Maqableh v Kaklamanis

NCAT Appeal Panel|2021-10-11

Date of Decision: 29 June 2021 29 June 2021 Before: Senior Member Thode File Number(s): COM 21/10330 COM 21/17070

REASONS FOR DECISION

By Notice of Appeal filed 21 July 2021, the Appellant appealed against decisions of the Consumer and Commercial Division of the Tribunal of 24 June 2021, ordering the Appellant to pay the Respondent the sum of $17,400 immediately with respect to a claim for the payment of rent by the Appellant pursuant to the lease of retail shop premises owned by the Respondent (COM 21/10330), and orders that a claim by the Appellant against the Respondent be dismissed (COM 21/170700).
In lieu of the orders made by the Tribunal, the Appellant sought orders that he pay to the Respondent the sum of $4,156, which was to be offset against an order that the Respondent pay "damages up to $90,766" to the Appellant, an order that the Respondent pay the Appellant's costs of and incidental to both sets of proceedings before the Tribunal, and a declaration that the Appellant was entitled to receive the whole of a security bond of $2,400.
By Reply to Appeal Notice filed 11 August 2021, the Respondent sought the dismissal of the Appellant's appeal. In oral submissions during the hearing of the appeal, the Respondent made clear that, if the appeal was dismissed, he sought an order that the Appellant pay his costs of the appeal.

Background

The background to the appeal emerges, uncontroversially, from the Reasons for Decision of the Tribunal. The Tribunal recorded the terms of the registered Lease ("the Lease") pursuant to which the Appellant became the tenant of premises subsequently acquired by the Respondent in Ward Avenue , Potts Point ("the Premises") for a term of five years commencing on 5 October 2016. The Lease was due to terminate on 4 October 2021, with no option to renew it. It is not in issue that the Lease was a commercial lease regulated by the Retail Leases Act 1994 (NSW) ("the RL Act").
On 4 March 2021 the Respondent commenced proceedings (COM 21/10330) in the Tribunal seeking the recovery of $17,400 from the Appellant. That sum was particularised in the application as an amount of $15,000 with respect to alleged arrears of rent pursuant to the Lease, and the sum of $2,400, being the security deposit paid by the Appellant pursuant to the Lease.
On 19 April 2021 the Appellant filed an application which became COM 21/17070, seeking a declaration pursuant to the RL Act that the Respondent "by his conduct of 12 April 2021" had repudiated the Lease, an order pursuant to s 72(1)(a) of the RL Act that the Respondent pay the Appellant damages as a consequence of the Respondent's repudiation of the Lease, a further declaration pursuant to s 72(1)(f)(v) of the RL Act that the Appellant was entitled to receive the whole of the security bond provided under the Lease, and an order pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") that the Respondent pay the Appellant's costs of and incidental to the proceedings.
The Respondent's claim (in COM 21/10330) was identified by the Tribunal as for "immediate possession of the premises for the non-payment of Covid rent … the true rent in the Lease is $2,400 per month to be paid in advance on the first day of each month. The Lease Agreement entitles me to terminate the Lease and take possession of the property if rent is 14 days overdue. The lessee has only paid $300.21 and it is now March 2021. This means the lessee is 3 months in arrears according to the terms of the Lease Agreement. I therefore seek an order allowing me to terminate the Lease notwithstanding the eviction moratorium".
The Tribunal further identified the Respondent's complaint as being that "the lessee has not provided evidence of a downturn in turnover during 2021 despite our repeated requests meaning the lessee has not renegotiated in good faith pursuant to the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (the COVID-19 Regulation)". The Tribunal recorded other particulars of the Respondent's claim which are not relevant for our purposes.
The Tribunal recorded that "It is the landlord's evidence that the parties had negotiated through the pandemic but that the tenant had refused to make any rent payments and that the landlord was not obliged to negotiate in the absence of any evidence that the tenant was Covid impacted. It is the landlord's evidence that the documentation tendered by the tenant [Appellant] is fraudulent and that despite repeated requests the tenant has failed to provide financial documents and business activity statements (BAS) capable of proving a downturn in business".
The Tribunal reiterated the relief sought by the Appellant in his application (COM 21/17070) in the terms identified earlier in these reasons, and referred to the Appellant's evidence and submissions in support of his claim in the following terms: "Following the announcements of the Commonwealth Government regarding the Covid 19 pandemic, on 24 March 2020 the tenant wrote to the landlord stating: "It is unlikely during the evolving Covid-19 (coronavirus) pandemic that I will be able to pay your rent as usual. Your patience and consideration is highly appreciated." In reply to the tenant's request for rent relief on 24 March the landlord wrote to the tenant stating: "The government only enacted laws yesterday, which do not affect convenience stores whatsoever." On 21 April 2020 the tenant wrote to the landlord: "I transfer $250 today I told you many times be patient and stop calling me." In reply to the tenant's request for rent relief on 21 March 2020 the landlord wrote to the tenant stating: "I am convinced you are just saying the virus [sic] as an excuse to not pay the rent.""
The Tribunal referred to a communication from the Appellant to the Respondent on 5 May 2020 stating: "I have suffered up to 75% decline in turnover. Convenience store businesses relies [sic] on pub goers, club patrons, office workers and by passes [sic], all of whom deserted as a result of the covid 19 pandemic and the unprecedented measures implemented by the Australian Government … I'm seeking a cooperative solution by requesting partial abatement of the monthly rent so that the monthly rent is $600 for a period of 6 months during this unprecedented downturn in business."
The Tribunal recorded that, in reply to the tenant's request for rent relief, on 23 June 2020 the Respondent's agent wrote to the Appellant demanding the full rent under the Lease without having regard to the National Cabinet Mandatory Code of Conduct - SME Commercial Leasing Principles during Covid 19 ("the Code") and the COVID-19 Regulation enacted under s87 of the RL Act.
The Tribunal recorded that the Respondent wrote to the Appellant stating "Please find is attached to a breach of lease notice. Further warnings may result in an eviction letter. We are open to discussing a surrender of lease if you wish to vacate early".
The Tribunal then recorded that, on 6 April 2021, the Respondent wrote to the Appellant advising that a "lockout notice letter" would be issued later that day. The Appellant asserted that the Respondent thereby repudiated the Lease.
The Appellant submitted that, on 12 April 2021, he accepted the Respondent's repudiation of the Lease, and terminated the Lease. The Appellant returned the keys to the premises to the Respondent's agent on 16 April 2021.
The Tribunal summarised the Appellant's claim as being that, in reliance upon the Respondent's repudiation of the Lease, the Appellant was entitled to sue the landlord for damages following the termination of the Lease on 12 April 2021.
The Tribunal noted the Appellant's claim that he had suffered damages "being the profits that would have been generated from trading from 13 April 2021 until the Lease expiry on 4 October 2021 the measure of damages the profits that the business generated during the same period of 2019 namely between 13 April 2019 and 4 October 2019 being the year that preceded the Covid-19 pandemic".
Under the heading "Consideration" the Tribunal found that it was "admitted by the tenant that he provided an unsigned, undated draft BAS statement during the term of the Lease and that no other documentation was provided that establishes the tenant was Covid impacted". The Tribunal also found that the draft BAS statements were not probative of the contention that the tenant was Covid impacted. The Tribunal recorded the concession of the Appellant during cross-examination that the "unsigned undated draft BAS statements were provided to his accountant, and that the accountant had no other documentation". For those reasons the Tribunal gave "no weight" to the "one page letter from the accountant stating that the tenant had a downturn in profit". The Tribunal recorded that the Appellant "confirmed he was not in receipt of JobKeeper or JobSeeker".
The Tribunal found that "In the absence of any other evidence", it was satisfied that the tenant was not an "impacted lessee" pursuant to the Covid-19 Regulation. The Tribunal also found that there was "no agreement reached between the parties in relation to a rental waiver", or any agreement to amend the terms of the Lease. The Appellant and the Respondent thereby remained bound by its terms.
The Tribunal was not satisfied that the Appellant had provided "evidence of a downturn in turnover, so that the parties could negotiate a proportionate rent relief". The Tribunal found that the Appellant defaulted under the Lease by failing to pay rent on time on a number of occasions and that, by March 2021, the Appellant was "in rental arrears in breach of clause 5 of the Lease".
The Tribunal referred to the Notice of Default issued on behalf of the Respondent in April 2021 pursuant to s 129 of the Conveyancing Act 1919 for the failure to pay rent between January and March 2021, such Notice requiring the breach to be remedied by paying the asserted arrears within 14 days.
The Tribunal recorded that the tenant (clearly intended to mean the landlord) "claims rent outstanding to the date of hearing" and that the Appellant "made no submissions and did not contest the quantum as calculated and claimed in the application form".
The Tribunal referred to the contention of the Appellant that a "rent reduction was granted for 3 months January to March but that the landlord failed to adhere to the rent reduction, demanding monies, and that the landlord has failed to comply with the Regulation and that the amount of $17,400 in deferred or lost rent is not outstanding because the landlord has failed to apply the Code correctly and has not applied a rental waiver of no less than 50% in accordance with the Leasing Principles as per the Code."
The Tribunal reiterated its earlier finding that the Respondent was not obliged to comply with the Covid Regulations because "the tenant was unable to demonstrate that he was Covid impacted" and that the landlord, was not obliged to renegotiate the rent payable under the impacted lease before commencing proceedings, and had not otherwise failed to comply with the Covid-19 Regulation.
The Tribunal was satisfied that the Respondent's application was not a "prescribed action" in accordance with the Covid Regulation. In reliance upon those findings, the Tribunal rejected the Appellant's contention that the Respondent had engaged in "repudiatory conduct", finding that the Respondent had "merely enforced his rights under the Lease when he served notice". The Tribunal recorded that "It follows that the tenant's cross-application has no merit and must be dismissed."

