J Family Trading Pty Ltd v Scone Village Food Emporium Pty Ltd

NCAT Appeal Panel|2022-09-15

The relevant parties, persons and entities

Scone Village Food Emporium Pty Ltd is the respondent in the appeal and the proceedings at first instance. It is the landlord of commercial premises ("Premises"), being a lock up shop in the city of Scone, contained in the Scone Village Shopping Centre, which is the subject of these proceedings.
Mr Bokeyar is the letting agent for the Premises, insofar as he is the Managing Director of a company which provides management services for the respondent.
Mr Pardy is the solicitor for the respondent
J Family Trading Pty Ltd is the appellant and applicant at first instance. It claims to be entitled to the benefit of a lease of the Premises from the respondent.
Mr Peng, is the sole Director of the appellant.
Mr Phair is the solicitor for the appellant.
J Family Motel Group Pty Ltd is an entity of which Mr Peng is also a Director.
Smart Dollar Tamworth Pty Ltd ("Smart Dollar") was the original tenant of the Premises, insofar as it concerns the parties and related entities to this appeal.
Kaisercraft Australia Pty Ltd ("Kaisercraft") is an incoming tenant of the respondent under an executed lease. The parties are in dispute as to the extent to which the business it proposes to operate from the Premises would compete with that of the appellant.

The undisputed history

There is no dispute that the premises are, in the context of the business currently operated from them, a retail shop within the meaning of Sch 1 of the Retail Leases Act 1994 (NSW)
There has yet to be any mediation between the parties with the New South Wales Office of Small Business.
There was a lease between Smart Dollar as tenant and the respondent as landlord, between 1 June 2016 and 31 May 2019. Smart Dollar had an option to renew its lease for a period of five years from the expiration of the initial term.
Possession of the premises was not returned to the landlord, despite the expiration of the lease on 31 May 2019. At least until August 2022, rent has been paid to the respondent to secure the occupation of the Premises.
Negotiations were entered into between the appellant and respondent for a new lease. Those negotiations commenced after the expiration of Smart Dollar's initial lease term.
Those negotiations reached a point where a draft lease was forwarded by the respondent to the appellant. For convenience, I will refer to this document as the "draft lease". In doing so, I do not intend to express a view as to whether a lease between the parties in terms of the draft lease is now in effect.
Mr Peng on behalf of the appellant and as its Director, executed a version of the draft lease and return it to the respondent on 10 December 2020.
The draft lease was never executed by the respondent.
In mid-2022, the respondent entered into a subsequent lease of the premises with Kaisercraft. That lease was to have already commenced, however there Kaisercraft agreed to delay that the lease's commencement until 19 September 2022, although that it is alleged by the respondent that Kaisercraft needs to complete the process of fit out before the lease can properly commence.

Primary issues in contention between the parties

The appellant asserts that Smart Dollar exercised its option for a new lease term of five years from 1 August 2019. It says, however, that the renewed lease has been superseded by its agreement to lease the premises from the respondent. It says, in that regard, that it accepted an offer of lease by returning the executed draft lease to the respondent and remaining in occupation of the Premises, and paying rent, since that time.
The respondent denies that Smart Dollar exercised its option. It says Smart Dollar is the entity remaining in possession, albeit that the respondent says it has now taken the required steps under the Retail Leases Act to require Smart Dollar to vacate the premises.

The proceedings in the Tribunal

On 30 August 2022, the appellant filed proceedings in the Consumer and Commercial Division seeking both interim and final orders to protect its asserted position as tenant under a lease with the respondent.
Both applications seek, in substance, a declaration that the parties have entered into a retail lease for the Premises, commencing on 2 November 2020 for a period of five years with a further five-year option.
That was the position maintained by the appellant in the proceedings at first instance.
The respondent's position was that the only relevant lease of the premises was that which it gave to Smart Dollar, which has expired. The respondent alleges that it is Smart Dollar who has been holding over as tenant since the expiration of the lease; that it never agreed to grant any proprietary rights to the appellant; and that it has appropriately notified Smart Dollar of the termination of the tenancy such that it was entitled to grant an interest as lessee to Kaisercraft.
On 31 August 2022, the Tribunal made an interlocutory ex parte order preventing the respondent taking possession of the premises. That order was subsequently extended until the interim application of the appellant could be heard. Directions were also made for the parties to lodge and serve material in respect of the application for interim orders. Relevantly, no provision was made for the appellant to lodge and serve material in reply to that served by the respondent.
The interim application came before a Senior Member of the Consumer and Commercial Division on 12 September 2022. The reasons for decision indicate that the Senior Member clarified the material relied upon by the parties, confirmed they were both ready to proceed, and dealt with the application in the usual course. The appellant relied solely upon an affidavit of Mr Phair dated 29 August 2022, together with a tender bundle consisting mainly of correspondence. No evidence from Mr Peng was lodged.
The respondent relied upon an affidavit of Mr Bokeyar which annexed about 400 pages of other documents and an affidavit of Mr Pardy,.
Apart from granting a short extension of the order restraining the respondent from taken possession of the premises until 14 September 2022, the Tribunal dismissed the appellant's application for interim orders, and gave written reasons.
The application for final relief remains to be listed. The Tribunal acknowledged, however, that relief in the form sought would be rendered unavailable by its decision and that the appellants remaining claim, if it has one, would be for damages. The appellant had not sought damages. Nor has it yet amended its application to seek damages on a final basis.

