1. The respondents pay to the applicants the sums of $2441.39 for rent; $87.81 by way of interest; $55.65 for reimbursement of water rates and $207.25 for reimbursement of council rates, totalling $2792.10.
2. The applicants pay to the respondents the sums of $1400.00 for damage and inconvenience as a result of continued defective windows at the premises; $350.00 by way of damages for not reinstalling curtains and not removing rubbish; $100.00 for not fixing an electric light fitting in the bathroom of the premises, totalling $1850.00.
3. The money that the respondents are required to pay the applicants is set off against the sum that the applicants are required to pay the respondents and thus the respondents pay the applicants the total sum of $942.10.
4. The proceeding is otherwise dismissed.

1. The respondents (the tenants) in this proceeding entered into a lease as tenants with Libro Nominees as owner of a shop and residence at 249D, Belmore Road, North Balwyn (the lease).
2. On 6 September 2004, the applicants (the landlords) became entitled to the reversion of the premises. The lease commenced on 23 September 1999 and was for a period of three years with options to renew for two further periods of three years. At the end of the initial period of the lease, the option to 22 September 2005 was exercised. There was some dispute at the conclusion of the first option period as to whether the tenants were entitled to exercise the second option which option period would conclude on 22 September 2008. In proceedings before Deputy President Macnamara, by an order of 24 February 2006, the Deputy President made, inter alia, the following order :
   1. The Tribunal declares that the applicant (the tenants) validly exercised the option to renew their lease of the premises at 249D Belmore Road, Balwyn North, from the respondents (the landlords) for a further term of three years commencing 23 September 2005.
3. I have not been provided with the renewal of lease for the first or second periods, but because they were a renewal of the original lease, I assume that save and except for the dates of commencement and the rent which has been reviewed according to the Consumer Price Index, are in the same terms as the original lease.
4. The parties have been involved in four different proceedings before the Tribunal plus the present dispute that is before me, involving matters arising out of the respondents' tenancy of the premises. Those disputes include the dispute before DP Macnamara to which I have already referred being R9/2006 and R10/2006 and a dispute which was finally determined by SM Cremean being R165/2006. In an order made by SM Cremean on 3 April 2007, the landlords were ordered "to repair the windows at the rented premises at their cost by a date no later than 31 May 2007", the date was ultimately extended by the Senior Member to 8 June 2007.
5. Further, in the same proceeding, the Senior Member allowed the sum of $200 per month ($50 per week) which he considered a reasonable sum for the difficult circumstances that the tenants were suffering as a result of defective windows. In his reasons for decision, the Senior Member stated at paragraph 22 of his decision, in relation to damages for the windows :

That means from September 2006 until 22 February 2007 I allow a sum of $3,400.00 being $200.00 x 17 months.

1. Thus, it is clear that the Senior Member allowed damages until 22 February 2007 as a result of the windows of the premises being in poor condition.
2. On 23 September 2008, Deputy President Aird in this proceeding ordered by consent that :

The respondent (tenant) shall deliver up possession of the property at 249D Belmore Road, Balwyn North, on 27 September 2008.

1. Rent and interest for the period from 23 August 2008 to 22 September 2008 and from 23 September 2008 to 26 September 2008, that is the sum of $2157.65 for the period ending 22 September 2008 and the sum of $283.74 for the period ending 26 September 2008. The landlords also claim interest in respect of the unpaid rent pursuant to clause 2.1.10 and item 14 of the lease. The lease requires interest to be paid at the rate of 18% which is calculated for the periods I have referred to at $1.064 per day from 23 August 2008 until the rent is paid. 2. Water rates from 10 July 2008 until 26 July 2008 totalling $75.66. Further, council rates are claimed from 1 July 2008 to 26 September 2008 being 88 days and a total of $297.25.

1. Land tax is also claimed from the time that the landlords became owners of the premises until the end of 2004 and also for the years 2005, 2006 and 2007.
2. The landlords also claim the sum of $405 for removal of what the landlords allege is the tenants' fixture of air-conditioning and having a number of locks changed because the tenants only provided the key to one of the locks of the premises.
3. The landlords also claim costs from the tenants in relation to this proceeding and her (the 1st applicant) attendance at this proceeding which includes loss of salary.
4. The tenants have claimed by way of counterclaim :
   1. Damages for living in difficult circumstances as a result of the windows referred to in the order of Senior Member Cremean not being repaired until approximately 29 June 2007. The tenants also claim damages as a result of rubbish being left by the applicants' contractors when performing the work on the windows and the curtains of the premises not being replaced because it is alleged by the tenants that it was difficult for them to replace the curtains after the windows had been replaced because of a different structure. The tenants also claim damage as a result of the electric light not working in the bathroom of the premises and the landlords' failure to repair the same. The tenants claim the sum of $3900 compensation in relation to these matters.
   2. Legal costs including the cost of legal advice.

