Impressive 1 Pty Ltd v Jbarat

The history of the proceedings

1. On 15 December 2021, Impressive as the applicant commenced proceedings GEN 21/051122 (which was reallocated the file number COM 21/051122) against Mr Jbarat (which was spelt as Jbharat) as the respondent by filing an application in which it claimed a money order for $30,000.00 for loss in connection with the disputes, and an order to return goods to the value of $45,000.00.
2. On 5 April 2022, the Tribunal made procedural directions for the filing of evidence.

The hearing

1. On 5 July 2022, the hearing took place by audio visual link. Mrs Maheswaran appeared for Impressive. Mr Jbarat appeared in person.
2. Impressive relied on the following documents which were admitted into evidence without objection: 1. a document entitled points of claim which was in form of a statement and I marked as exhibit A1; 2. the documents filed in the Registry on 25 May 2022 which I marked as exhibit A2 (the Impressive documents).
3. Impressive applied for an adjournment of the proceedings for the purpose of providing further evidence. I dismissed the application and delivered oral reasons for my decision.
4. Mr Jbarat relied on the following documents which were annexures to the affidavit of Mr Jbarat affirmed on 10 January 2022 (the Jbarat affidavit) and admitted into evidence without objection: 1. the lease and the deed of assignment of lease dated 23 April 2020 between Mr Jbarat as the landlord, 4C's as the tenant, two named persons as the existing guarantors, Impressive as the assignee, and Mr Varatharajah and Mrs Maheswaran as the new guarantors (the lease assignment), which I marked as exhibit R1; 2. the letter dated 17 March 2020 of Impressive's solicitors to 4C's solicitors and the enclosed the sale of business contract which I marked as exhibit R2; 3. the emails of Mr Markarian sent to Mr Varatharajah on 10 September 2021 (the 10 September 2021 email) and 14 September 2021 which I marked as exhibit R3; 4. the email of Mr Varatharajah sent on 15 September 2021 to Mr Markarian which I marked as exhibit R4; 5. the email of Mr Markarian sent on 16 September 2021 to Mr Varatharajah (the 16 September 2021 email) which I marked as exhibit R5; 6. the email of Mr Markarian sent on 21 September 2021 to Mr Varatharajah which I marked as exhibit R6; 7. the emails between Mr Markarian and Mr Varatharajah sent on 28 and 29 September 2021 (the 28 and 29 September 2021 email chain) which I marked as exhibit R7; 8. the advertisement of Bawdens for the restaurant business and the lease which I marked as exhibit R8.
5. I refused to admit into evidence for Mr Jbarat the Jbarat affidavit which was marked as MFI1 as I was not satisfied that it had been served on Impressive.
6. There was no oral evidence as neither Mrs Maheswaran nor Mr Jbarat wished to ask any questions of the other.
7. Impressive relied on its outline of submissions (the Impressive submissions) which as it includes evidence I have marked as exhibit A3. Impressive indicated its claim is for a money order of $40,000.00, comprising $20,000.00 for the loss of its equipment and $20,000.00 for the use of its equipment, the loss of income for time off work and a non-refundable booking fee for removalists.
8. Mr Jbarat relied on his written submissions which as it includes evidence I have marked as exhibit R9 (the Jbarat response).
9. At the conclusion of the hearing, I reserved my decision and made an order correcting the spelling of Mr Jbarat's surname.

The issues

1. The following issues arise for determination: 1. whether the Tribunal has jurisdiction to hear and determine the proceedings; 2. whether Mr Jbarat converted the goods and fixtures of Impressive and if so what loss if any was suffered by Impressive; 3. whether Mr Jbarat breached the lease and if so what loss if any was suffered by Impressive.
2. Before considering these issues it is convenient to set out the applicable statutory provisions.