The Appeal

The appeal is governed by the provisions of s 80 of the NCAT Act, which provides that the Appellant may appeal against the decisions of the Tribunal at first instance "as of right on any question of law" (s 80(2)(b)).In addition as stated below an appeal lies with leave on the grounds set out in clause 12 Schedule 4 of the NCAT Act. As each party was represented by an experienced lay advocate, we need only briefly record the principles which govern the appeal.
In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45], Heydon JA observed that an appeal must fail unless it can be demonstrated that the decision-maker: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant matter; 4. failed to take into account, or gave insufficient weight to some relevant matter, or, 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Although the Appellant did not expressly seek leave to appeal in his Notice of Appeal, he articulated grounds in support of a grant of leave to appeal in that notice.
Section 80(2) of the NCAT Act empowers the Appeal Panel to grant leave to appeal on grounds not involving a question of law. As the Appellant seeks leave to appeal against a decision of the Consumer and Commercial Division of the Tribunal, in accordance with clause 12 of Schedule 4 to the NCAT Act, he must satisfy the Appeal Panel that he "may have suffered a substantial miscarriage of justice" because, the Appellant contends, the decision under appeal was not "fair and equitable", or "was against the weight of evidence" or that "significant new evidence has arisen".
In Mraz v The Queen (1955) 93 CLR 493 at 514, the High Court considered that the loss of a chance to secure a different result which was "fairly open" to constitute a "miscarriage of justice". In Gallagher v R (1986) 160 CLR 392 at 402, a "significant possibility" of a different outcome was accepted as constituting a "miscarriage of justice".
The terms of clause 12(1)(c) of Schedule 4 confirm that, "significant new evidence" must have been "evidence that was not reasonably available at the time the proceedings under appeal were being dealt with".
To be granted leave to appeal, the Appellant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact (BHP Billiton v Dunning [2013] NSWCA 421 at [19], Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [28]).
In Collins v Urban [2014] NSWCATAP 17 at [84] the Appeal Panel held that it was ordinarily appropriate to grant leave to appeal only in matters involving: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Ground 1