1. It will be remembered that the landlords claimed that they were entitled to rent for the period 23 August 2008 until the applicants left the premises on 26 September 2008. They also claimed interest on the rent money that was not paid. The respondents did not dispute the fact that they did not pay the rent, however, they stated that the reason that they did not pay the rent was because they had other claims against the landlords, in particular the claim for damages as a result of the landlords failing to fix the power source in the kitchen, failing to erect the curtains after the windows had been repaired towards the end of June, and failure of the landlords to remove the rubbish caused by their contractors when the windows were repaired. Clause 2.1.1 of the lease requires the tenants to -"pay the rent without any deductions to the landlord" (emphasis supplied). As a result of clause 2.1.1, even if the tenants had a good claim in respect of the matters referred to, they were not entitled to refuse to pay the rent as and when the same fell due. See Wytell v Glowinski [2006] VCAT 454 DP Macnamara**.** As a result, the applicants' claim for rent must succeed.
2. The claim which the applicants have correctly calculated for the period between 22 August 2008 and 22 September 2008 (the end of the lease period) is $2157.65. Further, the claim for holding over after the lease period from 23 September 2008 to 26 September 2008 has also been correctly calculated at $283.74. Total rent unpaid being $2441.39.
3. The applicants have also claimed interest on the amount outstanding at the rate of 18%. The combined effect of clause 2.1.10 of the lease and item 14 is that the interest rate is to be calculated on the amount outstanding at 18% per annum on money which the tenants had not paid within 7 days of the due date. I have calculated the interest for the period to 23 August 2008 at $81.93 and for the period to 26 September 2008 at $5.88. Thus, the total interest payable is $87.81.
4. Thus, there will be an order that the respondents pay the applicants forthwith the sum of $2441.39 for rent and the sum of $87.81 for interest on the unpaid amount.

1. The combined effect of clause 2.1.2 and item 10 of the lease requires the tenants to pay outgoings including land tax, council and water rates. The applicants are making claim for the payment of land tax from the time they purchased the property in 2004 to the time that the tenants vacated the property. It will be remembered that the first option period commenced on 23 September 2002 and the second option period commenced on 23 September 2005.
2. The provisions in s 50 and s 121 of the Retail Leases Act 2003 (the Act) forbid landlords from collecting land tax from tenants where the lease was entered into after the commencement of s 121 which was 1 May 2003. The relevant parts of the Act read as follows :

(1) A provision of a retail premises lease is void to the extent that it makes the tenant liable to pay an amount for tax for which the landlord or head landlord is liable under the Land Tax Act 2005.

(2) Subsection (1) does not apply, in the case of a lease entered into at any time on or after 1 May 2003 and before 1 July 2003, in respect of any period before 1 July 2003.

(1) Despite anything to the contrary in this Act, section 50 of this Act does not apply to -

(a) a retail premises lease entered into before the commencement of this section; or

1. The landlords submitted that, as the original lease was entered into in 1999, they should be able to recover the land tax through not only the initial period of the lease but the extensions of the lease given by the two option periods to which I have referred to above. In my view, this is not correct. At the end of each term of the lease, once the option has been exercised, that is equivalent to a new lease being created for that period. Thus, in this circumstance, there was a new lease created on 23 September 2002 and 2005. Insofar as the lease that was created on 23 September 2005 is concerned, that was clearly after the commencement of s 50 and s 121. Therefore, I have taken the view that the landlords cannot recover land tax on or after the period commencing 23 September 2005.
2. Insofar as land tax accrued for the period ending 22 September 2005, the same was dealt with in proceeding R9/2006 and R10/2006 with the same parties herein by DP Macnamara. At paragraphs 30 and 31 of his decision of 24 February 2006, the Deputy President was not satisfied that the tenant was presented with an estimate of outgoings that was required by s 20A of the Retail Leases Reform Act 1998 :

On the second day of the hearing Mr Wang however relied upon Section 20A of the Retail Tenancies Reform Act 1998. This section provides:

(1) A retail premises lease is taken to provide as set out in this section.

