Heriot Properties (Australia) Pty Ltd v Ezymart Leasing Pty Ltd

Background

1. On 1 September 2018, the applicant and the respondent entered into a lease of the premises for a term of four years (lease). The lease describes the permitted use of the premises as "Convenience Store and Café". The premises had previously been used as a restaurant.
2. Following the commencement of the lease the respondent undertook certain works including the installation of the vents in the wall. The wall is located in front of condensers for the air-conditioning and refrigeration within the premises. The wall is a gyprock structure that extends part way to the ceiling of the basement/car park area.
3. As I have said, there is no dispute that the respondent did not obtain approval either from the applicant or the owners corporation for the installation of the vents. This was confirmed in an email letter dated 15 November 2019 from the respondent's Project Manager, Mr Mustafa Ahmed (Mr Ahmed) to the applicant's solicitor, Mr Neil Palmer (Mr Palmer) which, in relevant part, said this: EzyMart would like to cooperate with all parties and come to a resolution in relation to installation of the air-conditioning and refrigeration compressors in a permissible location. For this to occur, EzyMart requests for the building managers/owners contact details in order to meet on-site and come to an agreement for a new location; for a proposal to be put together and put forward to the landlord/strata committees review and approval. Easy Mart appreciates the landlord's cooperation to get the outstanding items resolved mutually. Ezy Mart would like to proceed with the by-law for the shopfront glaze sliding doors and putting forward a new proposal for the air-conditioning and refrigeration condenser locations. Easy Mart agrees to make good of (sic) the unauthorised vents in the garage area and repair the plaster wall back to its original state, once the above has been achieved.
4. Some attempt was made by the applicant to negotiate with the owners corporation to approve the unauthorised work by the respondent, including the installation of the vents, but no agreement was ever reached.
5. In 2019, the owners corporation brought penalty proceedings in the Tribunal against the applicant under the Strata Scheme Management Act 2015 (NSW) (SSMA) in relation to work that had been undertaken to the premises by the respondent, including the installation of the vents in the wall (2019 proceedings). The proceedings were defended by the applicant. The following orders were made by Senior Member Vrabac on 11 October 2019: 1. The applicant's name Owners Corporation SP 61632, is amended to The Owners-Strata Plan No 61632. 2. The respondent's application to adjourn the proceedings until rectification works are completed by the respondent (ExA, p71) is not granted. 3. The Tribunal finds that Heriot Properties Pty Ltd, has contravened the by-law relating to: 4. By-law 5, damage to common property. 5. The Tribunal orders Heriot Properties Pty Ltd pay a monetary penalty of 4.10 penalty units in the sum of $450.00 by 25-Oct-2019. 6. The monetary penalty is payable to the Owners Corporation SP 61632.
6. No reasons for the making of these orders were published.
7. The monetary penalty was duly paid by the applicant.
8. In February 2020, the owners corporation again commenced proceedings against the applicant. This time it sought rectification of the respondent's unauthorised work on common property (2020 proceedings).
9. Although invited by the applicant to participate in those proceedings, the respondent did not accept that invitation. The applicant also applied to have the respondent joined in the proceedings but that application was unsuccessful.
10. The owners corporation's application was heard by Senior Member Paull who handed down her decision on 3 May 2021.
11. In the reasons for decision, the Senior Member said the subject of the rectification orders ultimately sought by the owners corporation was reduced to having the vents and associated materials removed and the wall restored to its original condition. The Senior Member observed that there was no dispute that the respondent carried out unauthorised work in breach of by-law 5 prior to the 2019 proceedings which led to the imposition of the monetary fine. The Senior member also observed that it did not appear to be in dispute that the unauthorised work included the unapproved exhaust vents and the removal of a section of the left-hand side of what was described as the common property basement wall so as to accommodate the vents.
12. The Senior Member made an order under section 132(1)(a) of the Strata Scheme Management Act. It required the applicant, by 31 May 2021 and at its own cost, to remove the unauthorised exhaust vents and associated materials installed by the respondent in the wall and restore all affected common property pertaining to the vents in the wall to its original condition (Tribunal order).
13. On 12 May 2020, the applicant's solicitors served a copy of Senior Member Paull's reasons for decision which contained the Tribunal order.
14. Subsequently, the applicant twice attempted to comply with the Tribunal order by arranging for contractors to remove the vents and repair the wall. This apparently required access to the premises in order to carry out the work. On each occasion the contractor was denied access by the respondent's employees.
15. The vents remain where they were installed in the wall by the respondent.

The claim and defence

1. The applicant filed points of claim and the respondent file points of defence.
2. By its points of defence the applicant contends that: 1. the respondent, as a tenant or occupier of the premises, was bound by by-laws for the strata scheme at the premises by reason of section 135 of the SSMA; 2. shortly after occupying the premises the respondent undertook a number of works including the installation of the vents in the wall and did so without approval of the owners corporation or the applicant in breach of by-law 5 (damage to common property) in force in respect of the strata scheme at the premises; 3. in the 2019 proceedings, there was a finding by the Tribunal that by-law 5 had been contravened, and in the 2020 proceedings the Tribunal order required the applicant to remove the vents and restore the wall to its original condition; 4. the respondent has twice refused to permit the applicant to comply with the Tribunal order; and 5. by reason of these matters, the applicant is entitled to and seeks an order under section 72(1)(c) of the Retail Leases Act 1994 (Act) that the respondent provide the applicant with access (or refrain from preventing the applicant to have access) to the premises so as to enable the applicant to comply with the order made in the 2020 proceedings.
3. The applicant also contends that: 1. by installing the vents in the wall, the respondent breached certain provisions of the lease and section 135 of the SSMA; 2. by preventing the applicant from accessing the premises to perform the work the subject of the Tribunal order, the respondent breached certain provisions of the lease; 3. by reason of these breaches the applicant has suffered loss or damage in the amount of $41,869 (which is exclusive of GST). The amount claimed consists of the cost of remedial work at the premises, legal costs incurred in the 2019 proceedings and 2020 proceedings, the monetary penalty that the applicant was ordered to pay in the 2019 proceedings, and the contractors fees the applicant is said to have incurred in twice attempting to comply with the Tribunal order; and 4. the applicant is entitled to an order pursuant to section 72(1)(a) of the Act requiring the respondent to pay to the applicant damages in the amount of $41,869.61.
4. Although there is no dispute that the installation of the vents was unauthorised either by the applicant or the owners corporation, by its points of defence the respondent denies liability on a number of grounds. In summary they are as follows: 1. the respondent does not dispute the terms of the lease but says that they only apply to the demised premises and, by inference, not to common property within the strata scheme; 2. the installation of the vents in the wall was not work done in the premises; 3. the proper owners corporation that manages and administers the strata scheme in respect of the premises is the Owners - Strata Plan No.63729 (SP 63729) and not Owners - Strata Plan No. 61623; 4. admits being bound by the by-laws for the strata scheme but only the by-laws of SP 63729; 5. says that while it did obtain the applicant's consent to work done in the demised premises, the work it did to the common property of the building is a matter between SP 63729 and the respondent and does not bind the applicant or the respondent; 6. the owners corporation (that is Owners - Strata Plan No. 61623) was not competent to seek the orders that it did in the 2019 proceedings and 2020 proceedings; 7. the Tribunal order does not bind the respondent, and SP 63729 ought to have sought the order as against the respondent and not the applicant; 8. the respondent acknowledges having twice received requests from the applicant to carry out the works the subject of the Tribunal order but the order was not made in favour of Owners - Strata Plan No.63729 and does not bind the applicant or the respondent; 9. the respondent was denied any opportunity to be heard in the 2020 proceedings as to the Tribunal order; 10. the breaches of the lease are denied, the vents were installed on common property of SP 63729 and is a matter between that owners corporation and the respondent and not a matter between the applicant and the respondent; and 11. the respondent denies that the applicant is entitled to an order for damages.
5. By its points of defence, the respondent also asserts that the applicant engaged in pre-lease misrepresentation and deceptive and misleading conduct. It is also contended that by attempting to remove the vents, the applicant is derogating from the grant and/or repudiating the lease.

