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notice of breach of lease dated 21 April 2023 (being the subject of the hearing listed for 10 October 2024) having been withdrawn, the Tribunal's orders dated 3 August 2023 are vacated (including the listed hearing date of 10 October 2024).

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

1. The respondent's application for an order in the form of an injunction restraining the applicant from forfeiting the Lease and re-entering the leased premises, in reliance upon the notice of breach of lease dated 5 September 2023 and notice of termination of lease dated 21 September 2023 is dismissed.
2. The respondent is to be relieved from forfeiture of the Lease subject to the following conditions:

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

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

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

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

1. To give effect to these orders, Orders 2 and 3 are stayed until 12 January 2024.
2. The Tribunal's prima facie findings as to the quantum of rent abatement set out in these orders are interlocutory findings and solely for the purpose of giving effect to these orders. The precise quantum of rent and outgoings to be abated (if any) will be determined at the final hearing of this proceeding.
3. This proceeding is listed for a further directions hearing before Deputy President E Riegler on 21 February 2024 commencing at 9:30am, with one hour allocated, at which time orders will be made as to the further conduct of this proceeding.
4. Liberty to apply.
5. Costs reserved.

1. On 14 December 2023, I heard and determined two applications, both filed in this proceeding. The first application was filed by the applicant ('the Landlord'), who is the registered proprietor and landlord of retail premises located at 1 Matisi Street, Thornbury ('the Premises').
2. The second application was filed by the respondent ('the Tenant'), who is the tenant under a lease dated 21 February 2021 in respect of the Premises ('the Lease').
3. In the Landlord's amended application,[1] the Landlord sought:

(a) an order in the form of a declaration that the Lease was terminated by notice dated 21 September 2023 and in reliance upon a notice of breach of lease dated 5 September 2023 ('the Default Notice');

(b) an order that the Tenant deliver up possession of the Premises; and

(c) an order that all rent and outgoings in arrears be paid.

1. In the Tenant's application, the Tenant sought:

(a) an order in the form of an interlocutory injunction restraining the Landlord from re-entering or taking possession of the Premises; or alternatively,

(b) an order that it be relieved from forfeiture of the Lease; and

(c) an order in the form of a declaration as to the proper amount of rent due and payable, having regard to any entitlement to abatement of rent and outgoings pursuant to s 57 of the Retail Leases Act 2003 (Vic).

1. After considering the voluminous material filed by the parties,[2] including written submissions, together with further oral submissions made by each party's legal representative, I dismissed the Tenant's application for an interlocutory injunction, found that the Landlord had lawfully terminated the Lease and made a declaration to that effect ('the Orders'). However, I further ordered that the Tenant be relieved from forfeiture of the Lease, subject to certain conditions being fulfilled.
2. The Tenant subsequently filed an application with the Supreme Court of Victoria seeking leave to appeal the Orders. By further order of this Tribunal, the Orders (and the order that the Tenant be relieved from forfeiture) have been stayed, pending the outcome of the leave to appeal application. The Tenant has, however, requested written reasons of the Orders, which now follow.
3. I observe that the order dismissing the Tenant's interlocutory injunction application would ordinarily not require the Tribunal to provide written reasons, given that it is in the form of an interim order.[3] However, the dismissal of that interlocutory application is interrelated with the Landlord's application for final relief (in the form of a declaration that it lawfully terminated the Lease). Given that it is impossible to separate the two orders, it is appropriate that written reasons be provided. Further, the orders granting relief from forfeiture of the lease are also final orders and again, require the Tribunal to provide written reasons.[4] This is notwithstanding that the Orders (and the orders giving relief from forfeiture) were supplemented by short findings.
4. At the hearing on 14 December 2023, the Landlord was represented by Mr Hickie of counsel and the Tenant was represented by Mr O'Halloran of counsel. Both counsel referred to the parties' written submissions filed in the proceeding, which they supplemented with further oral submissions.

1. The Landlord contends that it has lawfully terminated on 21 September 2023 in reliance upon the Default Notice. The Default Notice alleges that the Tenant has failed to pay rent (including GST) over the period January 2022 to July 2023 ('the Relevant Period') in the amount of $258,837.67.[5] The relevant parts of the Lease relied upon and referred to in the Default Notice state:

2.1.1 pay the rent without any set-off (legal or equitable) or deduction whatever to the landlord on the days and in the way stated in item 9 without the need for a formal demand...