(2) The landlord must give the tenant a written estimate of the outgoings to which the tenant is liable to contribute under the lease that itemises those outgoings.

(3) The tenant must be given the estimate of outgoings -

(b) in respect of each of the landlord's 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.

(5) This section only has effect from 1 November 2003.

The effect of this provision seems to be that until the estimate which it requires is given, the tenant has no obligation to contribute to outgoings for the relevant accounting period. Mr Wang says he received no estimate in accordance with the terms of the section. Ms Yan says she prepared a draft estimate and gave it to the managing agent. She could not say that the managing agent had given it to the tenants, indeed she was inclined to accept Mr Wang's denial that the tenants had received it. It would seem to follow that the section provides a complete answer to the alleged breach of covenant relative to the public liability insurance premium. Since no order was authenticated following my earlier announcement of a decision on this point Mr Wang is entitled to succeed on this point based on Section 20A.

1. Under those circumstances, it is clear that the Deputy President considered the matter of outgoings (including land tax) in the previous proceeding and did not allow the claim. Thus, the claim in this proceeding in respect of land tax from the time that the landlords acquired the property until 22 September 2005 has been considered and ruled upon and, as a consequence, is res judicata. Therefore, the landlords' claim for land tax will be dismissed.

1. The landlords' claim for reimbursement for council rates which they alleged that they paid from 1 July 2008 to 26 September 2008 being 88 days making a total sum for reimbursement of $207.35. The tenants produced evidence which showed that on 31 July 2008, they paid a rate notice issued by Yarra Valley Water on 14 July 2008. It is clear they paid $282.33 in respect of that notice and, a further sum presumably in respect of a different notice. When one examines the rate notice paid by the landlords in detail, the charges in respect of water service and sewerage service relate to a period to 30 September 2008 and a charge in relation to annual parks charge relates to the end of that year. Therefore, the tenants say that they should receive a credit in respect of the sum of $20 which sum should be deducted from the $75.65 that the landlords claim.
2. On examination of the notices, it is quite clear that the tenants have paid the items I have referred to in the previous paragraph for a period when they were not occupying the premises. Under those circumstances, there should be a deduction of $20.00 from the amount claimed by the applicants of $75.65. Thus the amount awarded to the applicants in relation to water rates is $55.65.
3. The applicants claim the sum of $207.25 for the period between 23 August 2008 and 26 September 2008 in respect of council rates then due. This sum appears to be correctly calculated by the applicants and was not challenged by the respondents. Therefore, the tenants should pay to the applicants the sum of $207.25 by way of reimbursement of council rates.

1. The landlords claim that when the tenants left the premises, they left behind an airconditioner. They further claimed that they were only given the key to one lock of one door and that they (the landlords) were required to replace the locks on those doors for which they did not have keys. The total cost of removing the airconditioner and changing the locks was $450. Even though the invoice for this amount is written in Chinese, the same was interpreted to me by the interpreter. There is no itemisation as to the amount for removal of the airconditioner and the supplying of the locks. The tenants say that when they moved into the premises in 1999, they were only given one key to one of the doors of the premises and the other locks were opened from the inside. They say that the key that they were given was returned to the landlords upon leaving the premises. They also state that the air-conditioning unit was in the premises at the time that they originally leased the premises in 1999 and that it was part of the premises.
2. So far as the locks are concerned, there was no evidence to contradict the evidence of the tenants that they were only given one key to one of the doors of the premises. The landlords have made conjecture that this is very unlikely. However, what the landlords did say was only conjecture and therefore I accept the direct evidence of the tenant Shi Qin Wang in respect of this matter. Therefore, there should be no allowance to the landlords in respect of the door locks.
3. In respect of the airconditioner, the landlords rely on clause 3.3.4 of the lease and clause 5.1.2 and items 5 and 7 of the schedule. Clause 3.3.4 of the lease requires the tenants, "immediately repair defective windows, lights, doors, locks and fastenings, and replace missing light-globes, fluorescent tubes, keys and keycards". Clause 5.1.2 requires the tenants at the end of the term to "remove the tenants' installations and other property from the premises and make good any damage caused by removing it". Item 5 of the schedule of the lease states that the landlords' installations are "Nil" and in item 7 of the lease the tenants' installations are referred to and state "Coolroom, Deli Fridge, Deep Freezer and all other fixtures and fittings used in connection with the shop premises".
4. The applicants thus state that because there was no reference to the airconditioner which is in the shop premises in item 7 of the lease and item 5 stating that the landlords' installations were nil, it must necessarily follow that the airconditioner was part of the tenants' fixtures and therefore they are responsible for removing the airconditioner and making good the area on which it stood.
5. However, Mr Wang (the 1st respondent) gave evidence that at the time the tenants commenced occupation of the premises in 1999, the airconditioner was situated in the premises. He therefore said that it is not the tenants' responsibility to remove the airconditioner. I note that item 7 refers to a number of cooling items belonging to the tenants in the premises but does not refer to the airconditioner.
6. In my view, the reason that the airconditioner has not been referred to in the lease at all is because in all probability it is part of the actual premises. Put another way, the airconditoner formed part of the land. It is not uncommon for airconditioners to be part of a building and form part of land and it is likely that, on the balance of probability, the airconditioner does form part of the land in this instance.
7. Thus, the landlords' claim for $405 in respect of changing locks and having to remove the airconditioner will be dismissed.