Jurisdiction

1. There is no dispute that the Tribunal has jurisdiction to determine the applicant's claim and to make orders under section 72(1) of the Act. This is because the lease is a retail shop lease, the premises being wholly used for the carrying on of a business that is specified in schedule 1 of the Act, namely, "convenience food shops".

Relevant provisions of the lease

1. The following provisions of the lease are relevant to the determination of this dispute: 1. Clause 5.8: Upon giving reasonable notice to the respondent, the applicant is permitted to enter the premises with workmen and others together with all necessary materials for the purpose of complying with any request requirement notification order of any "Authority" having jurisdiction or authority over the premises for which the respondent is not liable under the covenants in the lease or to carry out repairs, renovations, maintenance, modifications, extensions alterations to the premises deemed necessary or desirable by the applicant provided that in exercising that right, no undue influence shall be caused to the respondent. 2. Clause 5.9: the respondent is not permitted to make any alteration or addition to the structure or exterior of the premises or any partitions in the premises or any additions or alterations to the premises without the prior consent in writing of the applicant (which consent was not to be unreasonably withheld) and in the course of doing so comply with all requirements of the applicant and public authorities. 3. Clause 7.14: the respondent will not cause any damage to or obstruction of any of the "Common Parts" of the building. "Common Parts" includes those parts of the building not demised or intended to be demised to the respondent and which are for the common use or benefit of the respondent and other occupants of premises in the building. 4. Clause 15.1.2: the respondent shall observe and comply punctually with all by-laws in force in respect of the relevant strata scheme. 5. Clause 12.5.1: the respondent covenants with the applicant, subject to the Act, to pay to the applicant on demand all its reasonable legal and other costs and disbursements incurred by the applicant in connection with any breach or threatened breach of any of the terms of the lease. 6. Clause 12.16.1: in the event the respondent's conduct constitutes a breach of any lease covenants, the respondent covenants to compensate the applicant for any loss or damage suffered by reason of or arising from any such breach. 7. Clause 12.16.2: the applicant is entitled to recover damages from the respondent in respect of a breach of covenant for damage suffered by the applicant during the entire term of the lease. 8. Clause 8.4.1: the respondent indemnifies the applicant from losses, damages, costs and expenses incurred in respect of or arising from the neglect or default of the respondent to observe or perform any of the terms, covenants and conditions expressed in or implied in the lease.

Strata By-laws

1. By-Law 5 (1) - damage to common property - provides as follows: 1. An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the written approval of the owners corporation.

Strata Scheme Management Act 2015

1. Section 135 of the SSMA provides as follows: 135 REQUIREMENT TO COMPLY WITH BY-LAWS (1) The by-laws for a strata scheme bind the owners corporation and the owners of lots in the strata scheme and any mortgagee or covenant chargee in possession, or tenant or occupier, of a lot to the same extent as if the by-laws: (a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, tenant and occupier, and (b) contained mutual covenants to observe and perform all the provisions of the by-laws. (2) There is an implied covenant by the tenant of a lot or common property to comply with the by-laws for the strata scheme.

The issues

1. There being no dispute that the installation of the vents in the wall by the respondent was unauthorised, the issues in this dispute come down to this: 1. Do clauses 5.8 and 7.2 of the lease permit the applicant to have access to the premises to enable it to comply with Tribunal order? 2. Does the lease otherwise permit the applicant to access the premises to carry out work to remove the vents and reinstate the wall? 3. If the answer to question (1) or (2) is yes, what order should be made by the Tribunal? 4. Is the applicant entitled to damages and if so, in what amount?

Hearing and evidence

1. The hearing of this matter was conducted by AVL.
2. At the hearing, Mr Bateman of counsel appeared for the applicant and Mr Soltan, lay advocate, appeared for the respondent.
3. The applicant relied on five affidavits. The deponents were Mr Errol Diamond (Mr Diamond), a director of the applicant, Mr Akram Yacoub (Mr Yacoub) a contractor, Mr Eddie Painter (Mr Painter), also a contractor, Mr Palmer, a solicitor employed by Baron & associates, the applicant's solicitors, and Ms Ruby Bishop, (Ms Bishop) an administrative assistant employed by Baron & Associates. A number of documents were also exhibited to Mr Diamond's and Mr Palmer's affidavits.
4. In his affidavit, Mr Diamond provided the background history to this matter that included the 2019 and 2020 proceedings in the Tribunal, the costs that were incurred by the applicant in defending those proceedings, and the applicant's attempts to comply with the Tribunal order.
5. Mr Yacoub and Mr Painter deposed to their unsuccessful attempts to remove the vents and reinstate the wall at the request of the applicant.
6. Mr Palmer deposed to his correspondence with the applicant's representatives regarding the unauthorised work carried out by the respondent and the steps taken to comply with the Tribunal order.
7. Ms Bishop deposed to her attempts to serve on Mr Ahmed a letter from Mr Palmer dated 28 May 2021 regarding the attempt made by one of the contractors earlier that day to comply with the Tribunal order, and giving notice that a further attempt would be made on 31 May 2021.
8. The respondent filed a witness statement made by Mr Ahmed dated 18 February 2022.
9. Mr Ahmed's statement was objected to by Mr Bateman on the basis that it was filed only a few days before the hearing and contrary to earlier directions that had been made by the Tribunal for the filing of evidence. The specific concern Mr Bateman had in relation to the statement was that it may be used to support a claim for misrepresentation pleaded in paragraphs 31 to 37 of the respondent's points of defence. Mr Soltan stated that he was not relying on those paragraphs in support of the misrepresentation claim. Leave was granted to file the statement but conditional upon the defence being limited to the issues in paragraphs 1 to 30 of the points of defence.
10. In his statement, Mr Ahmed explained the importance of the vents to the respondent's business. He said that a condenser for a cool room/display refrigerator and for an air conditioner needed to be installed inside at the back of the premises and, because the condensers exhaust air that need to be ventilated, they will stop working if there is no ventilation or the vents are closed. He also said that he had asked the body corporate to nominate a suitable location for the condensers but no reply was ever received. Mr Ahmed also said that within the car park, where the respondent's condensers are located, there are numerous condensers which the body corporate was not currently seeking to have removed.
11. Mr Diamond and Mr Palmer were cross examined by Mr Soltan and Mr Ahmed was cross examined by Mr Bateman.
12. Both Mr Bateman and Mr Soltan provided the Tribunal with written submissions.

