Bluestream Enterprises Pty Ltd v Perich Property Pty Ltd

Collins v Urban [2014] NSWCATAP 17

Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774

Donohoe v Albulario [2025] NSWSC 9

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

GTK v NSW Treasury [2025] NSWCATAP 174

Jamaican Coffee Kitchen Pty Ltd v M20 Pty Ltd [2022] NSWCATAP 203

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940

PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam

(2003) 214 CLR 1

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31

Sneakerboy Pty Ltd Georges Properties (No 2) [2020] NSWSC 1141

Tuon v Popo Big Bowl Noodles Pty Ltd; Popo Big Bowl Noodles Pty Ltd v Tuon [2022] NSWCATCD 172

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

1. Bluestream Enterprises Pty Ltd (the Appellant) leases premises in a shopping centre at Oran Park from which it runs a fish and chip shop known as Flakey's. The owner and lessor of the premises is Perich Property Pty Ltd (the Lessor). The relevant lease is a lease under the Retail Leases Act 1994 (NSW) for a term of five years, with an option to renew for a further five years.
2. In March 2024 the Appellant brought claims against the Lessor in the Consumer and Commercial Division of the Tribunal contending that the Lessor had breached the Retail Leases Act and the lease in relation to rent arrears and rental assistance during the COVID-19 pandemic.
3. The Appellant's claims were dismissed by the Tribunal on 2 January 2025 and the Appellant appeals from that decision.
4. For the reasons set out below we have dismissed the appeal and refused leave to appeal.

1. It appears that the lease commenced on about 9 August 2019 and the Appellant commenced the fish and chips business in early September 2019. The rent in the first year of the lease was $58,000 + GST per annum, payable monthly in advance.
2. The COVID-19 pandemic arose in early 2020 and various measures were taken by the NSW Government in response which included restrictions on trading and on people movement.
3. The Lessor unilaterally decreased the rent payable for the premises by 50% from April 2020.
4. Consequent upon implementation of the National Cabinet Code of Conduct-SME Commercial Leasing Principles During COVID-19 (National Code of Conduct) in April 2020, the NSW Government enacted the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (the First COVID-19 Regulation) which was subsequently amended on 3 July 2020. The First COVID-19 Regulation ceased to have effect on 24 October 2020. A further four (4) regulations were implemented (in similar form to the First COVID-19 Regulation) culminating in the Retail and Other Commercial Leases (COVID-19) Regulation 2022 (NSW) (the Fifth COVID-19 Regulation), in force from 13 January 2022 to 13 July 2022. Although there were successive Regulations, for ease of understanding we refer to them together as "the COVID-19 Regulations".
5. Under the COVID-19 Regulations and the Code of Conduct, if the lessee was an "impacted lessee", the lessor was precluded from taking any "prescribed action" against the lessee on the grounds of a breach of the lease due to failure to pay rent during the "prescribed period": see cll 4 and 6 of the COVID-19 Regulations. Under the First Covid-19 Regulation a lessee was an "impacted lessee" if the lessee qualified for the JobKeeper scheme and had a turnover of less than $50 million in the 2018-19 financial year. In later Regulations the reference to the JobKeeper scheme was replaced with other schemes then in force such as the JobSaver Payment.
6. If the lessee was an "impacted lessee" the parties were to renegotiate the rent payable and other terms of the lease having regard to (a) the economic impacts of the COVID-19 pandemic; and (b) the leasing principles set out in the Code of Conduct: cl 7 of the COVID-19 Regulations.
7. Relevantly cl 7 of the COVID-19 Regulations provides:

(3A) An impacted lessee must give the lessor the following in respect of the impacted lease -

(a) a statement to the effect that the lessee is an impacted lessee,

(b) evidence that the lessee is an impacted lessee.

(3B) If the impacted lessee does not comply with subclause (3A), the lessor is taken to have complied with this clause.

1. There was some correspondence between the Lessor and the Appellant in April and May 2020. Each has a different interpretation of the import of this correspondence and, indeed, whether some correspondence was sent or received, which is referred to below.
2. On 25 November 2020 the Lessor sent an email to the Appellant about outstanding rental arrears in the amount of $16,583.40. The Director of the Appellant, Robert Lay, responded as follows:

I wish to state my appreciation of the rental assistance being provided to me as a consequence of Covid-19. Although trade has improved since the April lows, it still remains below that in February/early March.

The issue as to why I am falling behind on my lease payments relates to the circumstances preceding covid-19. As I indicated in my letter (April 6, 2020), occupancy costs to that date were 23% of sales. In my situation, the assistance being provided via the proportional reduction in rent to sales, does not offer the same degree of relief as it does for other retailers. In my circumstance, each dollar in lost sales due to covid-19 was already being used to cover operating expenses. The business never had the opportunity (to) get established, nor the luxury of being profitable going into the event.

It is my view that the current business is much better than the previous, and I am confident that a base is being established for future growth. The timing of the virus outbreak has just been unfortunate.

Perhaps we could meet and have further discussions. Otherwise let me know what you are prepared to do.

1. The Lessor replied the next day and asked Mr Lay to provide a payment arrangement. On 6 November 2020 Mr Lay sent an email to the Lessor stating that he would bring the rent up to date by the end of June 2021 and would try to do so by April 2021.
2. The Appellant stated before the Tribunal that from November 2020 onwards it did not receive rent invoices for December 2020, January 2021, February 2021, July 2021, August 2021, and October 2021 (the Disputed Invoices). The Lessor's case was that all the Disputed Invoices (except for February 2021) were issued to the Appellant. A central element of the Appellant's case before the Tribunal was that the Disputed Invoices were not issued by the Lessor and that the alleged non-issuance of the Disputed Invoices constituted rental relief to the Appellant by way of waiver of payment of rental invoices.
3. On 11 November 2022, a breach notice was issued by the Lessor to the Appellant for unpaid rental arrears in an amount of $58,549.43. While there was correspondence between the parties, including a complaint by the Appellant about inadequate rental assistance, the Appellant did not pay the rental arrears.
4. On 14 February 2023, a second breach notice was issued by the Lessor to the Appellant for unpaid rental arrears in an amount of $59,219.33. There was further correspondence between the parties, in which the Appellant referred to non-issuance of the Disputed Invoices, inadequate Covid-19 rental relief, and an incorrect rent review increase in March 2022.
5. The correspondence culminated in an email to the Lessor from the Appellant sent on 7 March 2023 which stated:

I am terribly upset with the manner and the substance in which this matter has arisen and been managed.

