(a) the names and addresses of the parties;

(b) the date of the Deed being 5 October 2022;

(c) the date on which the applicant was to surrender the premises, being '15 September 2023 or earlier by mutual agreement';

(d) the amount to be paid by the respondent to the applicant in consideration of it surrendering the premises, being $368,000.00 plus GST;

(e) the date on which the payment was to be made, being '50% at the end of January 2023 and the balance at the surrender date';

(f) the absence of make good obligations - in this respect I set out clause 4 of the Deed, which was wholly typewritten and not amended by any handwriting:

4.1 On or before the Surrender Date, the Tenant must vacate the premises as though the term of the Lease has expired or come to an end.

4.2 The Premises will be returned in the condition as is and the Tenant will be released from its obligation under the Lease and this Deed to make good of the premises. The Tenant will not be required to remove the fixtures or fitting in the Premises.

4.3 The Landlord must not make any deductions from the security bond with respect to the condition of the Premise

4.4 Nothing in this Deed affects or limits the Tenant's obligations under the Lease for the period up to and including the date that the Tenant surrenders the Lease, including but not limited to the payment of rent, outgoings and any other monies under the Lease. (sic)

1. Clauses 6 and 7 contained releases by the tenant of the landlord and vice versa, but they are irrelevant to this dispute.
2. Clause 7.1.2 provided that within 14 days of the surrender of the lease, the respondent was to return to the applicant the unused part of the security deposit.
3. The applicant claims that the respondent has paid half of the sum due to it under the deed, but has refused to pay the balance on the basis of specious purported set offs. The applicant relies on the deed, but pleads that on 25 October 2023 the parties orally negotiated a variation of the surrender date to 30 November 2023, and that the applicant physically surrendered the premises on 28 November 2023.
4. In its Points of Claim dated 30 January 2025 the applicant claims $202,400.00 (which equates to $184,000 plus GST), plus interest and costs.
5. The respondent did not comply with the Tribunal's Orders that they file and serve Points of Defence and give discovery of relevant documents, but shortly before the hearing it filed and served an affidavit of Mr Zhenhua Yang sworn 25 September 2025, which articulated its defence. Relevantly, by means of this affidavit the respondent alleged that:

(a) the applicant was 'required to return the premises in original condition, free of damage, fair wear and tear excepted, and to remove all stock and rubbish';

(b) the applicant failed to vacate the premises on the surrender date, and instead returned the keys on 28 November 2023 but stored goods at the premises and directed its clients to access stock at the premises thereafter;

1. 'Harassment and disruption: On 25 May 2024, a representative of the applicant namely Mr Xiao Lu attended the respondent's office without appointment, entered restricted areas, refused to leave, and harassed Aultun's staff. This caused significant distress and additional costs for security and staff support'.[2]

(d) The respondent sold the property and settlement of the sale took place on 8 August 2025. 'Due to the applicant's breaches and continued occupation well beyond the agreed surrender date, the respondent incurred additional holding costs, suffered a reduction in sale price, and was forced to absorb extra expenses to clean and remediate the property before settlement'.[3]

(e) The respondent sought to set off its claims against its liability to pay the balance under the deed, thus extinguishing that liability.

1. On 25 September 2025 Mr Xiao Lu swore an affidavit on behalf of the applicant. In substance he swore up to the allegations in the Points of Claim.
2. These two affidavits effectively 'crossed in the mail'. It was not as if one affidavit was drafted as a reply to the other.
3. In the hearing Mr Xiao Lu and Mr Zhenhua Yang used their respective affidavits as their evidence in chief, and each answered questions of the other party in cross examination.
4. It is unnecessary to labour this point. Suffice to say that the respondent did not dent the credibility of Mr Xiao Lu, and I am satisfied that his evidence was true and correct. Mr Zhenhua Yang, however, was forced to make a number of concessions in cross examination which result in me being unable to accept his evidence as being reliable. Without referring to unnecessary matters:

(a) Mr Zhenhua Yang's statement, on oath, that the applicant was 'required to return the premises in original condition, free of damage, fair wear and tear excepted, and to remove all stock and rubbish' is plainly wrong and inconsistent with the clear words of the deed. As the respondent was proposing to demolish the premises and redevelop the property when the surrender was negotiated with the applicant, it is perfectly understandable why the respondent would release the applicant from its 'make good' obligations under the lease. To then swear in his affidavit that the applicant had those obligations does great harm to Mr Zhenhua Yang's credit.