RL Act

1. Part 1 (ss 1-8) contains provisions dealing with preliminary matters. Section 3 contains definitions, and relevantly includes definitions of "retail shop", which was inserted by the Retail Leases Amendment Act 2005 (NSW), and "retail shop lease": 3 Definitions (1) In this Act - … retail shop means premises that - (a) are used, or proposed to be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph (whether or not in a retail shopping centre), or … retail shop lease or lease means any agreement under which a person grants to another person for value a right of occupation of premises for the purpose of the use of the premises as a retail shop - (a) whether or not the right is a right of exclusive occupation, … …
2. Part 8 is headed "Dispute Resolution". Division 1 (which is comprised by s 63) is headed "Preliminary". Section 63 contains the following definitions: party or former party to a retail shop lease or former retail shop lease includes a person who is a guarantor or covenantor under a lease or former lease. retail tenancy dispute means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease or former lease …
3. Division 3 (ss 70-76A) is headed "Determination of claims by Civil and Administrative Tribunal". Section 70 contains definitions including: retail tenancy claim means any of the following: (a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being: (i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund), …
4. Section 71 deals with the lodging of retail tenancy claims with the Tribunal and relevantly provides that a party to a retail shop lease may lodge a retail tenancy claim in respect of the lease with the Tribunal for determination of the claim not more than 3 years after the liability or obligation that is the subject of the claim arose.
5. Section 72 deals with the powers of the Tribunal relating to retail tenancy claims, and relevantly provides: 72 Powers of Tribunal relating to retail tenancy claims (1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate - (a) an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, …
6. Schedule 1 is headed "Retail shop businesses", and relevantly specifies: Schedule 1 Retail shop businesses … Restaurants, cafeterias, coffee lounges, food courts and other eating places …

NCAT Act

1. Part 3 (ss 28-34) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) contains provisions dealing with the jurisdiction of the Tribunal. Section 28 deals with the jurisdiction of the Tribunal generally, and relevantly provides: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, …
2. Section 29 deals with the general jurisdiction of the Tribunal, and relevantly provides: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. … (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - … (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
3. Schedule 4 contains provisions dealing with the Consumer and Commercial Division of the Tribunal (the CC Division). Clause 3 deals with the functions allocated to the CC Division, and relevantly provides: 3 Functions allocated to Division (1) The functions of the Tribunal in relation to the following legislation are allocated to the Division - … Retail Leases Act 1994 …

Whether the Tribunal has jurisdiction to determine the proceedings

1. There was no dispute between the parties that they had been parties to a retail shop lease within the RL Act. Having regard to the definitions of "retail shop" and "retail shop lease" in s 3, and "former party" in s 63, of the RL Act, and the list of retail shop businesses in Sch 1 of the RL Act as including restaurants, cafeterias, coffee lounges, food courts and other eating places, I am satisfied that the parties were former parties to a former retail shop lease within the RL Act.
2. I am satisfied that the proceedings are a "retail tenancy claim" within s 70 of the RL Act. The relief claimed in the proceedings is within para (a)(i) of the definition of retail tenancy claim. I am satisfied that the proceedings were lodged within three years after the liability or obligation that is the subject of the retail tenancy claim arose as required by s 71 of the RL Act.
3. I am satisfied that the Tribunal has jurisdiction to determine the proceedings pursuant to ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act as s 72(1) when read with para (a)(i) of the definition of "retail tenancy claim" in s 70 of the RL Act enables the Tribunal to make decisions in relation to the proceedings. It follows that the functions of the Tribunal in relation to the RL Act have been allocated to the CC Division pursuant to Sch 4 cl 3(1) of the NCAT Act.

Whether Mr Jbarat converted the goods and fixtures of Impressive and if so what loss if any was suffered by Impressive