I have made every effort to co-operate, including sharing with you the evidence in support of my claim. The evidence is clearly contrary to your statements.

Since it is now obvious that you are not interested in facts, reason or observing my legal rights, I am resigned to this matter becoming a legal dispute.

I await your termination letter and final date for me to vacate the premise.

1. On 8 March 2023, the Lessor terminated the lease and re-entered the premises.
2. The Lease was subsequently reinstated by the Lessor on or about 13 March 2023 following the Appellant making payment (albeit, under protest) of rental arrears of $59,219.33 and a locksmith callout fee.

1. The Tribunal recorded that the issues to be determined in the proceeding were:

(1) whether the Appellant was entitled to damages for unconscionable conduct, misleading and deceptive conduct, or breaches of the COVID- 19 Regulations, or otherwise was estopped from claiming by way of rent arrears, and therefore that the Lessor must refund as an "overpaid" amount, $43,057.96 (referred to as the Damages Claim);

(2) whether the Appellant was entitled to damages resulting from the termination of the Lease (referred to as the Termination of Lease Claim); and

(3) whether the Appellant was entitled to damages for an improperly applied rental review (referred to as the Rent Review Claim).

1. Before dealing with the issues the Tribunal made findings of fact, including in relation to the credibility of the Lessor's witnesses - Milton Liolios, Senior Property Manager employed by the Lessor, and Damien Turski, the Shopping Centre Manager employed by the Lessor.
2. Both parties had provided written submissions following the conclusion of the Tribunal hearing. In those submissions (and submissions in reply) the Appellant submitted that the evidence of Mr Liolios and Mr Turski should be discredited and that the Lessor had provided fraudulent documents. The Lessor also provided the Tribunal with a copy of the transcript of the hearing.
3. The Tribunal noted that only the Lessor's witnesses, Mr Liolios and Mr Turkis were cross-examined. We note that the Appellant's Director, Mr Lay, who had provided a statement in the proceedings, also represented the Appellant before the Tribunal but was not cross-examined on his evidence.
4. The Tribunal's findings were:
   • Mr Turkis and Mr Liolios impressed as truthful and reliable witnesses;
   • the Appellant did not identify any part(s) of those witnesses' oral evidence to substantiate the underlying submission that the Tribunal should prefer Mr Lay's evidence to the evidence of the Lessor's witnesses;
   • the evidence of the Lessor's witnesses was supported, objectively, by contemporaneous documents and by the circumstances of the parties' dispute.
5. Based on Mr Turski's evidence, the Tribunal went on to find that the Lessor received no requests for rental assistance from the Appellant following the flat percentage (50%) reduction which had been provided to the Appellant from April 2020; that the Lessor did not receive the requisite information and supporting documents about JobSaver Payment status and business turnover to establish whether the Appellant was an "impacted lessee" for the purposes of the COVID-19 Regulations; and, that, had the Appellant sought further rental assistance, the Lessor would have considered the request and responded to it in good faith.
6. To the extent the Appellant's allegation that the Lessor did not issue the Disputed Invoices was pertinent to the Damages Claim, the Tribunal also accepted Mr Turski's evidence that the rental invoices were issued to the Appellant by email. The Tribunal rejected the Appellant's assertion that the copies of the Disputed Invoices provided to the Appellant by the Lessor in June 2023 were fraudulent. The Tribunal also found that there was no basis for the Appellant's contention that the copy provided to the Tribunal of the Lessor's emails sent contemporaneously to the Appellant with the Disputed Invoices should also be regarded as fraudulent.
7. The Tribunal went on to state that, even if it had found that the Lessor had failed to issue the Disputed Invoices, the terms of the lease applied so that the Appellant was required to pay rent without demand. In that way, the non-issuing of an invoice did not absolve the Appellant of its contractual obligation to pay the annual rent under the lease.
8. The Tribunal then addressed the issues as set out in [21] above.

1. In relation to the allegation of misleading and deceptive conduct, the Tribunal identified the issue as being whether the Lessor had failed to act on the rental arrears with the intent of inducing the Appellant to assume that the Lessor had waived payment of the whole amounts in the Disputed Invoices. The Tribunal identified that whether conduct is misleading or deceptive, or is likely to mislead or deceive, is determined objectively.
2. The Tribunal made the following findings of fact:

(a) In response to the COVID-19 pandemic, the Lessor sought information from tenants of the Shopping Centre, including the Appellant, to determine rental relief,

(b) The Appellant did not respond to the Lessor's general inquiry,

(c) In the absence of the Lessor being provided with other information pertinent to additional rental relief such as a lessee's JobSaver Payment status and a lessee's business turnover, the Lessor provided some rental relief to the Appellant in the form of a flat rent reduction of 50% (consistent with the Code of Conduct),

(d) The Appellant did not commence negotiations with the Lessor about rental relief and it did not seek further assistance beyond the relief already provided to it,

(e) There was no deliberate act on the part of the Lessor to not issue invoices for rent, as alleged by the Appellant and invoices in fact were issued,

(f) At no time, did the Lessor confirm to the Appellant that it would be providing rental relief in the form of waiving payment completely of its invoices,

(g) All rental relief provided to the Appellant was in the form of reductions to invoices, not a waiver of the whole invoice,

(h) Mr Turski's written and oral evidence, both generally and in this context was reliable and could be accepted.

1. The Tribunal concluded that it could not be said objectively that the Lessor, in contravention of s 62D of the Retail Leases Act (a section which prohibits such conduct), engaged in conduct that was misleading or deceptive, or which was likely to mislead or deceive, in connection with the lease.
2. In any event, the Tribunal went on to say, even if it could be said the Lessor's conduct was, in some way, misleading or deceptive, the Appellant could not establish any loss or damage as a result of the conduct. This was because the Appellant was contractually obliged by cl 4 of the lease to pay rent for the premises without demand. The Tribunal stated that in circumstances where the Lessor had six years to prosecute a claim to recover rent arrears, the fact that the Lessor did not take action to recover rent arrears for a time after it had issued the rent invoices, in and of itself, was not a circumstance that pointed to the Lessor acting misleadingly or deceptively. The Tribunal also stated that the circumstances could not give rise to some form of estoppel given the obligation to pay rent under the lease.

