Di Liristi v Matautia Developments Pty Ltd

Supreme Court of NSW|2021-03-17|Before: Cavanagh J

Judgment Background The competing positions The credibility of the plaintiff The invoices for repairs The alteration of an expert report Reliance on misleading certificates The email of February 2021 General inconsistencies Introduction of soil Contaminated soil? Consent of the first defendant Was the termination valid? Is the first defendant estopped from terminating the tenancy agreement? The plaintiff's other claims The claim for damages arising from the failure to have building and property insurance The claim for reimbursement of costs associated with removal of asbestos, steel, concrete and hazardous material at the rear of the property The claim that the first defendant pay the cost of reinstating the building after the asbestos to the building and garages has been removed The claim that the first defendant pay the cost of repairs to the building and property The claim for the cost in relation to container storage and damages suffered as a result of not being allowed to sublease Claims for costs associated with having to carry out repairs to the property and building on the property Claims for loss of quiet enjoyment, repudiation of the tenancy agreement and other matters arising out of the first defendant's wrongful conduct Other matters Is the first defendant entitled to damages? Claims against other defendants The orders

Judgment

The plaintiff is the lessee of a property situated at 62 Kelly Street, Austral in the State of New South Wales ("the property"), pursuant to a residential tenancy agreement with the first defendant, Matautia Developments Pty Ltd ("the tenancy agreement").

Background

The first defendant is the owner of the property.
The area of the land is uncertain. There was an exchange between Mr Kavanagh on behalf of the first defendant and the plaintiff with the plaintiff suggesting that the land was 25 acres and Mr Kavanagh said it was only 10 acres. Perhaps consistently with everything that happened in this case, the parties could not even agree on the area of the leased property.
The first defendant is a property developer and appears to be one of a number of companies associated with Andrew Kavanagh and other persons involved in the property development business. As put to Mr Kavanagh by the plaintiff, Mr Kavanagh has operated different companies over the years associated with property development, a number of which no longer exist. Although it was not explained why this particular company, being the first defendant, only owns this block of land, that is the position.
The first defendant utilises consultants such as a former solicitor, Dean Alcorn. The first defendant accepts that persons such as Mr Alcorn and Ryan Strauss were acting as its agents in any dealings with the plaintiff.
The director of the company, Mr Brian Wheadon, did not give evidence. The plaintiff made much of this throughout the hearing suggesting that in some way this was part of the conspiracy. It appears that Mr Wheadon holds shares on trust for a number of persons including Mr Kavanagh. He may be a director of a number of other companies. Despite the plaintiff's urgings, it is not my function to determine why this is so or to undertake an investigation into the persons associated with this business.
Subsequent to the purchase of the land, the first defendant entered into a lease with Tony Stillone. As is evidenced by photographs of the land, at various times the property was in very poor condition. It appears to have been littered with rubbish. The house was in poor condition. It has been described as unliveable. The plaintiff made much of what happened during Mr Stillone's period of occupancy. There is evidence that the land contained asbestos even prior to Mr Stillone's occupation and that it required remediation. On the first defendant's case, it was remediated properly.
I do not know why the first defendant decided to purchase this particular block of land, although the plaintiff made it plain through his cross-examination that the first defendant had the opportunity to gain a significant amount of money through subdivision and development. A proposal for subdivision was lodged on 17 December 2018. The subdivision was approved by Council on 1 November 2019, although the subdivision has not yet been registered.
There is an earlier reference to the land being developed for playing fields.
I can only assume that the first defendant or interests associated with Mr Kavanagh considered it to be a good development opportunity as they were in the business of property development.
The undercurrent of the case as presented by the plaintiff is that the first defendant is making up a reason to evict the plaintiff and wants the plaintiff out for its own commercial reasons.
Although he is not paying rent, he is resisting leaving apparently because he would like to care for both his parents and animals on the property. Having said that, there are references in emails sent by the plaintiff to the plaintiff's "investors" and doing deals and similar matters which might suggest that there is more to the plaintiff's occupation of the property (at least in his mind) than is apparent in the evidence. Despite the plaintiff's best efforts to make it so, the outcome of the case does not depend on findings as to the motives of the first defendant or allegations of prior dishonest dealings.
During the period of his tenancy Mr Stillone entered into a sublease with the plaintiff's mother, Rita Liristis, albeit the arrangement was organised by the plaintiff. The plaintiff says that he originally leased the property in his mother's name, as it was his intention to have his elderly parents move into the property as somewhere to live rather than in a nursing home. He says he spent some time sourcing a suitable farm for his parents to move to.
I mention at this stage that there appears to be some reason for the plaintiff to use a variation on that name "Liristis" on other occasions, although I am not sure that anything turns on that in this case. He appears to use a number of different email addresses depending on his purpose.
The first defendant's lease with Mr Stillone ended on 14 May 2019.
At that time, the plaintiff negotiated with the first defendant, in particular, through its agents, Dean Alcorn and Ryan Strauss, on the basis that he would enter into a tenancy agreement with the first defendant. Indeed, the plaintiff even drafted the special conditions which he wanted, to which the first defendant agreed.
Those special conditions include that the plaintiff would undertake some work on the property, including electrical work, the installation of a stove and other limited work which would be paid for by the first defendant by means of a set-off against the rent payable.
On 7 June 2019, the plaintiff entered into the tenancy agreement with the first defendant in his own name.
The first defendant agreed that the plaintiff could sublease and he set about subleasing to persons who wanted to store their trucks on the land. On his evidence, he allowed an NBN contractor to store its equipment on the land in return for wiring being connected for a reduced price.
On the plaintiff's case he set about undertaking improvements and repairs to the property to make it liveable and presumably to allow him to sublease a part of the property. He also allowed the property to be used by other persons for other purposes. He says that he brought some fill in to level a part of the land which he intended to sublease. As a matter of fact, his parents never moved in and he has paid no rent at all.
On 18 December 2019, the Liverpool City Council issued the first defendant with a Clean-Up Notice. The Clean-Up Notice required that the first defendant: 1. immediately cease all activities relating to what was described as the pollution incident; 2. prevent heavy vehicles containing fill or any other materials from entering the subject premises; and 3. cease depositing fill or any other materials onto the subject premises.
The reasons for the notice were that representations had been made to the Council regarding a pollution incident at the property arising from the placement and spreading of fill material.
An authorised officer of the Council had attended at the property on 2 December 2019 at which time the plaintiff was present and Dean Alcorn was present representing the first defendant. The Council officer noted that unauthorised fill material had been introduced, spread and stockpiled across the premises.
During that inspection (at least as recorded in the Clean-Up Notice), the plaintiff advised that the material was introduced as a means of making the site safe as underneath the soil were remnants of concrete and iron rods.
The plaintiff said that a friend had introduced the soils which were allegedly clean soils and this work had been going on for four months. Despite the plaintiff's assurances, the Council believed that a land pollution incident had occurred or would likely occur.
Following the issue of the Clean-Up Notice, the first defendant engaged David Whitting to assist in compliance with the Clean-Up Notice. Mr Whitting is an experienced project manager with a background in surveying.
In December 2019 the first defendant commissioned Aargus Pty Ltd ("Aargus") to classify and analyse the fill material at the premises.
On 23 March 2020, the first defendant, through its solicitors, Centurion Lawyers, served a notice of termination of the tenancy agreement under the Residential Tenancies Act 2010 (NSW). The notice was given on the grounds that the plaintiff had breached the tenancy agreement as: 1. he had used the premises for illegal purposes (contrary to clause 15.1); 2. he had intentionally or negligently caused or permitted damage to the residential premises (contrary to clause 15.4); 3. he had failed to keep the premises reasonably clean (contrary to clause 16.1); 4. he had failed to notify the first defendant of damage to the premises (contrary to clause 16.2); and 5. he had failed to obtain the first defendant's written permission to add or alter the premises (contrary to clause 27.1).
The plaintiff did not vacate the premises in accordance with the termination notice. Further, at least on the first defendant's case, the first defendant was unable to comply with the Clean-Up Notice issued by the Council because of the conduct of the plaintiff. According to Mr Whitting, this conduct included: 1. threatening the use of Court processes to deny access to the premises; 2. falsely accusing Mr Whitting of engaging a hitman for the purposes of removing the plaintiff from the premises; and 3. having members of the plaintiff's household chase him off the premises on 8 April 2020.
On 5 March 2020, the plaintiff commenced these proceedings. On 9 April 2020 the first defendant filed a tenancy application with NCAT seeking an order terminating the lease and seeking possession of the premises. The first defendant sought to have the plaintiff's proceedings dismissed but its application was dismissed. [2]
Thereafter, the first defendant wrote to the Council (by letter dated 17 July 2020) identifying that it had withdrawn the tenancy application in NCAT and was now required to deal with these proceedings.
According to Mr Whitting (in his affidavit of 10 December 2020), the Council has not responded to this letter and not taken any further action in respect of the Clean-Up Notice.
The matter must thus be determined on the basis that, although the Council has not yet taken action, it has not withdrawn its Clean-Up Notice.

