Appellant v Respondent

EVIDENCE - Failure to call witness - Rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - Does not apply against a defendant until the plaintiff has proved a case for the defendant to answer - Does not require a party to give cumulative evidence - Tenth Vandy v Natwest Markets Australia [2012] VSCA 103; (2012) VConvR 64,366 - Does not directly apply to Victorian Civil and Administrative Tribunal proceedings - Maund v Racing Victoria Ltd [2016] VSCA 132 - Victorian Civil and Administrative Tribunal not compelled to apply rule - Manly Council v Byrne [2004] NSWCA 123 - Rule only applies where the missing witness would be expected to be called by one party rather than another - Payne v Parker [1976] 1 NSWLR 191 - An adverse inference may only be drawn where failure to call witness is not satisfactorily explained - Cadwallader v Bajco Pty Ltd [2002] NSWCA 328.

PRACTICE AND PROCEDURE - Appeal to the trial Division of the Supreme Court of Victorian from the Victorian Civil and Administrative Tribunal - Where error alleged by appellant would not have changed the decision of the Victorian Civil and Administrative Tribunal - Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587 - Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 - Victorian Civil and Administrative Tribunal Act 1995, s 148.

1 This proceeding has been brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). The Appellant, Primrose Meadows Pty Ltd (ACN 089 757 755) ("the Landlord"), is seeking to appeal the orders of the Victorian Civil and Administrative Tribunal ("the Tribunal" or "VCAT") constituted by Senior Member L Forde, dated 18 October 2018 in proceeding number BP1247/2016. The Tribunal published reasons for the making of these orders.[1]

2 The Landlord is the owner of premises known as the Lincolnshire Arms Hotel ("the Hotel") at 1 Keilor Road, North Essendon ("the Premises"), which was leased to the Respondent, River View Pty Ltd (ACN 071 155 943) ("the Tenant"). The terms of and the manner of creation of the various leases of the Premises to the Tenant is discussed in the reasons which follow. It is sufficient for present purposes to observe that it is common ground that the leases of the Premises are leases to which the provisions of the Retail Leases Act 2003 ("the RLA") applies.

3 In term of its tenancy, the Tenant claims that it exercised the second option in its lease and sought a declaration to that effect, as well as specific performance of an agreement for lease commencing 2 September 2016.

4 The Landlord, on the other hand, denies that the Tenant did validly exercise the second option or that it is entitled to specific performance of an agreement for lease. The Landlord counterclaimed, seeking a declaration that the rent for the term of the lease commencing 2 September 2011 be determined by a specialist retail valuer under the provisions of the RLA and that the Tenant pay any shortfall between the rent paid during the term and the rent determined by the specialist retail valuer. The Landlord further sought orders that terms of settlement entered into as a result of a mediation under the auspices of the Small Business Commissioner ("the Small Business Commissioner mediation" or "the mediation") and the consequent Lease by Renewal be set aside, thus leaving the Tenant on monthly tenancy. The Landlord also sought orders that the Tenant paint the Hotel and pay damages and costs.

A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

...

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

It follows from this provision that any appeal is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that "VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal."[2] It follows that "[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal."[3]

6 The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position. As Pagone J said in Commissioner of State Revenue v Frost:[4]

The requirement for leave under s 148(1) of the [VCAT Act] "is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the court do found the subject matter of the appeal".[5] It also confers a discretion about whether to grant leave[6] which an applicant must persuade the court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.[7] It will ordinarily be necessary (in addition to a clearly articulated question of law)[8] for an applicant to make out a prima facie case[9] and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[10]

7 An additional safeguard has since been imposed. Effective from 1 May 2018, the VCAT Act was amended to include s 148(2A).[11] The section provides:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

8 This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the trial division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists,[12] sometimes referred to as the Hulls test.[13] Instead, all applicants under s 148 are now subject to the same and more burdensome requirement: they must demonstrate that the appeal has a real prospect of success.[14] With respect to applications subject to the same test,[15] the Court of Appeal has said:[16]

the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success; that the "real chance of success" test is to some degree a more liberal test than the "hopeless" or "bound to fail" test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not "hopeless" or "bound to fail", it does not have a real prospect of succeeding.

9 The new requirement of s 148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT, a restraint long and more generally recognised in case authority. In considering applications of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:[17]

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[18] The focus of attention is on the substance of the decision and whether it has addressed the "real issue" presented by the contest between the parties.

Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:[19]

This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal's decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[20] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[21] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[22]

Additionally, "[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons."[23]

10 In terms of the parties' submissions, it is clear from the authorities to which reference has been made that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.

11 For the reasons which follow, I am not satisfied that the Appellant has established that the appeal has a real prospect of success. Consequently, for the reasons which follow, leave to appeal is refused. Moreover, as these reasons indicate, any appeal would have failed in any event, even if leave to appeal were to have been granted.

12 As set out in the Tribunal's reasons, the parties agreed background facts, as follows:[24]

(i) The tenant operated a hotel from the premises since 1996 under a lease (original lease);

(ii) The landlord purchased the premises in 2000;

(iii) In 2001 the tenant exercised an option under the original lease;

(iv) In 2006 the tenant exercised a second option under the original lease;

(v) The parties did not agree on the rent for the second option period. Warren Young of Ronald Young & Co was appointed to determine the rent. The market value was determined to be $420,000 per annum plus GST. This was less than the preceding year's rent;

(vi) Mr O'Halloran and Mr D'Anna had a difficult relationship since the rental determination with Mr D'Anna avoiding all direct contact with Mr O'Halloran and not responding to correspondence. Mr D'Anna usually had a representative acting for him in dealings with the tenant;

(vii) On 7 February 2007, a lease following the second option exercise was entered (lease) for a term of five years commencing 2 September 2006 and expiring 1 September 2011 with eight options for further terms of five years;

(viii) The Retail Leases Act 2003 (RLA) applies to the premises;

(ix) By letter dated 31 January 2011, the tenant sent a letter to the landlord exercising the first option in the lease;

(x) On 14 December 2011, the landlord's solicitors MNG Lawyers (MNG) sent the tenant three copies of a document entitled "Lease by Renewal" (Lease by Renewal) with a commencement rent of $520,000 per annum plus GST;

(xi) The tenant disputed the rent and sought a determination of the rent. The landlord did not participate in the rental determination. In April 2012, the tenant made an application to the SBC to refer the dispute primarily about rent to mediation;

(xii) On 19 June 2012, Mr O'Halloran attended mediation at the SBC. Mr Straussman attended the mediation and said he was representing the landlord. Mr D'Anna did not attend the mediation;

(xiii) On 19 June 2012, the tenant entered into terms of settlement to resolve the dispute (terms of settlement) at the SBC mediation. The signed terms of settlement annexed the Lease by Renewal which had handwritten alterations to, amongst other matters, the commencement rent. The rent had been altered from the typed figure of $520,000 to $390,000. The tenant claims that the terms of settlement (which required a new lease in the same terms as the Lease by Renewal with alterations) are binding on the landlord. As the landlord's authorised agent, Mr Straussman attended the mediation and signed the terms of settlement on behalf of the landlord. The landlord's position is that Mr Straussman had no authority to sign the terms of settlement and the terms of settlement do not bind the landlord;

(xiv) From June 2012 the landlord issued tax invoices for rent of $390,000 plus GST per annum and the tenant paid the amount on the tax invoices;

(xv) By letter dated 27 May 2016 to the landlord, the tenant exercised the second option in the lease.

