after the service of the Notice to remedy the breaches by payment of the amount of $16,813.25, and that in the event the tenant failed to comply with the Notice within the time limit the landlord intended to re-enter upon the premises and forfeit the Lease.
6. In the hearing before me the tenant said that the landlord re-entered the premises on 3 September 2025. This was some 25 days after service of the section 146 Notice. The landlord engaged a locksmith to change the locks and the Police attended when the locks were changed.
7. The tenant issued proceedings in the Tribunal on 5 September 2025, against the landlord and against the landlord's former estate agents,[1] seeking an injunction which would restrain the landlord from changing the locks or excluding the tenant from the premises, and would require that the landlord restore the tenant's possession of the premises by providing keys and removing the changed locks. The Tribunal listed the application for hearing on 9 September 2025.
8. The applicant did not appear at the hearing. The landlord was represented by Counsel. The former estate agent, which had been named as second respondent, was represented by a director. It is apparent that the presiding Senior Member was satisfied that the second respondent no longer managed the premises. The Tribunal dismissed the application against the second respondent, and otherwise struck out the proceeding.
9. The applicant issued an application under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) on 12 September 2025.[2] The Form by which such applications are made is designed to elicit information under section 120 (4)(a)(i) and (ii). Read objectively, the applicant only addressed his reason for not attending the hearing. He wrote that he first became aware of the Tribunal's order on 9 September 2025, and that he had been served with a Personal Safety Intervention Order (i.e., in favour of the landlord) and was genuinely uncertain whether attending a hearing in person or online could place him in breach of that Order. He asked the Tribunal for advice but had not received a reply[3] and he chose not to attend the hearing. By not attending, he was not abandoning his claim.
10. The applicant did not seek to address in the Form the question of whether he had a reasonable case to argue in relation to the subject-matter of the Order, but he had filed several evidentiary documents.
11. In view of the serious penalties that can apply to a person who breaches a Personal Safety Intervention Order, and the legal practitioner for the landlord's advice that the Intervention Order did not contain a paragraph to the effect that participating in a legal proceeding would not amount to a breach, I was satisfied that the applicant had a reasonable excuse for not attending the hearing on 9 September 2025. I proceeded to consider whether the applicant had a reasonable case to argue in relation to the subject-matter of the Order made that day.
12. In the hearing before me the applicant stated that he had sought to engage the Small Business Commissioner in relation to claims he asserted against the respondent, but that the Commissioner had not arranged a mediation before the landlord re-entered the premises. The applicant said he had signed the lease - and that factual concession was consistent with the matters stated in the section 146 Notice - but that he had been asking the respondent for a copy and had not received it. This is not the same as the applicant asserting that he did not file a copy of the lease. The applicant said he did not understand the respondent's position because it had taken possession of the premises without explanation. This submission, of course, is inconsistent with the applicant having filed a copy of the section 146 Notice with the Tribunal, as well as correspondence he had received from the respondent's legal practitioners.[4] I reject the applicant's submission that the respondent took possession of the premises without giving him notice, or without explaining the basis on which possession was taken.
13. Had the Small Business Commissioner convened a mediation, the parties would have had the opportunity to see whether they could negotiate a settlement. The Small Business Commissioner is not a court or tribunal, and so could not have made a determination in relation to issues sought to be ventilated by the applicant.
14. The applicant did not assert that he had paid the sums to the landlord which had been sought in the section 146 Notice.
15. It follows that even if it was arguable that there were defences to some of the sums claimed by the landlord in the section 146 Notice, the applicant did not deny that he owed the rental arrears of $5,078.58, and in substance he was purporting to withhold that rent on the basis of claims sought to be ventilated before the Small Business Commissioner in a process that could only lead to a mediation but not a determination. It is a fundamental principle of leasing that a tenant cannot withhold rent. The section 146 Notice was valid on its face, had been served on the applicant, had not been complied with by the applicant within the time limit, and had resulted in the respondent re-entering the premises and taking possession after the expiration of the time limit. Whilst the section 146 Notice explained the respondent's position and intentions, the letters from the respondent's legal practitioners which the applicant had filed also explained the respondent's position and intentions, contrary to the applicant's assertions to the contrary.
16. The Order made on 9 September 2025 is clear on its terms. Relevantly, it struck out the applicant's application for the injunction. On the applicant's reckoning, as at 25 September 2025 the landlord had been in possession of the premises for some 22 days.
17. I was satisfied that the applicant did not have a reasonable case to argue in relation to the subject-matter of the Order, namely the striking out of the applicant's application for the injunction. As such, I did not think fit to order that the Order be revoked or varied in any way.

[1] The signed initiating Application form is dated 31 August 2025 next to the applicant's signature.

[2] The Application was made using the appropriate form. It was lodged electronically and was 'ticked' by the applicant as his mode of signing the form.

[3] I cannot see any such correspondence in the Tribunal's electronic file relating to this proceeding, so perhaps the applicant had made a general enquiry.

[4] The applicant is self-represented. He filed, electronically, two letters from the respondent's legal practitioners, one headed 'without prejudice', and the other headed 'without prejudice save as to costs'. In moving to an electronic filing system, the Tribunal's registry does what it can to examine documents before placing them on file. Ideally, the applicant would have notified the registry of his intention to file without prejudice correspondence, so that the registry could refuse to accept the documents but advise the applicant that he could seek to produce them at a hearing at which the respondent could also make submissions. As a matter of law, the contents of a letter may be the subject of without prejudice privilege if the letter is not headed 'without prejudice', and similarly, merely giving a letter the heading 'without prejudice' does not necessarily make it so and thus prevent a court or tribunal being able to read its contents. As an example of the latter principle, a person cannot hide a fraud behind the label 'without prejudice'.