1. Application under Section 75 is dismissed.
2. No order as to costs.
3. Referred to mediation 20 May 2009 at 10.00 am at 55 King Street, Melbourne.
4. If not resolved at mediation adjourned to directions hearing 29 May 2009 at 9.30 am at 55 King Street, Melbourne.

1. In this proceeding Nellaton Pty Ltd sues Donawa Pty Ltd, Ms Hanna and Mr Scott initially for the sum of $99,235.84. These claims are said to arise out of Donawa's tenancy of a property at 3 Charnwood Road, St Kilda which it originally leased from Orveleigh Pty Ltd. The application alleges that the lease in question was dated 7 December 2006 and that on 21 December 2006 Orveleigh Pty Ltd transferred the land to Nellaton, the landlord.
2. Mr Scott who represents the respondents submits that this claim should be summarily dismissed under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. Before turning to the grounds upon which he relies it is necessary to say something as to the operation of Section 75.
3. That section entitles the Tribunal to effect a summary dismissal of claims which are frivolous, vexatious, lacking in substance, misconceived or otherwise an abuse of process. The statute in giving the Tribunal this power bestows upon it the same sort of powers as are exercised by the Supreme and County Courts under Order 23 of their Rules and by other superior courts of record in the Anglo-Australian legal system under corresponding provisions. There is a wealth of authority as to their operation. It is unnecessary for me today to go into any detail to those authorities save to say that for Tribunal purposes, they have been summarised by Deputy President McKenzie in a well known decision of Norman v Australian Red Cross Society (1998) 14 VAR 243. The effect of the authorities and Deputy President McKenzie's summary is that no summary dismissal should be made under Section 75 save in the clearest case. It would not be appropriate for instance to consider summarily dismissing a matter because the evidence alleged by an applicant should support his/her/its claim seemed implausible and unlikely to be accepted in a trial. If it is a matter of credibility of witnesses, a question as to whether one piece of evidence is to be preferred over another, these are matters pre-eminately to be dealt with at trial and these functions are not to be usurped in the course of a Section 75 application. What I have said so far is all trite law.
4. I turn then to the specific grounds upon which Mr Scott on behalf of the respondents contends there should be a summary dismissal here. He took me first to Section 136 of the Victorian Civil and Administrative Tribunal Act 1998. That section provides as follows:

A person must not knowingly give false or misleading information to the Tribunal or a registrar.

Penalty: Level 9 imprisonment (6 months maximum) or a level 9 fine (60 penalty units maximum) or both.

1. Mr Scott submits that in filing the application, Nellaton and presumably those acting for it infringed Section 136 in at least two respects. First, he says that the amount claimed was an incorrect amount and further material filed on behalf of Nellaton confirms that. He says that the claim for an amount of $99,000 was utterly contrived so as to attract only one half of the filing fee which a claim over $100,000 would attract. Secondly he says, the statements that Overleigh transferred the land to Nellaton Pty Ltd is incorrect. A reference to the register kept under the Transfer of Land Act 1958 indicates that the freehold reversion to this land was in March 2007 the subject of a registered transfer from Orveleigh Pty Ltd to GoApartments Pty Ltd and in September 2007 the subject of a transfer from GoApartments to Nellaton Pty Ltd. It was in September that that transfer was registered. Accordingly says Mr Scott this also constitutes an offence against Section 136.
2. The first thing to note about Section 136 is that it creates a criminal offence. The jurisdiction to hear and determine a charge under Section 136 resides not in the Tribunal but in the Magistrates' Court of Victoria or in the unlikely event that the matter were taken on incitement, in the County Court. Accordingly, assuming without deciding that the admitted inaccuracies in the claim as originally filed did constitute offences against Section 136, the proper place to raise that matter is in Court not in the Tribunal. I would observe however that Section 136 in accordance with the well known legal principle actus non fit reum nisi mens sit rea which means there is no offence unless there is a guilty intent requires that the giving of the misleading and deceptive or false and misleading information must be knowingly. Whilst it appears that the material certainly on the title history of the demised premises and perhaps as to the quantum of the claim are false, it is a jump to show that it is knowingly false. An error, even a negligent error in the part of filing material in the Tribunal would not constitute an offence against Section 136. In my view the Section 136 issue cannot be a ground for summary dismissal of a proceeding that does not otherwise answer the descriptions in Section 75, namely frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.
3. The next matter which was relied upon was Section 26 of the Retail Leases Act 2003. That section provides, omitting irrelevant text:

(a) a tenant has exercised, or is entitled to exercise, an option to renew a retail premises lease granted under the lease;

the landlord must (at least 21 days before the end of the current term of the lease in the circumstances referred to in paragraph (a) and no later than 14 days after the entering into of the agreement in the circumstances referred to in paragraph (b)) give the tenant a disclosure statement in the form prescribed by the regulations (but the layout of the statement need not be the same as the prescribed disclosure statement).

