Case: Ovidio v Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6
Outcome: discussed
In support of its submission that it would be unjust to require the landlord to repay the overpaid rent, it referred to Ovidio v Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6 , a recent decision of the Victorian Court of Appeal. 76 Ovidio involved the lease of retail premises. The parties had signed a lease on 14 August 2000. Section 8 of the Retail Tenancies Reform Act 1998 (Vic) provided that a prospective landlord must give a disclosure statement to the prospective tenant before entering into a lease. This was not done. Section 8 also provided that a failure to give a disclosure statement means "the tenant may withhold payment of rent until the end of 7 days after the landlord gives the tenant a copy of the disclosure statement" and "the tenant is not liable to pay the rent attributable to the period before the landlord gave the tenant a copy of the disclosure statement". 77 The landlord belatedly gave the tenant a disclosure statement on 5 May 2003. Up to this point, the tenant had been ignorant of its rights, and had been paying the rent pursuant to that lease. The tenant successfully brought an action in the Victorian Civil and Administrative Tribunal ("VCAT") seeking restitution of the rent it had paid since entering into the lease, in its entirety. The landlord appealed VCAT's decision. 87 In Ovidio , Chernov JA referred to the history of the action for money had and received in the following terms (at [8]): "Historically, restitutionary relief was provided by courts of common law, although equitable principles played an important part in moulding the action. The basis of the claim for money had and received was articulated in the 18 th century by Lord Mansfield in Moses v. Macferlan . I will deal later with what his Lordship relevantly said in that regard, but for present purposes it is sufficient to mention what is said in the third edition of Bullen &amp; Leake's Precedents of Pleadings about the gist of the action, namely, that a claim for money had and received is "the most comprehensive of all common counts [and is] applicable wherever the defendant has received money which in justice and equity belongs to the plaintiff, under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff."" (footnotes removed) 89 The recognition of a "unifying legal concept" does not, however, render the traditional categories of restitutionary claims, such as the action for money had and received, null and void. On the contrary, in recent years the High Court, and superior State courts, have chosen to frame claims in restitution within the bounds of these established categories. See Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516, Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, David Securities , Pavey &amp; Matthews , Ovidio , McKay (referring to Mason v New South Wales ), and Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333. 104 I also find the first respondent's reliance upon Ovidio in support of its claim that it would not be unjust for it to retain either all or part of the overpaid rent to be flawed. The present case is distinguishable from that of Ovidio on a number of grounds. 105 The most obvious point of distinction is that the landlord in Ovidio was found to have a counter-restitutionary claim against the tenant. Although the first respondent in this case submitted it also had a counter-restitutionary claim against the applicant, I do not see how such a claim could succeed. It must be remembered that in Ovideo , the effect of finding the tenant was entitled to restitution would have been that it would have had occupancy of the relevant premises for two and a half years for free. It was in this context that the Victorian Court of Appeal found the landlord would have a counter-restitutionary claim against the tenant for use and occupation of the premises. 106 Those facts are far removed from those in the present case. The parties in this case agreed to a tenancy on the terms set out in the lease. The tenant paid rent pursuant to that lease. The terms of the lease included that the rent be increased if the rental review procedures were followed (at least so far as clause 3.2.2 was concerned). Those procedures were not adhered to. Accordingly, in ordering that the applicant is entitled to restitution of the overpaid rent, the parties will actually get exactly what they bargained for under the terms of the lease, and the rent that the applicant has paid (minus the overpaid rent) constitutes good consideration for its tenancy. In those circumstances, it can hardly be said that the first respondent would have a claim against the applicant for use and occupation of the premises. 109 This finding is fortified when it is considered that, in Ovidio , when the Court came to determine the quantum of the counter-restitutionary claim, that is, what the "reasonable rent" was that the tenant should pay, their Honours had regard to what in fact the parties had bargained for. They did not themselves embark upon any independent assessment of the reasonable rent (although I acknowledge that there was no evidence before their Honours as to this matter). This demonstrates the inappropriateness of the Court deciding what a reasonable rental figure would be, when the parties have themselves agreed upon procedures to determine this. 110 For completeness, I note that even if I did seek to determine the "reasonable rent", I do not think averaging the four assessments tendered before me in evidence would be an appropriate way to determine objectively the correct figure. In such circumstances, the Court would have to determine that figure for itself, albeit with the assistance of the assessments available in the evidence.