HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, Mr Antonio Di Liristi (Di Liristi), entered into a residential tenancy agreement in respect of premises at Austral with the respondent, Matautia Developments Pty Ltd (Matautia), for a period of three years commencing 1 August 2019.
Di Liristi permitted a large quantity of soil to be brought onto the property to level it between June and November 2019. In December 2019, Liverpool City Council (the Council) issued a Clean-Up Notice to Matautia requiring it to have the fill classified and analysed prior to its removal. Matautia, through a consultant, commissioned Aargus Pty Ltd (Aargus) to conduct a soil assessment. Following a site inspection and collection of soil samples by representatives of Aargus on 7 January 2020, Aargus provided a report dated 24 January 2020 authored and signed by Mr Balakrishnan, an environmental engineer, and reviewed and signed by Mr Kelly, an environmental manager (the first Aargus report). Mr Kelly did not attend the property as part of the site inspection. The report attached laboratory certificates from Australian Safer Environment & Technology Pty Ltd (ASET) stating that asbestos had been detected in 6 of the 17 soil samples.
On 5 March 2020, Di Liristi commenced proceedings in the Supreme Court against Matautia in relation to disputes concerning the property. Subsequently, on 23 March 2020, Matautia's solicitors served a notice of termination on Di Liristi which required vacant possession on 6 April 2020. Di Liristi did not vacate the premises and has remained in possession of the property. On 31 July 2020, Matautia filed a cross-summons seeking declarations that Di Liristi was in breach of the tenancy agreement and that Matautia was entitled to an order for termination and for possession of the property, as well as claiming damages for the costs of remediation of the property and unpaid rent.
Although no orders were made for the service of expert reports, both parties served expert reports on the issue of whether the imported fill was contaminated: Matautia served the first Aargus report; Di Liristi served a report by Geotech Soil Solutions Pty Ltd and Matautia served a report in reply by Aargus. Both the Geotech report and the second Aargus report were served late. In support of its claim for damages for the cost of the clean-up of the premises, Matautia relied on two quotes it had obtained dated 6 and 7 May 2020. At trial, the first and second Aargus reports were admitted over objection. Di Liristi did not object to the tender of the two quotes for the costs of the clean-up.
The primary judge found that Di Liristi had introduced contaminated soil onto the property, which entitled Matautia to issue the notice of termination. The primary judge gave judgment for Matautia on its cross-claim for $311,389, comprising damages for the cost of remediation of the land and unpaid rent, among other costs.
Di Liristi's appeal raised the following issues:
the admissibility of, or weight that could be given to, the two expert reports prepared by Aargus;
the admissibility of, or weight that could be given to the two quotes, and whether the primary judge erred in awarding damages for clean-up costs; and
the award of damages for unpaid rent.
Held, dismissing the appeal (per Gleeson JA, Macfarlan and Brereton JJA agreeing):
As to the first issue
The first Aargus report was admissible as a business record of Matautia pursuant to s 69 of the Evidence Act 1995 (NSW): the report belonged to or was kept by Matautia in the course of, or for the purpose of, its business of owning and leasing the property (s 69(1)(a)); the report was made for the purposes of its business (s 69(1)(b)); and statements made in the report were made by Mr Balakrishnan who had the requisite degree of personal knowledge of the asserted facts, or were made on the basis of information directly or indirectly supplied to Mr Balakrishnan by ASET who had or might reasonably be supposed to have had personal knowledge of the asserted facts concerning the analysis of the soil samples (s 69(2)): [46]-[53].
Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79; Gregg v R [2020] NSWCCA 245; Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 53 ACSR 752; Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 13, 18, 19) (1988) 14 NSWLR 116; Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; Jadwan Pty Ltd v Rae & Partners (A Firm) (No 3) [2017] FCA 1045 referred to.
The carve out in s 69(3) was not engaged with respect to the first Aargus report. No reliance was placed by Di Liristi on s 69(3)(b) that this report contained a representation made in connection with an investigation relating or leading to a criminal proceeding. Nor were civil proceedings "likely" or "reasonably likely" at the time the representations in the report were prepared or obtained (s 69(3)(a)): [55]-[59].
Averkin v Insurance Australia Ltd (2016) NSWLR 68; [2016] NSWCA 122; Nikolaidis v Legal Services Commission [2007] NSWCA 130 referred to.
The primary judge did not err in giving weight to the first Aargus report: it was not to the point that Mr Kelly did not attend the site inspection, and the weight to be given to the previous representations contained in the report was not lessened by the absence of Mr Balakrishnan or Mr Zhang of Aargus, or the author of the ASET certificates for cross-examination: [61]-[65].
Although the primary judge did not use the words "exceptional circumstances" when admitting the second Aargus report, which was served less than 28 days prior to the hearing, his Honour can be taken to have considered that such circumstances were established for the purposes of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.28(4) as both parties had served expert reports despite no directions being made for expert reports; both reports had been served late; the report was in reply to the Geotech report; and both parties had a fair opportunity to cross-examine the other's expert: [69]-[71].
As to the second issue
Since Di Liristi made no objection at trial to the tender of the two quotes, the Court should deal with the issue of their admissibility on the basis that there is no objection to the quotes as hearsay: [74].
Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 referred to.
The primary judge was entitled to use the quotes as some evidence of the cost of remediaton, which was not contradicted by any evidence adduced by Di Liristi, nor challenged in cross-examination: [76]-[78].
Paino v Paino [2008] NSWCA 276; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 referred to.
While the court has a duty to unrepresented litigants, it is not for the trial judge to raise questions of admissibility: [81]. There was no procedural unfairness to Di Liristi in dealing with objections to Matautia's affidavit evidence. The primary judge gave time for Di Liristi to consider whether to object to the evidence, which Di Liristi had not overlooked, given that he had earlier referred to the quotes in his opening address in the context of his own claim for damages against Matautia for alleged failures to repair and maintain the property: [82]-[86].
Hamod v New South Wales [2011] NSWCA 375; Harrington-Smith on behalf of The Wongatha People v State of Western Australia (No 7) (2003) 130 FCR 424; [2003] FCA 893; Bauskis v Liew [2013] NSWCA 297; Pollock v Hicks [2015] NSWCA 122 referred to.
As to the third issue
Di Liristi's argument that the tenancy agreement terminated on 6 April 2020 and Matautia's remedy was loss of bargain damages (which it had not proved), ignored the provisions of the Residential Tenancies Act 2010 (NSW). A tenancy agreement only terminates in the circumstances specified in s 81. As Di Liristi has not vacated the premises and the Tribunal had not yet made an order terminating the agreement, the agreement remained on foot. Matautia had an accrued right to liquidated damages for unpaid rent of $600 per week from 11 September 2019 to the date of judgment on 23 June 2021: [95]-[97].