Ground 1 of the Appellant's Notice of Appeal asserted: "Ground 1: The Tribunal erred in law in failing to determine a submission from the Appellant ('tenant') that the Respondent ('landlord'), on 29 June 2020 or 15 July 2022, through his managing agent: (i) agreed that the tenant is "impacted lessee" in reliance on letters from the tenant's accountant; (ii) offered rent relief in accordance with the National Cabinet Mandatory Code of Conduct - SME Commercial Leasing Principles During COVID-19 ('the Code'); (iii) performed the agreement on rent relief with the tenant. Particulars: (a) The Tribunal erred in law in failing to refer to and consider any evidence between the period 23 June 2020 and 6 April 2021, including the material documentary evidence of the landlord's managing agent agreement with the tenant that he is impacted lessee. See State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [94]) per Kirby J. See also Todorovic v Moussa [2001] NSWCA 419 at [36]-[40]. (b) The Tribunal erred in law in failing to give adequate reasons in accordance with the principle in Jones v Bradley [2003] NSWCA 81 at [129]."
In his outline of submissions of 5 October 2021, the Appellant reiterated (para 2) the ground and (para 3) asserted that there was a "black hole" in the Tribunal's reasons as to material evidence before it during the period from 23 June 2020 to 6 April 2021, which was not referred to in the Tribunal's Reasons.
The substance of the complaint advanced by this ground was an asserted failure to have regard to a material consideration, and/or the failure to provide adequate reasons for the Tribunal's decision (Resource Pacific Pty Limited v Wilkinson [2013] NSWCA 33 at [48]-[60]).
The Appellant's contention, with respect to this and other challenges was, in substance, that the Appellant was, and was acknowledged by the Respondent's agent to have been, an "impacted lessee" within the meaning of the Covid-19 Regulation, or that the Respondent was "estopped from later claiming" that the Appellant was not an "impacted lessee".
The Appellant referred (para 3) to a series of emails which he submitted were before the Tribunal but not referred to by it. The Appellant submitted, by reference to well-known authority (paras 4-5), that the Tribunal had erred by failing to consider those emails, or give reasons for not doing so.
It is not in doubt that the Tribunal's reasons do not refer to any communications between the parties for the period covered by the emails upon which the Appellant relied, the earliest of which was dated 23 June 2020, the last of which was dated 6 April 2021.
The Respondent filed his submissions in the appeal prior to the Appellant filing his submissions. In response to the Respondent's submissions, the Appellant submitted (para 6) that the Respondent's request for BAS statements and Tax Returns was "irrelevant because this request occurred after the formation and performance of the agreement". The Respondent asserted that any agreement between the parties to the Lease with respect to reduction of the rental under the Lease independently of the Covid-19 Regulations was conditional upon the Appellant providing, and continuing to provide, evidence in support of the representations made by him upon which the Respondent relied.
The Appellant further submitted that the Tribunal's refusal to afford any weight to unsigned, undated, draft BAS statements or his accountant's letter was erroneous as it could "have no bearing on the formation and performance of the agreement". In our view, it was amply open to the Tribunal to find that unsigned, undated, draft BAS statements, and a letter from the Appellant's accountant in purported reliance upon them, was not "probative" of the Appellant's claim that he was "Covid impacted" or, in the case of the accountant's letter, find that it was entitled to "no weight". Those findings may not have been material to the formation of any agreement, but, in the circumstances of the parties at that time, they were material to the performance of any agreement made by the parties to reduce the Appellant's rent under the Lease.
The Appellant further submitted that "even if the lessee breached the agreement, the lessor's legal remedy is the enforcement of the agreement, not the Tribunal's ignoring the agreement altogether". We do not fully understand what that submission is intended to convey. As we understand the Appellant's case, he asserted that he was either entitled to the benefit of the Covid-19 Regulations or, if he was not, was entitled to enforcement of an agreement to vary the rental payable by him pursuant to the Lease, which entitlement was asserted to have been based upon "estoppel".
The Appellant further submitted that the Tribunal erred by failing to apply the decision of Robb J in Darzi Group Pty Limited v Nolde Pty Limited [2021] NSWSC 774 ("Darzi Group"), a decision which was acknowledged to have been made after the Tribunal decided the proceedings at first instance. The Appellant submitted that Darzi Group established that "once the lessee is impacted at any time during the pandemic period, the lessee is taken to be impacted for the whole of the pandemic period to the end of March 2021". We will consider His Honour's Judgment in Darzi Group later in our determination of ground five, to which it has potential relevance.
The Appellant further submitted (paras 7-9) that the Tribunal erred in not finding the agreement asserted by him for variation of the rental payable pursuant to the Lease and, further, that the Tribunal's findings with respect to the draft BAS statements and accountant's letter were "not a basis for the Tribunal not to consider the agreement or to allow the lessor to resile from the agreement after it was made and performed". We are not persuaded that the Tribunal failed to consider these matters. The documentary evidence filed, and the orders sought by the Appellant in the appeal, reveal that the Appellant has not "performed" the agreement which he asserts that the Tribunal erroneously failed to find the parties to have made.
Apart from the matters raised by the Respondent, to which we have earlier referred, and omitting some colourful expressions emerging from them, the Respondent submitted (para 7) that the Appellant had not provided "any turnover evidence at all … for the four months January 2021, February 2021, March 2021 and April 2021" during which period the Appellant paid only $496 in rent in total. The Respondent referred in support of that claim to emails between the parties, and oral evidence given by the Appellant before the Tribunal which was said to support his contention.
