Al-Robaey v Gurner Avenue 95 Pty Ltd [2025] NSWCATCD 173;

The Application, the hearing and documents relied on by the parties

1. The application was filed on 1 May 2024. An amended application filed 21 June 2024 claimed:

(1) That [the applicant] (Lessee) and [the respondent as the] Lessor were parties to a tenancy pursuant to the [AT Act] (the Lease);

(2) That a notice provided by the Lessor (or the Lessor's Agent) on 1 December 2023 to terminate the Lease (the Notice) was invalid.

(3) That the Lessor, by reason of the Notice, and its subsequent notices, and the Lessor's subsequent conduct, including the eviction of the Lessee from the premises, had unlawfully or wrongfully terminated the Lease. from the Land, the respondent unlawfully or wrongfully terminated the Lease.

(4) The Lessee has suffered loss, and continues to suffer loss, by reason of the Lessor's unlawful or wrongful termination of Lease.

Payment of the Lessee costs, including legal costs, and interest.

Refer to points of claim, to be filed separately...

1. Following the filing of the amended application, the applicant filed Points of Claim on 5 July 2024 (POC), and the respondent fired a Response to Points of Claim on 21 August 2024 (Response).
2. The documents relied on by the parties was primarily contained in an indexed Court Book (CB), marked Exhibit A. They included:

(1) The POC;

(2) The Response;

(3) A witness statement of the applicant dated 3 January 2025 (applicant's first statement), and exhibit AR-01.

(4) A witness statement of Machell Carter, the property manager / agent of previous owner of the Property and respondent, and exhibit MC1.

(5) A witness statement of Phillip Scott, general manager of Crownland Developments Pty Ltd, the respondent's parent company, and exhibit PS1.

(6) A further witness statement (second statement) of the applicant dated 3 January 2025.

1. Each of the applicant, Machell Carter and Philip Scott were cross examined.
2. An interpreter assisted the applicant.
3. The following documents were also relied on:

(1) A 96 page bundle containing a letter to the applicant from ANZ bank dated 10 March 2025 and transaction details for the period March 2021 to April 2024 (Exhibit B);

(2) A letter from the applicant dated 18 March 2025 referring to a Summons served on 5 September 2025 (Exhibit C) stating:

I refer to the matters sought therein and notify that to the extent these documents were available, they would have been destroyed by the respondent upon its re-entry to the premises and destructions of structures on the land.

I enclose records I obtained from ANZ bank in relation to my banking records

(3) Emails between the Agent and Phil Scott (Exhibit D);

(4) Summons issued by the respondent to the applicant (Exhibit E).

1. Following the hearing I received the applicants submissions filed on 9 April 2025 (AS), the respondent's submissions filed on 28 April 2025 (RS), and the applicants reply submissions filed 9 May 2025 (ARS). I was also provided with a transcript of the hearing (TP).

The Agricultural Tenancies Act 1990 (NSW)

1. The objects of the AT Act are defined in s 3 and include the provision of a "mechanism for settling disputes between parties to agricultural tenancies through applications to the Tribunal".
2. Although, neither party sought to have any agreement between the parties reduced to writing, I note that s 5 of the RT Act states:

Agreements to be in writing

(1) An owner and a tenant each have the right to have the provisions of any agreement creating the tenancy reduced to writing signed by the other party.

(2) If the owner and the tenant cannot agree on the terms of an agreement that is to be reduced to writing, the terms of the agreement may be determined by the Tribunal.

1. Although I do not understand that the applicant asserts a breach of s 14 of the AT Act, I note that s14 of the AT Act states:

Termination of tenancy

(1) A tenancy for a fixed term with no provision for holding over terminates at the end of the fixed term without the necessity for any notice.

(2) A periodic tenancy (other than a tenancy from year to year) cannot be terminated unless written notice of termination is served by a party on the other party so as to give notice at least equivalent to the length of the tenancy period.

(3) In addition to the requirements of subsection (2), a periodic tenancy (other than a tenancy from year to year) cannot be terminated unless written notice of the termination is served by a party on the other party so as to give notice of at least -

(a) in the case of a share farming arrangement for crop growing - a period of 1 month, ending at least 1 month after the end of the current annual cropping program, and

(b) in any other case - a period of 1 month.

...

1. Section 20 provides that an owner or tenant may apply to the Tribunal for determination of:

(a) a dispute relating to a right or obligation conferred by this Act,

(b) a dispute arising from, or relating to, an agreement creating a tenancy or any other dispute (not being a dispute referred to in paragraph (a)) arising from, or relating to, a tenancy,

(c) any other matter that may be determined by the Tribunal under this Act.

