(b) in respect of each of the landlords accounting periods during the term of the lease, at least one month before the start of that period.

(4) The tenant is not liable to contribute to any outgoings of which an estimate is required to be given to the tenant as set out in this section until the tenant is given that estimate.

1. The Landlord concedes that if the RLA applies, the Tenant was not required to pay outgoings until such time as the statement of outgoings was delivered to him. However, the Landlord argues that once given, then the obligation to pay outgoings incurred prior to delivery of the statement of outgoings is revived or established.
2. By contrast, the Tenant contends that the delivery of the statement of outgoings does not revive or crystallise any obligation to pay outgoings that would have otherwise been payable but for the failure to give the statement of outgoings to the Tenant. The Tenant says that the late provision of an estimate of outgoings means that he is obliged to pay only those outgoings that accrue after the statement of outgoings is given.

1. Mr Hopper submitted that the evident purpose of the provision is to allow the Tenant to predict the outgoings that it would be required to pay in the following year in order to manage his cash flow. He argued that the late provision of a statement of outgoings could lead to a situation where a tenant was required to retrospectively pay for many years of outgoings at once. This, he submitted, could have a significant adverse effect on a tenant's cash flow and ultimately frustrate the evident purpose of the provision.
2. Mr Hopper contended that retrospectively paying historical outgoings is completely at odds with the purpose of the provision and the RLA in general. He referred to s 1 of the RLA, which states that the main purpose of the RLA is to enhance the certainty and fairness of leasing arrangements between landlords and tenants. Mr Hopper submitted that it would be grossly unfair for a landlord to charge a tenant all of the outgoings incurred throughout the term of the lease as one lump sum impost.
3. Mr Hopper submitted that the RLA is generally considered a tenant protection statute and that to allow the late provision of a statement of outgoings to retrospectively revive a tenant's liability to pay outgoings would not promote fairness or certainty for tenants. Further, he argued that any unfairness to a landlord is addressed by decisions which confirm that a tenant cannot retrospectively recover the cost of outgoings that were paid in the absence of a statement of outgoings.[23]
4. Finally, Mr Hopper refer to Dovastand Pty Ltd v Mardasa Nominees Pty Ltd,[24] where Marks J considered the text of s 15 of the now repealed Retail Tenancies Act 1986, a predecessor to the current RLA. Section 15 of the 1986 Act also required a landlord to give a tenant an estimate of outgoings prior to the beginning of an accounting period and upon entering into a lease agreement. However, the 1986 Act provided no sanctions if a landlord failed to comply. In that case, the tenant argued that the landlord's claim for payment of outgoings was unenforceable because it had failed to comply with the disclosure provisions under s 15. His Honour stated:

Nevertheless, I am of the view that if the construction of s 15 for which Mr Heerey contends is to produce the result that the landlord cannot recover the share of operating expenses, such a result can only follow from my being satisfied that the non-compliance rendered the claim of the landlord illegal, alternatively, the clauses of the lease on which it was based illegal and void, alternatively irrecoverable as a matter of construction of the Act.

It goes without saying that the Act, as is common ground, does not provide a penalty or that there is to be any other consequence of the non-compliance.

The tenant seeks here to establish in this case that the consequence of the non-compliance is no more than to render the share of operating expenses non-recoverable by the landlord for the two years.

The tenant can only succeed if it is what the statute expressly or by necessary implication provides. In my opinion, it does neither.[25]

1. Mr Hopper argued that the decision in Dovastand was the catalyst which moved the legislature to include the self-regulating s 46(4) in the amending RLA.
2. It is not clear to me whether Dovastand was the catalyst or impetus for the introduction of a self-regulating provision. I was not taken to any extrinsic material which might elucidate that proposition. Nevertheless, what is clear from the dicta of Marks J is that the interpretation placed on the provision by the Tenant can only succeed if it is what the statute expressly or by implication provides.