17.3 The recipient of a taxable supply made under or in respect of this lease must pay to the supplier, at the time payment for the supply is due, the GST payable in respect of the supply....

22.3 No Deductions from Tenants Payments under the Lease

In respect of any amount payable, or reimbursable by the tenant, to the landlord under this lease whether by way of direct payment or indemnity, the amount must be paid by the tenant to the landlord without deduction or set-off (including equitable set-off).

1. Also relevant is clause 7 of the Lease, which states, in part:

7.1 The landlord may terminate this lease, by re-entry or notice of termination, if -

7.1.1 the rent is unpaid after the day on which it falls due for payment.

7.5 Before terminating this lease for repudiation (including repudiation consisting of the non-payment of rent), or for an event to which section 146 (1) of the Property Law Act 1958 (Vic) does not extend, the landlord must give the tenant written notice of the breach and a period of 14 days in which to remedy it (if it is capable of remedy) and to pay reasonable compensation for it. A notice given in respect of a breach amounting to repudiation is not an affirmation of the lease.

1. It is common ground that no rent was paid over the Relevant Period.[6] However, the Tenant contends that there are several grounds which obviate its obligation to otherwise pay rent over that Relevant Period. Specifically, it contends:

(a) The Landlord has repudiated the Lease; or alternatively, breached the terms of the Lease by failing to maintain or repair the Premises, which has resulted in the Tenant being unable to use the Premises. Consequently, the Tenant contends that the Landlord is unable to take advantage of its own wrongdoing because it induced the Tenant's breach. This ground appears to be interwoven with an allegation that the Tenant has a claim for compensation under ss 52 and 54 of the Retail Leases Act 2003 (Vic) ('the RLA'), which it sets-off against any claim for rent arrears, sufficient to extinguish such a claim.

(b) The Tenant is entitled to an abatement of rent pursuant to s 57(1)(b) of the RLA because the Premises are damaged, which has resulted in the Tenant being unable to use the Premises (over the Relevant Period).

1. The legal principles concerning the granting of an interlocutory injunction are well-established and not in dispute.[7] It is unnecessary to extensively repeat those

principles in these short reasons, suffice to say that the Tenant must establish that there is a serious question or questions for trial and that the balance of convenience favours the granting of an injunction.[8] In Sudjalim Pty ltd v Homle Pty Ltd,[9] Almond J succinctly set out that legal principle as follows:

It is common ground that on an application for injunction, the Court will need to determine whether there is a serious question to be tried as to the plaintiffs' entitlement to relief; whether the balance of convenience favours the granting of an injunction, including whether the plaintiffs are likely to suffer an injury for which damages will not be an adequate remedy; and whether there are any discretionary considerations which way for, or against, the grant of relief. These questions must be examined together. An apparently strong claim may lead a court more readily to grant an injunction where the balance of convenience is fairly even. A more doubtful claim, which nevertheless raises a serious question to be tried, may still attract interlocutory relief if there is a marked balance of convenience in favour of it.[10]

1. The first ground relied upon by the Tenant, in support of its application to restrain the Landlord from terminating the Lease, is premised on the principle that the Landlord does not come to the Tribunal with 'clean hands'. The Tenant contends that it is not open for the Landlord to seek an injunction that it be given possession of the Premises when its conduct has caused the breach upon which the Landlord seeks to rely. In its written submissions, the Tenant states:
   1. The Lease has not been validly terminated. The Third Notice alleges that the Tenant has failed to pay the rent, and the tenant admits to this. However, the Landlord has breached its obligation to keep the structure and its installations in a condition consistent with their condition at the start of the lease.

1. In those circumstances, the non-payment of rent precipitated by the Landlord's material breaches [of] an intermediate term of the Lease, being cl 6.4. In other words:

(a) the Landlord does not seek its injunctive relief with clean hands; and

(b) the Landlord has, at least on Ms. Correlli's evidence, effectively induced a breach of the Lease.