1. The Tribunal referred to the judgment of the Court of Appeal in PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 at [99] where the court, in dealing with the unconscionability provisions of the Retail Leases Act observed that a finding of unconscionability is not made lightly and requires a "high level of moral obloquy". The Tribunal noted that the Appellant had not addressed any of the factors set out in s 62B(3) of the Retail Leases Act in its submissions and it was not clear what factors were relied upon.
2. The Tribunal further stated there was no evidence of any special position of disadvantage on the part of the Appellant, or how the Lessor knew of such disadvantage or vulnerability or how the Lessor took advantage of it.
3. The Tribunal repeated that the Appellant was under a contractual obligation to pay the annual rent without demand and it did not do so. It was issued with demands for payment of outstanding rent which it did not pay and was issued with a breach notice inviting it to remedy the breach or risk termination. In an email dated 7 March 2023 the Appellant acknowledged its dispute with the Lessor about the rent and then, in effect, invited termination which occurred with the Lessor re-entering the premises.
4. The Tribunal concluded no objective material pointed to conduct of the Lessor which might be characterised as unconscionable with reference to Australian Securities and Investment Commission v Kobelt [2019] HCA 18 at [14], [92], & [118]. Furthermore, there was no basis for any assumption by the Appellant that its obligation under the lease to pay the rent had been waived by the Lessor.
5. The Tribunal went on to state that, even if the evidence had supported a finding of unconscionability, there was, as was the case in the context of a claim based on misleading or deceptive conduct, no evidence of loss or damage to support an order under s 62B(8) of the Retail Leases Act.

1. The Tribunal noted that the application to the Tribunal by the Appellant alleged that the Lessor's demand for rental arrears was in breach of the Code of Conduct.
2. The Tribunal set out the relevant provisions of the COVID-19 Regulations. Having regard to the requirements of the COVID-19 Regulations and the events which occurred, the Tribunal found that the Appellant did not provide the requisite information to the Lessor to demonstrate it was an impacted lessee. The Tribunal accepted the evidence of Mr Turski that a letter dated 28 May 2020 from Kamper Chartered Accountants concerning turnover of the business had not been received by the Lessor. The Tribunal noted that the Appellant led no evidence that the accountants' letter was provided to the Lessor. The Tribunal stated that, even if it had found the evidence supported such an inference, it would be insufficient to meet the requirements of the applicable Regulations.
3. The Tribunal held, contrary to the Appellant's submissions, that the case of Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 did not support the Appellant because the present facts were materially different. The Tribunal identified the principles expressed in that case by Robb J as only being enlivened when:

(a) a lessee can demonstrate that there is an impacted lease at the time;

(b) prescribed action is taken during the prescribed period; and

(c) a request to renegotiate had been made by a lessee and the lessor had failed to engage or renegotiate in response to that request.

1. The Tribunal held that none of these circumstances were present in this matter as (a) there was no evidence before it to make a finding that the Appellant was an impacted lessee; (b) any action taken by the Lessor was after the expiry of the prescribed period (indeed, action was not taken in relation to rent arrears until November 2022, when the first breach notice issued, being four months after the expiry of the COVID-19 Regulations); and (c), the evidence established no requests to negotiate had been made by the Appellant, and the contemporaneous evidence in the form of emails was to the effect that the Appellant was content, even appreciative, of the assistance which had been provided by the Lessor.
2. The Tribunal was satisfied it could not make a finding that the Lessor breached the COVID-191 Regulations.
3. The Tribunal went on to state that, if it was incorrect about there being no breach of the applicable Regulations, it was not open to the Tribunal to determine an amount of rent payable by an impacted lessee (which was what the Appellant's Damages Claim asked the Tribunal to do) in circumstances where the parties have not reached agreement on the appropriate level of reduction, or on the split between waiver and deferral of rent, or on the time allowed to a lessee to pay deferred rent. In support of this statement the Tribunal referred to Tuon v Popo Big Bowl Noodles Pty Ltd; Popo Big Bowl Noodles Pty Ltd v Tuon [2022] NSWCATCD 172 at [81] - [90], citing as binding, the decisions in Sneakerboy Pty Ltd Georges Properties (No 2) [2020] NSWSC 1141, Darzi, and Jamaican Coffee Kitchen Pty Ltd v M20 Pty Ltd [2022] NSWCATAP 203.

1. The claim that the Lessor was estopped from recouping any of the rent paid and subject to the Disputed Invoices was rejected by the Tribunal. The claim was based on the circumstances in Darzi where Robb J held that the fact that, contrary to the COVID-19 Regulations, the lessor had failed to renegotiate rent following a request being made by the lessee meant that a bar to recovery of rent was created.
2. The Tribunal held that Darzi was distinguishable from the present case for the same reasons set out above in relation to alleged breaches of the COVID-19 Regulations.
3. The Tribunal also held that, to the extent the Appellant's submission on estoppel rested upon alleged silence by the Lessor, there was nothing in the conduct of the Lessor to found such a claim. This was because at no time during the relevant period when the Disputed Invoices were sent did the Appellant make any enquiry of the Lessor (which the Lessor failed to address), nor did the Lessor represent a specific circumstance which could have led the Appellant to reasonably believe that the parties were conducting themselves on a basis where invoices for rent would not be issued. The Tribunal stated that, on the contrary, the evidence established that when the Appellant raised the Disputed Invoices for the first time, the Lessor responded by confirming all invoices were sent, and the contemporaneous documents of the Lessor were evidence that the invoices were issued. Nor did the Lessor indicate, offer, or propose to waive an entire month's rent as a form of rental relief to the Appellant.
4. The Tribunal stated that it was unclear why the Appellant came to the assumption it did, but the Tribunal was satisfied it was not based on any conduct of the Lessor.

1. The Appellant had claimed damages for alleged losses resulting from the termination of the lease on 8 March 2023 in the amount of $8,335 comprised of $5,457 on account of loss of business income and damage to perishable foods, $2,669.15 for solicitors' fees, and $209 for locksmith charges.
2. The Tribunal rejected this claim because:

(1) The Appellant made no attempt to remedy the breach prior to the expiry of the second breach notice and in an email on 7 March 2023 invited the Lessor to terminate the lease. The Appellant failed to mitigate its own loss by remedying the breach prior to termination and instead, only remedied the breach after termination when it paid the arrears.