1. Ms Porter submitted that the natural and ordinary meaning of s 46(4) indicates that the provision has some temporal limitation. She argued that it is only until such time that the statement of outgoings is given, that a tenant is not liable to contribute to any outgoings. However, once it is given, then a tenant is liable to contribute, not just progressively but also retrospectively.
2. Like Mr Hopper, reference was made to the main purpose of the RLA and the need to ensure the provisions are interpreted so that they enhance the certainty and fairness of retail leasing arrangements between landlords and tenants. However, unlike Mr Hopper, Ms Porter submitted that the RLA is not to be construed as tenant protection legislation. Its purpose is to strike a fair balance between the competing rights and obligations of tenants and landlords.
3. Ms Porter referred to two decisions of this Tribunal in support of her argument. In Richmond Football Club Ltd v Verraty Pty Ltd,[26] the tenant sought to recover outgoings paid on the assumption that the RLA did not apply to the lease in question. In that case, there was no dispute that the outgoings were payable under the terms of the lease, but for the operation of the RLA. The Tribunal ultimately determined that the RLA governed the lease. Nevertheless, the Tribunal found that, apart from the payment of land tax, the tenant was not entitled to recover outgoings which had been paid during the currency of the lease, even though it had not been given a statement of outgoings as required under s 46 of the RLA:
   1. Here the payment of outgoings is part of the consideration paid by RFC. Its use of the Premises is no doubt contributed to the gross amount of those outgoings, at least in relation to the payment of rates connected with the use of utilities, such as water and sewerage. That is a different situation to what occurred in David Securities and in Roxborough. In David Securities, the borrower got nothing in return for the payment of the grossing-up amount. In Roxborough, the retailer received nothing in return for the payment of tobacco licence fees.
   2. In my opinion, the payment of outgoings is analogous to the payment of rent, in that it has a direct connection with the use and occupation of the Premises. In my view, The Dog Depot applies in respect of the payment of outgoings. Good consideration was received for the money paid in respect of outgoings. That being the case, it would be unconscionable or unfair to allow RFC to be repaid monies in respect of outgoings.
   3. Therefore, and having regard to the authorities cited above, the claim for money had and received, in so far as it relates to outgoings, must fail.
4. The second authority relied upon is Australian Asset Consultant Pty Ltd v Staples Super Pty Ltd,[27] another decision of this Tribunal. Although that case dealt with a myriad of issues, one aspect turned on the interpretation of s 46(4) of the RLA, in that the tenant sought to recover outgoings previously paid. The Tribunal stated:
   1. As I read s 46(4) of the RLA, a tenant is not liable to contribute to any outgoings until it has been given an estimate pursuant to s 46(2) in respect of those outgoings. I consider the inference to be drawn is that whilst the estimate has been provided, then the tenant is liable to contribute in respect of those outgoings.
   2. I think that this observation provides the answer to ACC's claim for reimbursement of outgoings it is paid. Once AAC received an estimate of outgoings, it became liable to contribute to the outgoings referred to in the estimate. I accordingly find that AAC's claim for reimbursement of the outgoings it has paid fails.
5. Ms Porter also drew my attention to other provisions of the RLA that entitle a tenant to withhold rent. In particular, s 17 of the RLA states, in part:
   • (1) At least 7 days before entering into a retail premises lease, the landlord must give the tenant -

(a) a disclosure statement in the form described by the regulations (but the layout of the statement need not be the same as the prescribed disclosure statement); and

(2) If a tenant has not been given the disclosure statement before entering into a retail premises lease, the tenant may give the landlord, no earlier than 7 days and no later than 90 days after entering into the lease, a written notice that the tenant has not been given the disclosure statement.

(3) If the tenant gives the landlord a notice in accordance with sub-section (2) -

(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. Ms Porter submitted that the wording of s 17 of the RLA differs from that of s 46, in that it requires a tenant to give notice to a landlord before any entitlement to withhold rent accrues and importantly, specifically and additionally states that a tenant is not liable to pay the rent attributable to the period between when the notice was given and the disclosure statement provided. Ms Porter argued that if s 46 were to operate in the same fashion as s 17, then Parliament would have expressed that provision in the same way. In other words, the fact that s 17 additionally states that no rent is payable during the relevant period, indicates Parliament's intention that s 17 was to operate differently to s 46, which has no corresponding sub-section.