1. As Isaacs J said in Myers v Casey "]n]o court of equity will aid a [person] to derive advantage from [their] own wrong." The right to possession is, therefore, in the Tenant's submission, "to some extent been brought into existence or induced by some legal or unconscionable conduct of the defendants so that the protection from what they claim involves protection for their own wrong".
2. It appears that this ground assumes that the Landlord's application is premised wholly on injunctive or equitable relief. I do not accept that to be the case.
3. The Landlord firstly seeks an order in the form of the declaration that the Default Notice was valid and that it was entitled to terminate the Lease in reliance thereon. In my view, determining whether such a declaration is to be made does not involve the exercise of a discretion whether to give equitable relief. It requires the Tribunal to make a finding. Therefore, I do not accept that the principle that a party who seeks equity must do equity is directly relevant to the Landlord's application for a declaration as to whether something occurred or is legally valid.
4. Consequently, I find that this ground does not give rise to a serious question for trial.

1. Although not specifically mentioned above, the Tenant also raises a question as to the legitimacy of the Default Notice, given that it was served after this proceeding was commenced. Mr O'Halloran referred to s 146(1) of the Property Law Act 1958 (Vic) which states in part:

A right of re-entry or forfeiture under any proviso or stipulation in a lease ... shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice...

1. Mr O'Halloran submitted that this proceeding originally commenced as an application for a declaration that the Lease had been terminated in reliance upon earlier default notices served prior to the filing of this proceeding. The Default Notice supersedes those prior default notices, which were withdrawn on or before the Default Notice was served. Nevertheless, Mr O'Halloran submitted:
   1. These proceedings have been commenced prior to the Third Notice. With respect, this is problematic insofar as the proceedings did not relate to the Third Notice; the Landlord has sought to incorporate the Third Notice into its claim for possession. That is problematic and arguably fatal to its claim. Section 146 operates to prevent applications for forfeiture and re-entry by action unless the notice is served and this proceeding was initiated well before the Third Notice.
2. I do not accept that submission. First, the Default Notice only raises arrears of rent as the relevant breach alleged. Section 146(12) of the Property Law Act 1958 (Vic) does not operate in relation to non-payment of rent:

(12) This section shall not, save as otherwise mentioned, affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent whether or not such a breach amounts to a repudiation.

1. Second, the Landlord application was amended by the filing of an amended application dated 16 November 2023. In my view, the filing of that amended application constitutes a fresh application or 'action' in which the Landlord seeks to enforce its right of termination or forfeiture.
2. Consequently, I find that the timing of the Default Notice does not, of itself, invalidate the notice or otherwise disentitle Landlord to rely upon that notice. Therefore, I do not find that this ground gives rise to a serious question for trial.

1. I accept that in some circumstances, a tenant who has a legitimate claim against a landlord may set-off that claim against a competing claim for rent in arrears. However, that right of set-off is subject to the terms of the lease. In Blue Train Café Pty Ltd v The Trust Company Limited,[11] I stated:

However, a tenant's right of equitable set-off against rent may be excluded by the terms of the lease. In Citibank Savings Pty Ltd v Simon Federicks Pty Ltd ('Citibank Savings'),[12] Beach J found that a lease that requires the payment of rent "without deduction" precludes a tenant from claiming an equitable set-off. That decision has been followed in subsequent decisions of the Supreme Court of Victoria and by this Tribunal.[13]

1. In this case, the express terms of the Lease clearly state that equitable set-off is not permissible under the terms of the Lease. Indeed, Mr O'Halloran conceded that an equitable set-off was not permissible, even if it were shown that the Tenant's claim for compensation under s 54 of the RLA exceeded the amount claimed in respect of rent in arrears.
2. Consequently, I find that the Default Notice is not rendered invalid by virtue of the Tenant having a potential claim under ss 52 or 54 of the RLA. Therefore, I do not find that this ground gives rise to a serious question for trial.