The Tribunal's reasons

The Tribunal identified the factors relevant to its consideration of the application for interlocutory relief by reference to the principles outlined in decisions such as CCS 251 Elizabeth Street Sydney Pty Ltd v Hellenic Club Ltd [2016] NSWCATCD 88. The Tribunal noted that the relevant matters the appellant needed to demonstrate to obtain the interlocutory relief sought were: 1. that there was a serious issue to be tried in the substantive proceedings (i.e. the appellant had an arguable cause of action); 2. the balance of convenience was in favour of making the orders sought by the appellant; 3. that damages were not an adequate remedy; and 4. that, in respect of the balance of convenience, a relevant consideration is whether the applicant is prepared to offer the usual undertaking as to damages.
I do not understand there to be any challenge to the Tribunal's identification of those issues. Rather, the appellant says the Tribunal fell into error in ascertaining the factual matrix upon which those issues could be considered, and in subsequently exercising its discretion in refusing interlocutory relief.
The Tribunal's reasons indicate that the appellant argued its application on two complementary bases. Firstly, that a contract in the nature of the draft lease was formed between the parties on the principles set out in Masters v Cameron (1954) 91 CLR 353. Secondly, the appellant argued that a "statutory lease" existed, in any event, pursuant to s 8 of the Retail Leases Act, although the Tribunal determined that the appellants argument in that regard was "undeveloped": at [39].
The Tribunal accepted that the appellant had an arguable cause of action, but it described that cause of action as "not strong, but… weak": Reasons, at [41].
At [42], the Tribunal found that it was "clear from the evidence of Mr Bokeyar" that the parties were still negotiating over a long period of time in respect of matters that changed the substance of the draft lease, irrespective of the appellant having sent back a signed version of the draft lease.
At [43], the Tribunal noted that Mr Bokeyar's evidence was "not challenged by any evidence from Mr Peng, nor was Mr Bokeyar sought to be cross-examined. The tenant asserts that the reasons for this is the urgency of the application and the lower test that needs to be satisfied to obtain interim orders compared to final orders."
At [44], the Tribunal noted that "[h]owever, the tenant bears the onus of proving the necessary matters to obtain interim relief. Its evidence is a series of emails and other documents that do not set out in any comprehensive way what occurred, when the evidence of Mr Bokeyar is taken into account. There is no explanation why, when the application for interim orders was made, Mr Peng could not have provided an affidavit setting out relevant factual events."
At [46], in considering the balance of convenience, the Tribunal noted that no evidence was provided by Mr Peng about the effect on the tenant if the interlocutory orders were not granted and that there was no evidence to dispute Mr Bokeyar's version of events that Mr Peng knew in 2022 that the landlord had entered into a lease with Kaisercraft; that Mr Peng made no reference to there being a binding lease between the parties, based on the draft lease, until late August 2022. The Tribunal found that the appellant was on notice for a number of months that the landlord was seeking to enter into a lease with a different tenant and that Mr Peng had represented that the tenant was moving out but needed more time to do so. Clearly, these findings rely upon an acceptance of what the Tribunal considered to be the unchallenged evidence of Mr Bokeyar.
The Tribunal referred to the fact that an undertaking as to damages, described as being in "the usual terms" was proffered by the appellant and a related company, but that the respondent submitted that the undertaking should be given little weight as there was no evidence that the appellant had any assets and because Mr Peng had not personally offered an undertaking.
The Tribunal declined to give significant weight to the undertakings as to damages, at [50], clearly (although implicitly) accepting the respondent's submissions. The Tribunal was not satisfied that damages were not an adequate remedy, in the absence of evidence supporting that contention by Mr Peng, at [51].