Submissions on behalf of the applicant

1. Mr Bateman submitted on behalf of the applicant that its obligation or right to enter the premises and perform the work the subject of the Tribunal order arises by reason of the actual order and pursuant to the terms of the lease.
2. The applicant, Mr Bateman submitted, is under a very clear obligation to comply with the Tribunal order and any decision made in the present proceedings that does not permit or enable the applicant to comply with the Tribunal order will be inconsistent with it and likely necessitate further litigation between the owners corporation, the applicant and the respondent.
3. Mr Bateman also submitted that clause 5.8 of the lease permits the applicant to enter the premises at all reasonable times after giving notice, with workmen and all necessary materials, for the purposes of complying with any order of any authority having jurisdiction or authority over the premises or for carrying out repairs deemed necessary.
4. Clause 7.2, submitted Mr Bateman, also requires the respondent to comply forthwith with orders affecting or relating to the premises and with all requirements which may be made with notices or orders given to the applicant by any authority having jurisdiction over the demised premises.
5. By reason of those clauses, Mr Bateman submitted that the applicant has the right to enter the premises to perform the works and comply with the Tribunal order.
6. It is appropriate therefore, submits Mr Bateman, that the Tribunal make an order pursuant to section 72 (1)(c)(i) of the Act to do any specified work or obligation arising under the terms of the lease or, more generally, pursuant to section 72 (1)(c)(iv), to do or perform any specified act, matter or thing.
7. On the question of damages, Mr Bateman submitted that: 1. by installing the vents in the wall, the respondent breached the terms of the lease specifically clauses 7.14 (covenant not to cause damage), 15.1.2 (covenant to observe and comply with all of the by-laws in force), 5.9 and 6.1 (obtain the applicants prior consent to alterations and installation of plant or equipment for heating and cooling), and 5.8 and 7.2 (complying with orders); and 2. where there has breached the lease the respondent: 1. is required to pay the applicant's reasonable legal and other costs in connection with the breach (clause 12.5.1), 2. must compensate the applicant for any loss or damage suffered (clause 12.16.1); 3. agreed that the applicant was entitled to recover the damages suffered for breach of covenant(clause 12.16.2); and 4. was required to indemnify the applicant for the loss, damage, costs and expenses in relation to the 2019 proceedings and 2020 proceedings (clause 8.4.1) and 1. the costs incurred by the Applicant in defending the 2019 proceedings and 2020 proceedings, the specified repair costs and, the monetary order and the costs incurred in contractors twice attempting to comply with the Tribunal order, are damages suffered by the applicant for which the respondent is liable.

Submissions on behalf of the respondent

1. In the submissions filed on behalf of the respondent, Mr Soltan said, by way of factual background, that respondent could not operate its business without an air conditioner and cool room that require ventilation, numerous proposals to the owners corporation were refused or not answered, the applicant refused to deal with the owners corporation to find a solution to the ventilation issues despite the respondent agreeing to pay the applicant's costs of obtaining a by-law, and the closure of the vents will result in the closure of the respondent's business.
2. Mr Soltan then went on to make a number of submissions. The following is a summary: 1. the Tribunal order does not bind the respondent because the owners corporation did not have standing to obtain the order and it (the owners corporation) successfully resisted the applicant's application in the 2020 proceedings to join the respondent knowing the substantive application affected the respondent; 2. there was no certainty that even if the respondent consented to being joined, or applied to be joined in the 2020 proceedings, that the Tribunal would have made the joinder order; 3. the owners corporation is responsible for the work the subject of the Tribunal order not been carried out as it successfully resisted the joinder application; 4. clauses 5.8 and 7.2 of the lease only relate to work done inside the premises and the owners corporation has no authority to request such work and is not an authority having jurisdiction or authority in respect of the premises; 5. there are doubts that the vents are within common property because the gyprock wall does not extend all the way to the ceiling; 6. there is no evidence of the wall coming within the premises other than the Tribunal's decision on the 2020 proceedings; 7. in the 2020 proceedings, the applicant did not raise as a defence the fact that the vents come completely within the strata lot; 8. a decision in these proceedings requiring the removal of the vents in reliance on the decision in the 2020 proceedings denies the respondent procedural fairness because the respondent was not a party to those proceedings at the insistence of the owners corporation; 9. relying on clause 12.5.1 of the lease to claim legal costs would be contrary to the provisions of the Act and the Civil and Administrative Tribunal Act 2013 (CAT Act) based on decisions of the Appeal Panel in Plant v Meriton Properties Pty Ltd (No. 2) (Costs) (RLD) [2010] NSWADTAP 20 and A & J Verdi Pty Ltd v Uckan (RLD) (No 2) [2011] NSWADTAP 6; and 10. the legal costs incurred by the applicant are not damages, not all the invoices provided by the applicant in support of the claim relate solely to the vents, and the applicant did not tender any detailed evidence as to those parts of the invoice that do relate to the vents.