1. The Tenant contended that no rent or a lesser amount of rent was payable because rent (or part thereof) was abated pursuant to s 57 of the RLA. That provision states, in part:

(1) A retail premises lease is taken to provide the following if the retail premises, or the building in which the premises are located, is damaged -

(a) except where the tenant caused the damage, the tenant is not liable to pay rent, or any amount in respect of outgoings or other charges, that is attributable to any period during which the premises cannot be used under the lease or are inaccessible due to that damage; and

(b) if the premises can be used under the lease but that use is reduced to some extent by the damage, the tenant's liability for rent, and any amount in respect of outgoings or other charges, that is attributable to any period during which the use is reduced is decreased to that same extent;

1. Mr O'Halloran conceded that some rent was due and payable during the Relevant Period, although he submitted that the amount claimed in the Default Notice was more than what would ultimately be found to be payable. In my short findings set out in my orders dated 14 December 2023, I found, prima facie and for the purpose of determining an appropriate precondition to the granting of relief from forfeiture of the Lease, that, on a best-case scenario for the Tenant, 70 percent of the Premises were unable to be used for 50 percent of the time spanning the Relevant Period. That was a prima facie finding, optimistically favourable to the Tenant, given the limited evidence of deprivation of use. In other words, although the Tenant provided some evidence of what it considered to be 'damage' to the Premises, it was not entirely clear how that 'damage' materially impacted on its ability to use the Premises. Indeed, there was significant evidence produced by the Landlord to the contrary.
2. Specifically, in Mr Hickie's written submissions dated 7 December 2023, he states:

1. Secondly, the Tenant's evidence that it has been unable to use certain parts of the Premises because of alleged damages or defects during the period of the Current Default Notice is starkly at odds, and irreconcilable with, contemporaneous evidence from the Tenant's own social media accounts on Instagram and Facebook. This is because:

(a) Before the Lease commenced, the Tenant publicly stated in T_he Age_ that it was seeking to use its bocce court to host large scale deviance and music events. > > (b) The evidence of the Tenant's Instagram and Facebook accounts reveals that the Tenant has been using the Premises for this purpose, including in the period of the Current Default Notice. These events include a number of large-scale music events on the Bocce Court, and functions and events in the Sala Room... > > (c) The weight of the evidence demonstrates the Tenant has been able to access and use these areas of the Premises during the period of the Current Default Notice which he claims to be damaged....

1. Thirdly, the Tenant has admitted that it has hosted each of the events that are evidenced by the photographs from the Tenant's Instagram and Facebook accounts. The Tenant has given evidence that much of the money derived from those events went toward fixing the many issues with the Property that were the responsibility of the Landlord. If this is correct, it must follow that many of the alleged defects have now been remedied, with the result being that the Tenant is able to access and use these areas of the Premises...
2. Having regard to the affidavit material filed by the parties, I find, consistent with the Tenant's concession, that only parts of the Premises may have been unable to be used and only for a part of the time spanning the Relevant Period. There is no evidence that the Tenant was unable to use all of the Premises for the whole of the time spanning the Relevant Period. Moreover, the financial evidence provided by the Tenant focuses solely on its loss of profit or decline in turnover, rather than inability to use the whole of the Premises.
3. There is clear authority for the proposition that s 57 of the RLA places the onus on a tenant to prove not only that the leased premises were damaged but also how that damage resulted in the tenant being unable to use the premises or part of the premises.[14] In this case, I accept, prima facie, that it is open and arguable that some of the rent claimed to be in arrears might be abated. However, I do not find, nor was it ultimately contended, that no rent forming part of the arrears claimed in the Default Notice, was due and payable.
4. This finding is reflected in my short findings accompanying my orders dated 14 December 2023, where I stated that, prima facie, at least 65 percent of the rent claimed in the Default Notice was due and payable. I pause to reiterate that this percentage figure was calculated based on limited evidence and purely for the purpose of determining what I considered to be fair conditions upon which relief from forfeiture was to be granted. This is not an ultimate finding as to what amount of rent is to be abated, if any. I accept that the precise figure is a matter for trial. However, one thing is clear; namely, there is no serious question for trial that none of the rent particularised in the Default Notice was and is due and payable. I find, as reflected in my short findings, that a substantial amount of rent remains in arrears spanning the Relevant Period.
5. The critical question then is whether the Default Notice is rendered invalid because some of the rent claimed may ultimately be found not to be due and payable.
6. In my view, the mere fact that some of the rent might claimed in the Default Notice may not be recoverable does not invalidate the Default Notice. In Primary RE Ltd v Great Southern Property Holdings Pty Ltd,[15] Judd J made the following observations of general application relevant to the validity of a notice of breach of lease governed by the s 146 of the Property Law Act 1958 (Vic):