The competing positions

The competing positions might be best summarised as follows: 1. the plaintiff maintains that he has done nothing which would justify the termination of the tenancy agreement and that, in any event, the first defendant is estopped from terminating the agreement. He also says that the termination notice was not validly issued; 2. he disputes that he introduced contaminated soil (if there is any) onto the property. He says that the first defendant should be paying damages to him, bearing in mind, that he was intending to derive an income from subleasing the premises and that he has suffered losses in terms of improvements and rectification of the property. He says that he is entitled to remain on the property and that the first defendant should be paying a substantial sum to him; and 3. the first defendant says that the plaintiff introduced contaminated soil onto the property and that conduct is clearly a breach of the agreement justifying termination of the agreement. Further, having regard to the Clean-Up Notice, the first defendant is required to expend a considerable sum in removing the contaminated soil and the first defendant is entitled to damages equivalent to the costs of cleaning up the property.
The focus of the plaintiff's case was on the purported dishonesty of the first defendant and its servants and agents. Indeed, he devoted considerable energy in preparation of his affidavits to assertions relating to scams, dishonest conduct, criminal networks and associations with such earlier violent incidents such as the bashing of Peter Baldwin. Large parts of his affidavits were inadmissible and irrelevant.
The parties accuse each other of being generally dishonest. The parties accuse each other of threatening conduct. The plaintiff's threats and abuse towards various persons are documented in his own emails which he tendered into evidence.
The central legal issue is whether the first defendant has validly terminated the tenancy agreement. Indeed, the summons filed by the plaintiff was really in response to the first defendant's purported termination of the tenancy agreement.
It does seem somewhat improbable that: 1. the plaintiff was able to bring over 850 tonnes of fill onto the property over a period of months without the first defendant knowing anything about it all; and 2. the plaintiff organised for such an amount of soil to be deposited onto the property without any monetary reward or benefit.
However, in the end, the outcome of these proceedings must depend on the evidence adduced and my determination of issues arising under the pleadings which may be conveniently summarised as follows: 1. did the plaintiff arrange for and allow a large quantity of soil ("the fill") to be deposited onto the property? 2. if so, did the fill contain contaminants such as asbestos? 3. did the first defendant consent to the dumping of such contaminated fill onto the land? 4. is the first defendant estopped from terminating the tenancy agreement? 5. was the termination of the tenancy agreement valid? 6. did the first defendant itself act in breach of the tenancy agreement or any other agreement with the plaintiff? 7. is the plaintiff entitled to damages from the first defendant? 8. is the first defendant entitled to damages from the plaintiff? 9. is the plaintiff entitled to a judgment against any other defendant? 10. what orders should be made?