1. Section 20 (3) provides that an application to the Tribunal must be made not later than 3 months after the relevant dispute or other matter arises or the end of the tenancy, whichever is the later.
2. Relevant to the circumstances of when an owner or tenant may apply to the Tribunal, s 4 of the AT Act includes the following definitions:

tenancy means a lease or licence, an agreement for a lease or licence, a tenancy at will or a share farming arrangement or any other arrangement by which a person who is not the owner of the farm has a right to occupy or use it.

tenant includes a sharefarmer and any person whose right of occupancy or use of a farm is derived from the tenant but does not include a tenant employed by the owner.

farm means a piece of land not less than 1 hectare in area occupied or used by a tenant and which is wholly or mostly used or intended to be used for agricultural purposes.

1. Section 21 of the AT Act, provides that, the Tribunal may, on application by an owner or tenant under this Act, or in any proceedings under this Act, make orders that relevantly include:

(a) an order giving effect to a determination that may be made by the Tribunal under this Act,

...

(e) an order for the payment of an amount of money,

(f) an order as to compensation,

(1) That In a conversation with Ms Carter, as the agent for the respondent. in around 30 October to 6 November 2023, he was informed that the respondent would prefer if he continued to use the [Property] to grow crops and that it did not need the land for another 12 months;

(2) That in reliance on that claimed representation, the applicant went into debt to set up and commenced growing a crop of cucumbers and zucchini which would take at least 4 months to grow to maturity;

(3) Notwithstanding this, the respondent purported to terminate the lease in early December 2023;

(4) The respondent refused to compensate the applicant when told about the work and costs the applicant had already sunk into growing a new crop, and commenced processes to force him off the [Property] prior to the end of the agreement that was struck between the parties for the applicant to occupy the land for another 12 months;

(5) The respondent, through its agents destroyed the applicant's property on the [Property] whilst removing it in the course of March to June 2024;

(6) As a consequence:

(a) at equity, the respondent is estopped from denying the existence of such an agreement on the basis that the respondent induced the applicant to go into debt to conform with the agreement, and then resiled against the agreement; and / or

(b) The applicant had entered into an agreement recognised at law or equity such relevant terms of which were that the applicant could continue to occupy the [Property] and continue to grow crops for a period of 12 months from late October 2023 and

(7) The applicant is entitled damages and / or compensation in the amount of $498,182.00 (as set out at AS Schedule A) under s 21 of the AT Act.

1. Mindful of the POC and the Response, how the case was argued at hearing and in the party's written submissions, and the AT Act, the issues that required consideration are:

(1) First, whether there was a lease or licence, an agreement for a lease or licence, a tenancy at will or a share farming arrangement or any other arrangement between the applicant and the respondent (which the applicant contends arises as a matter of equity - see applicant's submissions at [50] to [56] or law - see applicant's submissions at [57] to [63]) or pursuant to which the applicant (as a person who was not the owner of the Land) had a right to occupy or use it. In short, was there an agricultural tenancy. Relevant to this issue:

(a) Mindful of s 5 of the AT Act which provides that an owner and tenant have ethe the right to have the provisions of any agreement creating the tenancy reduced to writing, a "tenancy", as defined under the At Act, is not required to be written;

(b) The applicant says that such an agreement arose by reason of conversations with the respondent's agent in about late October or early November 2023, or otherwise by reason of the respondent being estopped because of its conduct from denying the existence of such an agreement.

(c) If there was no agricultural tenancy agreement between the parties, pursuant to which the applicant had a right to occupy or use the Land, it follows that the applicant is not able to avail itself of the provisions of the AT Act which apply to a "tenant".

(2) Secondly, if contrary to the respondent's position there was a "tenancy" agreement, such that the applicant had a right to occupy or use the Land, the relevant terms of that tenancy agreement.

(3) Thirdly, and subject to a consideration of Issues (1) and (2), whether the respondent by its conduct, including the issuing a notice of termination in December 2023 (the Notice) and evicting the applicant from the Land between about March and June 2024, breached the terms of the tenancy agreement.

(4) Fourthly, if the respondent breached a tenancy agreement that is found to have arisen, whether the applicant has established that it has suffered any loss or damage and is entitled to an award of compensation under s 21 of the RT Act, and if so, what the order for compensation should be. The applicant claims the amount of $498,182.00 as set out at (AS - Schedule A).

1. Issues (1) and (2) largely fall to be determined by a consideration of a factual dispute between the applicant and Ms Carter regarding events, including conversations between them, in about March 2021 and October / November 2023.
2. In considering the factual contest, I have had regard to the following.
3. The following comments made Bell P (as the Chief Justice then was, with whom Bathurst CJ agreed) in ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [27]- [29]:

"Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin)."

"the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."

"Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents."

1. The following, often quoted, extract from what Mclelland CJ in Eq said in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 319:

"... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

As a result, in assessing the witnesses' evidence about what they knew at the time, what was said and what was or was not agreed orally, I have tended to place more weight on the contemporaneous documents, the objective surrounding facts and the inherent probabilities and improbabilities of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]- [31]."