Introduction

1. Before considering this issue it is convenient to summarise the evidence and submissions of the parties.

The evidence and submissions of Impressive

1. The Impressive documents include: 1. the inventory of plant and fixtures which is annexure B of the sale of business contract, and which relevantly provides: "Assets list- 4C Flavours Front area … 17. Buffet Plates, Medium Round Plates & Round Plates 126 (73+36+17) … Kitchen 1. Six Burner Stove 1 2. Deep Fryer 1 … 12. Pots & Pans 13. Range Hood 1 14. Grease Trap 1 15. Grill 1 Dry Store … 4. Oval Shape Plates 9 … 6. Square Plates 9 7. Small Round Plates 34" 1. a list of kitchen equipment (the disputed equipment) which relevantly provides: "Equipment we have not received and want to remove + value 1. Grill with oven underneath - $2000 2. Burner with oven underneath- $3500 3. Fryer-$ 1200 4. Grease trap motor-$3000 5. Rain chute- $3500 6. big pots (big biryani pots)- $200 each 7. 3 x big frying pan- $175 each ($175 x 3) 8. Warmer tray stainless steel- $25 each 9. Thali plates- $12 each 10. food grade buckets- $2 each"
2. In the Impressive submissions Impressive states: "1. Equipment 1.1 After negotiating through the mediation, Fadi, the landlord, permitted us to collect some of the equipment. When we went to the premises, we were able to collect a few pieces of our equipment and sold some to the new current tenant. A number of our equipment is missing from the premises, and we don't know what has happened to that. Some of our other equipment is still at the premises and we were not permitted by Fadi to collect these. 1.2 With the remainder of our equipment that is at the premises, we require compensation as well on top of the sale price/collection. This is because some of the equipment including the fryer were brand new when we had left them at the premises and others in good condition. However, due to the new tenant using those now, the condition will be degraded and the value of it will be lower. 1.3 Mr Fadi refused to give us the pieces of equipment that were fixed to the shop. This includes the grease trap motor, the exhaust hood as well as the items connected to the gas including the fryer, burner with oven, grill. When we had gone to collect the equipment, Fadi on multiple occasions kept repeating that all of these "fixed" goods belonged to him and that he wouldn't give it to us. 1.4 In regard to the missing equipment, this includes a large number of thali plates, a number of large pots, woks. 1.5 We have already spent a large sum of money on the removalists to transport the agreed equipment from the store. To collect the remaining equipment, we would need to make another trip to the store. This would not only cost us a lot of time as we have other businesses (so taking time out of this will once again limit the income we make). It will also cost us another large sum of money to pay the removalist which we are not willing to do. 1.6 When we had gone to collect the equipment, more than equipment, Fadi had given us more garbage to collect. There was many articles of rubbish which he made us take from the premises and only gave us back a small number of equipment. They also didn't give us an opportunity to inspect our other equipment even though we had asked multiple times. 2. Lease 2.1 As per the Retail Leases Act 1994 and Retail and other commercial leases (Covid-19) Regulation 2021, we were entitled to protection as commercial tenants. However, Masis Markarian, the real estate agent hassled us a lOt. Regardless of the fact we were in a pandemic lockdown. We were financially struggling during the time and had struggled to pay rent. We had agreed to sell the business however he kept pressuring us to sell the business in a short period of time. Due to no one wanting to commit to the lease in such a short time demanded by Masis and during lockdown, we were unable to sell the business, Masis further changed the locks and prevented us from entering the store and collecting all of our equipment in the first place. This was highly against the conditions of the acts above and as a result of Masis' actions, we faced an immense financial loss. Overall for equipment and lease, we expect a reasonably high amount of money to compensate for all our losses."