The credibility of the plaintiff

The plaintiff's credibility is central to the outcome as he relies on disputed conversations and documents which have been either requested or prepared by him.
The plaintiff presents as a colourful person. Based on his emails and his presentation in court he swings between being courteous and rational to being prepared to threaten and abuse and make serious allegations without substance.
He has a criminal history and experience in the litigation process. He regularly referred to having recorded conversations and possessing CCTV footage of events supporting his suggestions or questions but never produced any such evidence. He sends self-serving emails which he relies on as evidence of the facts asserted in the emails.
Much of the plaintiff's case depends on acceptance of his evidence in preference to contrary evidence. Unfortunately for the plaintiff, although he devoted considerable effort in attempting to cast suspicions on the conduct of the defendants, his own credibility was very much diminished. Indeed, I have difficulty accepting many of his statements unless otherwise corroborated or inherently probable.
Merely because I do not accept parts of his evidence does not mean I should reject all of his evidence [3] but I have such a doubt about his overall credibility that I have difficulty assessing what may be correct and what may be false.
My doubts as to his credibility are caused by a number of matters which emerged during the hearing, including: 1. he attempted to mislead in respect of the doing and charging of alleged repairs to the building on the property; 2. he altered and relied on an expert report without the consent of the author; 3. he attempted to mislead by relying on certificates which he must have known said nothing about the condition of the soil; 4. as will be apparent from this judgment, there are a number of inconsistencies or contradictions between his oral evidence, his affidavit evidence and earlier documents created by him; and 5. he has adopted inconsistent positions on the central issues, depending on the occasion.

The invoices for repairs

The plaintiff proposed the special conditions of the lease which were agreed to by the first defendant. That allowed him to claim a set-off against the rent for things such as electrical work and the installation of a stove and other renovations to be done by a company known as T&R Building Maintenance.
Yet, as was exposed during cross-examination, the company which allegedly rendered the invoices was established by the plaintiff with his father. At least some of the work that was the subject of invoices had never been performed and no payment had been made.
The plaintiff claimed for amounts to which he was not entitled. This may not impact on the central issue of whether the land was contaminated but, to say the least, the plaintiff appears to have been involved in a scheme to reduce the rent payable by claiming to have paid amounts that he never paid.
I am unable to be satisfied of whether work was done and at what cost. As such he has not established an entitlement to a set-off based on payments made as contemplated by the tenancy agreement.

The alteration of an expert report

Annexed to his affidavit of 13 February 2021 (unsigned and unsealed) is a report of Geotech Soil Solutions dated 4 February 2021.
This is an expert report on which he relies for the purposes of establishing that there was no asbestos in the fill at the time that Geotech carried out its investigations (in 2021) and there would have been no such material on the land at the time of the termination notice or, indeed, at the time of the Clean-Up Order.
The defendants objected to admission of the report without the author of the report being available.
The plaintiff called Mr Ryan Foggett, who was the author of the report. Mr Foggett also produced documents under subpoena. He produced three reports all dated 4 February 2021. Versions 1 and 2 were said to be simply earlier versions of the same report.
There are differences between those three versions of the report and the report relied upon by the plaintiff. Plainly, the report relied upon by the plaintiff had been altered by someone other than Mr Foggett.
Although Mr Foggett was not directly instructed by the plaintiff, the plaintiff obtained access to Mr Foggett's report of 4 February 2021 by means of being copied into an email.
The plaintiff then relied on it for the purposes of this case, except that there were alterations to Mr Foggett's original document. Indeed, the plaintiff himself demonstrated this in his examination of Mr Foggett, having called him in his own case.
The plaintiff undertook a comparison of a number of the different versions. I am uncertain how that could have assisted him as Mr Foggett identified that his report had been altered.
The plaintiff's response to this was to suggest that the alterations were immaterial (in the sense that they seem to be in respect of photographs and bore hole points on the property) or that they were made by Mr Foggett's partner.
There is no evidence that they were made by Mr Foggett's partner other than what purports to be an email of 13 February 2021.
I do not accept that such an email was sent or that the document is a genuine document. Mr Foggett knew nothing of it and knew nothing about his report being altered. The email appears to be a fabrication, made on the same date as the plaintiff's affidavit.
The content of the alterations may or may not be significant. What is significant is that the document was altered by the plaintiff without Mr Foggett's knowledge.

Reliance on misleading certificates

Annexed to the plaintiff's affidavit of 13 February 2021 are two non-friable asbestos clearance certificates provided by Mr Zeait, the person who deposited the soil onto the land as requested by the plaintiff.
The plaintiff called Mr Zeait and adduced evidence from him. He asked him whether he brought soil onto the property and Mr Zeait agreed that he had. He said he did not know approximately how much he brought onto the property. He was asked whether he was aware that the soil that was brought onto the property was contaminated. He answered that he was not aware whether it was contaminated.
I sought to clarify this but he gave the same answer. I took his answer to mean that he did not know whether the soil was contaminated. The plaintiff called this witness in his own case to establish that the soil which he brought onto the property was clean.
The plaintiff followed this up by showing Mr Zeait the two asbestos clearance certificates which he had exhibited to his affidavit, again presumably to demonstrate that Mr Zeait had certified the soil.
The plaintiff opened his case with reference to these certificates and other documents from Mr Foggett and Mr Zeait as being positive evidence that the fill was clean.
In cross-examination, Mr Zeait was asked about the origin of the soil. He said that the soil came from a site in Concord and one at Ashfield and that the plaintiff did not attend those sites. This is quite contrary to the plaintiff's evidence.
He estimated that he had delivered approximately 40 loads of a 12 tonne truck being approximately 480 tonnes onto the land. He attended the property on 5 to 10 times. The plaintiff was there on each occasion.
He saw soil on the property which had not been deposited by him. This provides one explanation for the difference in estimates as to how much Mr Zeait dumped on the property. The plaintiff maintains that Mr Zeait deposited in excess of 850 tonnes of clean soil onto the property. Mr Zealt disagrees. Mr Zeait observed soil which had been deposited onto the property which had not been put there by him.
He confirmed that the plaintiff did not ask him to have the soil tested and did not ask for any environmental certification.
He did not obtain any certification of the soil before he delivered it to the property.
He was taken to the certificates relied on by the plaintiff. He agreed that he had provided those certificates to the plaintiff but also agreed that neither of the certificates certify the soil as Virgin Excavated Natural Material ("VENM"). In fact, they do not relate to soil at all. The certificates relate to removing asbestos from eaves in a ceiling and external walls at two properties, neither of which was the property in these proceedings.
Mr Zeait was asked further questions by the plaintiff in re-examination. The plaintiff suggested that he had asked for a certificate for clean soil. Mr Zeait disagreed. He said he had asked him for a clearance certificate from where the soil came from and he gave him one. He did not remember the plaintiff asking for a clearance certificate for the soil.
It is only necessary to say that the certificates do not have anything to do with the fill brought onto the property and the plaintiff must have known this. Yet he presented them as evidence provided by the supplier of the soil certifying that the soil was clean.