1. Matters relevant to a consideration of the competing factual evidence may therefore include:

(1) Whether there are contemporaneous documents (particularly business records or documents generated by a third party) that are consistent or inconsistent with a witness's evidence.

(2) Whether the evidence is consistent with or inconsistent with agreed or indisputable facts.

(3) Whether the evidence is inherently plausible or implausible.

(4) Inferences drawn from the documentary evidence and known or probable facts.

(5) Where there is an insoluble conflict in the evidence, it would be open to revert to the general maxim "he who asserts must prove", together with a consideration of the relevant onus of proof.

1. Putting to one side whether the applicant was a tenant under an agricultural tenancy pursuant to the AT Act, it was not contended that, having regard to s 20 (5) of the AT Act the application was brought out of time, or that the Tribunal did not otherwise have jurisdiction to hear and determine their dispute. Subject to being satisfied that the applicant and the respondence were parties to a tenancy, as that term is defined in the AT Act, I am satisfied that the Tribunal has jurisdiction to hear the dispute.

Lease from the former owner to Mr El-Ekdawy in 2019 until the purchase of the Property by the respondent including the disputed meeting / conversion in March 2021.

1. In 2019, the then owner of the Property (the former owner), as the "Landlord", leased the Land to a Mr Saad El - Ekdawy as the "Tenant" pursuant to a document headed "Commercial Lease Agreement" for two years commencing on 2 December 2019 (the Lease).
2. The Lease included the following terms:

3.1 At the Lease End Date stated in item 9 the Tenant may continue only with the Landlords prior written consent to occupy the Premises and shall do so as a monthly Tenant subject to the provisions of this Agreement.

14.1 The Tenant will not assign or sublet without the landlords consent.

14.2 The Landlord will not, in the case of suitable assigns, unreasonably refuse to grant the tenants requests where the tenant is not in default

Special Condition 15.2: The lessee covenants not to assign or sub-let or otherwise deal with the demised property.

1. A section of the Lease headed "Surrender of Lease" on the last page of the Lease appears to be signed by or for the lessee. No submissions were made by either party as to what if anything I should make of the signed "Surrender of Lease" provision. I have therefore had no regard to that part of the Lease headed "Surrender of Lease".
2. The applicant says he purchased "the farming business" located at the Property from Mr El-Ekdawy as the former lessee in or around March 2021 for $120,000.00. He further says that the $120,000.00 was paid in in cash and that following his acquisition of the farming business, he carried out extensive repairs and maintenance to the Property, improved the Property and operated a farming business from it.
3. Both Ms Carter (who was at that time the former owner's agent / property manager (Agent)) and later became the respondents Agent, and the applicant agree that they met in about March 2021.
4. The applicant says he attended Ms Carter's office, told her he had purchased "the farm" from Mr El-Ekdawy and that Ms Carter handed him a form saying, "To transfer the lease, you need to complete this form".
5. The applicant exhibits (CB 55) a copy of the notice he says Ms Carter gave him which he says has been signed by me El-Ekdawy and further says that from March 2021 he performed repairs to existing structures on the Land and attended Ms Carter's office monthly to pay the rent.
6. Ms Carter says that on 3 March 2021, Mr El-Ekdawy attended her office with the applicant and told her that: "This is Adham Al-Robaey. He will be managing the property on my behalf and will pay the rent for me" and denies that she was ever informed that the applicant had purchased anything from Mr El-Ekdawy or that she handed a form to the applicant.
7. Relevant to a consideration of the competing versions of what was said:

(1) An internal file note of the Agent made in March 2021 states:

Saad advised that Adham...is looking after the property on his behalf and he Adham would be paying the rent.

(2) The applicant relies on a document titled "Notice to assign lease" (Notice of Assignment) which he says is the document Ms Carter handed to him in March 2021. It:

Address of leased premises: [address] Austral NSW 2179

You are hereby notified that I intend to assign the lease to: Adham Al Robey...

Saad - Elekadawy

(c) has the name of the lessee written as "Saad - Elekdawy" as opposed to "Saad El-Ekdawy" (the difference being a missing hyphen between "El and Ekdawy") which is how Mr El- Ekdawy's name is spelt on the Lease and Agent's records;

(d) has a signature next to the name "Saad -Elekdawy";

(e) has parts for the insertion of the landlord's name, the landlord's acceptance of the assignment, and the landlord's signature as having accepted receipt of the notice to assign the lease left blank; and

(f) states at the bottom of the page

Notice given pursuant to article 1870 of the Civil code of Quebec.

(3) Handwritten receipts for rent issued by the agent in February and March 2022 record rent having been received by the applicant.

(4) Mr El-Ekdawy is recorded in the Agent's electronic records, including Tenancy ledger, as the Tenant.

(5) Tenancy Invoices for rent in December 2023 were issued to Mr El -Ekdawy.