The Appeal and Application for a Stay

From that decision, the appellant lodged its appeal within time and brought an application for a stay. Those documents were lodged on 13 September 2022. Given the terms of the lease to Kaisercraft, it was important that the matter be dealt with on an expedited basis. I made directions to list the matter before me at 2.15 pm on 15 September 2022. I directed that the appellant lodge and serve any further evidence and submissions in support of the application for a stay by 1pm on 14 September 2022 and for the respondent to lodge and serve material in response by 1pm on 15 September 2022.
In respect of the appellant's material, the direction contained the following notation "such evidence should include, but is not limited to, any undertaking as to damages and the evidence related to the ability of the person or entity giving such undertaking to meet the terms of the undertaking, if required".
In response to those directions, the appellant lodged an affidavit of Mr Peng of 14 September 2022, together with its written submissions. It also sought to rely on the affidavit of Mr Phair, lodged in the proceedings at first instance and dated 29 August 2022. The respondent relied upon an affidavit of Mr Bokeyar of 15 September 2022 an affidavit of Mr Pardy of 15 September 2022 and written submissions.
Apparently in response to inquiries made after the initial material was lodged by the appellant, the appellant then sought to lodge a further affidavit of Mr Peng dated 15 September 2022.

Conduct of the application for a stay

At the outset of the hearing, I identified the parties' material. The respondent objected to parts of the affidavit of Mr Peng dated 15 September 2022. The parts objected to (at para 11) related to evidence regarding a personal property securities register search undertaken by the respondent after the 14 September 2022 affidavit of Mr Peng was served and attached a statement from the Commonwealth Bank said to relate to an associated loan. Paragraphs 14 to 28 related to undertakings as to damages proposed to be given by two further companies sharing the directorship of Mr Peng, and their evidence to meet those undertakings if required. I refused to allow those parts of the affidavit for reasons I gave orally at the hearing. Without limiting or resiling from those reasons, which should be considered in full, I was not satisfied the appellant had established a proper basis to rely on the documents given the procedural history and prejudice to the respondent.
The appellant then sought an adjournment of the hearing which I again refused for reasons I gave orally.
At the completion of the hearing, I gave the parties leave to lodge an agreed partial transcript and to indicate whether they agreed the rent for September 2022 had been paid. The transcript was provided. The parties clearly remain in dispute about the September 2022 rent and the appellant sought to lodge yet another affidavit of Mr Peng, and the respondent further evidence. As I am satisfied I can resolve the application without regard to whether the September 2022 rent was paid, I will not have regard to that evidence, lodged without leave.

The principles to be applied on the Application for a Stay

In the Application for a Stay lodged by the appellant, it sought a "stay" of the orders of the Tribunal, numbered 1 and 2.
Order 1 was in the following terms "[o]rder 2 of the Tribunal dated [31 August 2022] restraining the respondent from taking possession of the premises is extended to 9.00am on [14 September 2022]."
Order 2 was expressed in the following terms "[t]he application for interim orders otherwise dismissed."
Clearly, neither of those two orders could meaningfully be stayed. A stay of order 1 would not have achieved what was sought by the appellant and order 2 took effect when it was made and cannot be stayed.
However, under s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) I have power not only to stay the operation of a decision but to make orders affecting the operation of the decision as appropriate to secure the effectiveness or determination of the appeal. In considering the application on an ex parte interlocutory basis pending the hearing of the application, I had granted a "stay" in the following terms "[i]n respect of the decision made on 12 September 2022 in matter COM 22/38899 the effect of the order, dated 31 August 2022, preventing the respondent taking possession of the premises is extended until 5 pm on 15 September 2022 or finalisation of the appeal, whichever is the earlier in time." The appellant confirmed that it was an extension of an order of that nature which was sought. No prejudice was claimed by the respondent to that variation. I will consider the application those terms. For convenience, I will continue to describe the order as a "stay", whilst acknowledging the looseness of the term in that context.
The respondent says that consideration of the application requires me to apply the test set out by Meagher JA in Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd (In Liquidation) (Receivers and Managers Appointed) & Ors [2012] NSWCA 49 at [11], which was in the following terms: In order to obtain the interlocutory relief it seeks, Metro must show a sufficient likelihood of success on appeal to justify the preservation of the status quo and that the balance of convenience favours the grant of the injunction sought. That will ordinarily be the case where it is necessary to grant an injunction to prevent the appeal being rendered nugatory, especially where that may involve significant injury or prejudice to the applicant: Paringa Mining & Exploration Co PLC v North Flinders Mines Ltd (No 2) [1988] HCA 53; (1988) 165 CLR 452; Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110; and Varma v Varma (No 2) [2011] NSWCA 13.
With respect, that decision provides a succinct summary of, but does not in my view displace, other usual considerations in respect of a stay pending appeal. I accept, though, that it provides useful guidance in the application of those principles in the context of a dispute of this nature. A somewhat broader exposition of the relevant principles as they apply in the application of s 43 of the NCAT act was set out by the former President of this Tribunal, Wright J, in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. There, at [9], His Honour recorded that: As a result of the use of "may" in s 43(3) of the [NCAT] Act, the Tribunal has a discretion whether or not to grant a stay. That discretion must be exercised judicially and general principles which apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. The applicable principles can be summarised as follows: (1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16. (3) The mere lodgment of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act. (7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18].