(2) There was no evidence of economic loss. The Appellant had provided no evidence, other than an estimate by Mr Lay, of potential lost sales based on his own calculations with no independent evidence to substantiate the amount claimed. The amount claimed for lost stock was claimed in circumstances where the Lessor had invited the Appellant to collect perishable goods and where there was no evidence that the Appellant actually paid the costs claimed for the perishable goods.

(3) Guided by the principles as summarised by Black J in Sabouni v Revelop Building and Developments Pty Ltd (2021) NSWSC 31 at [42], the Tribunal found that the Appellant, having the burden to discharge, had not proved its case and in the absence of evidence, the Tribunal would not speculate as to an amount of damage, where precise evidence of the damage could have been adduced but was not.

(4) There was no legal basis under the Retail Leases Act for the Appellant's out-of-pocket expenses for solicitor's fees and locksmith charges as the Lessor's termination and re-entry of the Premises in March 2023 was not wrongful, in circumstances where the Appellant was duly issued a breach notice for rent arrears, which it failed to remedy.

1. The Tribunal found that the review of rent as applied by the Lessor in August 2022 and August 2023 were not detrimental to the Appellant's position and otherwise contrary to the COVID-19 Regulations.
2. The Tribunal referred to the fifth COVID-19 Regulation which was in force at the time of the August 2022 increase and which prevented the rent payable under an impacted lease being increased during the prescribed period. The Tribunal repeated its findings and conclusion that the Appellant was not an impacted lessee and held that in those circumstances there could be no prohibition on the increase of rent under the lease.
3. In relation to any detriment to the Appellant's position arising from the rent reviews, the Tribunal accepted the written and oral evidence of Mr Liolios concerning periods when rent reviews were not conduced and how subsequent rent reviews were calculated and imposed. The Tribunal concluded that the Appellant had suffered no loss and was in no worse position than it would have been under the lease but for the COVID-19 pandemic. In fact the Tribunal found that the Appellant was in a better position in that a further review for year 5 of the lease was never passed on to the lessee.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. There are several important cases relevant to the construction of s 80 of the NCAT Act. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act.
3. The Appeal Panel there said, inter alia, that (citations omitted):

(1) Absent leave to appeal, the question of law is the subject matter of the appeal. The question of law should be articulated with precision.

(2) A question of law means a pure question of law.

(3) A "pure question of law" does not depend on facts not found.

(4) A mixed question of fact and law is not a question of law. An appeal is "on" any question of law: s 80(2) of the NCAT Act.

(5) The question of law must not be hypothetical or arid.

(6) An appeal is against orders and not reasons. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. Recently in Donohoe v Albulario [2025] NSWSC 9 Basten AJ stated that in construing the phrase "question of law" statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises: at [30]. Relevantly, he stated that the specific question of law which arose in the proceedings must be identified. Furthermore, the question of law must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issues sought to be raised and the outcome of the case: at [31]-[32].
2. In the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Sch 4 to the NCAT Act on the basis that:

.....the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. Even if these conditions for the grant of leave are satisfied, the Tribunal has a discretion to grant leave which, as stated in Collins v Urban [2014] NSWCATAP 17 at [84(2)], will generally only be exercised in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. An appellant has to demonstrate that either an error was made on a question of law, or that leave to appeal should be granted. It is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: see Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28]. Nor does an appeal provide a losing party with the opportunity to run its case again: see Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

1. The Appellant relies on the following grounds of appeal:

(1) The Tribunal erred in law by failing to provide adequate reasons for its conclusions that:

(a) the Appellant had failed to give the Lessor the information required by the COVID-19 Regulations to demonstrate it was an impacted lessee; and

(b) the Appellant had not requested the Lessor to renegotiate in good faith the rent payable under the lease.

(2) The Tribunal erred in law by failing to afford the Appellant procedural fairness when it accepted a submission made by the Lessor that the Appellant had not given the impacted lessee information to the Lessor when it was not put to Mr Lay in cross-examination that his evidence that he had done so should be disbelieved or ignored.

(3) The Tribunal made errors of fact when it found that the Appellant had not provided information that it was an impacted lessee and had not requested a renegotiation of the lease. The Appellant seeks leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence.

(4) The Tribunal erred in law by failing to consider the Appellant's submission that the breach notice issued by the Lessor on 14 February 2023 was not a valid breach notice issued in accordance with s 129 of the Conveyancing Act 1919 (NSW).

(5) The Tribunal erred in law in failing to consider the Appellant's unchallenged evidence of damages it sustained as a result of the unlawful termination of the lease by the Lessor, or alternatively by failing to give reasons why that evidence should not be accepted.

1. Grounds (1) to (3) are closely related and concern the Tribunal's findings that:

(1) the Appellant was not an impacted lessee within the meaning of the COVID-19 Regulations; and

(2) the Appellant had not sought to renegotiate the terms of the lease.

1. In relation to ground (1), the Appellant refers to the "duty" of the Tribunal to give reasons for its decision. Section 62(3) of the NCAT Act provides that a written statement of reasons of the Tribunal must set out:

(a) the findings of fact made and the material or evidence relied upon to make such findings;

(b) the Tribunal's understanding of the applicable law; and

(c) the reasoning that lead the Tribunal to the conclusions that it made.

1. The Appellant states that the Tribunal's duty to give reasons obliged it to explain why it reached the conclusions it did, but it failed to do so and was thus in breach of its duty.
2. Section 62 of the NCAT Act is concerned with the provision of written reasons for decision where a request is made for a written statement of reasons for a decision made by the Tribunal: see s 62(2). It is clear that, where a statement of reasons is requested, there is a statutory duty to provide reasons. In these circumstances the written statement of reasons so provided must comply with s 62(3). Here, the Tribunal provided written reasons for its decision even though it was not requested to do so (which s 62(4) permits).
3. Where a written statement of reasons is voluntarily provided, the preferred view is that it too must comply with s 62(3) of the NCAT Act: see New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 ("Orr") at [55] Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [57]; GTK v NSW Treasury [2025] NSWCATAP 174 ("GTK") at [32] - [36].
4. As was noted by the Appeal Panel in GTK at [38], with reference to Wollondilly Shire Council v Styles [2024] NSWCATAP 104, alleging inadequacy of reasons where there is no statutory duty, of itself, may not be enough without identifying the particular or specific question of law to ensure the appeal is "on a question of law". The Appeal Panel noted at [37] that a failure to provide adequate reasons may represent a failure to consider key evidence and submissions and therefore constitute a denial of procedural fairness or it may reveal a constructive failure to exercise jurisdiction and that both of those questions raise a question of law.
5. In this matter the Appellant submits that the Tribunal's reasons demonstrate that it failed to take into account unchallenged evidence given by Mr Lay in coming to its conclusion that the Appellant was not an impacted lessee and had not sought to renegotiate the lease. We are satisfied that this ground raises an error on a question of law and leave is not required. Grounds 4 and 5, like ground 1, raise a question as to whether the Tribunal failed to consider key evidence and submissions.
6. We are satisfied that ground 2 which alleges that the Tribunal failed to afford the Appellant procedural fairness also raises an error on a question of law.
7. In ground 3 the Appellant seeks to challenge the factual findings of the Tribunal. As noted above, leave of the Appeal Panel is required for this ground to proceed.
8. We now turn to consider each of the grounds of appeal.