(3) If the tenant has not been given the disclosure statement before the expiration of the relevant period specified in subsection (1), the tenant may, no later than 90 days after the expiration of the relevant period, give the landlord a written notice that the tenant has not been given the disclosure statement.

1. A disclosure statement was ultimately given but about nine months late. Within the 90 day period referred to in sub-section (3) indeed well within it, the tenant Donawa Pty Ltd wrote calling for a disclosure statement by letter dated 29 October 2007. This letter was addressed to Ms Valerie Boyd. Mr Redfern who appears on behalf of Nellaton says in the circumstances a letter addressed to Ms Boyd could not be a notice in terms of sub-section (3). He observes that Ms Boyd is a spouse of the sole director, Mr Boyd. He says she occupies no corporate office with Nellaton Pty Ltd.
2. Mr Scott has shown me a number of items of correspondence which are on the Nellaton letterhead and which Ms Boyd has subscribed as secretary. He says it was not incumbent upon him or Donawa to do other than accept as a corporate officer a person who held herself out as such. For the purposes of today's application I accept that submission and will treat the letter of 29 October 2007 as one properly directed to Nellaton Pty Ltd.
3. Mr Scott says that such a finding would bring into operation Section 26(4) which provides as follows:

(4) If the tenant gives the landlord a notice in accordance with subsection (3) -

(a) the tenant may withhold payment of the rent until the day on which the landlord gives the tenant the disclosure statement; and

(b) the tenant is not liable to pay the rent attributable to the period from and including the day on which the notice was given until and including the day on which the landlord gives the tenant the disclosure statement; and

(c) the tenant may give the landlord a written notice of termination at any time before the end of 7 days after the landlord gives the tenant the disclosure statement.

1. In these circumstances says Mr Scott, the lion's share of the claim brought against the tenant company and him and Ms Hanna as guarantors is rent and there is an unanswerable defence to that claim for rent based on sub-section (4), hence the whole or at least the rental portion of the claim against the respondents should be dismissed.
2. Mr Redfern submitted as a fall back position that were I to regard 29 October 2007 as an effective notice on behalf of the tenant under Section 26(3) of the Act, his client would rely upon a restitutionary claim against the tenant for a reasonable sum for use and occupancy of the premises. He contended with referring to a dictum of mine in the case called Kiwi Munchies Pty Ltd v Nickolitsis [2006] VCAT 929 [61] that there was at least prima facie evidence that the contractual rent was a reasonable sum for occupancy because the parties had agreed upon it.
3. Mr Scott submits that the Court of Appeal decision which appears to approve a claim of the sort outlined by Mr Redfern, namely Ovidio Carrideo Pty Ltd v Dog Depot Pty Ltd [2006] VSCA 6; (2006) V Conv R 54-713 was distinguishable for a number of reasons, hence was not applicable here and therefore left the applicant with no effective claim and therefore a claim which should be summarily dismissed.
4. I will say something now as to the Ovidio Carrideo case. This was a case not of a landlord seeking to recover rental or renounce the use and occupancies of the tenant, rather the tenant brought suit against the landlord claiming that Section 8 of the Retail Tenancies Reform Act 1998 in the circumstances obliged the landlord to provide the tenant with a disclosure statement. No such disclosure statement had been given and a provision similar to the one to be found in Section 26(4)(b) of the Retail Leases Act exonerated the tenant from any obligation to pay rent. The tenant said it was unaware that it had this cast iron defence to the landlord's demands for rent and therefore paid being now aware that the landlord was not entitled to receive the rent it sought to recover the moneys by restitutionary principles. Such a claim was successful in this Tribunal and an appeal to the Tribunal's decision was dismissed by a Judge of the Trial Division. On appeal to the Court of Appeal however, the Court said that the tenant's claim should fail for two reasons. First, it said that even if there was no effective claim for rent a landlord in the circumstances described could make a restitutionary claim for a reasonable sum for the use and occupancy of his/her/its premises. Secondly the Court said that in any event a claim by the tenant for a restitutionary repayment necessarily entailed a finding by a Court or Tribunal before the success of such a claim that it was fair and equitable that the moneys should be refunded. Given that in the Court's view that the tenant had received valuable consideration, namely the exclusive use and occupancy of the landlord's property it was not fair and equitable that there should be any repayment.
5. Mr Scott makes the obvious point that the Ovidio Carrideo case is quite different from this one in that in the Ovidio Carrideo case the claim was being made by the tenant. Here the claim is by the landlord, that is by the party that failed to observe the terms of the relevant legislation. Secondly he says that the rules relative to disclosure statements considered by the Court in Ovidio Carrideo were materially different from the ones which present themselves here. He said that the responsible Minister in introducing what is now Section 26 of the 2003 Act highlighted these differences. The 1998 Act as to the various circumstances in which it required landlords to provide disclosure statements simply said that failure to provide a disclosure statement avoided the obligation to pay rent. The 2003 Act radically changed that regime. The defence against the demand for rent here is available only if the tenant not receiving the disclosure statement acts within 90 days, as this tenant has done upon the findings which I have made for the purposes of today's hearing. Therefore the context in which this issue arises is quite different. A further difference in context is that he says Chernov J in his judgment in Ovidio Carrideo sought support from a comparison between Section 8 of the 1998 Act and Section 11, the provision in that statute dealing with key money. A comparison of the key money provisions in the 1998 Act with Section 23 of the 2003 Act shows that they are very materially different, again, a different situation.
6. What then am I to make of these interesting arguments? The first point that needs to be stressed is the one which I made as to Section 75 at the outset, namely that it is a power properly exercised only in the clearest of cases. If in the end I come to the conclusion that the matter is uncertain, the appropriate response is to decline summary dismissal. It is only if the matter is absolutely plain that summary dismissal can be granted. Clearly there were a number of strands of reason in the decision of the Court of Appeal in Ovidio Carrideo and it may be difficult jurisprudentially to determine exactly whether there would have been any different outcome depending on which of those strands of reasoning one might by a different fact situation strip away. In my view however one clear element of reasoning that commanded the support of the Court was that a landlord even lacking in contractual entitlements to rent or perhaps because the landlord lacks a contractual entitlement to rent does have a restitutionary claim for use and occupancy of his/her/its land. Even although the words in the 2003 Act are not the same and the context is as Mr Scott has demonstrated somewhat different, that principle was approved by the Court of Appeal. It is binding on this Tribunal and continues to support a claim against these respondents. One issue which will arise for instance will be that if the applicant is reduced for present purposes to putting some or all of its claim for rental in the form of a claim for use and occupancy there will be a question as to the guarantee which it appears the other respondents have signed that will cover that obligation as distinct from an obligation to pay rent properly so called. It is not an issue that has been agitated before me today but it is clearly an issue that can be properly gone into at trial. Similarly the defence which the Court of Appeal said a person responding to a restitutionary claim would always have available to him/her/it, namely the defence of change of position will be available at trial. The matter has not been gone into before me today but I understand Donawa will say, that by reference to the Retail Leases Act it concluded that it was off the hook for rent, off the hook for occupancy costs generally and committed those funds elsewhere. The defence of change of position is one that is acknowledged by the statements of the highest authority to be available in circumstances such as this though the precise detail of what needs to be made out remains unclear. Again, this is not a case where clearly such a defence would apply. It may apply, it probably will apply but that is not sufficient I think to justify a summary dismissal.
7. I should also note a matter which emerged en passant from the matters argued under Section 136 of the Victorian Civil and Administrative Tribunal Act. The consideration of the details put by Nellaton shows that a substantial portion of the rent or occupancy costs, though far from the largest portion relates to periods before Nellaton upon the most recent information became entitled to the rents and profits of the land. Mr Redfern says that Section 141 of the Property Law Act 1958 entitles Nellaton to enforce the covenants including the rental covenant against the tenant for the time being and the Section 141 entitlement extends not only to amounts accruing Nellaton became entitled to the rents and profits but to those accruing before. I have not been taken to the authorities or the precise text of Section 141 but if there is anything to be argued about that, that argument can be raised at trial.