The email of February 2021

Attached to the plaintiff's affidavit of 23 February 2021 is an email from the plaintiff to Christopher Habra, solicitor for the first and fourth defendants in the following terms: "Dear Mr Habra, This email was sent to me by error as it clearly was meant to be sent to you. Regards Antonio Plaintiff"
The plaintiff forwarded on an email that purported to be from Mr Zeait with the subject line "Letter to Habra". In his evidence, Mr Zeait admitted that the plaintiff had written the email and suggested that Mr Zeait send it to the solicitor for the first and fourth defendants.
The clear intent of the plaintiff in sending that email was to suggest that Mr Zeait had inadvertently sent this letter to the plaintiff rather than directly to the solicitor for the first and fourth defendants. In fact, Mr Zeait had not agreed to provide a letter to be sent to the defendants. There were a number of exchanges between Mr Zeait and the plaintiff about their dealings. It emerged that the plaintiff had seized Mr Zeait's bobcat on the basis of a purported lien.
Mr Zeait presented as being rather anxious. It was apparent that he did not want to be there. It is also apparent that he was involved in a dispute with the plaintiff.
It is not necessary that I say anything more about his evidence other than that: 1. I accept that he brought a large quantity of soil onto the property in accordance with the request of the plaintiff; 2. there was no certification of the soil at any time prior to delivery onto the property; 3. I do not accept that the plaintiff carried out any detailed inspection of the soil and even if he did, it could hardly be sufficient to provide a basis for a finding that the soil was clean when delivered to the property; 4. Mr Zeait provided two certificates to the plaintiff which say nothing about the content of the soil. These documents were used by the plaintiff in an attempt to mislead; and 5. Mr Zeait did not agree to the use of the email which purports to be from him. It was sent to representatives of the first defendant without Mr Zeait's consent. It represents a further attempt by the plaintiff to mislead as to the authenticity of a document.

General inconsistencies

The plaintiff's evidence is replete with inconsistencies and contradictory approaches.
For example, in his email of 28 February 2020 (in response to the first defendant's demands following the issue of the Clean-Up Notice) he stated that Mr Zeait was responsible for bringing contaminated soil onto the land without his consent.
In his oral evidence he stated that he gave permission for Mr Zeait to deposit the soil on the land for the purposes of levelling it out but that he had personally checked the house from which it was coming (where they were allegedly excavating for a pool) and ensured that it was clean.
Alternatively, he maintained that, if the land was contaminated with asbestos it had been present since Mr Stillone's period of occupation or even before that. In this regard, there is no doubt that there was asbestos on the land previously as the first defendant was required to clean it up. There is evidence that it was remediated under the direction of Geotechnique in 2017. Sixty six tonnes of contaminated soil were removed and clearance certificates were obtained.
On the plaintiff's case, if I accept that there was asbestos in the land, I should find that, despite the evidence to the contrary, it was not properly remediated.
On the other hand, as part of his attempt to dissuade the first defendant from taking action, he said in his email of 5 March 2020 that before he took possession there was 100 tonnes of asbestos on the site.
The basis of that suggestion is not clear. He purported to rely on a report from Geotech Soil Solutions as to the results of testing whilst he was in occupation which he submitted establishes that the land was not contaminated at all.
Reliance on an expert report which has been altered and then reliance on a further email which was not authorised casts a significant doubt on the credibility of the plaintiff, putting it mildly. It is quite wrong and dishonest.
Falsely claiming that work had been done and seeking reimbursement or set-off is similarly egregious. The many inconsistencies in his evidence then leaves little room for acceptance of his evidence.
I will now deal with the critical factual issues.

Introduction of soil

There could not be any dispute that the plaintiff arranged, authorised or permitted a large quantity of soil to be brought onto the property. This is because he said he did.
He says so in various emails dated after the Clean-Up Notice.
Further, he agreed in cross-examination that he arranged for soil to be brought onto the property both at the front and back of the property.
In his affidavit of 13 February 2021, he says that the material was introduced onto the premises: 1. for the safety of people and animals; and 2. to seal the Serious Hazardous Material, including asbestos, metal rods, concrete and timber left there by the previous tenant.
There is an issue as to whether soil was brought onto the property by persons other than Mr Zeait during the period after commencement of the tenancy agreement and before the issuing of the Clean-Up Notice. Mr Zeait's estimate of the quantity of soil which he brought onto the property is vastly different to that of the plaintiff.
In cross-examination, he disagreed with the proposition that Mr Zeait was not the only person who brought soil onto the property (Mr Zeait identified soil on the land which he had not deposited). Mr Zeait commenced to deliver the loads in June or July and according to the plaintiff the last loads were in November 2019.
However, he also subsequently agreed in cross-examination that there was approximately 250 tonnes of stockpile on the left-hand side of the property in addition to the 850 tonnes. He claims that the 250 tonnes were present on the site at the time of commencement of the tenancy agreement, albeit there was no earlier reference to this. It was put to him that he introduced the stockpiles. He disputed that he introduced all of them. The photographic evidence suggests that the stockpiles were introduced during the plaintiff's period of occupation.
It was put to him that he did not tell Mr Alcorn or anyone associated with the first defendant that the soil was being brought onto the property and did not offer anyone associated with the first defendant an opportunity to test the soil. He disagreed with that.
It is only necessary to find that during the period from June to November 2019 the plaintiff allowed and arranged for a large quantity of soil to be deposited on the land. Precisely why he did so is not clear. What benefit he obtained is also not clear, other than to facilitate the subleasing of part of the property. It seems unlikely that he allowed and arranged such a large quantity of soil to be deposited on the land merely to assist the first defendant.
Bearing in mind my doubts about the plaintiff's evidence generally I am unable to make specific findings about the quantity of soil deposited or whether it was all deposited by Mr Zeait.

