Wade v Thorton [2026] VCAT 55 | Case summary

The applicant did not give the tenant an estimate of outgoings at any time.
The Deed referred to above did not specify the amount of outgoings which the applicant wanted to be paid. By requiring, in clauses 2.2 and 2.3, the respondent to 'pay all rent and outgoings up to and including 31 December 2023', the Deed did not cure the applicant's non-compliance with section 46 of the Retail Leases Act 2003 (Vic). Those words can only be construed to mean 'pay all rent and outgoings which the tenant is liable to pay'. In fact, as the applicant must be taken to be aware, when the Deed was executed, that the applicant had not given the tenant or the respondent the estimate of outgoings, no outgoings were payable and so the words 'pay all ... outgoings' do not make the tenant or the respondent liable to the applicant.
The Deed could have been drafted so that it said that in consideration of the applicant accepting the tenant's surrender of the lease the tenant would 'pay $6,131.00'. However this is academic. Had the Deed been drafted in that way, the tenant and respondent might have declined to execute it. Had they executed it, it might still have been arguable that section 46 of the Retail Leases Act 2003 (Vic) would prevail over those words.
The applicant's claim must be dismissed.

Wade v Thorton