The Respondent further submitted (para 10) that "even if the turnover was acceptable, the Appellant provided no turnover evidence for the four months January 2021-April 2021 and, in the absence of any evidence, paid a total of $496 in rent without explanation. The Appellant also moved his business next door despite being in arrears. It follows that the Appellant abandoned any alleged agreement in any event".
The emails which the Appellant asserts that the Tribunal erroneously failed to consider are found in the Appellant's "Documents Below" bundle. We do not understand the Respondent to dispute that the emails were before the Tribunal, but to contend that, having regard to their contents, they were not emails to which the Tribunal should have had regard. In the absence of a transcript revealing whether, and if so how the emails were relied upon at first instance, we make no assumptions in those respects.
The letter from the Appellant's accountant of 20 May 2020, to which the Tribunal referred, purports to "confirm" that due to the Covid-19 pandemic the Appellant's business had "experienced a reduction in turnover of just over 78% since March 2020". As is not in doubt, and the Tribunal found, that letter was based solely on statements made by the Appellant or draft unsigned BAS statements. The Respondent's agent emailed the Appellant later the same day, thanking him for his accountant's letter and asking "Would you be able to itemise your April losses?"
On 16 June 2020 the Respondent's agent emailed the Appellant, a copy of the email also being sent to the Appellant's accountant. In the course of that email the Respondent's agent set out the payments which had been made for the months from January to June 2020 inclusive, totalling $6,850, and suggesting that, as at the end of May 2020, the Appellant had accrued arrears of $5,150. The letter reiterated that "We need to see the itemised for April letter from your accountant so we can adjust the rent accordingly".
On 16 June 2020 the Appellant emailed the Respondent's agent. That email did not provide the information requested by the Respondent. The Appellant asserted that "from the 1st of March I transferred $2,400 until now. I believe that is cover the rent for March April and May". The rental payments under the Lease were $2,400 per monthly, payable monthly in advance. The email did not provide any source documents in support of the Appellant's assertion that he was an "impacted lessee" within the meaning of the COVID-19 Regulation.
On 23 June 2020 the Respondent's agent again emailed the Appellant, and his accountant, saying "It is now the 23rd of June and you still have not presented a letter from your accountant regarding April's or May's revenue loss". The email included a breach of lease notice, and recorded that "Further warnings may result in an eviction letter", and that the Respondent was "open to discussing a surrender of lease if you wish to vacate early".
The notice of breach which accompanied the email asserted that the Appellant was in breach of the Lease for non-payment of rent totalling $7,200 inclusive, the Appellant last having made a payment on 16 June 2020.
On 29 June 2020 the Respondent's agent emailed the Appellant and his accountant and stated that the Respondent would agree to the following: "April 76% 38% waived 38% to be paid at an agreed future date 24% to be paid immediately May 75% 37.5% waived 37.5% to be paid at an agreed future date 25% to be paid immediately"
The email suggested that "In effect the result would be that $1,812 would be waived, $1,812 would be paid by 31 August (end of Covid timeframe) and $976 was to be paid immediately". The email stated "Please confirm that you consent to our agreement so that we may put all this behind us" and "Regarding June: provide (after June, of course) your June revenue losses so that we may adjust as per the Covid government mandate code of conduct".
On 30 June the Appellant emailed the Respondent's agent and, under the heading "Your offer is irrational and inaccurate", disputed the basis of the Respondent's proposal, and any agreement to it. Shortly thereafter, on the same day, the Respondent's agent responded to the Appellant's email, effectively reiterating the offer which had earlier been made. Shortly thereafter, on the same day, the Appellant again emailed the Respondent's agent, setting out what he asserted had been his takings for the day and a copy of a business transaction account showing a balance of $144.51. The Appellant's email did not engage with the Respondent's offer.
Later again on the same day, the Respondent's agent emailed the Appellant and said, with respect to the Respondent's offer, "I'll simplify it for you" by saying "1,872 waived, 1,872 until you are ready to pay (October) 972 up front. Otherwise if business is so bad then we can arrange a surrender of lease. Option 1 go by the Gov Covid Regulations option 2 surrender the lease".
On 2 July 2020 the Respondent's agent emailed the Appellant stating "We await your response regarding your options proposed." On 3 July 2020 the Respondent's agent emailed the Appellant stating "Thanks for the $276 yesterday" and stating "We presume that since you corrected me on the date of the Covid Regulations and payment that you have chosen option 1?". The email concluded "If we can receive $696 it will take care of your April and May rental obligations".
The next email from the Respondent's agent on 7 July 2020 asked the Appellant "How are we coming along with the $696? If you need assistance for June, please provide a letter from your accountant as per before". On 9 July 2020 the Respondent's agent emailed the Appellant. Attached to the email was a second breach of lease notice alleging arrears of rent totalling $6,724. The email concluded "We are still awaiting on your response regarding the surrender or lease or adhering to the Covid code of conduct regulations".
On 13 July 2020 the Appellant emailed the Respondent's agent. That email did not either provide any verification of the Appellant's asserted loss of revenue or respond to the offer made by the Respondent the previous month.
On 14 July 2020 the Respondent's agent emailed the Appellant and stated "You do realise that you still haven't agreed with either option 1 or 2 which we have offered". The email proceeded to say "You have sent your June figures so I assume you are choosing #1???". Shortly thereafter the Respondent's agent again emailed the Appellant "as per the landlord's request" advising that "If we do not reach a decision as to your options by COB today, we will begin preparing for mediation".
On 15 July 2020 the Respondent's agent emailed the Appellant stating "If we are going with option 1 (I assume you are since you sent us your accountant's letter for June revenue loss) then you must agree to the following: $400 still outstanding for April and May's rent, June 73% revenue loss 36.5% waived 36.5% deferred and 27% to be paid promptly ($648)". The email proceeded to say "We anticipate payment of $400 plus $648 equals $1,046 to cover for all the rent up to July", failing which mediation would be "the next step since you won't agree to a surrender".
