1 This proceeding arises out of the same tenancy which is dealt with in my reasons in R8/2006. I incorporate the background and findings of fact made in that proceeding for the purposes of this determination.

2 The landlords seek payment from the tenants in the sum of $6,689.49 consisting of:

• Insurance premium $484 (for 2004/2005) and $484 for 2005/2006 with respect to public liability insurance;

• Retrospective rent of $651.04 in accordance with a mediated agreement between the parties;

• Legal costs of $1,176 and a special management fee of $1100;

Door separated the residence area from shop according to regulation and fit tenant's use $500

3 The tenants also seek an adjustment of the rent 'to fair market value ($500 plus GST) from September 2005'; an order terminating the lease and removing all the tenant's installation; finally the tenancy costs.

4 For the reasons given in my determination in R8/2006 the failure to provide the estimate of outgoings required by Section 20A of the Retail Tenancies Reform Act constitutes an answer to the claim for the public risk liability insurance premiums and the claim for them must fail.

5 The claim for $651.04 'retrospective rent' being a claim under the terms of a mediation agreement between the parties made 31 March 2005 should succeed. Mr Wang did not deny not having made the payment . He said that the payment did not have to be made until the repairs which the landlord was obliged to carry out under the mediation agreement were complete. The clause requiring the payment of the additional rent in the mediation agreement begins 'In consideration of the above ...'. The above seems to be the obligation undertaken in Clause 5 by the landlords to carry out certain repairs to the premises. The handrail which is referred to in Clause 5 has not been repaired according to Mr Wang. In my view, the words 'in consideration' were not intended to make the payment of the additional rent under the mediation agreement a co-ordinate obligation with the carrying out of the repairs so that the tenant could refuse to pay the additional rent under the mediation agreement unless the landlords completed the repairs. Rather, the words 'in consideration' merely mean that the promise by the tenant to pay the additional rent was given upon the consideration of the promise by the landlords to do the repairs. The deficiencies in repair referred to by Mr Wang did not go to the root of the contract, so as to justify the discharge of the mediation agreement. No one suggested the mediation agreement had been discharged, therefore the tenants are obliged to pay the additional rent and an order would be made to that effect.

6 As to the claim for removal of rubbish, Mr Wang produced a deposit butt indicating that the $159.50 had already been banked to the credit of the same account to which a monthly rental instalment had been paid. There is no evidence to contradict this and hence the claim for the $159.50 rubbish removal cost provided for in the mediation agreement must fail, as already having been paid.

7 The claim for the legal costs and the management fees must likewise fail. Clause 2.1.11(g) obliges the tenant to pay on demand the landlord's reasonable expenses of 'the exercise or attempted exercise by the landlord of any right or remedy against the tenant' and paragraph (f) requires the payment by the tenant of the landlord's costs of 'any breach of this lease by the tenant'. The materials to which I was taken did not give a full picture of the legal costs involved but largely they seemed to refer to advices to the landlords upon their position vis a vis the tenant, for instance, whether the tenant had validly exercised the first option to renew or not and advices and correspondence in dealing with demands by the tenant alleging that the landlords were in breach of their covenants under the lease. These matters did not seem to fall within either of the two paragraphs. Mrs Yan referred to the provisions of the Retail Leases Act. Section 92 of that statute deals with costs of Tribunal proceedings and is in any event are quite restrictive. Even assuming that it extended to these costs as distinct from costs merely of proceedings in the Tribunal there was no suggestion that any party had failed to take part in alternative dispute resolution or had vexatiously conducted the proceeding. Similarly I do not believe that the additional management fees which the lessors incurred because this was a troublesome tenancy are recoverable. The relevant clauses are intended in my view to apply principally to legal costs and not merely to management costs.