Applicant's submissions in reply

1. Mr Bateman submissions in reply can be summarised as follows: 1. the additional background matters referred to by Mr Soltan have little if any evidentiary basis or support for the respondent's defence and are, in any event, irrelevant to the issues in dispute; 2. the owners corporation did have standing to bring the 2019 and 2020 proceedings. The common property of what was the development Lot 7 in SP 61632 ultimately became Lot 8 in SP 63729, which is the subject premises, and vested in the owners corporation pursuant to section 18(3) of the Strata Scheme (Freehold development) Act 1973 (NSW). The owners corporation therefore had the management, control and responsibility for the common property at the premises, including the common property the subject of these as well as the 2019 proceedings and 2020 proceedings. This submission, he says, is supported by the title searches in evidence; 3. The submissions on behalf of the respondent as to which is the proper owners corporation are unsupported by any evidence or authorities; 4. even if the owners corporation did not have standing to bring the 2019 and 2020 proceedings, the respondent is nevertheless in breach of the lease and the applicant is entitled the relief sought independent of the Tribunal order made in the 2020 proceedings; 5. the issue of non-joinder in the 2019 and 2020 proceedings is irrelevant and in any event the respondent failed to consent or respond to invitations to make submissions as to its joinder when requested; 6. contrary to the submissions made on behalf of the respondent, clauses 5.8 and 7.2 of the lease are not limited work done inside the premises; 7. the Tribunal is the relevant authority and not, as contended by the respondent, the owners corporation; 8. there is no evidence to support the respondent's contention that the vents and wall are not part of the common property merely because the wall is made of gyprock and does not extend up to the ceiling. In any event the respondent has conducted its defence on the basis that the vents were installed in common property; 9. if the vents were not installed on common property then it follows that they were installed within the premises and the applicant is entitled to obtain relief (to have them removed) under clauses 5.8 and 7.2 of the lease; 10. the applicant is not seeking to recover costs contrary to the Act or the CAT Act. The decisions relied upon by the respondent concerned whether the contractual provisions in the lease is in question could fetter the Tribunal's discretion to award costs in proceedings between the parties; 11. the applicant's claim for legal costs incurred in the 2019 and 2020 proceedings is not a claim for costs in the present proceedings; 12. a party is entitled to claim its cost of having to defend proceedings brought by thought third parties (see: Queanbeyan Leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 1100 at [41] and [45]) and costs can be recoverable where incurred in defending proceedings by a third-party in a reasonable attempt to mitigate loss (see Hellyer Drilling Co v Macdonald Hamilton & Co Pty Ltd (1983) 51 ALR 177 at 192; Krimbogiannis v Fallslzcnv (Investments) Pty Ltd [2015] NSWCATCD 155); 13. the onus is on the respondent to prove that reasonable steps to mitigate were not taken and it has not done so or even sought to argue the point; 14. the applicant enjoyed a not insignificant measure of success in limiting the loss that might have flowed from the 2020 proceedings by defending those proceedings and, in doing so, mitigated the damage suffered by the applicant; and 15. the damages claim is not just limited to the vents but extends to damage caused by the respondent's breaches of the lease and that includes damages caused to other parts of the common property, failure to comply with the by-laws and failure to undertake the work.

Consideration

1. The determination of the applicant's claim needs to be considered in relation to the relevant background facts and findings.
2. It is not in dispute that the respondent installed the vents in the wall without the authorisation or consent of the applicant or the owners corporation that administers the strata scheme within which the premises are located.
3. It is submitted on behalf of the respondent that there is doubt that the vents fall within the common property. It is said that this is because the wall is gyprock and does not extend to the ceiling. I reject that submission which is inconsistent with the respondent's points of defence by which it pleads that the vents were installed within the common property of the building, and was work done to the common property. It is also relevant to note that the respondent has not explained how it is that the wall, located in the basement of the building is anything other than common property. I am comfortably satisfied that the wall is common property within the strata scheme for the building in which the premises are located.
4. It is also not in dispute that the installation of the vents by the respondent caused damage to the wall. The evidence presented by the parties and the decision of the Senior Member in the 2020 proceedings confirms that that is the case.
5. Clause 7.14 prohibited the respondent from causing any damage to the common property in the building. Clause 15.1.2 of the lease and section 135 of the SSMA required the respondent to observe and comply with the strata scheme by-laws. By-law 5 prohibited an occupier, in this case the respondent, from damaging common property without the written approval of the owners corporation.
6. The Tribunal finds that by installing the vents in the wall without approval of the owners corporation causing damage to the wall, the respondent was in breach of clauses 7.1 and 15.1.2 of the lease, and by-law No. 5.
7. It is also not in dispute that without the vents, the air-conditioning and refrigeration within the premises would not be able to operate. I accept that in order to remove the vents, access to the premises would be required.
8. The respondent does not dispute that it was served with the Tribunal order, the applicant twice gave the respondent notice of its intention to comply with the Tribunal order, and the applicant's contractors twice attempted to comply with the Tribunal order but, on each occasion, they were prevented from doing so by the respondent.

Do clauses 5.8 and 7.2 of the lease permit the applicant to have access to the premises to enable it to comply with Tribunal order?