Will the appellant require leave to appeal?

Section 80(2)(a) of the NCAT Act provides that an internal appeal may be brought, in respect of an interlocutory decision, only with the leave of the Appeal Panel. Other decisions may be brought as of right on a question of law or otherwise with leave.
At the outset of its submissions, the appellant indicated that it would develop an argument that leave to appeal was not required, despite having been sought, because the decision of the Tribunal in effect finalised the substantive application before the Tribunal, as it currently stands. However, from the appellant's counsel's submissions as developed through oral argument, I understand that argument to have been abandoned. In case it was not, I should make it clear that I do not accept that argument. I see nothing in the terms of s 80(2) of the NCAT Act, read with the definition of an interlocutory decision contained s 4 of the Act, which would lead me to conclude that the nature of the Tribunal's decision here was anything other than an interlocutory order, for which leave to appeal is required in any event. The fact that it may have had a substantial effect on the appellant's claim for final relief does not alter that position. It is sufficient, in my view, to note that a similar position arises in respect of summary dismissal decisions which have long been accepted to be an interlocutory decision and is specifically defined as such in s 4(h) of the NCAT Act. My view is also supported by authority: Funfood Pty Ltd v Centura Global Holdings Pty Ltd [2022] NSWCATAP 189 at [68].

The Grounds of Appeal, and whether the appellant has an arguable case for leave

The appellant raises several grounds of appeal from the Tribunal's decision. I have considered them all, both individually and cumulatively. Given the significant time constraints in respect of preparation of this decision, I do not propose to deal with them individually at length.
With respect, various grounds of appeal which the appellant asserts are questions of law do not in my view meet that description. Rather, they assert that the Tribunal misapplied the law to the facts before it. Those are not questions of law: Orr v Cobar Management Pty Limited [2020] NSWCCA 220.
There are also several allegations of error which in my view rise no higher than allegations that the Tribunal ought to have reached a different conclusion as to the decision in the exercise of its discretion based on the appellant's case theory.
In my view, the high point of the appeal as currently framed, despite the multiple grounds alleged, rests on three primary bases.
The first is that the Tribunal denied the appellant procedural fairness. In circumstances where no provision was made for evidence in reply to be lodged and served by the appellant and where the Tribunal relied upon evidence of Mr Bokeyar lodged after the time for the appellant to lodge evidence had closed, the appellant says that evidence should not have been accepted as unchallenged. In doing so, the appellant say the Tribunal engaged in a preliminary trial, contrary to established authority: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618. The appellant says this error infected the Tribunal's conclusion that the appellant's case was weak, and that this had a consequent impact upon the weighing of the balance of convenience the competing rights of the parties.
Secondly, that the Tribunal reached a conclusion without evidence at [42] that there had been ongoing negotiations over a long period of time between the parties, which changed the substance of the agreement contemplated by the draft lease. The appellant says such a conclusion was unavailable on the evidence of Mr Bokeyar that was before the Tribunal, even taken at its highest, and inappropriate. It was also said to be in error where an unconditional offer was made to enter into the lease by the respondent by letter of 25 January 2021 enclosing a version of the draft lease, subsequently accepted by return of the draft lease signed by the appellant.
Thirdly, the appellant says the Tribunal erred by finding that damages were an adequate remedy in the absence of supportive evidence from Mr Peng. It relies upon a line of authority exemplified by Chamberlain Early Learning Centre Pty Limited v Chamberlain Group Pty Limited [2015] NSWSC 751 to the effect that damages will rarely be an adequate remedy for the invasion of proprietary or possessory rights (citing Beswicke v Alner [1926] VicLawRp 10; [1926] VLR 72, at 77; Stageman v St John Ambulance Association in Western Australia Incorporated [2010] WASC 203 , per Hall J, at [29]).

