1. On 14 December 2025, the Tenant commenced this proceeding seeking an order in the form of an interlocutory injunction to restrain the Landlord from re-entering the Premises in reliance upon the Default Notice.
2. On or about 2 January 2026, the Landlord served the Tenant with a notice of termination, albeit that the Landlord undertook not to re-enter until the Tribunal had heard the Tenant's application for an interlocutory injunction. That undertaking was extended at the conclusion of the hearing on 3 February 2026 to the date that the interlocutory injunction application was determined.
3. The Tenant disputes the validity of the Default Notice; and by extension the notice purporting to terminate the Lease. It has raised several grounds in support of its position.
4. First, it contends that the November Rent was not due and payable because it had, historically, overpaid one month rent. In addition, the Tenant contends that the amount charged for rent over the past 12 months exceeded what was prescribed under the Lease and as a consequence, it was in credit insofar as rent was concerned.
5. Second, it contends that it is not liable for payment or reimbursement of the outgoings because many of those outgoings relate to a period prior to the Landlord giving the Tenant an estimate of outgoings pursuant to s 46 of the Retail Leases Act 2003 (Vic) (the RLA) and as a consequence, it was not liable to contribute to any outgoings which accrued over that period.
6. Third, the Tenant contends that many of the charges which are described as owners corporation levies relate to capital works undertaken by the owners corporation and as a result, the Tenant is not liable to contribute to those works.
7. Finally, the Tenant contends that the Landlord waived its right to terminate the Lease because it issued an invoice for rent pursuant to the Lease after it purported to terminate the Lease.

1. The legal principles relevant to the granting of an interlocutory injunction are not in dispute. In Sudjalim Pty Ltd v Homle Pty Ltd,[3] Almond J summarised the relevant principles as follows:

It is common ground that on an application for an interlocutory 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 weigh 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.[4]

1. I shall apply those principles in determining this application for injunctive relief.

1. It is not contested that the November Rent (and rent for subsequent months) has not been paid. However, the Tenant contends that it is not liable to pay the November Rent because the Landlord has overcharged rent and when that overcharge is taken into account, the November Rent is not owed.
2. There are two aspects to the Tenant's submission. The first is a contention that an additional month's rent was paid in May 2023 after the Lease was transferred or assigned to the Tenant. The Tenant contends that that additional payment of rent has not been accounted or reconciled. In his affidavit dated 14 December 2025, Omid Tavaf Langroudi, the director of the Tenant, deposed to the following:
   1. On or about 16 June 2023, the landlord requested payment of the June-July 2023 rent, which I had already paid with the security deposit.
   2. In May 2025, after reviewing my rental payments, I identified that the landlord had overcharged me an extra month's rent and raised this with him. The landlord subsequently acknowledged the overcharge and paid me $1041.88 described as "interest", stating that the extra month's rent would also be credited.
   3. Based on my recollection, that credit was not applied. As at 13 December 2025, I had paid 29 monthly rent instalments at the inflated rate plus an additional month (30 months in total). On that basis invoice no. 30 should be fully satisfied.
3. The Tenant produced evidence of a lump sum payment made on 26 May 2023 in the amount of $51,473.76. Under the Lease, three months' rent was required by way of a security deposit. At that time, three months' rent amounted to $38,605.32, which meant that the lump sum payment also included one month rent. In addition, evidence was produced that a further payment of $12,868.44 was made on 16 June 2023 for the June-July 2023 rent payment.
4. Given that the transfer of the Lease occurred on 30 May 2023, it appears, prima facie, that two months' rent was paid for the period June to July 2023.
5. In the affidavit of Sam Salameh dated 2 February 2026, the director of the Landlord, Mr Salameh records the rental receipts from December 2024 to January 2026. He does not mention or respond to the allegation that a double payment of rent was allegedly made in May or June 2023.
6. In my view, the question as to whether one additional month of rent was paid in May or June 2023 raises a serious question for trial. Clearly, further evidence, including bank statements and the like, will need to be produced to definitively determine that question. If that question is determined in favour of the Tenant, then I accept, prima facie, that the Tenant has overpaid one month rent which could be credited against the November Rent, almost extinguishing liability to pay that amount.[5]
7. In addition to the above, the Tenant further submits that the Landlord imposed a rental increase shortly after the Lease was assigned to the Tenant of 8 percent, which the Tenant says did not accord with the terms of the Lease. Mr Langroudi explains further:
   1. Shortly after settlement in late May/June 2023, the landlord imposed an 8% rent increase and sought to recoup a prior years 4% increase said to have been waived for the previous tenant. This was not disclosed to me in any disclosure statement or other contractual document before settlement. After settlement when I raised this with the Landlord Sam, he said I had to pay it under the Lease because he didn't apply the 4% increase the previous year and as that deal was only between him and the previous tenant, I had to pay an 8% increase.
8. It is curious that the Tenant only raises this issue more than two years after the increase was allegedly imposed and notwithstanding that the Tenant paid the increased rental without complaint over that period. In my view, there is insufficient evidence before me to be satisfied that the Landlord increased rental contrary to the provisions of the Lease. Indeed, the Landlord denies that allegation and has produced documentary evidence showing that the rental was increased by 4 percent upon the anniversary of the commencement date in September 2023 and in accordance with the terms of the Lease.[6] That evidence is consistent with the Tenant's own evidence that it paid $12,868.32 per month in rent following the assignment of the Lease in 2023 and now pays $13,383 per month in rent, being an increase of only 4 percent.
9. Notwithstanding the above, I accept, prima facie, the alternative argument that an additional month rent of $12,868.32 may have been paid in 2023 which has not been accounted or reconciled. Therefore, it is arguable that only $514.68 was due and payable in respect of the November Rent.