The references to Mr D'Anna are to Mr Antonio D'Anna, who is, or was at all relevant times, a director of the Landlord, and the references to Mr O'Halloran are references to Mr John O'Halloran, who is, or was at all relevant times, a director of the Tenant.

13 In this context, the Landlord claims it is entitled to have a rental determination following the exercise of the option on 31 January 2011 and says, further, that it is not bound by any agreement reached at the Small Business Commissioner mediation. The Tenant contends that, by the exercise of the option on 27 May 2016, the Landlord and the Tenant are parties to an agreement for lease on the terms of the lease as varied by the Lease by Renewal for a further term of five years commencing on 2 September 2016. The Landlord says, however, that the option was not validly exercised on 27 May 2016 as the Tenant was in default and is holding over on a monthly tenancy.

14 By way of further background, the Tribunal Reasons[25] record that Mr D'Anna says that Mr Straussman is currently incarcerated for fraud-related offences. Moreover, Mr D'Anna says that he was the victim of fraud perpetrated by Mr Straussman, having paid Mr Straussman in excess of $200,000 to assist his business affairs.

15 The Notice of Appeal filed on 14 November 2018 identifies the orders sought by the Appellant in the following terms:

1. The orders of Member Forde made on 18 October 2018 are set aside;
2. The Supreme Court of Victoria declare that the Respondent had no valid lease, was overholding and was not entitled to a further lease of the premises or alternatively, the matter be remitted to the VCAT (to a member other than Member Forde) to be determined according to law; and
3. Costs.

16 The Appellant, the Landlord, seeks leave to appeal on the following questions of law:[26]

1. Was the weight of the respondent's evidence impacted by their failure to call Mr Straussman when they were relying upon the representations and conduct of Mr Straussman?
2. Can there be an agreement to lease when there had been no agreement on the rental payable during the term?
3. Does an agent have to have authority, actual or ostensible to bind their principal to terms of settlement?
4. Was there any evidence upon which a tribunal acting reasonably could have held that the agent had authority, actual or ostensible to bind their principal to terms of settlement?
5. Does an agent in signing terms of settlement that bind their principal to execute a lease, have to authorised in writing in accordance with s 126(1) of the Instruments Act?
6. Was it relevant that the tax invoice, lease by renewal and disclosure statement [were] issued in accordance with the terms of settlement?
7. Was the tenant in possession pursuant to an equitable lease, or overholding pursuant to an expired lease?
8. Was VCAT obliged in law to take into account and/or make a determination and/or provide proper reasons in respect of the following matters:

1. in assessing the weight of the respondent's evidence, that the respondent failed to call Mr Straussman to give evidence, when the respondent was relying upon the representations and conduct of Mr Straussman; 2. in assessing the weight of the respondent's evidence, the respondent failed to call the mediator who allegedly received all 3 copies of the lease by renewal and thereby could testify that the applicant had not executed any of the lease by renewal as claimed by the applicant and denied by the respondent;

1. the respondent is a practising solicitor who was aware that an agent should be lawfully authorised in writing;

1. an agent could not have entered into the terms of settlement without being authorised in writing to do so as required by s 126 of the Instruments Act; 2. an agent required authority, actual or ostensible, to enter into terms of settlement on behalf of their principal; 3. the lease by renewal was not marked with the date of receipt in accordance with the usual practice of the respondent; 4. the respondent altered the lease by renewal, after he executed them by adding the date 21 June 2012; 5. the Reply and Defence to Counterclaim dated 11 December 2017 alleged that the lease by renewal was delivered on 21 June 2012 as opposed to 26 June 2012, according to the evidence of the respondent and his witnesses; 6. the changes to the lease by renewal was not initialled by the applicant; 7. the date of receipt upon the disclosure statement had been altered; 8. in an email dated 17 August 2016, the respondent claims that the disclosure statement was delivered days after the lease by renewal was executed which was contrary to his evidence and that of his witnesses, that they were delivered on the same date;

1. the respondent wrongly gave evidence that he had a cooperative/business relationship with the applicant, when the applicant would not deal with him.

17 The Applicant, the Landlord, asserts that the Tribunal erred in law in:[27]

1. The VCAT erred in law in assessing the weight of the respondent's evidence in failing to take into account that the respondent failed to call Mr Straussman to give evidence, when the respondent was relying upon the representations and conduct of Mr Straussman.
2. The VCAT erred in law in holding that there was an agreement to lease when there had been no determination of the rental payable during the term of the lease, as the terms of settlement did not bind the applicant.
3. The VCAT erred in law in holding an agent could sign and bind its principal to terms of settlement without determining whether the agent had authority, actual or ostensible, to enter into terms of settlement.
4. The VCAT erred in law in holding an agent could sign and bind its principal to terms of settlement when there was no evidence that a tribunal acting reasonably could accept that the principal had provided its agent with authority, actual or ostensible, to enter into terms of settlement.
5. The VCAT erred in law in failing to make a determination as to whether an agent in signing the terms of settlement that bound their principal to execute a lease, had to be authorised in writing to do so pursuant to s 126(1) of the Instruments Act.
6. The VCAT erred in law in holding that it was relevant that the tax invoice, lease by renewal and disclosure statement was issued in accordance with the terms of settlement and could be relied upon to bind the principal to the terms of settlement.
7. The VCAT erred in law in holding that if the terms of settlement and lease by renewal were not valid that the tenant would have an equitable lease as opposed to have overheld.
8. The VCAT erred in law in failing to take into account and/or making a determination and/or providing proper reasons in respect of the following matters:

1. in assessing the weight of the respondent's evidence, that the respondent failed to call Mr Straussman to give evidence, when the respondent was relying upon the representations and conduct of Mr Straussman; 2. in assessing the weight of the respondent's evidence, the respondent failed to call the mediator who allegedly received all 3 copies of the lease by renewal and thereby could testify that the applicant had not executed any of the lease by renewal as claimed by the applicant and denied by the respondent;

1. the respondent is a practising solicitor who was aware that an agent should be lawfully authorised in writing;

1. an agent could not have entered into the terms of settlement without being authorised in writing to do so as required by s 126 of the Instruments Act; 2. an agent required authority, actual or ostensible, to enter into terms of settlement to bind their principal; 3. the lease by renewal was not marked with the date of receipt in accordance with the usual practice of the respondent; 4. the respondent altered the lease by renewal, after he executed it by adding the date 21 June 2012; 5. the Reply and Defence to Counterclaim dated 11 December 2017 alleged that the lease by renewal was delivered on 21 June 2012 as opposed to 26 June 2012, according to the evidence of the respondent and his witnesses; 6. the changes to the lease by renewal was not initialled by the applicant; 7. the date of receipt upon the disclosure statement had been altered; 8. in an email dated 17 August 2016, the respondent claims that the disclosure statement was delivered days after the lease by renewal was executed which was contrary to his evidence and that of his witnesses, that they were delivered on the same date;

1. the respondent wrongly gave evidence that he had a cooperative/business relationship with the applicant, when the applicant would not deal with him.