(6) Despite the applicant giving evidence of still being in contact with Mr El-Ekdawy and having discussed the case with him (TP 31 and 32), Mr El-Ekdawy did not give evidence and there was no evidence given explaining why Mr El-Ekdawy did not give evidence.

(a) at clause 14.1 that "The Tenant will not assign or sublet without the landlords consent"; and

(b) at Special Condition 15.2, that "The lessee covenants not to assign or sub-let or otherwise deal with the demised property."

1. Thereafter, invoices for the payment of rent were issued to Mr El-Ekdawy, but the applicant attended the Agent's office and would pay the rent in cash, and handwritten receipts (at least on two occasions) were issued to the applicant for the receipt of rent.
2. Because Mr El-Ekdawy could reasonably be expected to be a person who could have given evidence in respect of: whether the applicant purchased "the farming business" from him for $120,000.00 cash; whether he attended Ms Carter's office in 2021 with the applicant; whether he had signed the notice of assignment; and whether he had assigned the Lease to the applicant, and there was no explanation for the failure to call Mr El-Ekdawy, in my view, it is open to me to infer that Mr El - Ekdawy's evidence would not have assisted the applicant in respect of each of those matters.
3. Because the Agents file note records that it was made on 3 March 2021 and there was no evidence to suggest that it was not created at that time, I consider that it is the best evidence of the meeting and any conversation that occurred in March 2021. It is generally consistent with Ms Carter's version of what was said. In my view, Ms Carter's version is also more consistent with invoices continuing to be issued to Mr El-Ekdawy, but handwritten receipts issued to the applicant.
4. I therefore:

(1) find that Mr El-Ekdawy attended Ms Carter's office on 3 March 2021 with the applicant, introduced the applicant to Ms Carter, and said to the effect that the applicant will be looking after the Property on Mr El-Ekdawy's behalf and would pay the rent; and

(2) do not accept the applicant's evidence that he told Ms Carter that he had purchased "the farm" from Mr El-Ekdawy or that Ms Carter handed him the Notice of Assignment or any other form to give effect to a transfer of the Lease.

1. Further, because of the issues with the notice of assignment document referred to above and Mr El-Ekdawy unexplained failure to give evidence, I am not satisfied that Mr El-Ekdawy has signed the Notice of Assignment or sold a farming business to the applicant for $120,000.00 in or around March 2021.
2. Consistent with those findings, the Agents records throughout 2022 and 2023, continued to record Mr El-Ekdawy as the tenant.
3. I therefore find, that to the extent relevant, in so far as the applicant occupied the Property, worked at the Property and attended the Agent's office to pay rent from March 2021, he did so on behalf of Mr El-Ekdawy and that it was Mr El- Ekdawy who had a right to use or occupy the Property under the Lease.

From the purchase of the Property in October 2023 by the respondent to January 2024.

1. The respondent purchased the Property from former owner on 27 October 2023.
2. A letter from the former owner's solicitors dated 25 October 2023 to Mr El-Ekdawy states:

We act for [the former owner], the owner of the above property.

On 27 October 2023 the property was sold to Gurner Avenue 95 Pty Ltd

You should continue 2 pay rent and other payments due to the landlord (including outstanding water usage charges you have been invoiced of $4,669.15) as before to your Local Real Estate unless directed otherwise by the purchaser.

1. The fact of that letter is consistent with and fortifies my view that the Lease had not been assigned to the applicant and it was Mr El-Ekdawy (not the applicant) who had the right to occupy the Property under the Lease.
2. On 24 October 2023, Phillip Scott emailed the agent stating:

.. Crown land is due to settle this property on Friday and will like to keep your firm on as managers for the short term. We anticipate requiring the tenant to vacate by end of January 2024.

...

Can you send through a management agreement noting that we wish to terminate and have vacant possession end of Jan or early Feb 2024.

1. On 30 October 2023, Mr. Scott emailed the agent stating:

Please be advised we completed purchase of the property on Friday 27/10/23.

Can you inquire with the tenant about the payment of the water bill and whether they are a primary producer. It is advantageous to us to keep a primary producer tenant in place over the new year for land tax benefits. We may be able to come to a commercially beneficial position for the tenant if they continue farming operations over the new year and we are able to benefit from a land tax exemption.

1. A written exclusive management agency agreement between the Agent and the respondent, in respect of the Property commenced on 28 October 2023, but was not signed until 18/1/2024.
2. There is a dispute between Ms Carter and the applicant in respect of a conversation or conversations between them in November 2023.
3. The applicant says there was a conversation in which the following was said:

Applicant: I want to start regrowing. Prepare the ground. Repair the plastic on the greenhouse.

Ms Carter: The owner will not be needing the land for another 12 months. Afterward it will require the land.

Applicant: Ok. This gives me time to change soil, and irrigation, fix the damaged plastic, prepare the heaters and gas, and purchase plant seedings.