1. It is common ground that the Landlord first provided the Tenant with an estimate of outgoings pursuant to s 46 of the RLA on 2 June 2025. Consequently, I find, prima facie, and pursuant to s 46(4) of the RLA, that the Tenant is not liable to contribute to any outgoings that predate 2 June 2025.
2. Mr Harding of counsel, who appeared on behalf of the Landlord, submitted that the invoices for reimbursement of outgoings (or some of the invoices) were raised by the Landlord after 2 June 2025 and were therefore not caught by s 46(4) of the RLA, notwithstanding that the Landlord may have incurred or paid for the charge prior to that date. Consequently, Mr Harding submitted that it was of no consequence that the actual charges predated 2 June 2025 because the demand for payment made by the Landlord for reimbursement of those charges postdated 2 June 2025.
3. Although Mr Harding may be correct in that submission, I consider that question requires deeper analysis and clearly raises a question for trial as to the interpretation of s 46(4) of the RLA and how it is to be applied. For the purpose of this interlocutory injunction application, I accept, prima facie, that any charges incurred prior to 2 June 2025 may be caught by s 46(4) of the RLA, with the result that the Tenant is not liable to contribute to that outgoing.
4. However, not all outgoings which are claimed as part of the Default Notice fall within that category of outgoing. Specifically:

(a) water usage charges amounting to $4,336.32 appear to have been levied in August 2025;

(b) council rates, or at least some council rates, appear to have been levied on 1 July 2025. For example, the most recent rate statement from Maribyrnong City Council is dated 14 October 2025; and

(c) a significant proportion of the owners corporation levies were raised after 1 July 2025.

1. I note that the Tenant submitted that it was not liable to contribute to many of the owners corporation levies because they related to capital works. In his affidavit dated 14 December 2025, Mr Langroudi states:
   1. In 2024-2025, the landlord informed me that the Owners Corporation (OC) arranged plumbing upgrade works to common services that, to my understanding, were capital in nature. Funding was raised through Maintenance Fund levies and AGM 'top-ups', and it was explained to me that the Administrative Fund levies increased by about 70% due largely to these works: see OC statement at ATL-1 pp 149-154.
   2. I was asked to pay both the increased Administrative Fund levies and the Maintenance Fund levies.
   3. Under the Lease and the RLA (including cl 1.1, Item 10, cl 3.3.2 of the Lease and ss 39 and 46 of the RLA), capital costs are excluded from recoverable outgoings and outgoings must be properly disclosed and estimated to be recoverable. Maintenance Fund levies are, in substance, capital and are not recoverable from the tenant. To the extent I paid Maintenance Fund levies to OC 1, I seek reimbursement with interest.
2. I accept, prima facie, that it may be that a tenant is not required to contribute to owners corporation fees or levies where they relate to capital works. Again, this is a difficult question to determine and will require more comprehensive submissions in order to interpret the relevant provisions of the RLA. Nevertheless, for the purpose of this interlocutory injunction application, I find, prima facie, that the obligation to pay owners corporation fees or levies which relate to capital works raises a serious question for trial.
3. However, I do not accept that if the payments were made, the Tenant has a right to set off those payments against future obligations under the Lease. It is not contested that the Lease contains a 'no deductions' clause which prohibits a tenant from setting-off a claim that it might have against a landlord against future rent and outgoings. That is not to say that the Tenant is prevented from pursuing a claim against the Landlord as a separate action. However, I do not accept that those payments, even if proven to be related to capital works and even if it is established that there was no obligation to make those payments, crystallises a right to set off those payments against future rent and outgoings, especially where it is not clear what payments fall within that category of payment.