Grounds 1 and 8(a) - Adverse inference from not calling Mr Straussman

18 The Landlord contends that the Tribunal erred by failing to take into account that the Tenant did not call Mr Straussman to give evidence in circumstances where it relied upon representations and conduct of Mr Straussman in support of its claim. The Landlord submits that the Tribunal should have drawn an inference that the evidence of Mr Straussman would not have assisted the Tenant because the Tenant did not call him to give evidence, relying in this respect on the rule in Jones v Dunkel.[28] Moreover, on the same basis, the Landlord submits that the Tribunal should also more readily have drawn an inference against the Tenant upon issues upon which Mr Straussman could have given evidence because the Tenant did not call him to give evidence and, further, that Mr Straussman's absence was unexplained. This position is, the Landlord contends, strengthened by having regard to the Tenant's reliance upon the representations and conduct of Mr Straussman including, inter alia, liaising with the Small Business Commissioner, representing the Landlord in discussions, attending the Small Business Commissioner mediation, signing the terms of settlement dated 19 June 2012, together with the Tenant's pleading of its claim, Mr Straussman should have been regarded as "a key player in this case".[29] Although Mr Straussman might otherwise be said to be within the Landlord's "camp", it is submitted that in the particular circumstances this could not be taken to be the position, as the Landlord's solicitors had written to Victoria Police alleging that Mr Straussman committed fraud in attending the mediation and signing the terms of settlement without authority.[30]

19 The Tenant contends that neither of these grounds of appeal has a real prospect of success and advances, in detail, six reasons why this is the position. For the reasons which follow, I accept that this is the position with respect to these grounds of appeal. Nevertheless, at the outset, it is useful to make some general comments in relation to the application of the reasoning in Jones v Dunkel. In this respect, reference is made to the decision of the Court of Appeal in Tenth Vandy v Natwest Markets Australia, where Nettle and Neave JJA (with whom Bell AJA agreed) said:[31]

1. Finally, under Grounds 9 and 10, counsel for the appellant submitted that the judge erred by refusing to draw a Jones v Dunkel inference adverse to the respondent on the basis of the absence from the witness box of the witnesses which the respondent had proposed to call.
2. As to that aspect of the matter, the judge reasoned as follows:

Applying the reasoning in Jones v Dunkel, I am of the opinion that no inference can be drawn in the present circumstances unless and until the party bearing the burden of proof of its case (the plaintiff) has by the evidence it relies upon established a case for the defendant to answer. If and when the plaintiff were to establish its case, then the defendant may, if it did not call evidence to rebut the case, be left in the position of arguing its case against the plaintiff's unchallenged or uncontradicted evidence. This may of itself, or with the aid of inferences according to the rule in Jones v Dunkel, establish the plaintiff's case. However, I am of the opinion that the rule in Jones v Dunkel may not be resorted to by a party, in effect, to fill in the facts of its case before the threshold for the operation of the rule is reached, as explained in the passage from the judgment of Windeyer J above.

1. With respect, there is no error in that analysis.

Thus, broadly speaking and as examined in further detail in the reasons which follow, the rule in Jones v Dunkel does not provide a means for a party to fill in the facts of its case before the threshold of the operation of the rule is reached and nor is it a rule which operates to require a party to give cumulative evidence.

20 I turn now to the more particular reasons as to why these grounds of appeal have no real prospect of success.

21 The first point made by the Tenant is that the rule in Jones v Dunkel is not directly applicable[32] as the Tribunal is not bound by the rules of evidence.[33] Where the rule has been applied by the Tribunal, the Supreme Court has on appeal considered whether the Tribunal erred in its application of it.[34] The present case differs because the Tribunal did not apply the rule: the alleged error is that the Tribunal should have, but failed to apply it. In Maund v Racing Victoria Ltd,[35] the Court of Appeal was called upon to determine whether the Tribunal erred by failing to apply the rule. In that case, the Court of Appeal said that there was no such error because "the Tribunal is not bound by the rules of evidence, so the principles stated in Jones v Dunkel were not directly applicable to the proceedings".[36] It does not, however, follow that the application of the rule in Jones v Dunkel may not arise as a result of the Tribunal's consideration of the probative value of evidence, applying analogous reasoning to the reasoning of the High Court in Jones v Dunkel.[37] In the present circumstances, however, an application of the rule by analogy in terms of testing the probative value of the evidence would not, in my view, support the Landlord's position. This is made clear in consideration of the application of the rule in the present circumstances, even assuming it was applicable.

22 Secondly, even if the rule were directly applicable, the Tribunal is not compelled to apply it. Thus, in Manly Council v Byrne, the New South Wales Court of Appeal said:[38]

Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences... Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences.

23 Thirdly, the rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence. This follows from the nature of the rule and the threshold required for its application, as is indicated by the Court of Appeal in Tenth Vandy.[39] It follows that, to the extent that the Landlord contends that the Tenant should have called Mr Straussman to corroborate its own evidence as to the representations and conduct of Mr Straussman, this ground must fail. In Manly Council v Byrne, the Court cited with approval a United States decision in which it was held that "[n]o inference arises against a party for failing to call a witness where such witness would only produce corroborative or cumulative evidence".[40]

24 Fourthly, I accept that it could not be expected that Mr Straussman should have been called by the Tenant rather than the Landlord. The rule in Jones v Dunkel applies only where the missing witness would be expected to be called by one party rather than the other.[41] Thus, in Payne v Parker, Glass JA said:[42]

The ... condition is also described as existing where it would be natural for one party to produce the witness: ... or the witness would be expected to be available to one party rather than the other: ... or where the circumstances excuse one party from calling the witness, but required the other party to call him ... or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him ... or where the witness' knowledge may be regarded as the knowledge of one party rather than the other ... or where his absence should be regarded as adverse to the case of one party rather than the other ... It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary ... If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so ... Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman ... his safety officer ... his accountant ... his treating doctor ...

[citations omitted]

25 In the present circumstances, it is necessary to examine the evidence and findings of the Tribunal in relation to Mr Straussman's relationship with the parties. Mr Antonio D'Anna, the director of the Landlord, gave evidence that he paid Mr Straussman $200,000 to deal with Mr John O'Halloran, the director of the Tenant, about the rent as well as to "do other things".[43] He also gave evidence that, at that time, Mr Straussman was his friend.[44] Mr D'Anna gave evidence that Mr Straussman was subsequently incarcerated for fraud-related offences and that he was a victim of Mr Straussman's fraud.[45] On the other hand, Mr O'Halloran only dealt with Mr Straussman as representative of the Landlord; and in around May 2013, Mr O'Halloran advised Mr D'Anna that he was not willing to have any further contact or communication with Mr Straussman.[46] At trial before the Tribunal, the Landlord sought to establish that Mr O'Halloran was somehow complicit in Mr Straussman's alleged fraud. However, the Tribunal found that this was "pure conjecture on his part" and that "[n]o evidence whatsoever was adduced in support of any allegation of wrongdoing or collusion by Mr O'Halloran".[47]

26 Moreover, as Mr O'Halloran, on behalf of the Tenant, only dealt with Mr Straussman as a representative of the Landlord, it could not be said that Mr Straussman was in the Tenant's "camp" or that there was any relationship of confidence between Mr Straussman and the Tenant. On the contrary, as contended by the Tenant, the Tribunal found on the evidence that Mr Straussman was in the Landlord's "camp", at least until Mr D'Anna learnt that Mr Straussman was a fraudster.[48]

27 Fifthly, the Tenant gave a satisfactory explanation for not calling Mr Straussman as a witness. The rule in Jones v Dunkel only permits an adverse inference to be drawn where the failure to call the person is not satisfactorily explained.[49] During cross-examination, Mr O'Halloran was asked why he had not called Mr Straussman to give evidence. Mr O'Halloran responded by saying, "I don't know him from a bar of soap ... It means I don't know anything about him. I don't know where he lives, don't know where he's in jail".[50] It is also submitted that given Mr Straussman's convictions for fraud-related offences, another justification for not calling Mr Straussman, is that the Tenant could not expect his evidence to be reliable. It is difficult to cavil with this position.