Contaminated soil?

The next issue is whether the soil introduced by the plaintiff was contaminated. This is important as it is the basis of the Clean-Up Notice and the termination is based on the alleged introduction of contaminated soil.
The plaintiff relied on his own observations, the reports from Geotech, and the certificates and letter from Mr Zeait (to which I have already referred in commenting on the credibility issues).
He disagreed with the proposition that he took no steps to verify that the soil was clean. When he was asked (by me) what steps did he take, he said: "Q. What steps did you take? A. I went to the, the house in Ashfield and in Concord where the soil was coming from and I physically saw the pool being dug out for the, for the area. I - and I saw the trucks being loaded there. So I physically went there and had a look at it."
Mr Zeait said that he did not ever see the plaintiff at those properties.
I do not accept that the plaintiff inspected the soil but his inspection would hardly prove that it was clean in any event. It is absurd for the plaintiff to suggest that I should find that all of the soil was clean because he carried out an inspection of some of it at its source.
Further as will be apparent from my findings regarding the certification and expert evidence on which he relies, I do not accept the plaintiff's contention that he has established the absence of contamination through expert evidence. I do not suggest that he bears the evidentiary onus but I do not accept that the evidence on which he relies counters the expert evidence relied on by the first defendant.
The non-friable asbestos clearance certificates are irrelevant and the report of Mr Foggett/Geotech has been altered. Further, as identified in the second Aargus report, there are a number of concerns about the authenticity and validity of documents annexed to the Geotech report, which might give rise to further questions about alterations.
In addition, I am not satisfied that the sampling undertaken for the purposes of the Geotech report was of the soil deposited onto the land after the commencement of the tenancy.
Mr Foggett obtained samples from bore holes dug by Mr Zeait, specifically as directed by the plaintiff. He obtained the samples in 2021. He did not obtain samples from any stockpiles and took samples from a much lower level than the Aargus samples.
The plaintiff says that the soil was deposited on the land by Mr Zeait for the purposes of levelling out the land. The plaintiff arranged for samples to be undertaken at the points determined by him at depths which would not reflect sampling of the deposited soil.
The plaintiff did not obtain a s 143 certificate under the Protection of the Environment Operations Act 1997 (NSW). He took no steps to ensure that it was clean prior to allowing it to be deposited onto the property.
On the other hand, the first defendant has established through its evidence that asbestos was detected in the soil deposited on the property through testing and analysis subsequent to the Clean-Up Notice.
The first defendant relies on expert reports from Aargus dated 24 January 2020 and 2 March 2021.
As arranged through Mr Whitting, representatives of Aargus attended at the property on 20 December 2019 and again on 7 January 2020 and produced a report dated 24 January 2020. Its report was based on sampling from bore holes and stockpiles. Whilst the plaintiff disputed that he was involved in the introduction of the stockpiles, suggesting that at least some of the stockpiles were present prior to the commencement of his period of occupation, it is plain from the aerial photos that this is not so.
In any event, the stockpile that is the subject of contention is not one from which Aargus obtained a contaminated sample.
As set out in its report of 24 January 2020, Aargus was instructed that the area which required testing (which comprised an imported fill pad together with a number of imported fill stockpiles), was an area which contained fill which was levelled with uncertified soil materials by the tenants on site. This is correct, as: 1. the plaintiff allowed or brought the fill onto the site; and 2. despite the plaintiff's attempts to rely on irrelevant certificates, the soil materials were uncertified when they were brought onto the site.
The plaintiff advances a number of theories as to whether the areas that were the subject of sampling by Aargus could have become contaminated after the soil was deposited onto the land. This included both airborne contamination and the flow of water.
In my view it is unlikely that the results of the testing undertaken for the purposes of the Aargus report are a reflection of contamination arising once the soil was deposited onto the land rather than being in the soil at the time that it was deposited.
The author of the report, Mr Kelly, was cross examined. He rejected the plaintiff's ideas. The evidence does not support these theories and Mr Kelly's evidence does not support such a finding.
Importantly he stated that the sampling was from the soil above the natural land. This was the soil brought onto the property by or on behalf of the plaintiff.
Further, I do not accept that the Aargus' opinion reflects asbestos that might have been in the house and was removed from the house and somehow migrated to the testing points.
This is just an unsubstantiated theory developed by the plaintiff.
The fundamental difficulty with much of the cross-examination relating to the asbestos is that the plaintiff's theories or ideas all fail to come to grips with the fact the Aargus report is based on sampling of the fill brought in whereas (even accepting the validity of the Geotech report) the testing which the plaintiff relies on was not of the fill but of the land underneath.
The plaintiff's reliance on such a report is misplaced as it tends to establish the opposite of what the plaintiff wanted to establish.
Aargus concludes that: 1. the approximate area of the fill pad is 1,400m2 with the deepest fill located in the south-west corner being 1.1 metres; 2. the volume of the fill works out at approximately 700m3; and 3. asbestos detected in fragments were accounted in samples recovered from boreholes BH1, BH2 and BH6 and in stockpiles SP1, SP3 and SP4.
This led to the conclusion that: "Therefore, the soils in the vicinity of boreholes BH1, BH2, BH3 & BH6 and stockpiles SP1, SP3 and SP4 are not suitable to stay on site and require to be classified and then appropriately disposed of off-site to an EPA licensed landfill that can accept the classified waste."
Aargus then concludes that the imported fill in those areas may be classified as special general solid waste (asbestos) and can be disposed of as per Schedule 1 Part 3 of the Protection of the Environment Operations Act. The approximate volume of fill materials to be removed is 520m3.
I accept the Aargus opinion. I prefer it to the evidence on which the plaintiff relies.
Having regard to email exchanges following the issue of the Clean-Up Notice, the plaintiff has offered alternative explanations for the presence of the asbestos. Either it was brought onto the land by Mr Stillone or it was present in the land even prior to Mr Stillone's period of occupation and was not properly remediated by Geotechnique.
To make that finding, I would need to accept that an expert previously retained to remediate the land and who had certified that the task had been performed in fact had not performed the task (as outlined in the remediation and validation report of Geotechnique dated 8 September 2017). This is just speculation on the part of the plaintiff, as is his suggestion that Mr Stillone introduced the contaminated soil.
Further, the Aargus analysis is of the fill brought onto the land and not of the land underneath that fill.
In the circumstances, I accept that the plaintiff introduced contaminated soil onto the land during his period of occupation. Having regard to the Clean-Up Notice it must be removed.