1. Having regard to my finding set out above, I accept that some outgoings were in arrears and payable prior to the Landlord serving the Tenant with a notice purporting to terminate the Lease. However, given the matters raised by the Tenant, it is difficult to ascertain which outgoings were legitimately in arrears and the amount of those arrears. As I have already indicated, the matters advanced by the Tenant raise difficult questions as to the interpretation of various provisions of the RLA and within the Lease itself. The answer to those questions will, to a large extent, dictate what outgoings are in arrears and the amount of those arrears.
2. Mr Harding submitted, and I accept, that a breach notice may specify more than one alleged default under the lease, and if it specifies at least one valid default, it is not invalidated by also containing matters which do not constitute any breach of the lease.[7] That said, it is, however, trite that a function of a breach notice is to give a tenant the opportunity to consider its position, whether it is capable of remedy, whether compensation should be offered and to take appropriate action before forfeiture takes place. In my view, the inclusion of historical arrears some of which date back to 2023, render that task more difficult in this case.
3. Therefore, even though one or more of the breaches set out in the Default Notice are unlikely to give rise to a serious question for trial, I am of the view that reliance upon the Default Notice in its present form raises a serious question for trial. I have formed this view because it is likely that once the breaches which are said to give rise to a serious question for trial are excised from the Default Notice, the cost of remedying the remaining breaches may be significantly less than what is claimed. In those circumstances, this Tribunal may look favourably at granting relief against forfeiture if the remaining breaches of lease set out in the Default Notice are remedied as a pre-condition to granting such relief. That, in itself, may give rise to a serious question for trial as to whether the Tenant would ultimately be permitted to remain in the Premises.

1. In closing argument, Mr Konidaris, the solicitor acting on behalf of the Tenant, submitted that the Landlord's leasing agent had issued an invoice for the payment of rent after the Landlord has purported to terminate the Lease. Mr Konidaris submitted that this conduct constitutes a waiver of the Landlord's right to terminate.[8]
2. In reply, Mr Harding submitted that raising invoices after the Landlord had given the Tenant a notice of termination does not constitute a waiver but rather, indicates that the Landlord acknowledges that the Tenant is occupying the Premises on an over-holding basis under a periodic tenancy.
3. In my view, this issue raises a secondary question for trial. In Lidsdale Nominees Pty Ltd v Elkharadly,[9] Lush J considered a scenario where the payment of rent was accepted by the landlord after it had purported to terminate the lease. His Honour found that the acceptance of rent amounted to an unequivocal affirmation of the lease, notwithstanding that the landlord sought to categorise that payment as compensation for the breach of lease giving rise to the purported termination.
4. Although the facts in that case are not on all fours with what is currently before me, I find that the question whether the Landlord affirmed the Lease by issuing an invoice for payment of rent pursuant to the Lease raises a serious question for trial. Moreover, even if I accept the submission made by Mr Harding that, at best, raising an invoice for rent merely creates or evidences a periodic tenancy, that fact, of itself, justifies an order restraining the Landlord from re-entering the Premises in reliance upon the Default Notice. Under that scenario, the Tenant is lawfully occupying the Premises pursuant to a periodic tenancy which would, presumably, expire upon 30 days notice.
5. Therefore, on balance, I accept that there are serious questions for trial which may affect the Landlord's ability to forfeit the Lease in reliance upon the Default Notice.

1. As is often the case with retail tenancies, the leasehold is interconnected with the tenant's business and the loss of one results in the loss of the business and any goodwill attached thereto. This loss is sometimes difficult to compensate by way of damages.
2. In this case, I am satisfied, based on the affidavit material filed, that the Tenant has invested significant funds and personal effort in maintaining the supermarket business conducted from the Premises. Importantly, I am satisfied that the type of business conducted from the Premises relies heavily on locational goodwill and it would be difficult if not impossible to re-establish the same business in alternative premises.
3. Therefore, I am satisfied that, subject to the Tenant paying 'undisputed' rent and outgoings and continuing to pay rent and outgoings as and when they fall due, the balance of convenience favours granting the injunction, subject to the usual undertaking as to damages. In other words, I find that the prejudice that will be suffered by the Tenant if the injunction is not granted outweighs the prejudice that would be suffered by the Landlord if the injunction is granted.
4. In that regard, I note that the proposed order will not prevent the Landlord from exercising its rights under the Lease for breaches which are unconnected with the Default Notice or otherwise exercising its rights under a periodic tenancy - if that is the current state of affairs.

[1] See [20] of the Reasons accompanying these orders.

[2] At the time when the Lease was renewed, the Premises were leased by the former tenant. On 30 May 2023, the Lease was transferred to the Tenant.

3 [2020] VSC 838.

[5] There is a difference between the rent that was due in June-July 2023 ($12,868.32) and the November Rent ($13,383) of $514.68.

[6] Affidavit of Sam Salameh dated 2 February 2026, [13]-[16].

[7] Gair v Smith [1964] VicRp 107; [1964] VR 814.

[8] Supplementary affidavit of Omid Tavif Langroudi dated 3 February 2026, [30]-[32].

[9] [1979] VicRp 10; [1979] VR 84.