Shortly thereafter on the same day, the Appellant emailed the Respondent's agent stating "Mean I agree with you and I accept it". Shortly thereafter on the same day, the Appellant emailed the Respondent and stated "This amount of $1,048 - I'll do my best to pay as $248 this Friday 17/7, $300 Wednesday 22/7, $250 Tuesday 28/7, $250 Friday 31/7."
On 22 July 2020 the Respondent's agent emailed the Appellant and asked whether "the $300 has come in today". The Appellant responded by email later that day saying "sorry I couldn't make it .. hopefully tomorrow or Friday".
On 23 July 2020 the Appellant again emailed the Respondent's agent and stated "I transferred $204 so. I still owe him $600."
On 27 July 2020 the Appellant again emailed the Respondent's agent stating "I had a very bad weekend and even today is very bad for the business".
On 17 August 2020 the Respondent's agent emailed the Appellant asking "Regarding the accountant's letter for July's revenue. Any update?". That request was repeated by emails on 19 and 27 August 2020.
The next, and last email appearing in the Appellant's bundle, dated 8 December 2020 (at page 89) was an email from the Appellant to the Respondent's agent and others. The only matter of relevance for present purposes emerging from that email was the suggestion that "I'll continue in the offer I sent to Mr John in regard to the rent payments from November until March".
The Appellant relied upon letters from his accountants, which appear at pages 90-97 and 175 of his tender bundle. As is clear from the terms of these documents, they were "based on the information provided to us". Significantly, the letters did not in any instance suggest that the accountants had checked any of the information provided to them by the Appellant. Nor did the letters suggest that the information provided was contained in BAS statements which had actually been lodged. If they had been, the evidence of the Appellant suggests that his accountant would have lodged them, and thereby have been readily able to produce them as requested by the Respondent's agent.
The Appellant's documents before the Tribunal (pages 27-31) record the rental actually paid by the Appellant between April 2020 and March 2021. The figures there recorded are not in dispute. The Appellant paid a total over that period of $7,184.
In our view, the emails which the Appellant complained that the Tribunal had failed to consider could not have advanced either of the bases upon which the Tribunal is asserted to have erred in law. If anything, those emails provide further support for the Tribunal's finding that the Appellant did not establish that he was an "impacted lessee" pursuant to clause 4 of the Covid-19 Regulation. They do not advance the Appellant's claim that the Tribunal erred by failing to find that the parties had reached an agreement to reduce rent in the terms asserted by the Appellant. These mails do evidence the Respondent's attempts to negotiate rent relief with the Appellant in good faith, the absence of such attempts by the Appellant, and that, if there was an agreement as asserted by the Appellant, failed to perform it.
If it were necessary to do so, we would accept the Respondent's contention that it was an implied essential term of any agreement between the parties to reduce or defer the rental payable under the Lease that the Appellant would provide source documentation supporting his asserted reduction in business turnover in a timely ongoing manner (Hawkins v Clayton (1988) 164 CLR 539, Byrne v Australian Airlines Ltd (1995) 185 CLR 410). Such an implied term was reasonable and equitable in the circumstances (Peters American Delicacy Co Ltd v Champion (1928) 41 CLR 316), and could readily have been complied with by the provision of filed BAS statements, or a letter from the Appellant's accountant verifying the Appellant's assertions by reference to source documents provided to him. As is not in doubt, no material of that kind was ever provided to the Respondent.
The emails to which the Appellant has referred make clear that the Respondent acted reasonably at the times when the emails were generated and repeatedly, politely and clearly asked for verification of the Appellant's asserted reduction in business turnover.
The emails also establish that, if there was an agreement between the parties in the terms asserted by the Appellant, he breached an express term of it by not making payments in accordance with the asserted agreement, and breached an implied term of the agreement that he would provide ongoing verification of his asserted decline in turnover.
In the circumstances, the failure to have regard to the emails relied upon by the Appellant did not constitute a failure to have regard to a relevant consideration as doing so could not have led the Tribunal to a different decision.
Our conclusions with respect to this part of ground 1 is largely dispositive of the challenge to the adequacy of the Tribunal's Reasons. In New South Wales Land & Housing Corporation v Orr [2019] NSWCA 231 at 65-77, Bell P, with whom Ward and McCallum JJA agreed, reiterated the principles with respect to the adequacy of reasons in proceedings before the Tribunal. His Honour recorded that:
(a) in appellate review the adequacy of reasons, the function of an appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard [66];
(b) whilst decision makers should aspire to high quality decision making, an integral part of which is the formulation of clear reasons for decision, that may involve separate parameters of "quantity and quality" [67];
(c) the quantity (or detail) of reasons necessary for those reasons to be adequate may vary both with the nature of the decision maker, and the nature of the question being decided [68];
(d) with respect to the quality of reasons, it is generally accepted that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court [70];
(e) even in the less formal setting of a tribunal which has significant powers, the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess, which are supplied by s 62(3) of the NCAT Act, which requires: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that led the tribunal to the conclusions it made [71].
We are not persuaded, particularly as we have rejected the Appellant's complaint with respect to the one aspect of the Tribunal's reasons which was asserted to be deficient, that the reasons for the Tribunal's decision were inadequate. It follows that no complaint agitated pursuant to this ground is established.