Consent of the first defendant

The final critical factual issue is whether the introduction of such contaminated soil was done with the knowledge or consent of the first defendant, such that it should be precluded from terminating the tenancy agreement. The plaintiff's position on this issue is: 1. dependent upon acceptance of his evidence; 2. dependent upon rejection of contrary evidence; and 3. inconsistent with contemporaneous emails from him.
The plaintiff says that the first defendant was aware that he was introducing soil onto the land. The plaintiff says that he was doing so to provide an area where he could sublease for storage of trucks and equipment.
Despite the content of a number of his self-serving emails, there are no contemporaneous documents which contain admissions by or on behalf of the first defendant about the presence of contaminants in the fill.
The plaintiff relies on an alleged conversation with Dean Alcorn which he sets out in his affidavit of 4 March 2020 as follows: "[Plaintiff:] Dean you need to get Stillone to pay for the Rubbish, building material and Asbestos, I can't afford it anymore, I have spent over $6,000 and I have no money. Alcorn: Just take it of[f] the rent, I can't get any money from Stillone he owes us $4,836.00 for outstanding rent. Plaintiff: Does Ryan and you still hold Stillone's Bond? Alcorn: Yes we do. Plaintiff: Under no circumstances should you give the Bond back to Stillone not only for the rubbish, and building material he left but also the fact that he ran his forklift into the main Overhead Electrical causing a total blackout on the entire property, that B[o]nd must go to me so I can [somehow] cover the money I spent which was either the Landlords responsibility or Stillone's responsibility it is certainly not my responsibility to pay for your tenant leaving all this shit behind. Alcorn: Ok that's sounds fair, we won't give Stillone back his Binod [sic] and we will give it to you, I will let Ryan know. Plaintiff: So what do you want me to do with the rest of the Steel, Building Material Concrete and Asbestos, that is in the back, that would cost tens of thousands if not hundreds of thousands of dollars, I don't have that sought [sic] of money and I don't think Ryan has that money either' and it's very dangerous an Animal, a Child anyone walks there they will hurt themselves badly if not kill themselves if anything falls on them, and you know I am having Animals on the property. Alcorn: Surely you must know someone with Tippers, Just bury the fucken shit in the back, out of site out of mind. Plaintiff: I will ask around, I will get on Gumtree and ask some people who we can get to bring clean fill as long as it does not cost me anything as I can't afford it, I am s[p]ending every dollar I have on the Farmhouse and all the fences need fixing and those should be paid by the Landlord. Alcorn: Well you did say your [sic] going to buy it so its your investment not Ryan's, Ryan just want[s] to sell it not spend any money on it, he doesn't mind if he gets no rent but he does not want to spend any money on the property."
If I accept the content of that conversation, it must follow that: 1. at the time of the conversation the plaintiff believed that there was material including asbestos which had been left on the property by Tony Stillone which would cost thousands if not hundreds of thousands to remove; 2. Mr Alcorn told him to just bury it; 3. the plaintiff agreed to seek out someone to bring in clean fill to do so; and 4. he seemingly then arranged for Mr Zeait to bring in the fill.
Mr Alcorn denies any such conversation and denies much of that which the plaintiff asserts.
Indeed, annexed to his affidavit is an email from the plaintiff of 13 June 2019 in which the plaintiff states (somewhat inconsistently): "We have even removed the Hazardous Material which included Asbestos so all the back part of the property now is Rubbish Free, Hazardous Free and Asbestos, free which will keep everyone happy, including keeping Counsel [sic] Happy. Adem Sertlioglu the Compliance and Manager of Liverpool City Council came out at 2pm yesterday and was amazed with the cleaning of the site, and thanked me for my assistance which is always great to have Council on your side than against you, her [sic] took photos to show everyone at Council what a huge improvement the site has achieved."
The plaintiff says (in these proceedings) that he was told to bury the asbestos and then spent thousands removing it, even to the amazement of the neighbours and satisfaction of the Council.
The plaintiff submits that I would not accept Mr Alcorn or any of the defendants' witnesses. He made much of the fact that Mr Alcorn was no longer a solicitor and his suggestion that he was fraudulently holding himself out as one in NCAT. There is no correspondence in which Mr Alcorn so holds himself out.
The plaintiff's cross-examination of Mr Alcorn was extensive, albeit, I am not sure of the relevance of some of the questioning. Unfortunately, the plaintiff devoted much of the cross-examination to matters such as Mr Alcorn's authority and relationship with other persons, his prior conduct and matters relating to entry into the lease.
Just as I would not be determining the outcome of this case based on the plaintiff's history, I would not reject the evidence of Mr Alcorn based only on some past alleged misdeeds.
Mr Alcorn resorted to answering with "I don't recall" in response to many questions which is a little surprising. I do not know whether Mr Alcorn's responses may have been a factor of the exasperation he was demonstrating with the questioning or a convenient way of not answering the questions.
In any event, irrespective of the plaintiff's attempts to discredit Mr Alcorn, as I have already indicated, I am unable to accept the plaintiff's evidence. He has adopted inconsistent positions, seemingly depending on the argument he seeks to make.
On the one hand he invites a finding that the Aargus reports should not be accepted and that the land is not contaminated. On the other hand, he invites a finding that the first defendant instructed him to bury the contamination under the clean fill which he brought in.
I have already observed that I would not accept the plaintiff's evidence unless it is otherwise corroborated. Not only is his evidence which forms the basis of his estoppel claim not corroborated, it is inconsistent with his own documentation. I do not accept that the conversations to which he refers as evidencing the first defendant's consent took place.