The evidence and submissions of Mr Jbarat

1. Clause 12 of the lease relevantly provides: "CLAUSE 12 FORFEITURE AND END OF LEASE When does this lease end? … 12.3 When this tease ends, unless the lessee becomes a lessee of the property under a new lease the lessee must - 12.3.1 return the property to the lessor in the state and condition that this lease requires the lessee to keep it in; and 12.3.2 have removed any goods and anything that the lessee fixed to the property and have made good any damage caused by the removal. Anything not removed becomes the property of the lessor who can keep it or remove and dispose of it and charge to the lessee the cost of removal, making good and disposal. 12.4 If the lessor allows the lessee to continue to occupy the property after the end of the lease period (other than under a new lease) then - 12.4.1 the lessee becomes a monthly lessee and must go on paying the same rent and other money in the same way that the lessee had to do under this lease just before the lease period ended (apportioned and payable monthly); 12.4.2 the monthly tenancy will be on the same terms as this lease, except for - ¯ clause 4; ¯ clauses 5,4 to 5.21 inclusive; and ¯ clause 6.2 unless consent has previously been given; 12.4.3 either the lessor or the lessee can end the monthly tenancy by giving, at any time, 1 month written notice to the other expiring on any date; and 12.4.4 anything that the lessee must do by the end of this lease must be done by the end of the monthly tenancy."
2. The lease assignment relevantly provides: 1. Impressive must pay to the landlord all rent and other money payable under the lease and must perform the other obligations of a tenant under the lease (cl 4.3); 2. the lease will bind the assignee from the assignment date as if it was a party to the lease and named in it as tenant (cl 4.4).
3. The 10 September 2021 email relevantly provides that Mr Jbarat had given notice to Impressive to vacate the premises in August 2021.
4. The 16 September 2021 email relevantly provides that Mr Jbarat had changed the locks to the premises and the lease had been terminated. Mr Markarian informed Mr Varatharajah that he would not allow him to rip out the kitchen himself, he would advise him of "my contractors details" if he wanted the kitchen, he would not be allowed in the premises until he organised this, and he would have two weeks to organise this. He then said: "In summary: Get my contractors details from me for the kitchen and organise yourself a quote to remove everything. Tomorrow or ASAP remove everything of yours in the garage area. Organise a date with me to let the contractor in to remove the kitchen for you. Then you'll be allowed in to remove all your equipment, Please follow the above checklist to ensure this process is handled smoothly."
5. The 28 and 29 September 2021 email chain includes the following emails: 1. the email of Mr Varatharajah sent on 29 September 2021 at 12.22 pm to Mr Markarian in which he provides details of the removalist and states: "We do not require a week, we have paid them an advance and are ready to remove everything. We can remove everything tomorrow, we need access to the shop in the morning." 1. the email of Mr Markarian sent on 29 September 2021 at 1.45 pm to Mr Varatharajah in which he states: "No access will be provided. You shouldn't have paid in advance I made it very clear from day one what you needed to do. If you choose to do something else I can't assist you. You haven't provided the necessary details for me to trust that your contractor is licenced to carry out the necessary works. Due to the fact that your debt with the landlord was double the amount of the bond held we don't have funds to cover any damage in the premises. We will not be taking risks. You have a week from today." 1. the email of Mr Markarian sent on 29 September 2021 at 3.36 pm to Mr Varatharajah in which he states: "I've told you several times now what you need to do. I wont be responding to these emails anymore, you are wasting my time with these removalists."
6. In the Jbarat response Mr Jbarat gives the following evidence in relation to the disputed equipment and rubbish: 1. as to the items listed in the inventory of plant and fixtures which is annexure B of the sale of business contract: "1. The inclusions list in the contract of sale of business is not conclusive evidence that the vendor had title to the equipment listed therein. There are a number of items that are owned by me as the landlord. I have never transferred title in these items to any tenant. I have installed these items with the original kitchen fit out over 17 years ago. - Grease trap and motor - Range Hood and ducting - Fryer - Burner with oven - Grill" 1. as to the degraded condition of the disputed equipment: "2. The condition of the equipment degraded We have photos to prove the poor condition of the equipment when Mahesh left the shop, they were in very bad condition. The equipment now is in much better condition after intense cleaning was complete. We have photos of before and after the clean." 1. as to as to the items of the disputed equipment alleged to be missing: "3. Items they are claiming are missing - Item 6, 7 and 8: Have been left in the garage. The garage is a shared space between tenants living above and the shop, therefor I don't have any control over who comes in and out the garage as I don't live there. In addition to this it is not my responsibility to watch over these items as they always had a key to the garage and should have removed their stuff from the garage. Mahesh was emailed many times from the real estate agent to come get his stuff. There are photos of large bowls and frypans setting in the garage mixed in with all his stuff. - All items and equipment Mahesh left in the shop remained in the shop. All the items and equipment Mahesh had left in the garage remained in the garage. We did not move any items and equipment in or out the shop due to the ongoing court case. We have photos showing items and equipment in the shop and in the garage the time Mahesh vacated the premises. - item 9. Thali plates have been sold as of contract of sale stating: plates + glass + all cutleries + glass bowls sold to the new tenant on the 25/04/2022. I have attached the contract of sale between Mahesh-lmpressive Pty Ltd and Prokas-East and West Bengali (new shop tenant). The contract was signed by both parties and two witnesses myself and Mahesh's wife. Please see attached copy." 1. he attaches a handwritten agreement dated 25 April 2022 signed by himself, Mr Varatharajah and Mrs Maheswaran, and Prokas Biswas providing for the sale of items of equipment for $2,700.00 (the equipment sale agreement) including "plats + glass + all catlalaries + glass bowles (sic)"; 2. as to the rubbish: "4. There are accusing me of giving them more rubbish. All rubbish taken by them was of their own decision, I Never told or forced them to take additional rubbish, however they left more rubbish behind for me to clean and I have photos to prove this. The items they were not sure of, I said to the wife of Mahesh and the removalist guys that if it is not your stuff leave it and I will sort it out, but the wife of Mahesh said to the removalist take it. Before they finish, I showed them a few items they needed to take but Mahesh refused to take them and left rubbish behind which I have photos of: A large 200 litre steel drum full of grease, a cupboard with lots of rubbish (shelves and a few buckets and other stuff). Mahesh had full access to the premises and was emailed multiple times from the real estate agent to come and remove their stuff from the shop. On the day the removalist came, they had full access to the shop. Mahesh, his wife and their son came on this day and walked around the whole shop taking photos and removing items and equipment. Mahesh tried to sell all their stuff to the new tenant, but new tenant only bought the items listed on the contract of sale and the rest of the stuff he didn't want because he said it had no value and in poor condition. The equipment and rubbish left by Mahesh (Impressive Pty Ltd) in the garage prevented the new tenant leasing the shop from using his allocated parking bay. This caused a few problems from the tenants living in the units above and the new tenant leasing the shop. The rubbish was not removed until the 25/04/2022. …"