1. I now turn to consider the issues in dispute.
2. The first issue is whether clauses 5.8 or 7.2 of the lease permits the applicant to have access to the premises to enable it to comply with Tribunal order, or carry out work to remove the vents and reinstate the wall.
3. The applicant says that the Tribunal order having been made, clause 5.8 permits it to access the premises in order to comply with the order. The respondent's points of defence and Mr Soltan's submissions do not take issue with this proposition though the respondent opposed the orders being sought by the applicant for other reasons which I address later.
4. Clause 5.8, which is headed "Lessor may Repair" and, relevantly provides that the applicant may enter for the purpose of complying with an order of any "Authority having jurisdiction or authority over or in respect of the Demised Premises for which the lessee is not liable..."
5. Neither party has sought to question whether the Tribunal is an "Authority" for the purposes of clause 5.8. I accept it is. The SSMA does give the Tribunal certain jurisdiction in relation to Lots with a strata scheme. Section 124 for example permits the Tribunal to make an order requiring the occupier of a Lot or part of the Lot in the Scheme to allow access to the Lot for certain purposes.
6. As observed, clause 5.8 relevantly provides states that the applicant may enter "the Demised Premises" for the purpose of complying with an "order of any Authority having jurisdiction…in respect of the Demised Premises". There is, however, a qualification to the exercise of the right to access the premises pursuant to an order which is that the order in question is one "for which the (respondent) is not liable under its covenants (in the lease)" (emphasis added).
7. The meaning of this qualification was not the subject of any submissions on behalf of the parties.
8. While the clause permits the applicant to access the premises where the work the subject of order relates to the "Demised Premises", which I am satisfied was required in order to remove the vents the qualification, in my view, means that the work required to comply with the order must not be as a consequence of the respondent being liable under its covenants in the lease.
9. The respondent having been found to be in breach of the covenants contained in clauses 7.14 and 15.1.2, the work that was required pursuant to the Tribunal order was work for which the respondent was liable under its covenants in the lease.
10. I accordingly find that clause 5.8 does not permit the applicant to access the premises for the purpose of complying with the Tribunal order.
11. Mr Bateman submitted that the right to enter the premises and carry out the work the subject of the Tribunal order is also to be found in clause 7.2 of the lease. Mr Soltan did not make any specific submissions regarding this clause or whether the applicant is entitled to rely upon it.
12. The clause does not, in my view, permit the applicant to access the premises or access the premises for the purposes of complying with an order directing it to do certain work. These are my reasons: 1. The clause states that "[from] time to time the Lessee will forthwith comply with …orders…". In other words, the clause imposes on the respondent, not the applicant, the obligation to comply with the orders given either to the applicant or the respondent. There is no express right, or indeed an implied right, in my view, for the applicant to access the premises in order to comply with the order, and specifically the Tribunal order. 2. Even if the clause did permit the applicant to access the premises, I am not persuaded that it should be construed so that it permits access for the purposes of complying with the Tribunal order. 3. The clause is headed "Public Authorities" and relevantly requires the respondent to comply with any "orders…… relating to the Demised Premises…… which may be given to the Lessor or the Lessee by any governmental semi governmental city municipality health licensing or any other authority having jurisdiction or authority in respect of the Demised Premises or the use thereof…". 4. Although the term "Public Authorities" is not defined by the lease, the clause does that by describing the orders as ones given to either party "by any semi-governmental, city, municipal health, licensing or any other authority having jurisdiction". No evidence has been presented to suggest that the Tribunal comes within one of those agencies or bodies or that it is considered to be a public authority. 5. I am also not comfortably satisfied that it would be a commercially sensible interpretation of the clause to find that the Tribunal is a public authority. 6. In my view, a reasonable person would understand the words quoted to be referring to authorities which regulate the day to day usage of premises through, for example, licensing requirements and regulations, and the words "any other authority" is not a reference to the Tribunal, or even a court, but to other like public authorities.
13. I accordingly find that clause 7.2 of the lease does not permit the applicant to access the premises in order to comply with the Tribunal order.
14. The respondent resisted an order being made permitting the applicant to enter the premises for the purposes of complying with the Tribunal order. A number of reasons were given for this resistance. It is not strictly necessary for me to consider them but I will nevertheless do so in case it later becomes relevant.
15. The respondent disputes the validity of the Tribunal order on the grounds that the owners corporation, which obtained the order against the applicant, was not the proper applicant in the 2020 proceedings. Mr Soltan submitted that the premises come within the strata scheme managed and administered by Owners - Strata Plan No. 63729 (SP 63729) and the owners corporation (the applicant in the 2019 and 2020 proceedings) had no standing to obtain the Tribunal order. The basis for this submission, as I understand it, is that the lease describes the premises leased as "8/SP 63729" but the 2019 proceedings were brought by the owners corporation which is Owners Corporation Strata Plan 61632.
16. The assertion that SP 63729 and not the owners corporation was the proper applicant in the 2019 and 2020 proceedings was addressed by Mr Bateman in his submissions and need not be repeated here.
17. The standing of the owners corporation in both proceedings was raised by Mr Soltan in correspondence with the applicant's solicitors. The applicant's evidence includes a letter from its solicitors to Mr Soltan dated 7 December 2021 in which the solicitors explained why the owners corporation was the proper applicant in both proceedings. They pointed out that SP 63729 is a plan of subdivision of Lot 7, a development lot, in Strata plan 61632. A copy of both strata plans was included with the letter. The letter goes on to say this: 3. We refer you to s 18(3) of the Strata Schemes (Freehold Development) Act 1973 (that was in force at the time of the registration of SP63729 and which is, in effect, replicated in s 24(2) of the current Strata Schemes Development Act 2015) which provides that: Upon registration of a strata plan of subdivision creating common property, the common property so created vests in the body corporate for the estate or interest evidenced by the folio of the Register comprising the land the subject of that plan but freed and discharged from any mortgage, charge, covenant charge, lease, writ or caveat affecting that land immediately before registration of that plan. 4. In other words, whilst a strata plan of subdivision is given a new plan number (in this instance, SP63729), critically, any lots that are identified as common property lots on the new plan form part of the original scheme, and any new common property on the new plan is actually contained in the original common property title. 5. We refer you to the enclosed common property search of CP/SP61632, which you will note: (a) records in the second schedule at point 4 that it 'INCORPORATES DEVELOPMENT LOT 7'; and (b) includes, in the schedule of unit entitlement, lot 8 of SP63729. We also refer you to the enclosed title search of 8/SP63729, which you will note records in the second schedule, 'INTERESTS RECORDED ON REGISTER FOLIO CP/SP61632'. Accordingly, the common property, that the respondent admits to interfering with (see, for example, paragraph [8] of the points of defence), forms part of the strata scheme created by SP61632 and, as such, the First and Second Tribunal Proceedings were properly instituted by The Owners - Strata Plan No. 61632.
18. There was no response to the solicitors' letter and no submissions were forthcoming from Mr Soltan challenging this explanation. Furthermore, the title searches referred to in the letter, and which are in evidence, reflect what is stated in the letter.
19. On the basis of the explanation that has been provided by the applicant's solicitors, I am comfortably satisfied that the owners corporation manages and administers the strata scheme of which the premises form part, and it was the proper applicant both in the 2019 proceedings and 2020 proceedings.
20. The respondent also contends that it was denied any opportunity to be heard in the 2020 proceedings as to the making of the Tribunal order. I reject that submission for two reasons.
21. Firstly, if the basis of this submission is that there has been some denial of procedural fairness in the 2020 proceedings, it is a submission which is, in my view, unsustainable. The evidence clearly shows the respondent did not take up the applicant's invitation to participate in those proceedings. Furthermore, the applicant applied, unsuccessfully, to have the respondent joined in those proceedings. The applicant made what could only be described as reasonable efforts to have the respondent participate in the proceedings.
22. Secondly, even if the respondent had been denied an opportunity to participate in the 2019 proceedings, in my view it suffered no prejudice as a consequence. The current proceedings now before the Tribunal provide the respondent with the opportunity to present arguments as to why the relief sought by the applicant should not be granted.

Does the lease otherwise permit the applicant to access the premises to carry out work to remove the vents and reinstate the wall?