Determination as to an arguable case for leave

In respect of the first allegation, I should clearly record that I do not accept that a failure to provide for an applicant to provide evidence in reply of itself creates a situation of procedural unfairness. Indeed, in preparation of this hearing I formed the view that there was insufficient time for evidence in reply to be provided.
However, that does not mean that it may not be causative of procedural unfairness in some circumstances. Here, the appellant says that where it was given no opportunity to respond to allegations by Mr Bokeyar, and where the Tribunal clearly considered the apparent relative strength of the application on the basis that Mr Bokeyar evidence was "unchallenged," procedural unfairness occurred.
The allegation of error goes further in that the Tribunal did not consider it appropriate to defer or delay the hearing but, where the appellant was represented by experienced counsel and no adjournment was sought, I do not consider that allegation to be meritorious.
I do not see apparent relative merit in the submission that the Tribunal conducted a preliminary trial. In cautioning against that course, White J in 1st Fleet Pty Ltd v Australian Cooperative Foods Ltd [2006] NSWSC 881, at [5] (referred to with approval in Attorney-General v Knight [2014] VSC 549, per T Forrest J, at [18]) said: "[The court] does not seek to resolve conflicts of evidence. The parties have not had the benefit of cross-examination or been able to deploy all other relevant evidence that may be available at a final hearing. The evidence adduced by the defendant is to be taken into account in determining whether on all the evidence the plaintiff has demonstrated that there is a serious question to be tried. That formulation of the question mandates that any conflict between the evidence of the plaintiff's witnesses and the defendant's witnesses is not to be resolved, but rather it is to be assumed that any such conflict would be resolved in the plaintiff's favour (Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 724)."
Here, the Tribunal did not have conflicting evidence to that of Mr Bokeyar. The respondent says that it was open to the appellant to raise the fact that the evidence was disputed, even if only from the bar table, and additionally that the appellant could have sought an adjournment and leave to adduce further evidence. There is merit in that argument.
The appellant says it did not take that course because of what it understood to be agreed between counsel, and the Tribunal, in respect of what was said at the hearing as to how it would be conducted and considered. The transcript, provided to me by the parties overnight, reveals that the following relevant exchanges occurred in that regard: Senior Member: Mr James in respect of the Respondent's material has that been served Mr James: Ah yes member we received a copy of that material between about 7:30 and 8pm last night I have had the chance to briefly review the material. I can indicate that the factual circumstances are likely to be somewhat broader than you have anticipated but the applicant would be in a positon to very promptly get together some evidence in response to what's been served and some further materials so that the matter could be expedited. I would need to take some brief instructions as to precisely how quick that could go occur but we expect that we could do so very ah in short compass Senior Member: Alright. Is there an issue in respect of whether if the parties can't reach an agreement does an issue arise as to whether you are able to meet the material that was served last night that would meet it by way of at the very least submissions or any other issue that arises. Do you need some more time today to look at the material? Mr James: Submissions could be made today orally in relation to the material that has been served. I would hesitate to say that it could be dealt with in the same way that an application for final determination would be but in circumstances where on an interim application like this there are contested facts that would not be determined as part of an interim application that was simply taking into account in relation to a question of the balance of convenience or whether there is a serious issue to be tried there is certainly factual contest as to a number of matters relating to the negotiations and when those negotiations concluded. One of the matters that I had sought to raise today is that there would need to be an amendment to the application lodged by the Applicant that arises in part out of some of the further matters that we have been provided with from the Respondent but also in circumstances where the matter was brought on in a matter of extreme urgency with threats of eviction within 24 hours. There are some matters in the application that could help to confine or at least narrow some issue raised. … Senior Member: Do you require any witnesses for cross examination on the interim application Mr James: Senior member I don't require any witnesses but that is on the basis that I understand that my learned friend would not require any witnesses either and that,the practice in relation to the granting of interim relief certainly allows for the consideration of the issues without making a final determination on the facts that will found the substantive relief Senior Member: I understand Mr James: If my learned friend takes a different position then I may also have to do so Senior Member: I understand that but if I was to allow cross examination of witnesses it would have to only relate to issues that are relevant to what I have to consider in the application for interim orders. It could not go beyond that Mr James: Yes Senior Member: In any event the proposal of the applicant is to proceed without cross examination of witnesses Senior Member: Mr Cox is the respondent ready Mr Cox: I agree, the respondent is ready and I agree that the appropriate course is for the matter to proceed without cross examination Senior Member: Alright thank you