28 Sixthly, even if the Tribunal had taken into account that the Tenant did not call Mr Straussman as a witness, it would not have changed the Tribunal's decision.[51] The Tenant only relied upon Mr Straussman's representations and conduct to establish that Mr Straussman was authorised to enter into the terms of settlement on the Landlord's behalf. The Landlord claimed that it was entitled to an order that the rent for the period 2 September 2011 to 1 September 2016, the previous term, be determined by a valuer because it claimed that the terms of settlement and the Lease by Renewal - both of which recorded the agreed rent for the previous term - were void. Since both documents recorded the agreed rent for the previous term, the Landlord would only have been entitled to have the rent determined by a valuer if both the terms of settlement and the Lease by Renewal were found to be void. Therefore, even if the Tribunal's finding that the terms were binding is successfully challenged, the Landlord would still not be entitled to have the rent for the previous term determined by a valuer because the Landlord has not identified an error of law in respect of the Tribunal's finding that the Lease by Renewal was valid.

Grounds 2 and 7 - Lease in equity where no agreement or determination on rent

29 The Landlord contends that the Tribunal erred in holding that there was an agreement to lease and there had been no determination of the rent payable during the term of the lease, as the terms of settlement did not bind the Applicant. Thus it is said that the Tribunal should have held that, in the absence of a determination of the amount of the rental during the term of the lease, an essential term of the lease had not been agreed upon. Moreover, it is contended that the Tribunal should have held that, upon expiry of the term of an agreement for lease, the mechanism for determining the rental for a further term in the lease could no longer be activated and that the parties could no longer be obliged to refer to and participate in the determination of the rental by a valuer.[52]

30 The critical part of the Tribunal's reasoning in this respect is as follows:[53]

1. It is not disputed that the tenant exercised the option for a further lease term commencing 2 September 2011 to 1 September 2016.
2. There is a dispute over the validity of the lease document. If the terms of settlement are binding, the Lease by Renewal attached to the terms will govern the lease period. If the terms of settlement are not binding, the tenant will still have exercised an option but without agreement on the lease documents.
3. The tenant's right to exercise the option for a further term from 1 September 2016 is not dependant on there being a binding lease document in place. In the absence of a lease document, the tenant has the right in equity to exercise the option.

1. I find, for the reasons stated, that the tenant exercised an option for a further term of 5 years commencing 2 September 2016 and the tenant is entitled to a new lease for this period. I reject the proposition that the tenant is holding over on a monthly tenancy.

31 Putting aside for the moment the question whether or not the Tenant was in breach of the lease provisions and thereby disentitled to exercise the option to renew, the general position is that when a tenant exercises an option to renew a lease, the landlord becomes bound to grant, and the tenant becomes bound to take a lease of the premises upon the terms stipulated in the lease.[54] In this particular instance, the lease terms stipulate that the rental for the further term is to be agreed or, failing agreement, fixed by a valuer.[55] Moreover, it is clear that a lease in equity arises upon the tenant exercising an option to renew, even where the rent to be applied for the further term has not been agreed or determined.[56] In particular, in Todburn Pty Ltd v Taormina International Pty Ltd, Powell J said that:[57]

It now being accepted that the defendant did duly exercise the option to renew, it follows that, as from the date of receipt by the plaintiff of the defendant's notice of exercise of option, the parties were bound to grant, and to take, a lease, albeit that one of the terms - that is, the rent - remained to be fixed by a third party: see, for example, Godecke v Kirwin [1973] HCA 38; (1973) 129 CLR 629 ...; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600 ... This is so, first, because the executory agreement, even before the rent was agreed, or determined by the valuer to be appointed, was susceptible to a decree for specific performance in equity (see Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd, above), and this was certainly so once the rent had been fixed (see, for example, Dockrill v Cavanagh [1944] NSWStRp 52; (1944) 45 SR (NSW) 78; Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544) ...

32 In relation to the question whether or not there was a breach of the lease terms which would disentitle the Tenant to exercise the option to renew, the Tribunal reasoned as follows:[58]

1. The landlord contends that the tenant was in breach of the lease at the time it purported to exercise the option on 27 May 2016. The landlord says the option was not exercised. The landlord provided no evidence to the Tribunal of having issued notices of default to the tenant prior to 27 May 2016. The landlord did not provide evidence of the tenant having persistently defaulted under the lease prior to 27 May 2016.
2. Section 27 of the RLA provides

(2) If a retail premises lease contains an option exercisable by the tenant to renew the lease for a further term, the only circumstances in which the option is not exercisable is if -

(a) the tenant has not remedied any default under the lease about which the landlord has given the tenant written notice; or

(b) the tenant has persistently defaulted under the lease throughout its term and the landlord has given the tenant written notice of the defaults.

1. As no notice of default was issued by the landlord to the tenant prior to 27 May 2016 and no evidence of persistent default provided, the landlord cannot by reason of s 27 of the RLA maintain that the option was not exercisable.
2. To the extent that the lease might contain any provision inconsistent with s 27(2) of the RLA, that provision will be void by reason of s 94(1) of the RLA.

There is no error in this reasoning, particularly having regard to the state of the evidence before the Tribunal.

33 For the preceding reasons, neither of these grounds of appeal has a real prospect of success.

Grounds 3 and 8(e) - Authority to enter into terms of settlement

34 The Landlord contends that the Tribunal erred in holding that Mr Straussman, as an agent of the Landlord, could sign and bind its principal to terms of settlement without determining whether the agent had authority, actual or ostensible, to enter into the terms of settlement. It observed that the Tribunal held that the terms of settlement signed by Mr Straussman bound the Landlord because he had been authorised by Mr D'Anna to represent the Landlord in dealing with the Tenant and was, consequently, its agent.[59] Nevertheless, the Landlord contends that the Tribunal failed to make a decision as to whether the Landlord had authorised Mr Straussman to sign the terms of settlement, despite commenting that the parameters of the agency had to be determined.[60]

35 More particularly, the Landlord contends that the Tribunal erred in holding that the terms of settlement bound it in the absence of a finding that Mr Straussman had authority, whether actual or ostensible, to enter into a contract on the Landlord's behalf and thereby sign terms of settlement. In this respect, reference is made to the distinction drawn in the cases between authority to negotiate an agreement and authority to enter into the agreement thus negotiated. In particular, Riordan J in Berkely Pty Ltd v Millbrook Finance Pty Ltd said:[61]

The fact that the plaintiff had allowed Wilson to negotiate the Facility Agreement with the defendant did not constitute a representation that Wilson could then bind the plaintiff in the Facility Agreement, much less the Further Facility Agreement. Wilson did negotiate the terms of the Facility Agreement on behalf of the plaintiff; but he did not even purport to bind the plaintiff to the Facility Agreement. The Facility Agreement only bound the plaintiff after it was properly executed by the plaintiff's directors in accordance with its constitution.