(b) Mr Zhenhua Yang's argument that the words in clause 4.2 of the deed that the 'Premises will be returned in the condition as is' meant that when the applicant surrendered the premises, they had to be in precisely the condition they were in on 5 October 2022 is an artificial argument which is illogical and unsustainable. The commercial and appropriate construction of clause 4.2 is that the premises word to be surrendered but not made good.

(c) Mr Zhenhua Yang's assertion that the applicant had stored goods on the premises after surrendering them is, in simple terms, most artificial. I am satisfied on the evidence given by the witnesses in cross examination, that Mr Zhenhua Yang is actually referring to some 'display' tiles which the applicant had been exhibiting in the premises when it was running its business from them, which the applicant stacked neatly but left in an area of the property on the basis that they would be thrown away with the demolition materials when the respondent demolished the premises. There was not a large collection of such tiles, and referring to this as the 'storage' of goods is an exaggeration. Additionally, whilst the old display tiles had no benefit to the applicant, Mr Xiao Lu was somewhat reluctant to waste them by throwing them away. A customer of the applicant contacted him and asked if they could have them. Mr Xiao Lu asked Mr Zhenhua Yang if he could have the keys for a little while so that he could let the customer into the property to collect the tiles. Mr Zhenhua Yang agreed. Mr Xiao Lu frankly conceded that he could no longer precisely remember whether he obtained the keys from Mr Zhenhua Yang, or whether the customer obtained them directly. In any event, this was an informal arrangement for which the applicant is not to be criticised. It certainly does not amount to the applicant having remained in possession of the property after the surrender date.

(d) The respondent's attempt to seek compensation for the alleged harassment of another company, Aultun, is legally unsound - there being no legal basis for a claim for damages for harassment of the kind alleged, let alone harassment of a corporation, and further let alone harassment of a corporation which is not the respondent - and the making of that claim also greatly diminishes Mr Zhenhua Yang's credit. I note in this respect that Mr Zhenhua Yang gave evidence that he was formerly a real estate agent. I am satisfied that as such he would have sufficient understanding of the law to know that this claim was nonsensical.

1. The applicant submitted that the purported set offs of the respondent were basically recent inventions which were cynically raised in a misguided attempt to avoid a genuine legal liability. I think this submission is quite open on the evidence.
2. I conclude that the applicant is entitled to $202,400.00 including GST under the deed, without any set off in favour of the respondent which would reduce the amount.
3. The applicant expressly sought interest in its Points of Claim. The Tribunal is empowered to award damages in the nature of interest, under section 184 of the Australian Consumer Law and Fair Trading Act 2012 (Vic). Particularly as the parties are commercial entities, there is no justification for the applicant being kept out of its money since 29 November 2023. In his affidavit sworn 25 September 2025, Mr Xiao Lu set out a calculation of interest at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) from 29 November 2023 until 29 September 2025 at $37,152.88. The 29th of September 2025 was the intended date of the hearing of this matter, but the Tribunal rescheduled the hearing to 30 October 2025 due to its own resource issues. I have calculated interest for the period of 31 days from 30 September 2025 to 30 October 2025 [$1,553.56] and added that to Mr Xiao Lu's calculation. Total interest is $38,816.44. I award that sum to the applicant.
4. The applicant expressly sought costs, but the parties could not sensibly be heard on the question of costs until the Tribunal had made its decision in relation to the applicant's claim. I therefore reserve the question of costs. As the respondent is self-represented, I draw its attention to Part 4 Division 8 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which can be accessed through the Tribunal's website.

[1] The Deed was prepared by a well-known law firm. The presence of spelling errors in the document suggests that it is an early draft, which the parties then altered in hand and executed rather than instructing the law firm to re-engross the document with the agreed amendments.

1. [2] I note here that, on the evidence given on behalf of the respondent, 'Aultun' refers to a company other than the respondent, and that the respondent did not give discovery of any documents relating to 'additional costs for security and staff support'. Exhibited to the affidavit, in effect, were some photographs of some people in the premises, but the photographs were not proof of 'harassment'.

[3] The respondent did not give discovery of any documents relating to reduction in sale price, or extra expenses to clean and remediate the property.