1. The finding by the Tribunal that the Appellant was not an impacted lessee is set out in [60] of the Tribunal's reasons. In making the finding the Tribunal stated:

While there is a letter from Kamper Chartered Accountants bearing date 28 May 2020 (Exhibit 1 at p 164), the Lessor led unchallenged evidence, which I accept, that the accountants' letter was never received by it from the Lessee - see Mr Turski's Affidavit at [29] - [30] (Exhibit 1, p 248). Moreover, the Lessee led no evidence that the accountants' letter was provided to the Lessor.

1. The finding is repeated at [62(a)] of the reasons and at [75] in relation to the issue of whether there could be a prohibition under the COVID-19 Regulations on the rent being increased. There the Tribunal states "no evidence was ever produced (contrary to the Lessee's obligations under s 7 of the Fifth COVID Regulation) that the Lessee was a party to an impacted lease".
2. The Appellant states that the finding that there was no evidence that the Appellant was an impacted lessee ignores Mr Lay's statement and ignores Mr Lay's evidence. Mr Lay's evidence at [24] of his statement filed in the Tribunal proceedings was that on 28 May 2020, in response to a request from the Lessor, he emailed to Mr Turski a completed "COVID-19 Impacted Lessee Checklist" and an accountant's letter which confirmed he was an impacted lessee.
3. The Appellant states that the Tribunal was wrong when it stated that "the Lessee led no evidence that the accountants' letter was provided to the Lessor" as Mr Lay's evidence was precisely that he had emailed the letter to Mr Turski. The Appellant submits that the Tribunal failed to take Mr Lay's evidence into account. The Appellant also submits that the Tribunal's duty to give reasons required it to address the conflict between Mr Lay's evidence and that of Mr Turski who gave evidence that he had not received the accountant's letter.
4. The Appellant notes that Mr Lay was not cross-examined on his evidence. The Appellant submits that, although the fact that Mr Lay was not cross-examined did not oblige the Tribunal as a matter of law to accept his evidence, the usual implication from a failure to cross-examine is acceptance of that evidence insofar as it is not inherently incredible. The Appellant further submits that, if the Tribunal was not going to follow that usual approach, then its duty to give reasons obligated it to explain why, but it failed to do so.
5. The Appellant relies upon Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-588 in support of its submissions. The Appellant, however, does not refer to the full judgment of Samuels JA where at 588 he notes that the omission to cross-examine might be of little importance where the witness' evidence appeared incredible or unconvincing or was contradicted by other evidence which appeared worthy of belief. Unlike in Ellis, in this matter there was contradictory evidence which the Tribunal expressly found to be credible.
6. In this matter it is important to read the Tribunal's reasons as a whole. In Barnes v Barot [2023] NSWCATAP 199 at [45], citing Volkswagen Group Australia Ply Ltd v Saad [2022] NSWCATAP 133 at [58], the Appeal Panel stated:

The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P) helpfully set out the principles relevant to adequacy of reasons at [66] - [77]. They are summarised as follows:

(1) The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard.

(2) The quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided.

(3) As to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons is appropriate than may be the case when an appellate court is hearing an appeal from another court.

(4) Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, requires there to be set out in reasons (when requested by a party):

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law, and

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(5) At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary.

(6) It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear.

(7) Reasons need not be elaborate.

(8) Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

(9) The court should not read passages from the reasons for decision in isolation from others to which they may be related.

(10) The reasons must be read fairly and as a whole.

(11) The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error.

(12) There should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips.

1. We note that Mr Lay represented the Appellant before the Tribunal and also gave evidence. He confirmed to the Tribunal member that he relied upon the written material he had provided along with his statement which he said was true and correct. While there is no express reference in the Tribunal's reasons to Mr Lay's evidence in his statement that he emailed the checklist and accountants' letter to Mr Turski on 28 May 2020, it is clear from the reasons for decision that his evidence was taken into account by the Tribunal, hence the reference at [60] to the letter from Kamper Chartered Accountants.
2. Mr Turski had provided a statement in the proceedings and was cross-examined by Mr Lay on his evidence. He was also questioned by the Tribunal Member. Mr Turski's evidence was that he had never received information from Mr Lay as required by the COVID-19 Regulations which would establish the Appellant was an impacted lessee. At [32] of the reasons for decision the Tribunal refers to the Appellant's submissions that the evidence of Mr Turski (and Mr Liolios) should not be accepted and adverse findings as to their credit should be made.
3. The Tribunal rejected those submissions and found Mr Turski and Mr Liolios to be credible witnesses. At [34] the Tribunal stated:

Materially, other than Mr Lay's assertions, the Lessee could not identify any part(s) of those witnesses' oral evidence to substantiate the underlying submission that I should prefer Mr Lay's evidence to the evidence of the Lessor's witnesses. I find that the evidence of the Lessor's witnesses is supported, objectively, by contemporaneous documents and by the circumstances for the parties' dispute, as apparent from the written evidence of both parties in Exhibit 1.