Those exchanges, taken in the context of the nature of the hearing do not immediately lead me to conclude that an Appeal Panel would be likely to agree that the Tribunal erred in considering that Mr Bokeyar's evidence was uncontroverted, solely for the purpose of the interlocutory hearing, however I accept that it is arguable.
In respect of the second allegation of error, paragraphs 22 to 75 of Mr Bokeyar's affidavit of 5 September 2022 are relevant, but do not need to be repeated. What that shows was a period of relative inactivity as between the parties in respect of discussion about variation of the draft lease between July 2019 and about August 2022, but significant other conduct which might support an inference that the parties were operating on the basis the lease had not been finalised. Much of that evidence is now disputed by Mr Peng in evidence not before the Senior Member. The allegation of error is arguable.
In respect of the third allegation of error, the authorative nature of what was said in Chamberlain Early Learning Centre Pty Limited v Chamberlain Group Pty Limited [2015] NSWSC 751 cannot be disputed, but it is not an absolute. The authorities indicate that damages will rarely be adequate, not that damages will never be adequate compensation for the loss of proprietary rights. The only evidence the appellant advanced was from Mr Phair, contained in his affidavit of 29 August 2022. It did not even allege, let alone seek to establish through evidence that the store operating at the Premises traded at a profit, such that any pecuniary loss would be occasioned to the appellant. Nor, other than by assertion, did Mr Phair attempt to establish that it is indeed the appellant, as opposed to Smart Dollar, who was trading from the Premises. Again, the allegation of error is arguable, but has limited apparent relative merit in my view.
In summary, then, whilst I am prepared to treat the grounds of appeal as arguable for the purpose of this application, I am left with the abiding impression that the appellant's failure to secure the orders it sought at first instance may be found by the Appeal Panel determining the matter to have been caused not by error on the part of the Tribunal but by the forensic decision made by the appellant to prosecute its application solely upon the limited affidavit of Mr Phair dated 29 August 2022.
My reasoning for that finding is best explained by way of example, and by reference to the appellants claim before the Senior Member to have a 'statutory lease', in the form of the draft lease, under s 8 of the Retail Leases Act. The relevant part of s 8 is of short compass. It provides: 8 When the lease is entered into (1) For the purposes of this Act, a retail shop lease is considered to have been entered into when a person enters into possession of the retail shop as lessee under the lease or begins to pay rent as lessee under the lease (whichever happens first).
In that regard the evidence of Mr Phair relied upon at first instance insofar as it directly addressed the allegation the lease had been created pursuant to s 8, was contained at paragraph 7 of Mr Phair's affidavit. There, Mr Phair deposed in the following terms that: I annexe hereto and mark "D" a copy of online print out for payments made by the plaintiff to the defendant (sic) for the period 4 September 2022 to 1 August 2022. I am instructed the plaintiff's online print out does not capture payments prior to this date however payments by the plaintiff have been made to the defendant since 1 August 2019 and were prior to this date made by Smart Dollar Tamworth Pty Ltd pursuant to [the original lease].
Annexure "D" is simply in the form of a tabulation, which, I infer, results from exporting bank account information from a bank website to a spreadsheet program. What it does not do, in any meaningful sense, is identify the source of the funds or that they were transferred to the respondent from an account held by the appellant.
Whilst I accept that, at paragraph 1, Mr Phair deposes that "I the director for the plaintiff and am authorised to make this affidavit on its behalf (sic)", I am satisfied that is in fact not correct and was not an assertion Mr Phair intended to make. It is inconsistent with the attached ASIC search of the appellant and the way the matter has been argued.
Rather, it is apparent that Mr Phair simply made the assertion on information and belief but without disclosing the source of the information, except to the extent that it may be inferred that he was provided with instructions to that effect by his client's director.
Mr Phair's evidence at paragraph seven was further bolstered by an allegation at paragraph 17 of his affidavit that an invoice was issued by the respondent to the appellant for the monthly period commencing 1 August 2019. However, the annexed invoice is in fact addressed by the respondent to Smart Dollar and not to the appellant.
Better evidence, of course, was available from Mr Peng and more particularly through the provision of source documentation to establish that it was the appellant and not Smart Dollar who had been paying the rent since 1 August 2019. Similarly, there seems to be no reason why the appellant could not establish that there had been some transfer of ownership of the existing stock in the shop operated from the premises from Smart Dollar to the appellant and/or the obligation of employment contracts with staff operating the store.
Whilst I consider the grounds of appeal to be arguable they are not in my view so strong that they may be said to be particularly likely to warrant a grant of leave to appeal.
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Phair [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
The appellant did not address, and I am unable to identify, an issue of principle or of general or public importance, even if the Tribunal erred. Whilst I have accepted the grounds of appeal are arguable, it will be for the Appeal Panel determining the matter to determine whether they agree with that assessment and, if so, whether it goes beyond the merely arguable. Applying that to what was said by Meagher JA in Metro Chatswood Pty Ltd, I am not satisfied that the apparent relative merit of the appeal demonstrates sufficient likelihood of success on appeal to justify the preservation of the status quo.