36 In this vein, the Landlord submits that the Tribunal made no finding that the Landlord's agent had been authorised to sign the terms of settlement, nor any finding that its agent had ostensible authority to enter into the terms of settlement, nor that the Landlord made any representation that Mr Straussman, as agent, had power to enter into the terms of settlement. In this respect, the Landlord makes the point, with reference to authority, that the representor in this context must have actual authority to make the representation. Thus, in Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd, the High Court said:[62]

There are circumstances where the actual representation of authority may be made by the agent but in such cases it will be found that the relevant representation is made by the principal (or by the person to whom the principal has given actual authority) either by a previous course of dealing or by putting the agent in a position or by allowing him to act in a position from which it can be inferred that his actual representation of authority in himself is in fact correct. It is therefore always necessary to look at the conduct of the principal (or the person to whom he has actually delegated authority).

In Berkely Pty Ltd v Millbrook Finance Pty Ltd, Riordan J said:[63]

25 The doctrine of ostensible authority applies when:

1. a principal holds out a person as authorised to contract on the principal's behalf; and
2. the third party contracts with that person in reliance on the holding out.

The holding out must be the result of a manifestation or representation made by the principal to the third party.

[citations omitted]

37 The Tenant, on the other hand, submits that the premise underlying this ground of appeal is incorrect. In making this submission, the Tenant observes that the Tribunal did make a finding that Mr Straussman was authorised by the Landlord to sign the terms of settlement and also found, expressly, that "Mr D'Anna ... authorised Mr Straussman to attend the mediation on the landlord's behalf".[64] It is said that this finding implies a finding that Mr Straussman had authority to sign the terms of settlement because a person who attends a mediation must have authority to settle the dispute. Moreover, it is submitted that this is supported by the language of the confirmation attendance slip from the Small Business Commissioner, which states "in case I am unable to attend the mediation, the person who I have given authority to make decisions on the day will be Mr Shane Straussman".[65]

38 Having regard to these submissions by the Tenant, it is helpful to set out part of the Tribunal's reasons which puts the references relied upon by the Tenant into a broader context:[66]

1. Ms Yang says that a confirmation attendance slip dated 14 June 2012 purported to be signed by Mr D'Anna was sent to SBC. The slip stated, "in case I am unable to attend the mediation, the person who I have given authority to make decisions on the day will be Mr Shane Straussman." Mr D'Anna denies having signed the slip.
2. Mr D'Anna's evidence regarding Mr Straussman can be summarised as follows:

(a) He cannot recall the 25 May 2012 letter from the SBC. He denies having passed this letter on to Mr Straussman and says Mr Straussman was a regular visitor to his house.

(b) When asked about the mediation on 19 June 2012 he said "I don't know. I can't remember." When asked if Mr Straussman attended on his behalf, he said "He probably went there but he had no authority"

(c) He does not recall when he first saw the terms of settlement. He thought he received them a week or two after the mediation from Mr Straussman and when he saw the terms he said, "That's not right."

(d) He has interests in six properties and is a director of four companies. He has experience in business and is an experienced landlord.

(e) He gave conflicting evidence of the dealings between Mr Straussman and Mr O'Halloran. On one occasion he accepted he knew Mr Straussman was talking to Mr O'Halloran about the rent. On another occasion he denied having authorised Mr Straussman to negotiate the rent, but he did not stop Mr Straussman talking about the rent with Mr O'Halloran. In answer to a further question he agreed that he engaged Mr Straussman to negotiate with Mr O'Halloran about the lease. Later in his evidence when asked whether Mr Straussman was authorised to speak with Mr O'Halloran, he said he was not.

(f) He accepts that having received the letter dated 28 November 2011 from the tenant, he knew the tenant believed Mr Straussman to be acting for the landlord and he did nothing to correct this position.

(g) He discovered the alleged fraud by Mr Straussman in October 2014. From July 2014 he suffered from severe anxiety and depression and medical reports were produced which link the symptoms suffered to the actions of Mr Straussman.

1. Based on the evidence of Ms Yang and the documents produced by the SBC, I find that Mr D'Anna was aware of the mediation on 19 June 2012 and authorised Mr Straussman to attend the mediation on the landlord's behalf. This is consistent with his engagement of Mr Straussman to deal directly with the tenant about the rent leading up to the mediation.
2. I found Mr D'Anna to be evasive and inconsistent in his answers. He is clearly distressed by the actions of Mr Straussman but in his own words he believed Mr Straussman would get results for him. On his own evidence he knew Mr Straussman was dealing with the tenant, the SBC and MNG and did nothing to stop the interaction.
3. I am satisfied that Mr D'Anna, having engaged Mr Straussman to "get results", allowed Mr Straussman to take on a role whereby he was representing the landlord in its dealing with the tenant. I find that the landlord is bound by the actions of Mr Straussman in entering into the deed of settlement on 19 June 2012.

39 Looking at the Tribunal's reasoning in this respect with the benefit of a broader context, I am of the view that no error of law is inherent in that reasoning. The Tribunal has not, as is implicit in the Landlord's submissions, taken the law to be with respect to authority to negotiate and authority to settle, other than as set out in the authorities on which the Landlord places reliance. Rather, the Tribunal has, having had the benefit of careful consideration of the oral and written evidence before it and with the assistance of the parties' submissions, determined that Mr Straussman was both acting with the authority of the Landlord in attending the mediation and negotiating the terms of settlement and then, in due course, entering into the deed of settlement on 19 June 2012. I am of the view that this is clearly the position as indicated in the Tribunal's Reasons. Moreover, as the Landlord would have it, to seek to establish error on the basis of no express separate findings as to authority to negotiate and authority to agree and enter into terms of settlement would be to adopt an "overly pernickety examination of the reasons", a position to be avoided in proceedings such as this, as indicated by Kirby J in Roncevich v Repatriation Commission.[67]

40 Finally, in relation to these grounds of appeal, I am of the opinion that the Tenant is correct in observing and submitting that even if the Tribunal did not find that Mr Straussman had authority to sign the terms of settlement, it would have made no difference to the Tribunal's decision[68] because the Tribunal had found that the Lease by Renewal was valid and no question of law has been identified to challenge that finding.[69]

41 For the preceding reasons, neither of these grounds of appeal has a real prospect of success.

Ground 4 - Evidence that Mr Straussman was authorised to sign the terms of settlement

42 The Landlord contends that the Tribunal erred in holding an agent could sign and bind its principal to terms of settlement when there was no evidence that a Tribunal acting reasonably could accept that the principal had provided its agent with authority, actual or ostensible, to enter into terms of settlement. The Landlord expressly refers to and repeats the submissions made with respect to the issues the subject of ground 3.