1. Quite apart from complying with an order of an authority with jurisdiction over the premises, the applicant contends that clause 5.8, permits it to access the premises to carry out repairs so as to remove the vents and restore the wall.
2. Relevantly the clause provides that the respondent may enter the premises "for carrying out such repairs…. to the demised premises deemed necessary or desirable by the lessor…. as long as no inconvenience is caused to the lessee.
3. The Macquarie dictionary defines "repairs" to mean "to remedy; make good; make up for: to repair damage; to repair a loss; to repair a deficiency."
4. In my opinion, removing the vents and reinstating the wall is making good the damage to the wall caused by the respondent's breach of the lease and therefore comes within the definition of "repairs".
5. Accessing the premises to repair the damage caused by the respondent in installing the vents in the wall, in breach of the lease, would be an appropriate exercise of the applicant's right under that clause provided access to the premises was required to carry out repairs. I have already found that the vents are connected to the air-conditioning and cool room in the premises. That must be the case. Mr Yacoub in his evidence said that the vents were connected to the premises and Mr Soltan submitted that without the vents the air-conditioning and cool room cannot operate.
6. Of course removing the vents will, no doubt, cause the respondent undue inconvenience because without them the air conditioning unit and cool room would not be able to function. Unfortunately for the respondent that is a situation that it must face up to as a consequence of installing the vents without approval of the owners corporation or the applicant. The qualification in clause 5.8 that no undue inconvenience must be caused by the repairs must only apply where the need for them was not as a result of the respondent's breach.
7. Accordingly, I find that clause 5.8 does permit the applicant to access the premises to the extent necessary for the purposes of disconnecting the air-conditioning and cool room from the vents, and then remove the vents and reinstate the wall.

Section 72(1)(c) orders

1. The applicant seeks an order pursuant to section 72(1)(c) of the Act 1994 (NSW), that the respondent provide the applicant with access (or to refrain from preventing the applicant with access) to the premises so as to enable the applicant to perform the works required by the Tribunal Order.
2. 91 Mr Bateman submitted that the range of acts that may be ordered under section 72(l)(c)(i) and (iv) include the procuring of repairs to premises that are the subject of a retail shop lease. In support he referred to the decision in De Luca v Scuccimarra [2007] NSWADT 63 (De Luca) where at [122] the Tribunal said this: In proceedings for a retail tenancy claim, such as the Applicants' claim that the Respondents breached a collateral contract associated with the granting of the third lease, the Tribunal has power under s. 72(1)(c)(i) of the RL Act, to order that a party to the proceedings 'do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease'. Under s. 72(1)(c)(iv), it may order a party to 'do or perform, or refrain from doing or performing, any specified act, matter or thing'. Under both provisions, the range of 'acts' that it may order to be performed includes the procuring of repairs to premises that are the subject of a retail shop lease (see for example Mattana Coiffure Pty Ltd v Sotiropoulos (No 2) [2004] NSWADT 80).
3. Relevantly, section 72(1)(c)(i) permits the Tribunal to order a party to do any specified work or perform any specified service or any obligation arising under the Act or the lease. Section 72(1)(c)(iv) permits the Tribunal to order a party to do or perform or refrain from doing or performing any specified act, matter or thing.
4. In my view, and consistent with the decision in De Luca, section 72(1)(c)(iv) provides the Tribunal the power in relation to retail tenancy claims to both permit a lessor to undertake work within the demised premises and require the lessee not to interfere with that work. That would include, in my view, the power to make an order, in appropriate circumstances, permitting a lessor access to leased premises to repair damage to the premises due to the lessee's breach of the lease independent of any express right under the lease to do so.
5. Mr Soltan submitted, as factual background, that respondent could not operate its business without an air conditioner and cool room that require ventilation, and the closure of the vents will result in the closure of the respondent's business. There is no evidence in support of this submission and I reject it.
6. I would also add this. Notwithstanding the absence of any evidence, I accept that without exhaust events, the air-conditioning and cool room in the premises will most probably be inoperable. However, it is not disputed by the respondent that the installation of the vents was unauthorised by the applicant or the owners corporation. It is the respondent that is responsible for the predicament it now finds itself in and it cannot now seek to defend the claim made against it on the basis it may not be able to operate its business without the exhaust vents it installed without authorisation.
7. Mr Soltan made a further submission, again as factual background, as he described it. He said that numerous proposals made to the owners corporation were refused or not answered, and the applicant refused to deal with the owners corporation to find a solution to the ventilation issues despite the respondent agreeing to pay the applicant's costs of obtaining a by-law. The submission is unsupported by any evidence and rejected.
8. Furthermore, the lease does not impose upon the applicant an obligation to find a solution to the respondent's ventilation issues that was acceptable to the owners corporation. In addition, the respondent has not identified any legal obligation that requires the owners corporation to accommodate the vents in common property, or that the owners corporation's conduct is a relevant factor in the determination of the dispute between the parties in these proceedings.
9. While not disputing the terms of the lease, the respondent also opposes the making of an order under section 72(1)(c) on the ground that the lease only applies to the premises and, by inference, its terms do not apply to common property within the strata scheme. That defence is rejected. This is because clauses 7.14, 15.1.2, by-law 5 and section 135 of the SSMA impose on the respondent obligations specific to the common property within the strata scheme that manages and administers the building.
10. Clauses 7.14 requires the respondent not to cause damage to "Common Parts" which is defined by the lease as follows: The expression "the Common Parts" means any passageways walkways staircases parades entrances lobbies foyer decorations gardens pavements lawns and other parts of the Building not demised or intended to be demised by the Lessor which are for the common use enjoyment or benefit of the Lessee and other occupants of premises in the Building notwithstanding that they may also be used or enjoyed by or be of benefit to the public.
11. By definition "Common Parts" means common property and the clause accordingly prohibits the respondent from damaging common property.
12. Furthermore, clause 15.1.2 of the lease and section 135 of the SSMA make plain that the respondent must comply with by-laws and by-law 5 prohibits the respondent from causing damage to common property.
13. By its points of defence, the respondent also asserts that the applicant engaged in pre-lease misrepresentation and deceptive and misleading conduct. It is also alleged that by attempting to remove the vents, the applicant is derogating from the grant and/or repudiating the lease.
14. The assertions of pre-lease misrepresentation and deceptive and misleading conduct are rejected. They are bare assertions. There is no evidence of any such conduct on the part of the applicant nor have these allegations been addressed by Mr Soltan in his submissions.
15. The assertions that the applicant has derogated from the grant and repudiated the lease were not the subject of any submissions by Mr Soltan. They are also bare assertions made without reference to any specific provisions of the lease or the subject of any evidence. The assertions are therefore rejected.
16. The respondent having been found to have installed the vents in the wall the respondent breached of the lease the applicant, it is appropriate that the applicant be permitted to access the premises for the purpose of undertaking any necessary work to remove the vents and reinstate the wall, and that the respondent be required to refrain from preventing the applicant from accessing the premises. An order to that effect will therefore be made.