1. In proceeding R165/2008 which claim relates to the same parties and the same premises as the present claim, SM Cremean ordered the landlords to repair the windows of the premises at their cost by 31 May 2007 and that date was extended by orders made on 25 May to 8 June 2007. It was also ordered by the Senior Member that the landlords pay the tenants compensation in the sum of $3400. It is clear that this sum was derived from the fact that there were windows at the premises which were not functioning properly. It is further clear that the sum was calculated to 22 February 2007. At paragraph 22 of the Senior Member's decision, he stated as follows :

I am satisfied though that the windows of the rented premises fall into a different category. I accept that they do not open and adjust or do not open and adjust properly and that they have been this way for some time, having got worse over time from the beginning of the lease in 1999 (with the previous landlord). I consider I should make an allowance in respect of their failure to function properly. Doing the best I can, I allow $200.00 per month (which is $50.00 per week) which I consider is a reasonable sum for living in difficult circumstances. I saw this aspect of the case depicted in photographs. That means from September 2006 until 22 February 2007 I allow a sum of $3,400.00 being $200.00 x 17 months. I propose to allow the Applicant a right of re-entry so far as reasonably necessary, to repair the windows. Those windows must be repaired.

1. The tenants now claim because the windows were not fixed until approximately the end of June that they should be entitled to the continuing compensation at the same rate as set by the Senior Member. The invoice for the repair of the windows is dated 26 June 2007. Thus, I am satisfied that the windows were repaired in late June 2007. Thus, allowing for one week for the invoice to be prepared, I find that in all probability, the windows were fixed by 22 June 2007. Thus, rounding off to the nearest week, that was a period of 28 weeks.
2. As the Senior Member has set a figure of $50 per week for damages as a result of the tenants having to endure with unsatisfactory windows, in my view, I should use the same criteria. These are findings made by another member of the Tribunal in relation to the same matter and therefore the same criteria should be applied. Thus applying $50 per week for 28 weeks, I find that the damages in that regard are $1400. In these circumstances, I find that the landlords should pay the tenants the sum of $1400 for the discomfort of not having the windows repaired until late June 2007.
3. The tenants also make complaint that during the installation of the new windows, the landlords' contractors removed the curtains from the windows and because the structure differed from the previous windows, they were unable to restore the curtains so that they could be used. They complained that as a result, they had sleep disturbance and their privacy was affected.
4. Further, the tenants said that the applicants' contractors, after they had completed the work, left a considerable amount of rubbish on the site. They requested this to be removed by the landlords but they did not act on the request. As a result, the tenants were forced to remove this rubbish themselves.
5. The landlords point to the contractor's invoice which states "Windows and remove rubbish". They thus state that it was their belief that the rubbish was all removed. The landlords also said that they looked at the premises from the outside and that a number of windows did not have curtains even prior to the alteration. However, it was admitted that there was some curtains on some windows, and I saw photographs which were tendered by the landlords which supported this view.
6. The tenants alerted the landlords to the problems of the curtains in several letters which were tendered in evidence. However, there does not appear to be any response by the landlords to this matter. The landlords also tendered a letter from Alfa Lavel Engineering dated 10 December 1999 where reference is made to missing curtains. They stated that, as a result of this letter, the curtains were missing prior to the windows being altered. I do not agree with this proposition. It may well be that the curtains were replaced after 1999 or it may well be that they were just missing from some of the windows. I do not know. However, I do accept the tenants' evidence through Mr Wang that the curtains were taken down by the contractors and not replaced and that they had difficultly doing so themselves. I also accept the tenants' evidence in relation to the removal of rubbish. In my view, it is reasonable to allow a total sum of $350 for the failure of the landlords to replace the curtains and remove the rubbish.