Ms Carter: Ok

1. Ms Carter says that she had a conversation with the applicant when he attended the agency during which she informed the applicant that:

(a) it was uncertain how long he would be able to remain at the property;

(b) the new owner estimated that they would need the property to be vacated from anywhere between three months to twelve months, but we could not provide a definitive time frame; and

(c) he should consider looking for alternative land if he wished to continue operating his market garden.

1. She also says that the applicant informed her that he intended to start regrowing cucumbers and had already begun the process.
2. An email from the Ms Carter to Mr Scott on 6 November 2023 states:

Tenant has advised that he is happy to stay at the property.

Tenant is sublessee and has arrangement to pay $1000 per week off rent and water bills.

Please supply the following details, names, address, phone and email as well as bank details for the management agreement.

1. Miss Carter says that on 30 November 2024, after receiving instructions from Mr. Scott to issue a notice of termination in respect of the Lease for the Property that she contacted the applicant to inform him that the Lease was going to be terminated and that he would need to vacate the Property, and that following that telephone call, the applicant attended the office of the Agency on 30 November 2024 and informed her that he had paid $15,000 for seeds which he had planted and would have trouble removing them without the destruction of the crop and that he wanted compensation for that amount.
2. The applicant in his second statement refers to this conversation and says that from his preliminary discussions with Ms Carter in or around November 2023 he understood that he "had a 12 month lease from thereon" and that he invested further in the farm "on reliance that [he] had a further 12 months" including fixing the greenhouses, purchasing seeds, purchasing fertiliser, preparing the soil and outlaying the crops.
3. An email from Mr Carter to Mr Scott on 30 November 2023 states:

With regards to the tenant vacating, I rang him, and he called into the office.

When we spoke on the phone previously, you told me that tenant could remain at the property anywhere from 3 to 12 months as this would be good for you tax wise.

Based on that information the tenant has outlaid $15,000 on seeds which he has now planted and will have trouble removing without the destruction of the crop.

The tenant is looking for a property to move to and is also requesting compensation for the money he has outlaid.

Please get back to us at your earliest convenience.

1. A reply email from Mr Scott to Ms Carter on 30 November 2023 states:

1. Ms Carter says that on 1 December 2023 she delivered a Notice of Termination by placing it in the letter box at the Property. She said it was addressed to the applicant because she had been named as a contact person for the tenant. It states:

NOTICE OF TERMINATION

Residential Tenancies act 2010 (the Act) - sections 84089

...

To the Tenants: Further Information about your rights and obligations can be found in your Residential Tenancy Agreement.

VACANT POSSESSION

The tenant will deliver up vacant possession of the premises on: 29th February 2024 (Termination Date)

REASON FOR TERMINATION OF TENANCY AGREEMENT

Premises are being sold, and vacant possession is required - Section 86 of the Act.

1. The applicant says that he did not receive the Notice of termination.
2. Ms Carter says that following the issuing of the Notice of Termination, the applicant attended her office in early December 2023 with a friend, who acted as a translator, at which time the termination of the Lease was discussed, and Mr Carter informed the Applicant that he had until the end of February 2024 to vacate the Property. The person who attended as the applicant's translator was not called to give evidence.
3. In his second statement, the applicant also says that in late December 2023 or early January 2024, he attended Ms Carter's office, at which time:
   • Ms Carter said that the landlord requires the land and that the applicant must vacate;
   • he responded that he cannot leave now because he has spent in excess of $30,000.00 in outlaying new crops and works on the premises; and
   • Ms Carter replied that she see what the owners says and come back to him.
4. Ms Carter says that she had a further conversation with the applicant in mid-January 2024 when she says she told him that he needed to vacate the property by the end of February.
5. The parties are in dispute as to the conversation or conversations between the applicant and the respondent in November 2023 regarding the respondent's intentions with the Property, and more particularly whether the conversations gave rise to an agricultural tenancy pursuant to which the applicant had a right to occupy the Property for 12 months or included representations to the effect the applicant had a tenancy and a right to occupy the Property for 12 months, which the responded is estopped from denying.
6. In respect of that dispute, the applicant in addition to relying on his evidence in chief, submits that:

(1) having regard to:

(a) evidence given by Mr Scott including that:

(i) he had discussed with Ms Carter, allowing the tenant up to 12 months further on the Property provided they engage in primary production and subject to be being able to benefit from a primary production tax benefit; and

(ii) that by 29 November the respondent no longer wanted to consider the tax benefit arrangement and wanted to terminate the Lease; and

(b) Ms Carter's evidence:

(i) that the applicant had asked for invoices to be issued in his name and handwritten receipts were issued to him;

(ii) that in a November conversation, the applicant informed her that he intended to start regrowing cucumbers and had already begun the process;

(iii) that the applicant had advised her that he was happy to stay at the Property;

(iv) that it was not normal practise to serve a termination notice on an employee of a tenant;

(v) that she may have said that the new landlord wants to keep the farm for tax reasons;

(vi) that she told the applicant that the respondent is looking to keep the farm there, one month, two months may be longer, until approval is given and that "it could be as long as 12 months"; and

(vii) that in emails with Mr Scott, she referred to the applicant as the tenant and said the "tenant is sublessee and has arrangement to pay $1000.00 per week off rent and water bills"

(2) the Tribunal should find that Ms Carter was instructed by Mr Scott to put an offer to the applicant and that the terms of the offer from the respondent was that provided the applicant perform primary production work on the Property, he could stay for a further 12 months (AS [19]) and that an offer in that form was made and accepted.