1. Both Richmond Football Club and Australian Asset Consulting deal with a different factual matrix. In both those cases, the tenant was seeking reimbursement of outgoings already paid. Although not specifically argued in Australian Asset Consulting, the basis for refusing the claim in Richmond Football Club was that the landlord's counter-restitutionary claim prevailed. In other words, it was held that the tenant had received good consideration for the payment of outgoings and on that basis, equity would not come to the tenant's aid to recover monies had and received.
2. The present case is different. Here, outgoings were not paid during the period that the Landlord had failed to comply with his obligations under s 46 of the RLA. Here, it is the landlord that seeks to recover those outgoings, rather than resisting a claim by a tenant for reimbursement of outgoings already paid.
3. Moreover, I am not persuaded that the distinguishing features between s 17 and s 46 necessarily lead to the conclusion that Parliament did not intend s 46 to prohibit retrospective recovery of outgoings once a statement of outgoings is given to a tenant. The two provisions deal with different aspects of the leasing arrangement. The requirement in s 17 for a tenant to serve a notice is an additional step imposed by the legislation, given that the consequences of not complying with that section are significantly more serious than simply foregoing the payment of outgoings. Non-compliance with s 17(1) can lead to early termination of the lease agreement. In my view, requiring the additional step of having to give notice no earlier than seven days and no later than 90 days after entering into the lease reflects the main purpose of the RLA, which is to enhance the certainty and fairness of retail leasing arrangements between landlords and tenants. Without that temporal restriction and the requirement to give notice, a landlord would be left in an uncertain and precarious position if no disclosure statement has been given to the tenant.
4. Notwithstanding the comments made by the Tribunal in Australian Asset Consulting, I am of the opinion that the purpose of s 46(4) would be rendered somewhat otiose if the Landlord's interpretation of the provision was accepted. The corollary is that an interpretation which does not revive an entitlement to claim outgoings incurred prior to the giving of the statement of outgoings best accords with the main purpose of the RLA; namely, to enhance the certainty and fairness of leasing arrangements. In my view, this is best achieved by construing the provision against the Landlord, given that he ultimately has control over this situation. If outgoings are not paid because the Landlord has failed to give the Tenant a statement of outgoings, then that situation is easily remedied by the provision of a statement of outgoings. The landlord is only penalised to the extent that it continues to fail to comply with its obligations under the RLA.
5. On the other hand, I accept that it would be unfair and create uncertainty if a landlord was able to retrospectively claim for historical outgoings many years ahead of when they were actually incurred. It is not difficult to imagine that such a scenario would place a tenant in a financially difficult position, having assumed that what had been charged historically represented its liability to pay outgoings. It is also not difficult to imagine that such an impost could be financially burdensome and place a tenant in a precarious situation if it were unable to make payment within what might be a relatively short default period following service of a default notice. Indeed, the failure to pay may lead to an early termination of the lease or deprive a tenant from being able to exercise an option to renew. In my view, neither of those outcomes would enhance the certainty and fairness of retail leasing arrangements.
6. In forming that view, I accept that there may be situations where a tenant takes advantage of a landlord's failure to comply with s 46(4) of the RLA. However, as I have already indicated, a landlord ultimately has control over that situation. It can immediately remedy the non-payment or short payment of outgoings by giving its tenant the statement of outgoings. On the other hand, apart from protesting or litigating, a tenant cannot force a landlord to give the statement of outgoings. Therefore, when balancing the rights and obligations of each of the parties to a lease agreement, I believe the object and purpose of the RLA is best met if the self-regulating provision did not operate in the manner suggested by the Landlord.
7. I am reinforced in holding this view by the commentary in Retail Leases Victoria, where the learned authors state:

Subsection 46(4) contains a "self-enforcing" provision, particularly having regard to the fact that it is "implied" as a lease term under subs 46(1), which provides that the tenant is not liable to contribute to any outgoings of which an estimate is required to be given to the tenant until the tenant is given that estimate (as to which see Wang v Yan (No 2) [2006] VCAT 236 (24 February 2006), Deputy President Macnamara; referred to with approval applied by Senior Member Davis in Yan v Wang [2008] VCAT 2405 (27 November 2008)) in relation to the now equivalent provisions of the Retail Tenancies Reform Act 1998, see [150,015]). These provisions, which differ from the approach of the provisions of s 21 of the 1998 Act, appear to go some way to actually abrogating the tenant's obligation to contribute to any outgoings at all for the period prior to the provision of an estimate in accordance with s 46. The wording of these provisions "is not liable to contribute to any outgoings" is very reminiscent of the wording of paragraph 17(3)(b) of the landlord's disclosure statement provisions of the 2003 Act, which provides that, in certain circumstances, the tenant is "not liable to pay the rent" attributable to the period prior to the landlord giving the tenant a disclosure statement, provisions which, with respect to the critical wording, reflect the corresponding disclosure statement provisions of para 8(2)(b) of the 1998 Act, which have been held to entirely abrogate the rent obligation prior to compliance with the disclosure requirements: see [40,110]. On this approach the tenant's liability to contribute to any outgoings is entirely abrogated prior to the date that the landlord complies with the s 46 requirements, and compliance would not revive any of those prior obligations. By analogy with the authorities on the disclosure provisions to which reference has been made, it would be as though the tenant's comments to pay outgoings in the lease are entirely removed until s 46 is complied with, and then they are only "restored" in futoro. However, in Australian Asset Consulting Pty Ltd v Staples Super Pty Ltd [2016] VCAT 1726, Member Edquist took a contrary view. The tenant claimed that it was entitled to recover outgoings that it had paid because it had not been given an estimate of outgoings as required by 46. The landlord gave an estimate after the outgoings had been paid. The Tribunal held that the "inference" to be drawn from s 46(4) was that "once the estimate had been provided, then the tenant is liable to contribute in respect of those outgoings [referred to in the estimate]" and accordingly, the tenant's claim failed.[28]

1. Accordingly, I accept the Tenant's submission as to the proper interpretation of s 46(4), which I consider best reflects the main purpose of the RLA. As indicated above, the provision is intended to self-regulate compliance with s 46. To the extent that it imposes a burden on a landlord in not being able to recover outgoings, that burden is mitigated or extinguished once a landlord complies with its obligations under the RLA. In my view, that best reflects striking a balance between the interests of tenants and landlords and importantly, enhances the certainty and fairness of retail leasing arrangements between landlords and tenants.
2. Accordingly, my answer to the second question is that giving notice under s 46(2) of the RLA does not revive or establish liability for outgoings previously incurred.

[1] Agreed Statement of Facts the Hearing of Preliminary Questions, paragraph 12.

[2] [2017] VSCA 178.

[3] IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178, 16.

[4] Affidavit of Peter Able dated 30 January 2019.

[5] [1998] HCA 28; (1998) 194 CLR 355.

[7] [2018] VSC 18.

[9] [1951] HCA 52; (1951) 85 CLR 55.

[11] [1947] VicLawRp 16; (1947) VLR 123.

[12] Made under the National Security Act 1939-1946.

[13] [1945] NSWStRp 6; [1945] 45 SR (NSW) 352.

[14] [1947] VicLawRp 16; (1947) VLR 123,125.

[15] [2004] NSWCA 299.

[16] See definition in paragraph 21 above.

[17] [1891] VicLawRp 38; (1891) 17 VLR 150.

[19] [1998] VSCA 71; [1999] 2 VR 1.

[21] [1951] HCA 52; (1951) 85 CLR 55, 83.

[23] Richmond Football Club Ltd v Verraty Pty Ltd [2011] VCAT 2104.

[24] [1991] VicRp 68; [1991] 2 VR 285.

[26] (2011) VCAT 2104.

[27] [2016] VCAT 1726.

[28] Croft, Hay & Virgona, Lexis Nexis, Retail Leases Victoria, (Service 35) [60,020].