1. I have given my reasons for dismissing this application for summary dismissal under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. As a result of that determination Mr Redfern, solicitor for the applicant company Nellaton Pty Ltd who is the victor today asks that the respondents represented by Mr Scott should be required to pay his client's costs.
2. Mr Redfern concedes that since this is a matter under the Retail Leases Act 2003 Section 92 of that Act drastically restricts the discretion which the Tribunal might otherwise have under the Victorian Civil and Administrative Tribunal Act, Section 109 to award costs. There are only two exceptions under Section 92 to the general rule that costs lie where they fall. One of those exceptions relates to alternative dispute resolution and is clearly irrelevant. The other exists where a party conducts a proceeding vexatiously so as to disadvantage the other party. Mr Redfern contends that insofar as his client is the subject of allegations that he had knowingly furnished misleading and false material to the Tribunal and/or its Registrar and thereby committed an offence or offences under Section 136 of the Victorian Civil and Administrative Tribunal Act then the respondents making those allegations had for that reason conducted the proceeding vexatiously.
3. Mr Scott rejoined the issue as to whether there was indeed a breach of Section 136. I described the matters in my principal reasons and it is unnecessary for me to go over them again. He contended however that even if an unfounded allegation was made that in itself and without more. would not constitute vexatious conduct. I think the manner in which Mr Scott has made the allegations of breach under Section 136 entailed a lack of circumspection which someone who is admitted as a legal practitioner would not omit, however, I do not believe that these allegations of breaches of Section 136 has operated to disadvantage the applicant by prolonging the proceeding in any way. The respondents were entitled to make these Section 75 applications and they have raised a number of significant points. The application was by no means a frivolous one. The addition of the allegations of breaches of Section 136, even if I regard them as totally unfounded has in no way added to the costs of the proceeding. In those circumstances I do not conclude that the respondents have conducted the proceeding vexatiously, therefore the application for costs must be dismissed.