Was the termination valid?

On 23 March 2020, the first defendant issued a notice to terminate residential tenancy agreement under the Residential Tenancies Act 2010. The notice required that the plaintiff deliver up vacant possession of the property on 6 April 2020 or 14 days after the date on which the notice was given.
The grounds for the notice were set out as follows: "This Notice is being given on the ground that you have breached the Tenancy Agreement as follows: 1. you have used the Premises for illegal purposes (clause 15.1). 2. you have intentionally or negligently caused or permitted damage to the residential premises (clause 15.4). 3. you have failed to keep the Premises reasonably clean (clause 16.1). 4. you have failed to notify Matautia of damage to the Premises (clause 16.2). 5. you have failed to obtain Matautia's written permission to alter or add to the Premises (clause 27.1)."
Further, the first defendant added an additional ground that the plaintiff had intentionally or recklessly caused or permitted serious damage to the residence or any neighbouring property under s 90 of the Residential Tenancies Act 2010.
As I understand the plaintiff's position it is that the termination notice was not validly given because: 1. there was no breach of the tenancy agreement; 2. the giving of the notice was not authorised or directed by the director of the first defendant; and 3. it did not comply with s 87 of the Residential Tenancies Act 2010.
The termination notice was issued by the first defendant through its solicitors. Whilst the plaintiff devoted some time in attempting to establish who was providing instructions and who was authorising the conduct on behalf of the first defendant, those matters are irrelevant. Whether the solicitors were directed to serve the termination notice by the director, a consultant or some other person acting with the authority of the first defendant, would seem to be irrelevant.
Further, a comparison of the termination notice with s 87 of the Residential Tenancies Act 2010 confirms that the notice complies with s 87.
Finally, bringing a large quantity of contaminated soil onto land without the consent of the lessor constitutes a breach of the tenancy agreement for the following reasons: 1. firstly, the plaintiff has allowed the property to be used for the purposes of illegal dumping of soil contaminated with asbestos in breach of clause 15.1 of the tenancy agreement; 2. secondly, in permitting contaminated soil to be dumped onto the property, the plaintiff has intentionally permitted damage to the property in breach of clause 15.4; 3. thirdly, the plaintiff has failed to keep the property reasonably clean in breach of clause 16.1; and 4. fourthly, the plaintiff has altered or added to the property without the first defendant's written permission.
Further, I accept that the plaintiff has intentionally or recklessly caused or permitted serious damage to the property within the meaning of that term in s 90(1)(a) of the Residential Tenancies Act 2010.
In all the circumstances, I find that the first defendant has validly terminated the tenancy agreement. The matter should be remitted to NCAT to make the appropriate orders.

Is the first defendant estopped from terminating the tenancy agreement?

Whilst the plaintiff's pleading in relation to estoppel is somewhat vague, I understand that he asserts that: 1. the first defendant is estopped from terminating the tenancy agreement because it consented to the introduction of the contaminated fill onto the land; and/or 2. the first defendant is estopped from taking action which would interfere with the plaintiff's rights to sublease part of the property.
For the purposes of the plaintiff's claim, it is only necessary to say that the plaintiff must establish that the first defendant has, by its words or conduct, represented the existence of a fact or certain state of affairs and that the plaintiff, in reliance on such words or representation, has acted to his detriment. In those circumstances, the first defendant would be estopped from altering its position. [4]
The plaintiff's case on estoppel in respect of the sublease is unclear to say the least. It appears to be that, because there was a term in the tenancy agreement which permitted the plaintiff to sublease and because the plaintiff had a conversation with representatives of the first defendant about subleasing, the first defendant should now be estopped from doing anything which would interfere with the right to sublease.
There is a term of the tenancy agreement which permits the plaintiff to sublease. On his evidence, he was subleasing and deriving an income from the subleasing. However, he has not adduced any evidence which would suggest that the first defendant represented that it would not act to terminate the tenancy agreement (even though he was in breach of the tenancy agreement) because it would interfere with his right to sublease.
The plaintiff's evidence on the second aspect of his estoppel claim is really his alleged conversation with Dean Alcorn. Mr Alcorn denies that such a conversation took place. I have already made findings on the factual issue.
The plaintiff has not discharged the onus which he bears in establishing the representations on which he relies. The plaintiff is not entitled to succeed on his estoppel claim.

The plaintiff's other claims

The plaintiff seeks various declarations and orders arising out of his relationship with the first defendant, representations said to have been made and various alleged breaches of the tenancy agreement or some other agreement. He even seeks an order in respect of an option to purchase, albeit there is nothing in the tenancy agreement about this.
There are a number of problems with what I will call the plaintiff's secondary claims being that: 1. they are largely supported only by his own evidence; 2. they fall away having regard to the essential findings of fact; and 3. he has not established any collateral agreement with the first defendant that he would be reimbursed in respect of the claims he makes.
However, I will deal with each of the claims set out in the amended summons, having regard to the paragraphs of the amended summons.

The claim for damages arising from the failure to have building and property insurance

The plaintiff says that following floods and storms, he spent a considerable sum (the amount of which he has not established) repairing the building/home and that he is entitled to reimbursement from the first defendant because the first defendant should have had building and property insurance.
Leaving aside any issues relating to whether repairs were undertaken, and what repairs were undertaken at what cost, there is nothing in the tenancy agreement which entitles the plaintiff to reimbursement from the first defendant in respect of the cost of repairs effected in the circumstances in which the plaintiff says he effected them.
There is no evidence of any written permission from the first defendant to incur the costs and no evidence of any agreement that the plaintiff would be reimbursed. There is no evidence of any agreement between the plaintiff and the first defendant that the first defendant would affect the building and property insurance which would cover any repairs effected by the plaintiff.