Damages claim

1. The applicant's claim for damages is based on the respondent's breaches of the lease specifically clauses 7.14, 15.1.2 and 5.9 and 6.1. Those breaches have been established by the applicant. It is entitled to be compensated for the damage suffered by reason of clauses 12.16.1 and 12.16.2 of the lease. That includes the applicant's reasonable legal costs in defending the 2019 and 2020 proceedings incurred as a consequence of the applicant's (clause 12.5.1).
2. Under Clause 8.4.1, the respondent indemnifies the applicant against all damages costs and expenses incurred that arises from the respondent's neglect or default to observe any covenants in the lease. The applicant is entitled to be indemnified for the damages it suffered as a consequence of the respondent's breaches of the lease.
3. The applicant seeks damages pursuant to section 72(1)(a) of the Act. The section gives the Tribunal the power to order a party to proceedings to pay money to a specified person in the order by way of damages. if considered appropriate.
4. The amount claimed in its points of claim is $46,886.61 (including GST) which is made up as follows: 1. A1 Group Services invoice dated 24 September 2019 for performing remedial works - $1,925.00 2. Legal costs (Baron & Associates fees) incurred in the 2019 proceedings - $7452.40 3. The monetary penalty paid by the applicant in respect of the 2019 proceedings - $450 4. The legal costs of $34,663.08 relating to the 2020 proceedings and consisting of: 1. Baron & Associates fees and disbursements - $19,652.52 2. Counsel's fees - $12,920.00 1. Costs incurred with Green Tower Building Management Pty Ltd for two attendances at the premises by a security guard and tradesman - $1,440.00
5. The claim for $1,925.00 for costs incurred by the applicant in performing remedial works is sparse on detail. The points of claim refers to this claim as part of the "Tenant Works" which is a definition used in the pleading to describe a number of unauthorised works at the premises said to have been undertaken by the respondent, including the installation of the vents in the wall.
6. In his affidavit, Mr Diamond says the applicant engaged A1 Group Services to perform remedial works at the premises in relation to part of the "Tenant Works". Annexed to his affidavit is the A1 Group Services invoice. The invoice describes the work at the premises as: 1. Supply paint and paint front of shop, two coats - $800 2. Repair rear wall and paint - $950
7. This work appears to be unrelated to the respondent's unauthorised installation of the vents in the wall and no evidence has been adduced by the applicant to explain why the work was done and why the respondent should be responsible for the amount claimed. The claim for $1,925.00 is therefore rejected.
8. The applicant has produced in evidence a bank statement showing the payment of the $450 monetary penalty. I am comfortably satisfied that the monetary penalty has been paid by the applicant. The applicant incurred the penalty as a consequence of the respondent's unauthorised work carried out in breach of the lease. It is entitled to be compensated for the amount paid.
9. The applicant's evidence is that trades persons (Mr Yacoub and Mr Painter) on its behalf on two occasions attended the premises, in the company of a security guard, to carry out the work the subject of the Tribunal order. The $1440 claim is supported by an invoice issued by Green Tower Building Management Pty Ltd. No evidence has been adduced by respondent that disputes the applicant incurred the costs or that the costs were unreasonable. I am comfortably satisfied that these costs were incurred as a consequence of the respondent's breaches of the lease (by installing the vents without authorisation or consent), and the applicant is entitled to be compensated for those costs.
10. The applicant is also entitled to the legal costs incurred in defending the 2019 and 2020 proceedings as they too were incurred as a direct consequence of the respondent's breaches of the lease.
11. The amounts claimed for legal costs are supported by invoices from the applicant's solicitors and counsel. I have reviewed the invoices. On their face they all relate to costs incurred by the applicant in defending the 2019 and 2020 proceedings, and in connection with the attempts to have the respondent allow trades persons to carry out the work the subject of the Tribunal order. Nothing has been raised by the respondent's defence or in submissions by Mr Soltan to suggest otherwise. I am comfortably satisfied that those costs were incurred by the applicant.
12. Mr Soltan submitted, however, that the applicant was not entitled to recover costs on the basis that to do so would be contrary to the Act and the CAT Act. In support of this submission he cited Plant v Meriton Properties Pty Ltd (No. 2) (Costs) [2010] NSWADTAP 20 and A & J Verdi Pty Ltd v Uckan (No 2) [2011] NSWADTAP 6. Both decisions are distinguishable as they concern costs applications in those proceedings and not claims to recover costs as damages. The substantive issue to be determined in those cases, as Mr Bateman pointed out, was whether the contractual provisions contained in the leases could fetter the exercise of the Tribunal's or the Appeal Panel's discretion to award costs in the proceedings involving the particular parties.
13. Mr Bateman submitted that the applicant is entitled to claim the legal costs incurred in defending the 2019 proceedings and 2020 proceedings, both being a reasonable attempt to mitigate its loss.
14. Mr Bateman cited Queanbeyan Leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 1100. In that case, Hamilton J relevantly said this: [41] Turning to the recovery of costs as damages in a second action against a third party, it is said that the principle that costs are recoverable in such circumstances was established in England after some doubt by the decision of the Court of Appeal in Hammond & Co v Bussey (1887) 20 QBD 79. There the plaintiff by description bought coal from the defendant and resold it to sub vendees. The coal did not answer the description, but this was not apparent till it was burnt by the sub vendees. The defendant denied that the coal did not answer the description. The sub vendees sued the plaintiff. The jury found that the coal did not answer the description and judgment for damages and costs went against the plaintiff. It now sued the defendant and claimed the amount of the damages and costs as damages. The trial judge held that the plaintiff had acted reasonably in defending the sub vendees' action and awarded it the costs as damages. The Court of Appeal held that he was right. This principle was shortly thereafter adopted by the Full Court of this Court in Dein v Wentworth Gold Field Proprietary Co (1899) 15 WN (NSW) 280. That that rule still exists in New South Wales was confirmed by Powell JA in Underwriters at Lloyds v Ellis NSWCA 25 February 1998 unreported. In England, in Britannia Hygienic Laundry Co v Thornycroft (John I) & Co (1925) 94 LJKB 858 McCardie J held that costs could be recovered as damages in the second action where, although ordered in the first, they had proved irrecoverable against that defendant. (That decision was reversed by the Court of Appeal, but on other grounds: (1925) 95 LJKB 237.) Whether that case would be decided in the same way today remains unclear.
15. His Honour then set out a number of principles from the authorities, including the following at [45]: In separate proceedings against a third party a plaintiff may in some circumstances recover costs of the earlier proceedings as damages if recoverable according to the ordinary principles of the law of damages Hammond & Co v Bussey supra; Dein v Wentworth Gold Field Proprietary Co supra; Anderson v Bowles supra. The circumstances include the situation where the plaintiff was the unsuccessful defendant in the earlier proceedings, so no question of his recovering costs in those proceedings arose: Hammond & Co v Bussey supra.
16. Mr Bateman submitted that the basis and operation of that principle is that a party is entitled claim costs having defended third-party proceedings in a reasonable attempt to mitigate loss and, therefore, the costs are recoverable. He cited Hellyer Drilling Co v Macdonald Hamilton & Co Pty Ltd (1983) 51 ALR 177 (Hellyer) and Krimbogiannis v Fallshaw (Investments) Pty Ltd [2015] NSWCATCD 155 (Krimbogiannis) in support.
17. In Hellyer, Fitzgerald J at 192 relevantly said this: …..there seems no reason to doubt that, in general, loss or damage may not necessarily be irrecoverable because its immediate cause is not the contravention complained of; for example, if it is some action reasonably taken by the applicant in the circumstances in which he finds himself in consequence of the contravention, including such action taken in an attempt to mitigate loss or damage. Reasonableness is a question of fact and I have, for the purposes of this case, proceeded on the footing that, while reasonableness is to be determined in all the circumstances, including the interests of the respondent as well as the applicant, the standard required of the applicant is not high and must be assessed by reference to the circumstances at the time, not as they appeared with the advantage of hindsight, and that the applicant is not required to risk his money too far; neither steps which prove to have been mistakenly taken nor the fact that other measures would have proved less burdensome to a respondent necessarily mean a loss is not recoverable.
18. One of the issues that was required to be determined in Krimbogiannis was a claim for damages consisting of legal costs incurred by the lessees in defending proceedings brought by the owners corporation seeking orders for the removal of a door and replacing it with a fixed glass panel wall without a door. The owners corporation was ultimately successful and the lessee sought to recover the costs incurred from the lessor arguing they were entitled to defend the owners corporation's proceedings because they were entitled to the quiet enjoyment of the premises in the state that it was in at the time the lease was assigned to them. At [120] and [121] Senior Member Goldstein said this: [120] The lessees submit that the defence of the proceedings commenced by the Owners Corporation was justified as they were mitigating any loss that they may have incurred by reason of the first non - disclosure. The lessees set out the basis of their case in paragraphs 18 - 29 of their 1 June 2015 submissions. They state that costs incurred in a reasonable attempt to mitigate a loss are recoverable, relying on Hellyer Drilling Co v Macdonald Hamilton & Co Pty Ltd (1983) 51 ALR 177 at 192 and that the lessor bears the onus of proving that reasonable steps to mitigate were not taken, relying on Moss v Lowe Hunt and Partners Pty Ltd [2010] FCA 1181 at 167 -168. I accept the authorities referred to as stating the correct principles of law to be applied. In relation to mitigation as stated in Moss at [168] 'A failure to mitigate loss will only be established if the conduct was unreasonable'. In TCN Channel 9 v Hayden Enterprises 16 NSWLR130 at 158 Hope JA stated: 'The important point of principle in relation to mitigation is that the onus is on the defendant. The plaintiff does not have to show that he has fulfilled his duty; the onus is on the defendant to show that he has not, and to show the extent to which he has not done so.' [121] In addition the lessees state in their submissions that legal costs incurred, as they were here, are recoverable as costs incurred in mitigation. I accept that the lessees having incurred costs in defending the proceedings brought by the Owners Corporation are entitled as a matter of principle to claim those costs from the lessor in these proceedings. The case of Queanbeyan Leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 1100 at 41 and 45[4] is authority for that.
19. On the basis of the decisions to which I have referred, I accept that the applicant is entitled to claim as damages the legal costs it has incurred in defending the 2019 proceedings and 2020 proceedings, and in attempting to carry out repair work the subject of the Tribunal order.
20. The onus rested squarely on the respondent to prove that the applicant in defending both proceedings did not mitigate its loss. It failed to do so adducing no evidence to show that the applicant's defence of the proceedings was unreasonable nor did it plead or even argue a failure to mitigate on the part of the applicant.
21. I am therefore comfortably satisfied that the costs incurred by the applicant in defence of the 2019 and 2020 proceedings was a reasonable attempt by the applicant to mitigate the damage caused by the respondent's unauthorised work which was in breach of the lease.
22. In summary, the applicant is entitled to damages in the amount of $40,919.61 made up as follows: 1. legal costs of the 2019 proceedings being - $6,857.09 2. the monetary penalty paid by the applicant in respect of the 2019 proceedings - $450 3. the legal costs of the 2020 proceedings - $32,572.52 4. Costs incurred in attempting to undertake the work the subject of the Tribunal Order - $1,040
23. Since GST is not being recoverable in a damages claim, none of the above amounts for the costs incurred include GST.
24. An order will be made pursuant to section 72(1)(a) of the Act that the respondent pay $40,919.61to the applicant within 14 days.