The true purpose of the notice is to give to the tenant an opportunity to consider its position and give a response. If the breach is capable of remedy, that response may be to admit the breach and propose a course of remediation. If compensation is sought, that response may involve agreement to pay reasonable compensation to be assessed. If the breach is not admitted, or the landlord rejected a proposal for remediation, the tenant may then apply for relief against forfeiture. In the present case, having received the notices of default, a sufficient response from the tenant to avoid forfeiture, re-entry or termination, would have been to recommence management of the plantations in compliance with its obligations under each lease and forestry agreement, coupled with a proposal to pay reasonable compensation for any injury to the reversion. In my view it would not have been necessary for the tenant to do more in order to avoid the risk of termination, provided the tenant had the capacity and communicated a genuine intention to do as proposed. Nothing of the kind was communicated by the tenant to any of the landlords. The fact that the remediation work, identified in the notices, might take one or more years was not a determining factor in the calculation of a reasonable time within which to respond.[16]

1. In Primary RE Ltd, Judd J referred to the judgment of Hodgson J in Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service, where his Honour summarised the legal principles applicable to the statutory requirements of provisions such as s 146 of the Property Law Act 1958 (Vic). Hodgsen J stated:

In my opinion, the above authorities clearly indicate that a notice under s 129 must not only allege breach, but must also describe the particular acts or omissions constituting the alleged breach; and the notice must indicate the acts of the tenant which the landlord would consider sufficient for the lease to continue, and upon completion of which the landlord would abandon its claim to forfeit. The standard of particulars or degree of specificity depends on the circumstances, including the nature of the covenant alleged to be breached, the tenant's actual or constructive knowledge, and whether the landlord claims reasonable compensation. To use the example of Lord Buckmaster LC, where there are several options open to a tenant to waterproof a leaking ceiling, then that choice is at the tenant's discretion. Thus s 129 is, in my opinion, directed at allowing the tenant to bring about (within a reasonable time) a state of affairs under which the landlord would not pursue forfeiture.[17]

1. I accept that notice to remedy a breach of lease may be held to be invalid if is to too vague in specifying the actual breach or what is required to remedy it. That is not the case here. The breach complained of is clear; namely, the failure to pay rent, which is admitted. The only issue raised by the Tenant goes to the quantum of arrears claimed. However, even on the Tenant's own contention, and leaving aside questions of set-off, some rent is due and payable under the Default Notice. This is not a situation where, absent the set-off claim, it is contended that the right to abatement of rent wholly extinguishes the amount claimed in the Default Notice. This is not a situation where a tenant is left wondering what is required to remedy the breach, albeit that there may be an argument as to how much arrears of rent is to be paid in answer to the Default Notice. In this case, nothing was paid.
2. Consequently, I am not persuaded that the Default Notice can be impugned if it is ultimately found that the amount claimed is more than what is owed. If the Tenant believed that a lesser amount of rent is in arrears, then the amount that is not in dispute should have been paid in answer to the Default Notice. That would have left the 'disputed amount' as a serious question for trial.
3. However, to deny the validity of the Default Notice in circumstances where the Tenant admits the breach but does nothing to avoid the risk of termination, left the Tenant in a precarious position. In my view, this is analogous to the well-established principle that a notice referring to several alleged breaches of covenant is not invalidated simply because it turns out that although some of the alleged breaches have occurred, others have not.[18]
4. Although there may be cases where the disparity between what is claimed in a default notice and what may be due and payable is so great to give rise as to a serious question for trial as to the validity of the notice, this case does not fall into that category. In my view, those cases exemplify a situation where the notice suffers from uncertainty or vagueness. For example, where a default notice claims an amount in respect of arrears of rent which are not referable to the terms of the lease. That is not the case here. It is not contended that the amount of rent claimed is inconsistent with the provisions of the Lease, other than the Tenant alleging that it has an unspecified claim to abate rent.
5. Consequently, I find that even if it is ultimately found that the amount claimed in the Default Notice is more than what is due and payable, that does not render the Default notice invalid. In my view, this does not give rise to a serious question for trial.