1. The tenants also make claim in relation to the electric light not working in the bathroom and they complained that they were inconvenienced and that the landlords should have fixed this problem. The landlords deny that the electric light was not working after the tenants vacated the premises. Therefore, they say that under those circumstances, I should be satisfied that the electric light system was not broken at all.
2. However, I accept the evidence of the tenants in this regard because the evidence of the landlords was conjecture. Further, it does appear from correspondence written by the tenant Mr Wang to the landlords on 20 April 2008 that he made complaint about the loss of power to the toilet light. Under those circumstances, I accept the evidence of the tenants in this regard. I also note the provision of s 52(2)(c) which requires the landlords to fix such an item. That section states :

(2) The landlord is responsible for maintaining in a condition consistent with the condition of the premises when the retail premises lease was entered into -

(c) the appliances, fittings and fixtures provided under the lease by the landlord relating to the gas, electricity, water, drainage or other services.

1. The landlords said that if the tenants were as badly affected by the light not working in the bathroom as they complain, they should have had the same repaired pursuant to the provisions of s 52(5) of the Act. To some extent I agree with this submission but not entirely. In my view, this submission can be used to mitigate the damage which the tenants have suffered but should not be used to expunge the damages altogether. Therefore, under these circumstances, I will allow the sum of $100 in respect of the light not working in the bathroom.

1. Thus in conclusion as to the tenants' claim, I find that the landlords should pay the tenants the sum of $1400 for the windows not being repaired until late June 2007; $350 by way of damages for removal of rubbish and not being able to replace the curtains and $100 damages for the electric light not working in the bathroom, making a total of $1850.
2. The sum that I have referred to in the previous paragraph should be set off against the sum that I have found is owed to the landlords by the tenants comprising $2441.39 for rent, $87.81 for interest, $55.65 for reimbursement of water rates and $207.25 for reimbursement of council rates. Thus the total amount owed by the tenants to the landlords is $2792.10. Also I find that the $1850 owed by the landlords to the tenants should be set off against the $2792.10 owed by the tenants to the landlords. Thus, the tenants should pay the landlords the sum of $942.10.

1. Both parties have sought costs and expenses in this proceeding. The landlords claim pursuant to clause 2.1.11 of the lease that they are entitled to receive reasonable expenses for breaches by the tenants and attempted exercise by the landlords of any right to remedy against the tenants. The landlords also claim application fees and loss of salary for having to attend the hearing. On the other hand, the tenants claim that they have had to obtain legal advice and have spent considerable time preparing for the landlords' actions.
2. In proceedings pursuant to the Act, the regime for awarding costs is different to that set out in the Victorian Civil and Administrative Tribunal Act 1998. Section 92 of the Act reads as follows :

(1) Despite anything to the contrary in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998, each party to a proceeding before the Tribunal under this Part is to bear its own costs in the proceeding.

(2) However, at any time the Tribunal may make an order that a party pay all or a specified part of the costs of another party in the proceeding but only if the Tribunal is satisfied that it is fair to do so because -

(a) the party conducted the proceeding in a vexatious way that unnecessarily disadvantaged the other party to the proceeding; or

(b) the party refused to take part in or withdrew from mediation or other form of alternative dispute resolution under this Part.

(3) In this section, costs includes fees, charges and disbursements

1. In relation to the landlords' claim that they are entitled to the costs pursuant to 2.1.11 of the lease, I do not accept the same. Those costs have been largely incurred as a result of proceedings before this Tribunal. In relation to both the landlords' and tenants' claims, it is clear to me that the costs which are claimed are costs which also have occurred because of proceedings before this Tribunal. It was not contended by either party that s 92(2) of the Act had any application to this matter. However, both parties said that the other party was vexatious in the bringing of these proceedings.
2. In my view, neither party have been vexatious in this proceeding. Further, I am of the view that a great deal of the Tribunal's time has been taken up over relatively small amounts of money. I am also of the view that the proceeding by the parties was not brought as a matter of spite and it is clear that both parties have succeeded to some extent. Therefore, in my view, it cannot be said that the proceeding by either the landlords or the tenants were vexatious. Under those circumstances, s 92 requires that I make no order for costs.