1. In relation to the evidence concerning requests for rental assistance, at [35] the Tribunal accepted Mr Turski's evidence that the Lessor did not receive the requisite information and supporting documents about JobSaver payment status and business turnover to establish whether the Appellant was an impacted lessee.
2. It is clear that the Tribunal's findings as to the credibility of the Lessor's witnesses led to its conclusion at [60]. We note, as the Lessor points out, Mr Turski's evidence on this point was not challenged by the Appellant during cross-examination of Mr Turski by Mr Lay and at no stage of the proceedings did the Appellant provide any evidence that the email Mr Lay stated had been sent on 28 May 2020 and which attached the relevant documents had in fact been sent and received by the Lessor.
3. The Appellant takes issue with the statement by the Tribunal that the Appellant "led no evidence that the accountants' letter was provided to the Lessor". Read fairly, we understand that to be a reference to the fact that Mr Lay did not provide objective evidence that the email attaching the letter and checklist had in fact been sent, such as a copy of the email.
4. In our view, the reasons for decision do not disclose that Mr Lay's evidence was ignored. Rather, the reasons deal directly with the fact that there was evidence before the Tribunal which contradicted Mr Lay's evidence. Faced with competing evidence, the Tribunal weighed that evidence and made findings on its assessment of the credibility of the evidence. We see no error in the Tribunal's approach in coming to its conclusion that the Appellant was not an impacted lessee.
5. The Appellant also submits that in finding that the Appellant did not request a renegotiation of the lease the Tribunal failed to properly consider the evidence before it that such a request had been made. In addition, the Tribunal failed to provide adequate reasons for its conclusion.
6. Given our conclusion that the Tribunal did not err in finding that the Appellant had not provided information to the Lessor that it was an impacted lessee, this point is somewhat moot as renegotiation of the lease was only required if the tenant was an impacted lessee. However, as the Tribunal dealt with the issue on the basis that, as it seemed to be argued by the Appellant, the Lessor should have inferred it required further rental assistance, for the sake of completeness, we will deal with the submissions of the Appellant.
7. In its reasons the Tribunal noted that the onus always rested on the Appellant to seek to renegotiate the rent payable under, and other terms, of the lease. At [62(c)] the Tribunal states that the evidence in the case established that no requests to renegotiate were made by the Appellant, and the contemporaneous evidence was that the Appellant was content, even appreciative, of the assistance which had been provided by the Lessor.
8. On appeal the Appellant argues that the following, when considered in context, should have been taken to be a request to renegotiate the rent:

(1) A letter dated 6 April 2020 sent by Mr Lay to Mr Turski in response to an email from Mr Turski on 31 March 2020 advising of the decision to unilaterally halve the rent payable. That letter noted that the newly established business was yet to trade profitably; a number of matters, including the outbreak of COVID-19 had affected weekly takings; and, a reduction of 50% would normally be welcome relief but if the business experiences income of $2,000-$2,500 a week, surviving would require full rental relief. The letter concluded that, as a tenant in the current circumstances, Bluestream "is forced to seek meaningful financial assistance" from the centre owners.

(2) An email from Mr Lay to Mr Turski on 25 November 2020 in which Mr Lay stated that the reason he was behind in his rent related to circumstances that preceded COVID-19. He again noted that the business did not have an opportunity to get established or be profitable and that the assistance provided did not offer the same degree of relief to him as it did to other retailers. Mr Lay concluded: "Perhaps we could meet and have further discussions. Otherwise, let me know what you are prepared to do".

(3) An email from Mr Lay to Mark Perich (from the Lessor) on 21 January 2021 in which Mr Lay noted that his business was progressing well although sales had not recovered to pre-COVID levels. He noted that the rental relief provided by the Lessor had been welcome. Mr Lay then stated that, whilst determining the appropriate quantum and duration of assistance are difficult issues, or how the pandemic's costs could be fairly shared, the Lessor's recognition of the difficulties was appreciated. He then said: "My thoughts are that should there be constraints as to what rental assistance can be afforded, then perhaps assistance of a different nature may also be considered?" He concluded that he was interested in purchasing land in the shopping centre.

(4) An email to Mr Liolios from Mr Lay on 6 March 2023 in response to inquiries about unpaid rent in which Mr Lay stated that, if the Lessor remained insistent that the invoices he claimed were not issued required payment, "then I am forced to complain that the assistance provided during COVID was severely inadequate".

(5) Mr Lay's statement in his statement prepared for the proceedings that during the Covid period, he required the Lessor to provide rental assistance for his business (at [16]).

1. We agree with the Appellant that the COVID-19 Regulations did not require any particular form of words to be used in making a request for renegotiation. We also agree that the Regulations were beneficial legislation.
2. The Appellant accepts that the 6 April 2020 letter to Mr Turski pre-dates the COVID-19 Regulations and there was therefore no obligation on the Lessor to do anything. The Appellant says, however, that this letter provided context for later communications. It argues that the email of 25 November 2020 and the later email of 21 January 2021 are clear requests to renegotiate in accordance with the COVID-19 Regulations.
3. The Lessor refers to the context in which the 25 November 2020 email was sent and submits the email must be read in light of the circumstances at the time. The email was a response to an email from the Lessor about rent arrears and the need to make a suitable repayment plan. Mr Turski responded to the email on 26 November 2020 and said:

I need you to propose a payment arrangement for consideration by the Board. The Leasing code of conduct was very clear that tenants must meet their obligations under the lease to continue to receive rental rebates. We have been applying these rebates to your rental since April, but you have not been making any payments towards the arrears.