43 The Tenant submits that, in this context, the applicable test as expressed in Maund v Racing Victoria Ltd is: "whether there was evidence upon which the Tribunal might, rationally, reach the conclusion to which it came".[70] In this respect, the Tenant submits that there was substantial evidence upon which the Tribunal was able to make that finding, including:

(a) Mr D'Anna's own evidence that he paid Mr Straussman to engage with Mr O'Halloran about the rent for the hotel;[71]

(b) Mr D'Anna's own evidence that he believed Mr Straussman would "get results for him";[72]

(c) Mr D'Anna's own evidence that he knew Mr Straussman was dealing with the tenant, the Small Business Commissioner and his lawyers and did nothing to stop the interaction;[73]

(d) the letter from the landlord's former lawyers dated 21 December 2011 (which was produced pursuant to orders for production made at trial), in which the lawyer states "I confirm I have discussed with Shane the manner in which you should respond" about the lease;[74]

(e) the evidence of Ms Yang from the SBC that she called Mr D'Anna on 13 June 2012 and made a file note of the telephone conversation stating "I called R Antonio D'Anna asked me to call 0413 ... because Shane is now handling this matter. I left a phone message on 0413 ... . Shane called me back and said Mr D'Anna may not attend mediation in person. But he may authorise Shane to attend the mediation. The confirmation slip will be sent to us soon";[75]

(f) the evidence of Ms Yang that the SBC file included a signed confirmation attendance slip that stated "in case I am unable to attend the mediation, the person who I have given authority to make decisions on the day will be Mr Shane Straussman";[76]

(g) Mr D'Anna's own evidence that he provided Mr Straussman with a copy of a medical certificate that Mr Straussman forwarded to the SBC to obtain an adjournment of the first mediation date;[77]

(h) the evidence of Ms Yang that the SBC sent a letter to Mr D'Anna advising of the new date and time of the mediation,[78] which evidence lead the Tribunal to find that Mr D'Anna was aware of the mediation held on 19 June 2012;[79]

(i) Mr D'Anna's own evidence that he first saw the terms of settlement a week or two after the mediation[80] and Mr D'Anna's failure to raise with the Tenant at that time that Mr Straussman was not authorised to attend the mediation or agree on terms on behalf of the landlord;[81]

(j) Mr D'Anna's own evidence that he issued the tax invoice in the amount of $390,000 plus GST,[82] which lead to the Tribunal finding that he issued it "in accordance with the terms of settlement";[83] and

(k) Mr D'Anna's own evidence that he issued the Disclosure Statement in the amount of $390,000 plus GST,[84] which lead to the Tribunal finding that he issued it "in accordance with the terms of settlement".[85]

44 In my view, on the basis of the Tribunal's reasons as highlighted in the preceding paragraphs, I am of the opinion that it simply could not be said that the Tribunal acting reasonably could not find that the Landlord had authorised Mr Straussman to enter into the terms of settlement. Indeed, in my view, the position is quite the contrary in that there was an abundance of evidence which would support the position reached by the Tribunal.

45 In any event, as with grounds 3 and 8(e), even if there were no evidence upon which the Tribunal acting reasonably could find that the Landlord had authorised Mr Straussman to enter into the terms of settlement, it would have made no difference to the Tribunal's decision[86] because it found that the Lease by Renewal was valid and no question of law has been identified to challenge that decision.[87]

46 For the preceding reasons, this ground of appeal has no prospect of success.

Grounds 5 and 8(d) - s 126(1) of the Instruments Act 1958

47 The Landlord contends that the Tribunal erred in failing to make a determination as to whether an agent, in signing the terms of settlement that bound the principal to execute a lease, had to be authorised in writing to do so pursuant to s 126(1) of the Instruments Act 1958. In this respect, the Landlord makes specific reference to the position that no reference was made to these provisions in the Tribunal Reasons, and nor did the Tribunal decide whether Mr D'Anna signing the attendance slip for the mediation would have provided sufficient writing for the purposes of these provisions of the Instruments Act, with the result that the terms of settlement would otherwise be enforceable. The Tribunal Reasons state only that "Mr D'Anna denies having signed the slip".[88] Moreover, the Landlord submits that the evidence of Mr D'Anna that he did not sign the attendance slip should have been accepted by the Tribunal, there being no evidence to the contrary. Consequently, it is contended that there is no evidence of any written authority from Mr D'Anna to Mr Straussman to enter into the terms of settlement which would satisfy the provisions of s 126(1) of the Instruments Act. This is, in the present context, said to be critical in terms of the enforceability of the terms of settlement because terms bound the Landlord to execute a lease.

48 It is conceded by the Tenant that a failure by the Tribunal to address in its reasons a submission that is worthy of consideration and is seriously advanced to it may amount to an error of law.[89] However, the Tenant contends that there is no vitiating error of law in this case, for reasons which are now considered.

49 First, it is said that the Tribunal was not required to consider the submission because it had already found that the Lease by Renewal, which recorded the agreed rent for the previous term, was valid. On this finding alone, it is said, the Tribunal was able to conclude that the Landlord was not entitled to an order that the rent for the previous term be determined by a valuer. Thus it is said that the Tribunal did not need to consider whether Mr Straussman needed to be authorised in writing to sign the terms of settlement. In my opinion, for the reasons already indicated, this is correct.[90]

50 Secondly, it is submitted that Mr Straussman did not need to be authorised in writing to sign the terms of settlement pursuant to s 126(1) of the Instruments Act. As such, it is said, the Tribunal's failure to consider the submission would have made no difference to the Tribunal's decision that the terms of settlement were binding on the Landlord.[91] In my view, this is correct when regard is had to the critical provisions of s 126(1) of the Instruments Act, the context of the circumstances of the settlement itself and an analysis of its effect in the context of these provisions.

51 Critically, s 126(1) of the Instruments Act provides that:

An action must not be brought to charge a person ... upon a contract for the ... disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.

52 In my view, the position contended for by the Tenant is, in the present circumstances, correct, in that the terms of settlement did not dispose of an interest in land. It is true that, having regard to the terms of settlement in isolation, they conferred upon the Tenant an interest in land, namely, the right to compel the Landlord to provide it with a new lease. This does, as indicated previously, produce a lease enforceable in equity - a lease in equity. There is, however, no disposition of an interest in land in the present case, because the Tenant already had a lease in equity as a result of its having exercised its option to renew. It follows that all the terms of settlement achieved was to record the agreement reached between the parties as to the rent that would be payable; but this does not involve any disposition of any interest in land. In my view, this is no different from the position discussed in cases such as Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd[92] and the other cases previously mentioned in relation to the fixing of rent subsequent to the entry into of a lease otherwise enforceable according to its terms.[93] Moreover, this is consistent with the authorities on the nature of rent as "an incident of tenure, or to put it another way, rent issues out of the estate".[94] Thus, the operation of s 126(1) of the Instruments Act is not attracted.

53 For the preceding reasons, neither of these grounds of appeal has a real prospect of success.

Ground 6 - Ratification of the terms of settlement

54 In support of this ground, the Landlord claims that the Tribunal erred in finding that the Landlord ratified the terms of settlement on the basis that documents signed fraudulently cannot be ratified.