1. I have found that the right to abate some rent claimed in the Default Notice, of itself, does not invalidate the Default Notice and consequently, does not give rise to a serious question for trial. Similarly, I have found that there is no right to an equitable set-off of arrears of rent; nor have I found that the timing of the Default Notice or what caused the Tenant's breach of the Lease raise serious questions for trial that the Default Notice is invalid.
2. That being the case, it is unnecessary for me to consider where the balance of convenience lies. Here, the Tenant has not established that there is a serious question for trial that the Landlord is not entitled to terminate or forfeit the Lease in reliance upon the Default Notice. In those circumstances, the application for an interlocutory injunction fails at the first hurdle.

1. As I have already set out in the short findings accompanying my orders dated 14 December 2023, I have considered the affidavit material and the submissions made by the parties and am satisfied that it would be fair that the Tenant be relieved from forfeiture of the Lease, subject to certain conditions.
2. In relation to the conditions upon which relief from forfeiture should be granted, I refer to and repeat below the short findings set out under Recitals I to O of my Findings accompanying my orders dated 14 December 2023:

1. Having regard to the affidavit material and the submissions made by the parties, I am satisfied that subject to certain conditions, it is fair that the Tenant be relieved from forfeiture of the Lease. In so finding, I have taken into consideration evidence of past breaches of lease and the allegation that the Tenant may not be able to fulfil its future obligations under the Lease. I have weighed those factors against the circumstances giving rise to the failure to pay the amount claimed in the September Default Notice or a part thereof.

1. The Tenant submitted that the principal areas affected by damage were the car park,[19] Bocce Court, Heritage Room and Office. Doing the best that I can with the evidence before me, I find, prima facie, that 70% of the Premises were unable to be used for 50% of the period spanning the September Default Notice. I calculate those percentages as follows:

(a) Bocce Court (referred to as the Sports Pavilion in the Disclosure Statement) represents approximately 20% of the total leased area of 8.986 m².

(b) Heritage Room (referred to and forming part of the Function Areas in the Disclosure Statement) represents approximately 16% of the total leased area.

(c) Office space (assumed to be a reference to the Side Lounge in the Disclosure Statement) represents approximately 4% of the total leased area.

(d) Car park represents approximately 60% of the total outside area and approximately 30% of the total leased area.

1. Therefore, 70% of the internal and external parts of the Premises were unable to be used for half the period spanning the September Default Notice. Consequently, I find, prima facie, that the Tenant was and is entitled to abate the rent arrears claimed in the September Default Notice by 35% (this assumes that the car park was only able to be used for half that period, given that it was repaired in or about August 2022). I further find, prima facie, that the Tenant is entitled to abate rent and outgoings by 20% from 2 July 2023 to 14 December 2023, given that the car park was repaired prior to 2 July 2023. Therefore, it does not form part of the abatement calculation going forward.

1. I am unable to make any further finding as to the abatement of rent and outgoings after 14 December 2023 because further remedial work may be undertaken to make good damage to the Premises, which will impact on whether a part of the Premises continues to be unable to be wholly used. Moreover, my assessment of the percentage of rent to be abated constitutes prima facie finding based on limited evidence and is subject to the question of abatement being fully ventilated at trial, where further evidence may be given by the parties to definitively determine that question.

1. Consequently, relief from forfeiture will be granted on condition that the Tenant pay the Landlord 65% of the rent claimed in the September Default Notice and continue to pay 80% of the rent and outgoings due under the Lease for the period to July 2023 until 14 December 2023.
2. If the parties are unable to agree on the amount of rent and outgoings payable under the Lease after 14 December 2023, they are at liberty to seek further orders from the Tribunal.
3. I accept that the above calculations are rudimentary and do not take into consideration that some of the rent during the period spanning the September Default Notice was waived or deferred under the Commercial Tenancy Relief Scheme Regulations 2022 (Vic) or otherwise by agreement between the parties. However, the calculations are solely for the purpose of determining what I consider to be fair conditions upon which relief from forfeiture is to be granted. The precise amount of abatement (if any) will ultimately be determined at the final hearing where more comprehensive evidence can be adduced.