1. The Tribunal also referred to a further email sent by Mr Lay to Mr Turski on 6 December 2020 in which Mr Lay stated: "If it is acceptable, I will bring my rentals up to date by the end of June 2021 (if possible, I will try and do so by April 2021)".
2. Mr Lay's letter of 6 April 2020 was not specifically referred to in the Tribunal's decision. As the letter pre-dated any of the COVID-19 Regulations, there was in fact no need to refer to it as it could not be relied upon to support any conclusion that the Lessor had failed to comply with the COPVID-19 Regulations.
3. In its reasons the Tribunal set out in detail the email exchange between Mr Turski and Mr Lay on 25 and 26 November 2020. The Tribunal also referred to the evidence given by Mr Turski, which it accepted, that the Lessor received no requests for rental assistance following the 50% reduction given shortly after the pandemic commenced. This included a reference to the transcript of the hearing where, during cross-examination by Mr Lay, Mr Turski stated he was not asked by Mr Lay to provide further assistance. Mr Lay did not follow up on that response in any way.
4. When seen in context we are not satisfied that the 25 November 2020 email can be taken to be a request to renegotiate the rent payable under the lease. It certainly was not evidence, as the Appellant claims, that was ignored by the Tribunal.
5. It is difficult to know what to make of the email from Mr Lay to Mr Perich on 21 January 2021. The email was attached to Mr Lay's statement but was not referred to in the Tribunal's reasons. It is apparent, however, that the Appellant sought to rely on the letter. Mr Lay made a brief reference to it in his submissions filed after the hearing where he stated that the evidence demonstrated that the Appellant had been requesting rental assistance "throughout 2020 and up until its letter to Mr Mark Perich in January 2021".
6. The fact that the email was not specifically referred to by the Tribunal does not necessarily demonstrate that evidence called upon to support a particular argument was ignored. As stated in Orr (see [78] above), it is not necessary for a Tribunal member to detail each factor which he or she has found to be relevant or irrelevant. The member is also not required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear. The Tribunal's reasons clearly show that it was satisfied on the evidence before it, that the Appellant had made no request to renegotiate the rent or other terms of the lease. The inference to be drawn is that the Tribunal did not regard the email of 21 January 2021 as containing a request to renegotiate. That conclusion was open to the Tribunal. In our view, the email does not contain any request to negotiate the rent and is rather concerned with Mr Lay's desire to purchase land in the shopping centre. We are also of the view that the assistance schemes, being concerned with rent and other terms of the lease, were not concerned with assistance of that kind.
7. As for the email to Mr Liolios from Mr Lay on 6 March 2023 in which Mr Lay stated that, if the Lessor remained insistent that the invoices he claimed were not issued required payment, "then I am forced to complain that the assistance provided during COVID was severely inadequate". It is difficult to see any basis upon which this email, which is effectively a complaint about the past and no more, could be seen as a request to renegotiate the rent, particularly as, by then, the COVID-19 Regulations were not in force having ceased to have effect on 13 July 2022: cl 16 Retail and Other Commercial Leases (COVID-19) Regulation 2022 (NSW).
8. In relation to Mr Lay's statement that he had required the Lessor to provide rental assistance for his business, again, the Tribunal's reasons are clear that it accepted (and preferred) the evidence of Mr Turski to that of Mr Lay. The Tribunal also found that the evidence of Mr Turski and Mr Liolios was supported, objectively, by contemporaneous documents and by the circumstances of the parties' dispute: at [34] of the Reasons.
9. We are not satisfied that in finding that the Appellant did not request a renegotiation of the lease the Tribunal failed to properly consider the evidence before it that such a request had been made.
10. This ground of appeal is not made out.

1. The Appellant submits that he was denied procedural fairness when the Tribunal accepted a submission made by the Lessor that the Appellant had not given the impacted lessee information to the Lessor when it was not put to Mr Lay in cross-examination that his evidence that he had done so should be disbelieved or ignored.
2. While the submissions of the Appellant are framed in terms of a denial of procedural fairness arising out of an acceptance by the Tribunal of submissions made by the Lessor, we understand the real complaint to be that it was never put to Mr Lay in cross-examination that he did not send the checklist and accountant's letter to Mr Turski and that this was a denial of procedural fairness.
3. The Appellant's case before the Tribunal was that he had provided the letter from his accountants and the checklist sent to him by the Lessor to Mr Turski on 28 May 2020. The clear evidence of Mr Turski in his statement was that he had not received the information and that he had been unable to locate any email from Mr Lay on or around 28 May 2020. That statement had been provided to the Appellant in the course of the exchange of material prior to the hearing.
4. Proceedings in the Consumer and Commercial Division of the Tribunal are generally adversarial in nature with the parties presenting their cases to the Tribunal as they see fit. Members can and do take an active role in the proceedings, particularly where, as here, a party is not legally represented. As noted above, Mr Lay was not cross-examined by the Lessor's representative at the hearing. He was, however, affirmed and able to give his own evidence. He also responded to some questions asked of him by the Tribunal member. In our view he was able to put before the Tribunal his evidence and submissions.
5. The Appellant was clearly on notice prior to the Tribunal hearing that the Lessor disputed his claim (which in the absence of supporting material was an assertion) that he had sent the required information to Mr Turski on 28 May 2020. He carried the onus of persuading the Tribunal of the fact in the face of a denial of receipt by the Lessor. As we have said previously, the Tribunal weighed the competing evidence before it and made findings on its assessment of the credibility and reliability of that evidence. In our view, the Appellant was on notice of the issues to be decided and the evidence before the Tribunal. Mr Lay could have provided further objective evidence to support his claims but did not. He was able to cross-examine Mr Turski on his evidence and did so (but not on his statement that no email was received). We do not consider he was denied procedural fairness.
6. This ground of appeal also must fail.

1. The Appellant argues that the Tribunal made errors of fact when it found that the Appellant had not provided information that it was an impacted lessee and had not requested a renegotiation of the lease. The Appellant seeks leave to appeal on the basis that the decision was not fair and equitable and was against the weight of the evidence.
2. As can be seen from our reasons in relation to appeal grounds 1 and 2, we are satisfied that the findings of fact made by the Tribunal were reasonably open to it on the evidence before it. Leave to appeal on this ground is therefore refused.

1. The Appellant submits that the Tribunal erred in law by failing to consider the Appellant's submission that the breach notice issued by the Lessor on 14 February 2023 was not a valid breach notice issued in accordance with s 129(1)(a) of the Conveyancing Act 1919 (NSW).
2. In the Notice of Appeal, the Appellant states that, had the Tribunal properly dealt with the submission, it would have identified that the notice did not comply with s 129 of the Conveyancing Act 1919 (NSW), because:

(a) it claimed arrears incurred during prescribed periods, which the Lessor was barred by the COVID-19 Regulations from claiming (see Ground 3 above); and

(b) it failed to provide full credit for payments made by the Appellant, as set out in the Lessor's own documentary evidence.