1. The applicant also says that he engaged a business named AR Fresh Produce to enter a share farming arrangement whereby he would provide his fresh produce to AR Fresh and divide the sales return. No one from "A R fresh Produce" was called to give evidence and the only documents relied on in support of that arrangement was two tax invoices issued by AR Fresh Produce on 30 May 2024. The applicant does not rely on that relationship in its submissions and in my view the evidence in respect of an arrangement with AR Fresh Produce does not assist the Tribunal in considering whether a tenancy arose, and if so, its terms.
2. The respondent, in addition to relying on the evidence of Ms Carter submits that having regard to:

(1) the applicant's reliance on a translator app to covert what Ms Carter said into Arabic without evidence as to the reliability or quality of the transaction;

(2) the applicant's evidence in cross examination in response to questions regarding what would happen if rent stopped being paid;

(3) the unreliability of the applicants apparent reliance on the words "12 months" using a translator app as giving rise to a tenancy or representation that he could stay on the Property for a further 12 months; and

(4) the applicant's evidence of having been looking for other properties in by the end of November 2023,

(5) the emails exchanged between Ms Cater and Mr Scott in October and November 2023;

the Tribunal should not accept the applicant's evidence in contentious areas unless inherently plausible or independently corroborated.

1. Because the applicant and the respondent were not in dispute as at the end of October or early November 2023 or when Ms Carter first spoke with the applicant regarding the respondent as the new owner of the Property in or around 6 November 2023, having regard to Ms Carter's 6 November email to Mr Scott and the applicant's and Ms Carter's evidence of looking for alternative properties for the applicant in later November, I do not accept the applicant's evidence of the discussion he says he had with Ms Carter in or around November 2023 at [37] of his first statement to the effect that:

(1) an offer was made and accepted that provided he do primary production work on the Property, he could stay for a further 12 months; or

(2) that the discussion gave rise to a representation that provided he do primary production work on the Property, he could stay for a further 12 months, such that the respondent is estopped from denying the existence of an agreement to that effect.

1. In my view, having regard to the emails exchanged between Ms carter and Mr Scott at that time, the discussion went no further than Ms Carter informing the applicant that the respondent would need the Property to be vacated from anywhere between three months to twelve months, but that the respondent could not provide a definitive time frame, that he should consider looking for alternative land if he wished to continue operating his market garden, and that the applicant stated that he was happy to stay at the Property.
2. I am therefore not satisfied that the discussions between the applicant and Ms Carter on behalf of the respondent gave rise to lease or licence, an agreement for a lease or licence, a tenancy at will or a share farming arrangement or any other arrangement by which the applicant had a right to occupy or use the Property.
3. And even if it gave rise to an arrangement for the applicant to occupy or use the Property, it was not for a period of 12 months, and at its highest could only have been an informal arrangement, on a month to month basis, until the respondent determined what it was going to do with the Property, and subject to the applicant performing primary production at the Property and the payment of rent and outgoings.
4. In respect of Issue1, I therefore find that the applicant and respondent were not parties to a lease or licence, an agreement for a lease or licence, a tenancy at will or a share farming arrangement or any other arrangement between the applicant and the respondent (whether as a matter of law or equity) pursuant to which the applicant had a right to occupy or use the Property.
5. In the event I am wrong in respect of Issue 1, in so far as Issue 2 is concerned:

(1) the highest any arrangement could be put was that an informal arrangement was in place to the effect that the applicant could occupy the Property on a month to month basis, until the respondent determined what it was going to do with the Property, subject to him undertaking primary production and the payment of rent and outgoings; and

(2) whatever the arrangement, it did not include an entitlement or a right to occupy the Property for 12 months.

1. It follows from my findings in respect of Issues 1 and 2 that the application should be dismissed.
2. I am also satisfied that Ms Carter informed the applicant in late November 2023 that the Lease was going to be terminated and that he would need to vacate the Property, and on 1 December issued the Notice of Termination and left it at the Property.
3. Although the applicant disputes receiving the Notice of Termination, he refers to but does not dispute that:

(1) Ms Carter contacted him in late November and told him that the Lease was to be terminated and that he would need to vacate the Property; and

(2) he attended Ms Carter's office and said that he had paid $15,000.00 for seeds which he had planted and wanted compensation.