Ground 2

Ground 2 of the Appellant's Notice of Appeal asserted: "Ground 2: The Tribunal erred in law/denied the Appellant ('tenant') procedural fairness in not admitting into evidence any part or attachment whatsoever of the Appellant's Affidavit dated 23 June 2021 ('the Affidavit') including the lodged BASs with the ATO. Particulars: (a) The Affidavit was filed in support of the Tenant's cross application, where no direction was afforded to the Appellant to file evidence in support of his cross application. (b) The Affidavit attached to it all relevant Business Activities Statements ('BASs') lodged with the Australian Taxation Office ('ATO') showing the Appellant as impacted lessee, suffered more than 30% decline to his turnover and qualifies for jobKeeper. (c) The lodged BASs were requested by the Respondent's landlord before, during and after the hearing before the Tribunal. There was no prejudice to the Respondent in admitting at least the lodged BASs into evidence, given he requested those. (d) There was no objection from the Respondent landlord for admitting the Affidavit into evidence. The Tribunal, on its own motion, proceeded to not admit any part or attachment of the Affidavit into evidence, including the lodged BASs."
The Appellant clarified the thrust of this ground as (para 11): "The Tribunal's denial of procedural fairness was in the context of the Tribunal denying the lessee leave or an opportunity to sign the "unsigned" BASs that are before the Tribunal without ascertaining whether the lessor objects and without giving any reason."
The BAS statements which are central to this challenge are found at pages numbered 200 to 217 of the Appellant's "Documents Below" bundle, and purport to cover, in reverse order, the period from 31 March 2021 to 1 January 2019. Each page of the documents bears the date "26/05/2021", and a time on that date when, it is reasonably apparent, the documents were printed by or on behalf of the Appellant. The documents do not reveal anything indicating that they were lodged with the ATO. The Appellant's bundle contains no documents evidencing the payment of monies to the ATO in accordance with the BAS. Why the purportedly lodged BASs first emerged after the first day of the hearing at first instance has not been explained. If the BASs had been lodged when they should have been, save perhaps for the BAS for the first quarter of the 2021 calendar year, they would all have been available prior to the first hearing date.
The Appellant relied upon a "transcript" of the hearing on 20 April 2020 in support of this ground. Neither party placed before the Appeal Panel a complete transcript of the hearing prepared by an independent transcription service. Each party placed before the Tribunal, without objection by the other party, a purported transcript of part of the proceedings prepared by or on behalf of that party.
The passages relied upon by the Appellant of 3 pages, which were attached to the Appellant's outline of argument, referred to the Appellant's "trascription [sic] of relevant part of hearing to 23 June 2020 [sic]" and recorded exchanges between the Tribunal and the lay advocate for the Respondent. It is tolerably plain that the exchange there recorded arose during the course of cross-examination of the Appellant. Assuming its accuracy, the transcript records the Tribunal refusing both parties leave to rely upon material which was not before the Tribunal on the first day of the hearing, 20 April 2021. There is no issue that neither party had sought leave to rely upon additional evidence on 23 June 2021.
The Tribunal made clear that, in the absence of leave, neither party would be allowed to rely upon additional evidence, at which point the Respondent's advocate is recorded as saying "If you are excluding all of the evidence from both of the parties then I am content to proceed", after which the Tribunal reiterated that it would not "hear or listed [sic] to any evidence that was not filed in accordance with the directions of the Tribunal". In the absence of any transcript revealing when, and in what circumstances, the Appellant sought to rely upon additional evidence before the Tribunal, and there is no such transcript, as was drawn to the attention of the Appellant's lay advocate, we are not prepared to find that the Appellant was denied procedural fairness in the Tribunal's refusal to receive further evidence.
In the course of his submissions, albeit not specifically referable to the application for leave to adduce further evidence in the appeal, the Appellant said that "the lodged BASs are significant new evidence that was not available at first hearing on 20 April 2021 because ATO issued BASs did not become available until after the hearing on 20 April 2021 but before the recommenced hearing on 23 June 2021".
The Respondent relied (para 11) on the Appellant's Affidavit of 23 June 2021 having been filed the day before the resumed hearing. The Respondent also relied (para 13) upon the cross-examination of the Appellant "directed to proving the non-existence of any actual BAS statements", and submitted that "only after successful cross-examination was it decided by the Appellant to file new BAS statements with the ATO". The Respondent disputed that receiving new BAS statements one day before the resumed hearing would not prejudice the Respondent, if only because the Respondent had by that time lost the opportunity to cross-examine the Appellant on them. The Respondent disputed that his representative had not objected to the tender of the new evidence. That submission is supported by the passages of transcript to which we have already referred.
The Respondent provided his version of the transcript of the hearing on 20 April 2021, albeit by reference to different parts of the proceedings to those to which the Appellant directed the Appeal Panel's attention. On 20 April 2021 the Appellant was cross-examined (commencing at page 7). During the course of his evidence the Appellant confirmed that he had not ever claimed JobKeeper for any of his staff during Covid, that he did not know, but needed to ask his accountant, whether he had any complete Tax Returns filed with the ATO. As is not in doubt, neither the Appellant nor the accountant provided any completed Tax Returns.
When asked when he had last paid GST to the ATO, the Appellant replied "Not your problem, and during pandemic they gave free time for people not to pay anything". The Appellant was then asked "So you paid nothing last year in GST?", to which the Appellant responded "It was pandemic mate". The Appellant confirmed that he had not paid "any income tax last year". When asked had he ever "received from your accountant a document headed Activity Statement from the ATO", the Appellant replied "I do not know I am very busy".
The Appellant was cross-examined in relation to the rent which he had paid for the months of January, February, March and April 2021. His responses in relation to those questions was that he had paid "so little", because "the business was quiet, it was holidays" in January and, in relation to the rent for February, March and April, that "after the mediation I did not pay rent because it was obvious to me you wanted to kick me out, and you and Ari told me many times several times to go out from the shop".
The Appellant was asked whether he had ever signed a Tax Return for the ATO, to which he replied "I signed papers with the accountant but I cannot remember". When asked "Do you ever remember signing a Tax Return?", the Appellant replied "I do not want to answer this question".
The assertion of the Appellant (para 16) that the BASs "were not available at first hearing on 20 April 2021 because ATO issued BASs did not become available until after the hearing on 20 April 2021, but before the recommended hearing on 23 June 2021" is not supported by any evidence to which we have been referred. We have recorded earlier the circumstances in which the purportedly filed BASs emerged. It has not been established that the purported filed BASs were not reasonably available prior to the second day of the hearing at first instance.
The Appellant was also asked "Do you remember ever signing a BAS statement?" to which he replied "I signed so many papers, I cannot remember what I have signed". As was suggested to the Appellant's lay advocate during the course of the hearing of the appeal, in the absence of the transcript with respect to the Appellant's endeavours to tender and rely upon the purported filed BASs, it is difficult for the Appeal Panel to find or infer error on the part of the Tribunal at first instance.
The circumstances surrounding the emergence of the purported filed BASs, taken in conjunction with the evidence of the Appellant in cross-examination on the first day of the hearing in the Tribunal militate against this complaint having merit. As is not in doubt, it is for the Appellant to establish error on a question of law. For the reasons recorded above, we are not satisfied that appealable error has been demonstrated.