Consideration and determination

1. It is well-established that conversion subsists in dealing with goods in a manner intentionally inconsistent with the rights of the true owner: Rapid Roofing Pty Ltd v Natalise Pty Ltd [2007] 2 Qd R 335; [2007] QCA 94 at [52] (Keane JA) (with Williams at [9] and Atkinson J at [94] agreeing).
2. The general principle governing assessment of damages for conversion is that the loss must be compensated by an award of money which represents the full value of the goods. Accordingly, the relevant value is the amount of money required to buy a similar article in the market at the date of the act of conversion: Jiwira v PIBA [2000] NSWSC 1094 at [256] (Austin J).
3. I am satisfied of the following matters: 1. Impressive become bound the observe the provisions of the lease applicable to the tenant pursuant to cll 4.3 and 4.4 of the lease assignment; 2. the lease expired on 14 August 2020 and thereafter pursuant to cll 12.4.1 and 12.4.2 of the lease there was a monthly tenancy between the parties in respect of the premises on the terms of the lease with immaterial exceptions; 3. in August 2021, Mr Jbarat terminated the monthly tenancy by giving notice to Impressive; 4. that on 14 September 2021, Impressive became bound to remove its goods and tenant's fixtures from the premises pursuant to cll 12.3.2 and 12.4.4 of the lease.
4. I am not satisfied that Impressive has established that it is the owner of items 1 to 5 of the disputed equipment. While I accept that these items are listed in the inventory of plant and fixtures which is annexure B of the sale of business contract, Mr Jbarat was not a party to that contract and so is not prevented from asserting his own ownership of these items. Impressive adduced no evidence that 4C's had been the owner of these items.
5. I am satisfied that Impressive has established that it is the owner of items 6 to 10 of the disputed equipment. However, I am not satisfied that Impressive has established that Mr Jbarat is responsible for items 6 to 10 of the disputed equipment being missing. Impressive adduced no evidence as to the precise location where these items 6 to 10 had been stored, and that the tenants above the premises were not able to access the garage. Further, Impressive adduced no evidence that item 9 of the disputed equipment was not included in the equipment sale agreement.
6. It follows that Impressive's claim for conversion of the disputed equipment should be dismissed.
7. If my finding that Mr Jbarat has not converted any of the items of the disputed equipment is later found to be wrong, then I would not have found that Impressive had established that it was entitled to any damages. I would not have given any weight to the statement of the value of the disputed equipment as it was not supported by any evidence such as an invoice or an expert report as the amount of money required to buy a similar article in the market at the date of the act of conversion.

Whether Mr Jbarat breached the lease and if so what loss if any was suffered by Impressive

1. I am satisfied that Mr Jbarat breached the lease by not permitting Impressive to remove its goods shortly after 29 September 2021. In view of my finding that that Impressive has not established that it is the owner of items 1 to 5 of the disputed equipment, I am not satisfied that Mr Jbarat breached the lease by not permitting Impressive to remove these items.
2. I am not satisfied that Impressive has established that Mr Jbarat was responsible for any delay in the sale of the items the subject of the equipment sale agreement and any diminution in their price due to the delay. Impressive adduced no evidence as to the negotiations for the equipment sale agreement and any diminution in price of its subject items between 14 September 2021 and 25 April 2022.
3. I am not satisfied that Impressive has established that Mr Jbarat was responsible for them removing any rubbish when they removed their items from the premises. Impressive was responsible for removing its goods whether or not they were rubbish at the end of the monthly tenancy pursuant to cll 12.3.2 and 12.4.4 of the lease.
4. I am not satisfied that Impressive has established that it suffered any loss due to the breach of the lease by Mr Jbarat. Impressive adduced no evidence as to payment of a non-refundable removalist booking fee or any other loss occasioned by the breach.
5. It follows that Impressive's claim for breach of the lease should be dismissed.

Orders

1. I make the following order: 1. the proceedings are dismissed.

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 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: 26 August 2022