55 More particularly, the Landlord submits that the terms of settlement were created in a fraudulent manner because they were signed by Mr Straussman when he knew he had no authority to do so. Thus, it is said that the terms of settlement were a nullity and could not be ratified due to their fraudulent creation. In this respect, reliance was placed on the judgment of Hargrave J in Perpetual Trustees Victoria v Xiao,[95] where his Honour said: "[t]he better view, however, is that a forged agreement is a nullity and incapable of ratification." The Landlord also seeks to extend, what might be termed, the taint of fraudulent creation, which it says is inherent in the signing of the terms of settlement to the Lease by Renewal which, as pleaded, was signed as required by the terms of settlement.[96] Thus, it is said that both the terms of settlement and the Lease by Renewal are void, if either is void. Moreover, the Landlord submits that there was no evidence before the Tribunal that the Landlord had full knowledge of the circumstances and thereby knowingly accepted the conduct of its agent. In this respect, reference is made to the decision of the Court of Appeal in Lederberger v Mediterranean Olives Financial Pty Ltd, where the Court said:[97]

Ratification can be inferred from silence or acquiescence. But for a principal to ratify the unauthorised transactions of an agent, the evidence must establish that the principal had full knowledge of all the material circumstances in which the unauthorised transactions were made and thereby consciously sanctioned the agent's unauthorised act. Silence or acquiescence will not constitute ratification absent proof of a knowing acceptance sufficient to be treated in equity as an assent to what would otherwise be an infringement of rights. The evidence must establish knowledge by the principal which enables his or her subsequent inaction to be seen as an adoptive act or consciously sanctioned.

[citations omitted]

56 Finally, the Landlord submits that nothing can be taken from the various tax invoices rendered with respect to rent, as it was equivocal and unclear what the Landlord was doing.

57 This ground of appeal does not, in my view, have a real prospect of success for a variety of reasons, principally those put forward by the Tenant. It is to these matters that I now turn.

58 The first difficulty the Landlord faces in terms of this ground is that the Tribunal found that the Landlord gave Mr Straussman actual authority to enter into the terms of settlement[98] and did not make a finding that the Landlord ratified the terms of settlement. Thus, the premise upon which this ground of appeal is founded is simply incorrect. Additionally, the Tribunal did not make a finding that Mr Straussman signed the terms of settlement fraudulently and, or alternatively, in circumstances where Mr Straussman knew that he had no authority to do so. Rather, the findings of the Tribunal were that the Landlord had in fact authorised Mr Straussman to attend the mediation and to sign the terms of settlement.[99] For these reasons alone, this ground of appeal has no prospect of success.

59 There are, however, some other aspects of the Landlord's submissions which should be addressed, namely, authorities relied upon with respect to this ground; authorities which, in my view, do not support the Landlord's position.

60 First, the principle that a forged agreement is a nullity and incapable of ratification has no application to the present circumstances. In the case relied upon by the Landlord in this respect, Perpetual Trustees Victoria v Xiao, Hargrave J, after citing this principle, explained that a forgery is: "a counterfeit signature which purports to be that which it is not".[100] In the present case, the terms of settlement were not forged by Mr Straussman, rather, they were signed by him and the signature purports to be his signature.

61 Secondly, the requirements with respect to ratification by silence have no application to this case and, in any event, were, as contended by the Tenant, satisfied. Thus, in Lederberger v Mediterranean Olives Financial Pty Ltd, the Court of Appeal stated the principle with respect to ratification being inferred from silence or acquiescence in terms which are set out above.[101] These principles do not, however, apply in the present circumstances because the Tenant did not allege that the Landlord ratified the terms of settlement by silence or acquiescence. Rather, the Tenant pointed to positive acts of the Landlord in issuing tax invoices and the disclosure statement in accordance with the terms of settlement. In any event, Mr D'Anna gave evidence that he believed he received the terms of settlement a week or two after the mediation,[102] and the Tribunal found that the Landlord had full knowledge of the terms of settlement at the time it issued the tax invoices and disclosure statement.[103]

62 Finally, and in any event, even if the terms of settlement were not binding on the Landlord, it would have made no difference to the Tribunal's decision,[104] because the Tribunal found that the Lease by Renewal was valid and no question of law has been identified to challenge that finding.[105]

63 For the preceding reasons, this ground of appeal has no real prospect of success.

Ground 8 - Factual findings and assessment of evidence

64 The Landlord claims, in support of this ground (or grounds, as it has numerous elements), that the Tribunal erred in failing to make a determination or provide proper reasons in respect of its assessment of the Tenant's evidence, including alleged inconsistencies in its evidence, when determining whether Mr Straussman had authority to sign the terms of settlement and whether Mr D'Anna had signed the Lease by Renewal after it contained the handwritten amendment to the rent. For the reasons which follow, I am of the view that this ground of appeal and its elements has no real prospect of success. I turn now to the more general aspects of issues raised by the Landlord in support of this ground.

65 First, the alleged errors relate to factual findings and no appeal can be brought to this Court on questions of fact.[106] Whether the Tribunal's finding was contrary to the evidence or the weight of the evidence is not a question of law.[107] An error in respect of a factual finding will only amount to an error of law where there was no evidence to support it,[108] it was not reasonably open on the evidence,[109] or where the finding was not open to a tribunal acting reasonably.[110] The Landlord does not allege errors of this kind.

66 Secondly, the Tribunal was not obliged to refer in its reasons to every aspect of the evidence. It cannot therefore be said that the Tribunal failed to take into account those aspects of the evidence to which express reference was not made. In this respect, the statement of Kirby J in Roncevich v Repatriation Commission,[111] to which reference has already been made,[112] is apposite. In my view, the reasons of the Tribunal address the real issues "presented by the contest between the parties", as emphasised by Kirby J; being whether Mr Straussman was authorised by the Landlord to sign the terms of settlement and whether Mr D'Anna signed the Lease by Renewal after the rental amount had been amended. The Tribunal also gave a detailed explanation of how it assessed the evidence in order to reach its conclusions on these issues.[113] This is clearly not a situation as was found to be the position by Eames J in Eiken v Housing Guarantee Fund Ltd,[114] that the Tribunal's analysis of evidence is so deficient as to demonstrate a lack of logic or a failure in the process of reasoning so as to render the analysis as something which would constitute an error of law.

67 Turning to more particular matters. As to ground 8(b), the Landlord claims that the Tribunal erred by failing to take into account the Tenant's failure to call the mediator in the Small Business Commissioner mediation as a witness when assessing the weight of the Tenant's evidence. This ground of appeal does not, in my view, have any real prospect of success because the Tribunal was not obliged to take into account the Tenant's failure to call the mediator. This raises the same considerations as discussed with respect to grounds 1 and 8(a) in the context of the rule in Jones v Dunkel.[115] Moreover, as the Tenant submits, any evidence from the mediator could only have corroborated the evidence of Mr O'Halloran and, additionally, the mediator was not in the Tenant's "camp"; nor, indeed, as a mediator, in anybody's "camp".

68 In relation to ground 8(c), the Landlord claims that the Tribunal erred by failing to take into account that Mr O'Halloran was a practising solicitor who was aware that an agent should be lawfully authorised in writing. Again, in my view, this ground of appeal has no real prospects of success. There is no general rule that an agent must be authorised in writing. Moreover, the Landlord has not articulated, and it is not clear now, how Mr O'Halloran's knowledge of the law of agency might have had any impact whatsoever upon the Tribunal's findings.

69 For the preceding reasons, leave to appeal is refused. Moreover, as these reasons indicate, any appeal would have no real prospect of success.