Ground 3

Ground 3 of the Appellant's Notice of Appeal asserted: "Ground 3: The Tribunal erred in law in applying the incorrect test when finding that the tenant is not an "impacted lessee" as "The tenant confirmed he was not in receipt of JobKeeper or JobSeeker". Particulars: (a) The test for "impacted lessee" under the Retail and Other Commercial Leases (Covid 19) Regulation 2020 ('the Regulation') is whether a tenant "qualifies" for JobKeeper, not whether a tenant is in receipt of JobKeeper."
In support of ground 3, the Appellant submitted (para 18) that the Tribunal "erred in assuming that it was mandatory for the lessee to be a recipient of JobKeeper for him to be "impacted lessee" under the Regulation" by finding that "the tenant confirmed he was not in receipt of JobKeeper or JobSeeker. In the absence of any other evidence, I am satisfied that the tenant is not an "impacted lessee" as defined by the COVID-19 Regulation 2020".
The Appellant submitted (para 19) that the "correct test in the Regulation for a lessee to be "impacted lessee" is whether a lessee qualifies for JobKeeper, not recipient of JobKeeper. The proper test only requires a 30% or more decline in the turnover over the same period of the previous year". For the reasons we have earlier recorded, we agree with that contention.
The Appellant submitted (para 20) that the "unlodged BASs" prepared by his accountant, a registered Tax Agent, along with letters signed by the Appellant, rendered erroneous the finding of the Tribunal with respect to "the absence of any other evidence".
We do not accept that the Tribunal found that, in order to be an "impacted lessee" pursuant to the COVID-19 Regulation, the Appellant needed to be a recipient of JobKeeper or JobSeeker. Having, permissibly in our view, rejected the evidence relied upon by the Appellant to establish the asserted reduction in turnover, the Tribunal recorded, accurately, that, as the Appellant "confirmed he was not in receipt of JobKeeper or JobSeeker", "in the absence of any other evidence", and there was none, it was satisfied that the Appellant was not an "impacted lessee".
The Tribunal decided this case prior to Robb J's judgment in Darzi Group, to which we will make further reference when considering ground 5, and we consider that the Tribunal's consideration was consistent with his Honour's approach to establishing that a tenant was an "impacted lessee" in accordance with the Covid-19 Regulation.

Ground 4

Ground 4 of the Appellant's Notice of Appeal asserted: "Ground 4: The Tribunal erred in law in finding fact without evidence as to the ordered quantum of $17,400 when saying "The tenant made no submissions and did not contest the quantum calculated and claimed in the application form". Particulars: (a) There was no filed evidence from the landlord as to the quantum of $17,400. (b) The NCAT application form is not evidence, as assumed by the Tribunal."
The Appellant's written submissions did not engage with this ground. The submissions of the Respondent (paras 55-56), filed almost two months prior to the written submissions of the Appellant, set out details of rental payments made by the Appellant between April 2020 and April 2021. The Respondent submitted (paras 57-58), on the assumption that he was entitled to claim the "true rent" provided by the Lease, that the Appellant was in arrears of rent in the sum of $24,016 for that period.
The Respondent alleged other breaches of the Lease by the Appellant (paras 59-60) but, having regard to the concession (para 61) that they were not "live issues at the hearing", they assume no significance in the determination of the appeal.
The Respondent ultimately submitted (para 62) that "It follows that the $17,400 quantum is actually less than the $24,016 in rent that the Respondent is owed under the Lease". The Respondent relied upon the contents of pages 27-31 of the Appellant's tender bundle in support of his contentions. We do not understand the Appellant to challenge the authenticity or reliability of those documents, and it would be surprising if he did, given that they were in his bundle of "Documents Below".
The Appellant did not refer us to any submissions made by him at first instance with respect to the quantum of the rent which was suggested to be payable to the Respondent in the event that the Appellant's "impacted lessee" claims failed.
The application of the Respondent, by which the proceedings were commenced, which was filed on 4 March 2021, pleaded "total value of claim" $17,400.
On 19 April 2021 the Appellant filed his Retail Leases application in the Tribunal, to which he annexed "Points of Claim". The Points of Claim, which were in support of the Appellant's prayers for relief in the nature of damages, and costs, did not expressly or impliedly raise any issue with respect to the payments which the Appellant made between April 2020 and April 2021.
We have not been referred to any submissions to the Tribunal at first instance with respect to the quantum of the arrears of rental pursuant to the Lease. Nor have we been referred to any document before the Tribunal at first instance in which the Appellant contested the "quantum as calculated and claimed in the application form" of the Respondent. Nothing to which we have been referred establishes that the Tribunal erred in the manner asserted pursuant to this ground.