8 Finally I come to two groups of repair items claimed by the lessors. I put to one side to be dealt with later the claim for $500 for the door separating the residence from the shop. The situation as to repair during the course of leases governed by the Retail Tenancies Reform Act 1998 is somewhat confused. When the statute was originally enacted Section 25 made provision for the lessor to pay for certain 'urgent repairs' but effectively this section only operated where the lease in question imposed some repair obligation on the lessor, invariably the standard form leases in use in Victoria included no such lessor's repairing covenant. Section 25 was therefore largely a dead letter. When the Retail Leases Act 2003 was enacted it substituted a new Section 25 with effect from 1 November 1993. this amounted to moving the goal posts during the game because retail leases signed between 1998 and 2003 were entered into by the parties upon the premise that there was effectively no statutory repairing obligation on the lessor. Indeed the standard form leases imposed repairing obligations on tenants which were in many instances difficult to reconcile with the new Section 25. Late last year Parliament passed the Retail Leases (Amendment) Act 2005 which further modified Section 25 and modified it retrospectively.

9 This provision was double retrospective, not only did it modify the rules as between landlord and tenant (lessor and lessee) after a lease was entered into, it modified the situation retrospectively, that is, the landlord's repairing obligation in June 2005 is different if viewed today by reference to the retrospective amendment than it was in June 2005. The principal effect of the 2005 amendment was to require the landlord/lessor not to maintain the structure and services of the demised premises 'in good repair' but only in the same state as they were in at the commencement of the lease. There was extensive correspondence between the present parties in 2004 and 2005 whereby the Wangs demanded of the lessors that they carry out certain repairs relying on the version of Section 25 then in force. The fact that these repairs were carried out is probably indicative of the lessors taking the view that the statute obliged them to carry out those repairs. The issue of repair was dealt with at the mediation on 31 March 2005. The various matters claimed were so far as I can see properly lessors' repairs given that they were required to put the premises in good repair (and the concept of maintain in this context includes put in repair) they may bear a different aspect now following the retrospective amendments to the retrospective operation even of avowedly retrospective legislation. Westgate Battery Company Pty Ltd v GCA Pty Ltd [2006] VCAT 25. In my view the recoverability of the cost of these repairs should be judged in light of the law as it appeared to be at the time the repairs were carried out. Since these are properly landlord's repairs there should be no obligation on the tenant to pay for them.

10 Different considerations apply to the claim for $500. According to Ms Yan the tenant removed an existing door and thereby created a breach of building regulations which was identified by an inspector from the City of Boroondara who attended at the request of Mr Wang. I did not understand Mr Wang distinctly to deny this allegation. This would seem to be a breach of Clause 2.1.13 which provides:

[The tenant must] comply with all laws relating to the use or occupation of the premises.

11 The $500 claim should therefore succeed.

12 The provisions with respect to a review to market for the rental of the premises are dealt with in Proceeding R8/2006 and need not therefore be dealt with here.

13 No ground has been shown to 'terminate' the lease. The findings which I made in R8/2006 negate the view that the tenants are merely tenants from month to month under the overholding clause of the previous lease. Even if they were as such tenants from month to month, there is no evidence of an effective notice to quit having been served. As it is the finding in R8/2006 means that the tenants are tenants in equity for a further period of three years from September 2005 on the same terms as the original written lease. Once that equitable term of years exists, conformably with Section 146 of the Property Law Act 1958 a proviso for re-entry could only be effective in relation to non-rental breaches of covenant if a notice under that section was served and remained unsatisfied for the relevant period viz. 14 days. There is no evidence of such notice or alternatively in accordance with Clause 7 of the lease, the lessors could re-enter and terminate if rental was in arrear for not less than 14 days. Again there was no evidence of such. The application to terminate the lease must therefore fail.

14 I heard no specific submissions on costs, however the effect of Section 92 of the Retail Leases Act is that the award of costs in a retail tenancy matter is a rare thing. The only costs which the lessors appearing in person could recover as far as I can see would be filing fees. I will however reserve the question of costs.