70 The parties are to bring in orders to give effect to these reasons. I otherwise reserve the question of costs and will hear the parties further on this issue.

[1] Riverview Pty Ltd v Primrose Meadows Pty Ltd (Building and Property) [2018] VCAT 1623 ("the Tribunal Reasons").

[2] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 and Myers v Medical Practitioners' Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55-6 [28].

[3] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 at 26 [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275.

[4] (2011) 83 ATR 832 at 833-4 [3].

[5] Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd (2010) 2010 ATC 20-232 at 11,839 [10];

[2010] VSC 608; 81 ATR 682 at 687 [10] per Davies J.

[6] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al-Hakim v Monash University (unreported, Court of Appeal, Vic, No 3707 of 2003, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[7] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J.

[8] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 at 333 [21]; [2010] HCA 24; 84 ALJR 528 at 536 [21]; [2010] HCA 24; 267 ALR 231 at 240 [21] per French CJ, Gummow and Bell JJ.

[9] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J; Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335 [10]; [1999] VSCA 117; 15 VAR 360 at 366 [10].

[10] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-336 [11]; [1999] VSCA 117; 15 VAR 360 at 366 [11] per Phillips JA; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20] and 77 [65] per Hollingworth J.

[11] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3).

[12] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at 55 [28], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[13] See Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) 871.

[14] The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT, with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) 874-7.

[15] Section 63(1) of the Civil Procedure Act 2010 empowers a court to give summary judgment in a civil proceeding if the defence, inter alia, has "no real prospect of success".

[16] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 39 [29]. See also Kennedy v Shire of Campaspe [2005] VSCA 47, [3]-[14].

[17] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[18] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597; cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[19] (Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.

[20] (1971) 38 LGRA 6 at 18.

[21] (1980) 44 LGRA 65 at 67-8.

[22] (1985) 62 LGRA 346 at 349-50.

[23] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59].

[26] Notice of Appeal (14 November 2018).

[27] Notice of Appeal (14 November 2018).

[28] [1959] HCA 8; (1959) 101 CLR 298.

[29] See Amended Appellant's Outline of Submissions (29 March 2019), [1], particularly [1.2]-[1.5]; and also the reference to the Tribunal Transcript (4 July 2018), 7.

[30] Amended Appellant's Outline of Submissions (29 March 2019), [1.8]; and referring to Tribunal Transcript (4 July 2018) 29.

[31] [2012] VSCA 103; (2012) VConvR 64,366 at 64,396 [154]-[156].

[32] Maund v Racing Victoria Ltd [2016] VSCA 132, [55].

[33] Victorian Civil and Administrative Tribunal Act 1998, s 98(1)(b).

[34] CGU Insurance Ltd v CW Fallaw & Associates Pty Ltd (2008) 29 VAR 213 at 217-8 [12]-[17]; Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294; (2015) 101 ATR 339 at 362 [54].

[35] [2016] VSCA 132.

[36] Maund v Racing Victoria Ltd [2016] VSCA 132, [55].

[37] See, for example, Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294; (2015) 101 ATR 339.

[38] [2004] NSWCA 123, [52].

[40] Strickland Transp Co v Douglas 37 Tenn App 421, 264 SW 2d 233 referred to in Gafford v Trans-Texas Airways [1962] USCA6 24; 299 F 2d 60 (1960), both cited with approval in Manly Council v Byrne [2004] NSWCA 123, [62], [66].

[41] Payne v Parker [1976] 1 NSWLR 191 (Glass JA); cited with approval in Manly Council v Byrne [2004] NSWCA 123, [53].

[42] [1976] 1 NSWLR 191 at 201-2.

[46] According to the Witness statement of Mr O'Halloran (22 April 2018), [129], cited in Submissions of the Respondent (5 April 2019), [11].

[49] See Cadwallader v Bajco Pty Ltd [2002] NSWCA 328, [97]-[98].

[50] Tribunal Transcript (4 July 2018), 106.

[51] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587 at 615 [137]; Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 at 214 [7].

[52] Amended Appellant's Outline of Submissions (29 March 2019), [2] (including [2.1] and [2.2]); referring to sub-cll 12(a) and (b), respectively, of the lease provisions.

[53] Tribunal Reasons, [12]-[14], [19].

[54] Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 at 11,174 citing Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629 and Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600.

[55] According to the Respondent's Outline Submissions (5 April 2019), [16], fn 26: "[t]he lease (being the Lease by Renewal) provided at clause 2.1 that it renewed the lease 'on its terms as they stood when the tenant exercised its option to renew'. The terms as they stood when the tenant exercised its option to renew are set out in the Lease dated 7 February 2007, which provides at clause 12(a) that the rent for the further term is to be agreed or determined by a valuer."

[56] Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 at 11,174 citing Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600.

[60] Tribunal Transcript (4 July 2018), 43-5.

[61] [2018] VSC 213, [26(b)]; and see Fry on Specific Performance (Stevens & Sons Ltd (GR Northcote), 6th ed, 1921), 254-6, [525]-[527].

[62] [1975] HCA 49; (1975) 133 CLR 72 at 78; and see Fry on Specific Performance (Stevens & Sons Ltd (GR Northcote), 6th ed, 1921), 254-6, [525]-[527].

[63] [2018] VSC 213, [25].

[67] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[68] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587 at 615 [137]; Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 at 214 [7].

[70] [2016] VSCA 132, [68].

[71] See Tribunal Reasons, [25], [31].

[79] Tribunal Reasons, [30(a)], [31].

[83] Tribunal Reasons, [35], [40], [43].

[86] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587 at 615 [137]; Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 at 214 [7].

[89] XYZ v State Trustees Ltd [2006] VSC 444; (2006) 25 VAR 402 at 419 [42].

[91] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587 at 615 [137]; Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 at 214 [7].

[92] [1982] HCA 53; (1982) 149 CLR 600.

[94] Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 at 11,175; and see Clyde Croft, Robert Hay and Luke Virgona, Commercial Tenancy Law (LexisNexis Butterworths, 4th ed, 2018), [14.5].

[95] [2015] VSC 21; [2015] NSWConvR 55,754 at 55,774; [2015] VConvR 65,040 at 65,062; [2015] ANZ ConvR 110 at 330, [132].

[96] See Amended Appellant's Outline of Submissions (29 March 2019), [6.3].

[97] [2012] VSCA 262; (2012) 38 VR 509 at 530 [74].

[100] [2015] VSC 21; [2015] NSWConvR 55,754 at 55,774; [2015] VConvR 65,040 at 65,062; [2015] ANZ ConvR 110 at 330, [132].

[101] [2012] VSCA 262; (2012) 38 VR 509 at 530 [74]; set out above, [51].

[104] Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587 at 615 [137]; Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue (2012) 88 ATR 211 at 214 [7].

[106] Kacinskas v McMahon [2011] VSC 458, [11].

[107] Bulasa Pty Ltd v Baytown Properties Pty Ltd [2003] VSC 248; 20 VAR 189 at 195 [40].

[108] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [91].

[109] Hoser v Department of Sustainability and Environment [2014] VSCA 206; 203 LGERA 96 at 105 [29].

[110] Maund v Racing Victoria Ltd [2016] VSCA 132, [68].

[111] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[113] See Tribunal Reasons, [20]-[50].

[114] [2001] VSC 23; (2001) 17 VAR 324 at 336 [44].