1. Because of my findings in respect of the early November conversation or conversations, in respect of Issue 3, it follows, that Ms Carter's conduct in:

(1) informing the applicant that the Lease was being terminated and that he would have to vacate the Property; and

(2) issuing the Notice of Termination

was not in breach of any agricultural tenancy between the applicant and the respondent or conduct contrary to any representation made by Ms carter.

1. On 1 March 2024, the respondent's agent emailed a Notice to Vacate from the respondent to the applicant at adhamali.1973@gmail.com. It states:

Notice to Vacate

Commercial lease agreement 135 (95) ...

I am writing as the representative of Gurner Ave 95 Pty Ltd, The registered proprietor of the property which has been under the commercial lease agreement to you from 2/12/2019. I am issuing you this notice to vacate.

Clause 3.2 of the agreement allows us to terminate the lease upon giving one months' notice.

The lease is now at an end. I'm asking you to immediately settle your rent all obligations and outgoings for water rates and other utilities connected for your use, remove your possessions, clean and vacate the property.

This letter is to inform you that all utility connections to the property will be disconnected on 9/3/2024.

You must remove All your possessions from the property and clean the lease area before 8/3/2024 after which time the property will be secured and remaining items will be disposed at your expense in accordance with the lease...

1. An email from Mr Scott to Ms Carter on 12 March 2024 stated:

Please serve the attached breach notice, notice to vacate and notice of termination to Mr El-Ekdawy and inform him that he must vacate the property and remove his positions and equipment immediately.

We will be instructing a contractor to erect secure fencing and disconnect utility services after 18/3/24. We will commence legal proceedings if he has not vacated by 18/3/24.

1. Ms Carter says that the applicant attended her office on 13 March, at which time she handed him copies of a Breach Notice, Notice to Vacate and Notice of Termination. Consistent with that evidence emails exchanged between Mr Scott and Mr Carter on 12 and 14 March (CB 423 to 425) refer to "the tenant" attending on 13 March and Ms Carter handing the notices to him.
2. The Breach Notice was addressed to Mr El-Ekdawy and stated.

Breach notice;

Commercial lease agreement 135 (95) Gurner Ave Austral

...

Clause 3.2 of the agreement allows us to terminate the lease upon giving one month's notice. You were served with a notice of termination by hand on 1/12/2023 (attached). The notice informs you of the date for vacant position of 29 February 2024....

A notice to vacate was issued to you dated 1 March 2024 via email and through the agent, (attached). This informed you that you had until 9/3/2024 to remove all your possessions and equipment from the property. We, our staff member and demolition contractor, met you on site, you indicated you had received the Notice to Vacate and had no intention to leave or comply with the notice.

You are on breach of the lease agreement, Notice of Termination and Notice to vacate...

You must immediately vacate and remove your possessions. This letter is to inform you that all utility connections to the property will be disconnected, and the property will be secured to prevent your access from 18/3/2024.

1. The applicant says that the only notice he received was the Notice to Vacate dated 1 March 2024 and that he was in an advanced stage of farming by that stage. A difficulty I have with that evidence is that he attended Ms carter's office in early December and sought compensation of $15,000.00 and, does not dispute that he was informed by Ms Carter at the end of November and into January and February, that he was required to vacate the Property.
2. Thereafter the applicant and the respondent were in dispute as the respondent took steps to take possession of and remove the applicant from the Property.
3. Although not entirely clear, it appears to have included:

(1) The respondent issuing a Notice of Lockout dated 21 March 2024 and a Notice to remove possessions dated 3 April 2024;

(2) Police attending the Property on about 3 April 2024'

(3) Security personnel or other contractors engaged by the respondent attempting to lock the applicant out of or remove the applicant from the Premises, which included the applicant being locked out on about 4 May 2024.

(4) Orders being made by the Tribunal on 31 May 2024 for the respondent is to provide access to the Property for the purpose of the applicant removing his chattels from 8 am to 4 pm on 3,4 and 5 June 2024 and if possible, from 8am to 1pm on 1 June 2024.

(5) The applicant attending on 3, 4 and 5 June 2024.

1. Having regard to my findings in respect of Issues 1, 2 and that the giving of notice of termination in November and December 2023 could not have been in breach of any arrangement even if one had arisen, I further find in respect of Issue 3, that even if an arrangement for the applicant to occupy the Property did exist, the conduct of the respondent in issuing the further notices in March 2024 and evicting the applicant from the Property between March and June 2024 was also not in breach of any agricultural tenancy between the applicant and the respondent or conduct contrary to a represented entitlement of the applicant to occupy the Property for 12 months from November 2023.
2. Because of my findings in respect of Issues 1,2 and 3, the application will be dismissed and there is no need to consider the applicant's claim for loss and damages.
3. However, if I have erred and for reasons of completeness, I will also consider the applicant's claim for damages and / or compensation damages under the AT Act.