1. The breach notice stated that the Appellant had breached the covenants in cll 4, 5, 6 and 7 of the lease, namely, to pay rent, outgoings, promotion fund and GST. It specified the total amount owing as being $59,219.33. Attached to the notice was an arrears statement which showed the amount owing as at 30 September 2022 being $50,617.60 and then monthly rent, outgoings and promotion fund owing, less payments made up to 1 February 2023, leaving a balance owing of $59,219.33.
2. In the Tribunal application the Appellant stated one of its claims was that the notice of 14 February 2023 was defective as it failed to specify the particulars of the alleged breaches. The Appellant sought damages of $8,335 for economic loss arising from the Lessor's unlawful re-entry of the premises and deprival of possession. In closing submissions following the hearing, the Appellant submitted the notice was defective as it included only a partial summary of the rent ledger. The Appellant also stated that, of the $59,219.33 demanded in the breach notice, there were amounts for the disputed invoices, deferred rent due to COVID-19 rent deferrals, unidentified transactions and disputed rental increases.
3. In its reasons for decision the Tribunal rejected the Appellant's claim for its alleged losses arising out of the termination of the lease on a number of bases. One of these at [72] was because there was no legal basis for any relief under the Retail Leases Act because, in circumstances where the Appellant was duly issued a breach notice for rent arrears which it failed to remedy, the Lessor's termination of the lease and re-entry of the premises in March 2023 could not be wrongful.
4. While the Tribunal identified whether the Appellant was entitled to damages resulting from termination of the lease as an issue in the proceedings, we accept that the Tribunal did not engage directly with the submission that the notice was defective. It did, however, at [72] make a clear finding that the Appellant was duly issued with a breach notice. Nonetheless, it could be argued that the Appellant was denied procedural fairness in that his submission was not considered, even briefly, and the Tribunal did not engage with any concerns raised by the Appellant about the validity of the notice and failed to exercise its jurisdiction.
5. However, in the circumstances of this case, we are not satisfied that the failure of the Tribunal to directly address the submission resulted in a denial of procedural fairness as the Appellant has not demonstrated that he suffered some "practical injustice" that resulted in a detriment to him: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.
6. As the Appellant did not at the relevant time qualify for any relief and was not barred by the COVID-19 Regulations subparagraph (a) of this ground of appeal cannot be sustained.
7. The Appellant's primary argument as to the validity of the notice as set out in the appeal submissions appears to be based upon his contention that the amount owed as specified in the breach notice was based upon an incorrect calculation of entitlement. That argument cannot be sustained.
8. It must be borne in mind that the Tribunal's conclusions with respect to termination and alleged losses came after it had rejected the Appellant's arguments concerning the disputed invoices and that it was an impacted lessee under the COVID-19 Regulations (which also meant that the Lessor was not precluded from increasing the rent during the relevant period). We note that the Appellant has not appealed against the Tribunal's findings with respect to the disputed invoices and we have found no error in the Tribunal's conclusions that the Appellant was not an impacted lessee.
9. As to subparagraph (b) of this ground of appeal, the Appellant could not and did not dispute that it was in breach of the covenants but seems to be disputing the extent of its liability. The Appellant did not put before us any authority to support a contention that in those circumstances the notice did not comply with s 129 of the Conveyancing Act 1919 (NSW). In these circumstances, the breach notice could not be said to be legally invalid and the Appellant suffered no detriment through the Tribunal's failure to directly address his submissions as to validity.
10. Furthermore, even if the notice was invalid or the Appellant was denied procedural fairness as the Tribunal failed to address his submission on validity, we would not grant the appeal on this basis as there would be no utility in doing so.
11. As stated by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25], an appeal is against orders and not reasons and the question of law in the appeal must be capable of affecting the orders the subject of the appeal.
12. In this matter, the order appealed against is that the Appellant's application be dismissed. In relation to the lease termination claim, the Tribunal held that the Appellant's claim for damages arising from the alleged unlawful termination was not made out. For the reasons which appear below, we do not find any error in the Tribunal's findings on that issue. For that reason, and because the Lessor does not rely on the breach notice, the Appellant having long ago paid the arrears and resumed occupancy of the premises and, as we understand it, continues to do so, there is no remedy available to the Appellant.

1. As stated above, this ground is that the Tribunal erred in law in failing to consider the Appellant's unchallenged evidence of damages it sustained as a result of the unlawful termination of the lease by the Lessor, or alternatively by failing to give reasons why that evidence should not be accepted.
2. The Tribunal rejected the Appellant's claim for damages arising out of termination of the lease on four bases:

(1) By its letter of 7 March 2023 in which the Appellant stated, "I await your termination letter and final date for me to vacate the premises", the Appellant acquiesced to the breach. Any loss that arose was by the Appellant's own conduct and the Appellant failed to mitigate its loss by remedying the breach.

(2) There was no evidence of the economic loss said to have been suffered by the Appellant. At best, the Appellant's evidence was an estimate of potential lost sales derived from its own calculations, but with no independent evidence to substantiate the amount claimed. The Appellant claimed loss of stock despite the Lessor inviting the Appellant to collect any perishable goods and there was no evidence that the Appellant actually paid the costs claimed for the perishable goods.

(3) Applying the principles summarised by Black J in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [42] the Appellant, bearing the burden, had not proved its case and in the absence of evidence, the Tribunal would not speculate as to an amount of damage, where precise evidence of the damage, that is, economic loss, could have been adduced and was not.

(4) There was no legal basis to relief under the Retail Leases Act in circumstances where the Lessor's termination of the lease and re-entry of the premises was not wrongful.

1. The Tribunal clearly considered the claim for damages and provided reasons for its conclusion.
2. Given its findings that the breach notice was duly issued in all the circumstances, the fourth reason provided by the Tribunal is clearly dispositive of the issue. We have found no error in the Tribunal's conclusion that the notice was duly issued and, accordingly, this ground of appeal is not made out.
3. For the above reasons leave to appeal (where required) is refused and the appeal is dismissed.

1. In their written submissions in the appeal both parties stated that costs should be awarded to the party who was successful. The Lessor submitted that costs ought to be costs in the cause, pending any further final hearing of the matter.
2. The general rule set out in s 60 of the NCAT Act is that, unless there are special circumstances, each party bears its own costs. In matters in the Consumer and Commercial Division where the amount claimed or in dispute in the proceedings is more than $30,000, the Tribunal may award costs in the absence of special circumstances: r 38 Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). In an internal appeal the Appeal Panel must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal: r 38A(2)
3. Mindful of rules 38 and 38A of the NCAT Rules we are satisfied that the amount in dispute in the proceedings before the Tribunal was more than $30,000 and that the Appeal Panel therefore has a general discretion in respect of costs. The starting position is that costs should follow the event of the appeal being dismissed. In the ordinary course, this would mean that the Lessor should be awarded its costs. The Appellant, however, should be given an opportunity to put forward a contrary position.

(3) The Appellant is to file and serve submissions on the costs of the appeal within 14 days.

(4) Within 14 days thereafter, the Respondent is to file and serve submissions concerning costs of the appeal in opposition to the Appellant's submissions.

(5) The submissions on costs should address whether the Tribunal may make an order dispensing with a further hearing on costs of the appeal and whether the Appeal Panel may determine costs of the appeal on the papers.

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.