The balance of convenience and competing interests of the parties

In case I am found to be wrong in that, however, I will go on to address the balance of convenience.
I accept that the mere fact that the respondent has entered into a lease with Kaisercraft does not preclude me granting the relief sought by the appellant.
The direct impact on the appellant, if the stay is not continued, is clear. It will lose the benefit of its retail tenancy and the ability to trade from the Premises. What remains unclear, despite the appellant now having a second opportunity to demonstrate it, is that there would be financial loss occasioned to the appellant if it loses that right. In this application, the appellant relies upon an affidavit of Mr Peng sworn 14 September 2022 where at [5] he asserts that: Kaisercraft business is a direct competitor to Smart dollar business. They are both variety stores. If I am forced to move my business I will lose the goodwill I have built up over six years at that location. Scone is a small town with approximately 5000 people. There is one main street and one main shopping centre. My Smart dollar businesses is on the main street in the main shopping centre. There is not an equivalent available shop for me to move my Smart dollar business. If I was forced to move my business it would not survive. There is not the demographic for two variety store businesses in Scone city centre.
Further, at paragraph six, Mr Peng says that the appellant "… owns Smart Dollar variety stores in Port Macquarie, Scone, Warwick, Bateau Bay, Campsie, Singleton and Moree. There is also another Smart Dollar variety store I own under another entity in Tamworth. The most profitable of the eight Smart Dollar variety stores is the Scone store operated from the leased premises and without the profitability of the Scone store the other six Smart Dollar stores owned and operated by the applicant … will not survive."
I can only infer from that evidence that Mr Peng has available to him the financial records which would substantiate the assertion he makes about the profitability, and particular importance, of the Scone store. Notwithstanding that, nothing has been provided to establish those issues.
I was provided with financial reports for the appellant company, for the period ended 30 June 2021. However, those financial statements did not differentiate between the profitability of the various stores and, overall, shows the business group has traded at a loss in the financial years 2020 and 2021. The balance sheet also demonstrates a negative asset position.
The appellant also provided a draft 2021 financial return for J Family Motel Group Pty Ltd, which was the other company prepared to offer an undertaking as to damages. That company, likewise, in the absence of an ascribed value for goodwill has a deficit between its assets and liabilities.
Taking those matters into account, I could not be satisfied that the proposed undertakings as to damages provide sufficient security to balance the competing interests and rights of the parties in favour of the appellant.
On the other hand, the respondent will, I accept, be exposed to the potential for a claim for damages by Kaisercraft having regard to its inability to provide vacant possession of the premises in accordance with the lease entered into by those parties, if a stay is granted. As I am not satisfied the appellant can ameliorate that risk by the proffered undertakings as to damages, the balance of convenience does not, in my view, warrant the exercise of my discretion to grant a stay.
Finally, I should record that I accept that my decision will likely render the appeal nugatory, and I have weighed that factor with the due regard it deserves. However, it will not prevent the appellant amending its claim at first instance to be one for damages, if damage can be substantiated.
I will dismiss the application and issue directions in due course.

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 29 September 2022 - Minor typographical errors corrected. 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: 29 September 2022

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