1. In respect of "Damages/ Compensation", the applicant submissions:

(1) Refer to Schedule A of its submissions which identifies items the applicant says were destroyed, the evidence where the applicant says the relevant items are mentioned and if appropriate, the replacement cost claimed (AS [65]);

(2) Submit that the loss and damages arises because of the destruction of items by the respondent's contractors in breach of the agricultural tenancy, including an entitlement to quite enjoyment (AS [68]); and

(3) Submit that the appropriate measure of damage is (the cost to replace) those items lost because of their destruction by the respondent where it had no right to do so because the applicant was still entitled to occupy the Property (AS [69]).

(1) The Tribunal could not be satisfied that any of the chattels on the Property that were destroyed belonged to the applicant;

(2) There was no evidence as to the purchase of any of the items which it is claimed were destroyed or how they came to be on the Property;

(3) That an inference should be drawn from the failure to call Mr El-Ekdawy that he would not have given evidence to assist the applicant as to who owned the items on the Property;

(4) That the applicant had no documents to support the claim for damages;

(5) The applicant has sought to mislead the Tribunal by responding in a letter to the Tribunal in response to the Summons that to the extent documents would have bene available they would have been destroyed by the respondent on its re-entry of the Property and the destruction of structures.

1. The applicant submits in reply to the effect that the respondent's submission that because the applicant cannot find records to support the loss and damage claim and had said that that they were destroyed amongst other documents at the Property when the respondent re-entered and destroyed structures on the property the applicant should not be accepted, should be rejected. (ARS [20] to [25]).
2. The Schedule A at (AS p 20) identifies items claimed, provides evidence references and states the amount claimed for the item.
3. The evidence references are to:

(1) A Quote at CB 187 dated 29/05/2024 from Manz Greenhouse Supplies & Services Pty Ltd to the applicant identifying items and a price. The total quoted price is $489,150.20.

(2) Photos of the Property including of machinery, rubbish, crops said to have been destroyed and what was described as the destruction and dumping of materials and structures.

1. The name of the person who prepared the quote is not identified on the quote and there is nothing in the quote to identify where the unit price of an item or the quantity of items quoted for was obtained from. I would therefore place no weight on the quote in considering whether the applicant had suffered and loss.
2. Further, the applicants submissions did not point to any evidence of when particular items said to have been destroyed were installed, the circumstances of their instillation or the cost of instillation. Further in respect of the structures, because I have found that I am not satisfied that the applicant purchased a farming business operating on the Property, it is not open to me to simply infer that the applicant owned whatever structure was on the Property.
3. Although not referred to in its submissions in respect of the calculation of damage, the only other financial record relied on by the applicant were remittance slips dated 30 May 2024 from AR Fresh for $8.204 and $11,745.00.
4. Putting to one side that no one from AR Fresh was called to give evidence, because they are dated 30 May 2024 being well after the applicant was clearly notified that he was to vacate the property, I do not see how they assist the applicants case.
5. Having regard to the number of items claimed and the amount claimed, I do not accept that the reason that there is no other documents to support the claim for damages is that they would have been destroyed when the respondent re entered the Property and destroyed structures on the Property.
6. Because of the lack of any contemporaneous business records to support the applicants claim of having purchased or installed any of the items listed in Schedule A to the applicants submissions, and the lack of any identification in the applicants submissions of evidence to otherwise support a finding that the applicant installed or purchased or was otherwise he owner of the items claimed, I would not be satisfied that the applicant has suffered any loss or damage.
7. Therefore, even if I have erred with respect of issues 1,2 and 3, because of:

(1) My finding that I am not satisfied that the applicant purchased a farming business operating on the Property;

(2) The lack of evidence:

(a) to support a finding that the applicant installed or purchased or was otherwise the owner of any of the items in Schedule A; or otherwise

(b) to enable the Tribunal to understand what the information in Schedule A was based on; and

(3) My findings in respect of the applicant's evidence that any documents would have been destroyed when the respondent entered the Property and destroyed buildings,

the evidence is not capable of satisfying the me on the balance of probabilities that the applicant suffered any loss.

1. For the foregoing reasons the application will be dismissed.
2. The Tribunals orders will be:

(1) The application is dismissed.

(2) In the event any party seeks a costs order different to that set out at 3,

(a) They shall file and serve their submissions and any evidence relied on in respect of costs within seven [7] days after the date of publication of these orders;

(b) Any submissions or evidence in response are to be filed and served with 7 days thereafter;

(c) Any costs submissions are to state whether or not the party agrees to the question of costs being determined on the papers, and if not why.

(3) If no submissions are filed in respect of costs, the applicant is to pay the respondent's costs, as agreed or assessed on the ordinary basis.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.