The claim for reimbursement of costs associated with removal of asbestos, steel, concrete and hazardous material at the rear of the property

Again, this claim fails because the plaintiff has not established what he did, when he did it, what it cost him and that there is an agreement between the plaintiff and the first defendant that he would be reimbursed in respect of such costs.
It does appear that the plaintiff undertook a clean-up of the property. It was in very poor condition at the time of commencement of his tenancy. However, he has not established that the first defendant would reimburse him in respect of any costs associated with such clean-up. Further, other than some general statements by him as to what he estimates it cost him, there is no evidence to support the quantification of his claim.

The claim that the first defendant pay the cost of reinstating the building after the asbestos to the building and garages has been removed

This claim of itself tends to suggest that the asbestos in the building has not yet been removed. This claim falls away having regard to my findings as to the termination of the tenancy agreement.

The claim that the first defendant pay the cost of repairs to the building and property

Again, I am unable to be satisfied as to whether repairs were carried out and what repairs were carried out and at what cost. Further, the plaintiff has not established any entitlement to be reimbursed. If his claim relates to the work allegedly performed by T&R Building Maintenance, then I can only repeat my earlier observations about the misleading documentation relied upon by the plaintiff and his attempts to establish an entitlement to be paid for work that was not done.

The claim for the cost in relation to container storage and damages suffered as a result of not being allowed to sublease

The plaintiff had commenced to sublease the property. Plainly, on his own evidence, he was deriving an income from the sublease. As the tenancy agreement was validly terminated, this claim has no merit.

Claims for costs associated with having to carry out repairs to the property and building on the property

Again, this appears to be merely repetitive of earlier claims to the extent it reflects a claim for costs which might be incurred in the future. It is unsustainable as the tenancy agreement has been terminated.

Claims for loss of quiet enjoyment, repudiation of the tenancy agreement and other matters arising out of the first defendant's wrongful conduct

Again, as I have found that the tenancy agreement was validly terminated, these claims have no merit.
The plaintiff is not entitled to recover any damages from the first defendant.

Other matters

The plaintiff has made unsubstantiated allegations and baseless claims. His emails are replete with allegations, abuse and threats.
Subsequent to the completion of the hearing, he has forwarded a number of emails to my Chambers. He purported to make an application to re-open his case based on alleged misleading conduct of Counsel for the first and fourth defendants.
As I indicated to the parties, having considered his emails, I did not consider there was any merit in the application. There is no substance to his application and no evidence of misleading conduct.

Is the first defendant entitled to damages?

The plaintiff has introduced contaminated soil onto the first defendant's property. This a breach of the tenancy agreement. The first defendant is entitled to damages to the extent of its loss arising from the breach. Its loss is the cost of remediating the land.
There are two quotes for the cost of remediating the land exhibited to the affidavit of David Whitting, dated 10 December 2020. There is a quote from EnviroManage Systems dated 6 May 2020 in the sum of $232,652 and another quote from RSA Civil Group dated 7 May 2020 in the sum of $643,950.
There was no examination of these quotes during the hearing. There is no explanation as to why they would vary so significantly.
In the circumstances I would assess damages in the lower amount.
As I understand the first defendant's submissions, any assessment of the damages which may be payable should await its remediation of the land and the determination of the costs which it incurs.
The problem with that approach is that there has been no order for a split hearing and the case was run on the basis that I would determine all issues. Ordinarily, a party seeking damages would adduce evidence in support of its claim.
Having said that, I am left with some uncertainty as to whether the position put forward by the first defendant as to assessment of damages at some later time is opposed or supported by the plaintiff. In those circumstances, I will afford the parties an opportunity to be further heard on why I should not assess damages on the evidence presented at the hearing.
The first defendant also seeks payment of damages by way of unpaid rent. The plaintiff says that the terms of the lease entitle him to set-off the rent as against the cost of repairs that he has undertaken in accordance with the special conditions. As I have already identified, I do not accept the T&R Building Maintenance invoices as evidencing amounts paid by the plaintiff in respect of the repairs authorised under the special conditions. The plaintiff has not established an entitlement to a set-off.
In the circumstances, the first defendant is entitled to payment of unpaid rent.

Claims against other defendants

The plaintiff seeks declarations and orders against the second and fourth defendants on the basis that they have aided and abetted breaches of the tenancy agreement by the first defendant and breached alleged undertakings and obligations they have to the plaintiff.
In circumstances in which I have found that the first defendant has not acted in breach of the tenancy agreement, there could be no merit in these claims. In any event, they were not the subject of evidence which would have permitted findings against the second and fourth defendants.

The orders

The plaintiff is not entitled to any of the declarations or orders that he seeks. In those circumstances, the summons is dismissed.
The first defendant has succeeded on its cross-summons and is entitled to the declarations it seeks. I follow the approach adopted in both Aboriginal Housing Company Ltd v Kaye-Engel (No 7) [5] and in Lawrence v Gunner. [6]
I declare that the first defendant has validly terminated the residential tenancy agreement dated 7 June 2019.
I declare that the first defendant is entitled to possession of the property.
For the reasons set out in paragraph [205] I will hear further from the parties on any orders relating to the first defendant's claim for damages. I will also hear further from the parties on costs.
I make the declarations sought in paragraphs 1, 2, 3, 5 and 6 of the cross-summons.
Subject to resolving the damages issues, I will make an order transferring the proceedings to the New South Wales Civil and Administrative Tribunal as sought in paragraph 7 of the cross-summons.
I grant liberty to the parties to approach my associate to have the matter relisted for determination of the issue raised in paragraph [205] of this judgment.
I direct the first defendant to provide a schedule of unpaid rent to the date of judgment.
I will make orders in respect of that when dealing with the other outstanding matters.

Endnotes

[2021] NSWSC 662.
See Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862 (Wright J).
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [188] (Bell P, Bathurst CJ and Leeming JA agreeing).
Walton Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387; [1988] HCA 7.
[2015] NSWSC 1554.
[2015] NSWSC 1229. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2021

Environment Operations Act 1997(NSW)

At a glance

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Judgment (28 paragraphs)

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Cases Cited (7)

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