Costs

1. Neither the applicant's points of claim or the respondent's points of defence seeks a costs order in respect of these proceedings.
2. I will make provision in the orders for the parties to make submissions on the question of costs if they wish to do so. If no submissions are made there will be no order as to costs.

Orders

1. The following orders will be made by the Tribunal: 1. Pursuant to section 72(1)(c)(iv) of the Retail Leases Act 1994 (Act), the respondent is ordered to: 1. give the applicant, its servants or agents, access to the premises within seven (7) days for the purpose of the applicant: 1. disconnecting the respondent's airconditioning and refrigeration from exhaust vents and any associated materials installed by the respondent in the gyprock wall located in the basement car park of the building; and 2. restoring the wall affected by the removal of the vents and any associated materials to its original condition; (together "work order") 1. refrain from interfering with or in any way preventing the applicant from carrying out the work order. 1. Pursuant to section 72(1)(a) of the Act, the respondent pay the sum of $40,919.61 to the applicant within fourteen (14) days. 2. In the event a party wishes to make a costs application it must file and serve written submissions within 14 days, any party opposing the application is to file and serve its written submission within a further 14 days, and the Tribunal will make a decision on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013 unless persuaded that there should be oral submissions. 3. If after 14 days no written submissions are filed, then there will be no order as to costs.

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. Registrar

Amendments 13 September 2023 - Formatting amendments. 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: 13 September 2023