1. In other words, doing the best that I can with the evidence before me, I consider it fair that relief against forfeiture be granted on condition that the Tenant pay the Landlord 65% of the rent claimed in the Default Notice, and then continue to pay 80% of the rent and outgoings due under the Lease, pending further hearing. That amount represents what I find, prima facie, to be the amount of rent payable over the Relevant Period and following, having regard to any possible abatement of rent under s 57 of the RLA.
2. In my view, this approach is consistent with established authority for the granting of relief against forfeiture. Specifically, in Jam Factory Pty Ltd v Sunny Paradise Pty Ltd,[20] Ormiston J observed:

The tenant offered to pay the rent in arrears, and in those circumstances relief against forfeiture of non-payment of rent should be granted usually as of course, save in exceptional circumstances. This principle, with two variations, has been accepted for many years and is said to flow from the view that the right of re-entry for non-payment of rent is primarily a security for that rent.

1. In this case, my prima facie finding that 65 percent of the rent falling due during the Relevant Period and 80 percent of the rent going forward best represents the rent due under the Lease, for the purpose of determining what rent should be paid as a condition for the granting of relief against forfeiture.

1. As indicated above, the Landlord seeks several orders, which comprise an order in the form of a declaration that the Default Notice was valid entitling the Landlord to terminate the Lease, an order for possession and an order for the payment of rent and outgoings in arrears. I have, however, only determined the Landlord's application for a declaration that the Lease was lawfully terminated on 21 September 2023 in reliance upon the Default Notice. I have not made any order granting possession, given that such an order would be inconsistent to my order granting relief against forfeiture. Similarly, without definitively knowing whether the Tenant is entitled to an abatement of rent and outgoings, and if so to what extent, it is impossible to determine the quantum of rent and outgoings payable.
2. The reasons for making the declaration that the Landlord was entitled to terminate the Leasing in reliance upon the Default Notice mirror my reasons for finding that there is no serious question for trial. In essence, I do not accept that in circumstances where I have found; and indeed, the Tenant admits, that there is rent owing, that the Default Notice, which only raises rent in arrears as constituting the breach relied upon, is ineffective.
3. As I have really indicated, although the amount of rent in arrears may be in dispute, I do not consider that the Default Notice is rendered invalid merely because the quantum of rent in arrears claimed may ultimately differ from what is found to be the case. This is not a situation where there is an argument that none of the rent in arrears claimed is payable.

[1] The Landlord amended its original application dated 11 July 2023 by an amended application dated 16 November 2023. The applications heard and determined on 14 December 2023 proceeded on the basis of the amended application dated 16 November 2023.

[3] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 117(1).

[4] Pelicana Leasing Pty Ltd v Shayher Properties Pty Ltd (Building and Property) [2024] VCAT 86, [2].

[6] Respondent's Written Submissions dated 19 November 2023, [16]. This was reiterated by Mr O'Halloran of counsel during the hearing on 14 December 2023, where it was admitted that some rent was due and payable.

[7] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65.

[8] Determining where the balance of convenience is considered in conjunction with the question whether damages would otherwise be an adequate remedy: Sudjalim Pty Ltd v Homle Pty Ltd [2020] VSC 838, [10].

[9] [2020] VSC 838.

[11] (Building and Property) [2024] VCAT 75.

[12] [1993] 2 VR 406.

[13] MEK Nominees Pty Ltd v Secure Parking [2000] VSC 406; Wytell Pty Ltd v Glowinski [2006] VCAT 454.

[14] Casa di Ioro Investment Pty Ltd v Guirguis [2017] VSC 266 per Croft J, although that case more concerned the question of who bore the onus of having to prove 'damage'.

[15] [2011] VSC 242.

[17] Ibid, [105], citing Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2015] NSWCA 268, [323].

[18] Gair v Smith [1964] VicRp 107; [1964] VR 814, 817.

[19] In the affidavit of You Min Wu dated 24 October 2023, Mr Wu states that repairs to the carpark were completed by August 2022 at a cost of $477,500.

[20] [1989] VicRp 54; [1989] VR 584.