Ground 5

Ground 5 of the Appellant's Notice of Appeal asserted: "Ground 5: The Tribunal erred in law in failing to consider the recent decision of the Supreme Court in Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 as to the application of the Code and the Regulation published after the Tribunal made its orders below. Particulars: (a) The Tribunal did not consider Darzi at [114] that a lessee may be "impacted lessee" if the definition of "impacted lessee" was only satisfied for a closed period during the COVID 19 pandemic. (b) The Tribunal did not consider Darzi at [125] that a landlord is perpetually barred from taking any prescribed action if a landlord does not comply with its obligation to renegotiate the rent in good faith."
As the terms of this ground make clear, the Tribunal could not have had regard to the decision in Darzi Group, as it was not decided until 28 June 2021, four days after the decision of the Tribunal at first instance. A change in the law since the trial of proceedings may be considered by an appellate court or tribunal (Bright v Sampson & Duncan Enterprises Pty Limited (1985) 1 NSWLR 346, Owners Strata Plan Number 13218 v Woollahra Municipal Council [2002] NSWCA 92).
Although, the appeal being by way of rehearing, and subject to any successful application to adduce further evidence in the appeal, the appeal is determined by reference to the evidence which was before the Tribunal at first instance, the law to be applied is the law at the time of the rehearing. We perceive, for present purposes, there to be no impediment to regarding the decision in Darzi Group as declaratory of "the law".
In Darzi Group at [104] Robb J set out the terms of "the Code". The passage upon which the Appellant relied (at [114] of His Honour's Reasons) emerges from a series of paragraphs under the heading "COVID-19 Regulations" which commenced at paragraph [109]. In the passage upon which the Appellant relied, his Honour recorded that if a tenant "was an impacted lessee at any time during the period of operation of the COVID-19 Regulation (No 1) it was taken to be an impacted lessee for the whole of that period. That provision makes it clear that a lessee may be an impacted lessee if the definition of impacted lessee was only satisfied for a closed period".
The meaning of the term "impacted lessee" in three Retail and Other commercial Leases (COVID-19) Regulations proclaimed during 2020 in response to the Covid-19 pandemic ("the COVID-19 Regulations") were closely considered in Robb J's judgment. In clause 4 of the COVID-19 Regulations the meaning of "impacted lessee" is defined at 4(1). Relevantly for present purposes, clause 4 provides: "(1) A lessee is an "impacted lessee" if (a) the lessee qualifies for the jobkeeper scheme under the relevant Commonwealth Coronavirus Economic Response Package Rules 2020, and (b)(iii) the turnover of the business in the 2018-2019 financial year was less than $50 million.
The Appellant does not suggest that he has been accepted by, or applied for the Jobkeeper scheme. It has not been suggested that the turnover of the business conducted by the lessee in the 2018/2019 financial year was equal to, or more than $50 million. There is no evidence before us which establishes that the Appellant "qualifies" for the Covid scheme under sections 7 and 8 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 of the Commonwealth.
In Darzi Group at [118], Robb J found that the plaintiff was "in fact an impacted lessee". Robb J recorded ([78]) that a "reasonable lessor acting in good faith would have accepted that, if the ATO is satisfied that Darzi qualified for the scheme to the extent that the ATO would acknowledge that fact, then the ATO's acknowledgement was adequate proof" that the tenant was an "impacted lessee". Clearly, on his own evidence, the Appellant could not establish that he was an "impacted lessee" on that basis.
We consider that the verb "qualifies" in Regulation 4 should be given its ordinary meaning in view of the context in which it finds expression (Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355. We consider the term connotes eligibility for the jobkeeper scheme, without the need to have applied for and been accepted by the scheme, although, as Robb J suggested, acceptance by the scheme imports being qualified for it. If the term is ambiguous, which we doubt, as a "remedial" provision which confers a benefit, its liberal interpretation would permit our interpretation of it (IW v City of Perth (1997) 191 CLR 1 at 11) and supported by s 33 of the Interpretation Act 1987.
This ground can be swiftly disposed of. In view of the fact that the Tribunal found, in our view without erring, that the Appellant did not establish that he was an "impacted lessee" pursuant to the COVID-19 Regulation, there was no occasion for the Tribunal at first instance to consider for what period or periods the Appellant was entitled to the prohibition on prescribed actions pursuant to the COVID-19 Regulation.
The prohibition against taking a "prescribed action" contrary to the Covid-19 Regulation can only arise if the tenant demonstrates that he "qualifies as an impacted lessee". The condition precedent to the obligation to "renegotiate the rent in good faith" (Darzi Group at [125]) did not arise as the Appellant did not establish that he was an "impacted lessee". The evidence to which we have referred, and the emails which the Appellant complained that the Tribunal had erroneously failed to consider, comfortably satisfy us that the Respondent did, although not obliged to do so, "renegotiate the rent in good faith" with the Appellant. As the evidence establishes, it was the Appellant who repeatedly failed to renegotiate the rent in good faith, that being most graphically illustrated by his persistent failure to provide source documentation which, if his claimed reduction in turnover was true, would have been readily available from a number of sources. This ground accordingly lacks merit.

Application for Leave to Appeal

In support of his application for leave to appeal, the Appellant pleaded that "It is not fair and equitable for the Tribunal not to find, based on the documents filed by the Respondent lessor, that there was an agreement by the Respondent landlord's managing agent that the Appellant lessee is an "impacted lessee" based on the lessee's accountant's letters, and is given rent relief in accordance with the National Cabinet Mandatory Code of Conduct - SME Commercial Leasing Principles During COVID-19 ("the Code"), given the Respondent lessor did not call his managing agent to give evidence or filed any witness statement from the lessor's managing agent".
The Appellant further submitted that leave should be granted on the ground that the decision was against "the weight of evidence", in support of which contention the Appellant relied upon "Business Activity Statements lodged with the Australian Taxation Office". The same Statements were relied upon by the Appellant in support of his contention that "significant new evidence is now available that was not reasonably available at the time of the hearing". We have earlier recorded the principles governing the Appellant's application for leave to appeal.
Our rejection of each of the Appellant's grounds of appeal, and reason for their rejection, inform our conclusion with respect to the Appellant's contention that the decision of the Tribunal under appeal "was not fair and equitable". In reliance upon our reasons for rejecting the Appellant's grounds of appeal, we are not persuaded that the decision of the Tribunal under appeal was not fair and equitable. Similarly, we are not persuaded that the decision of the Tribunal under appeal was against "the weight of evidence".
Necessarily, as the Appellant tacitly acknowledged, his Application for Leave to Appeal is significantly dependent upon the receipt of the purported filed BASs. We have earlier referred (particularly in ground 2) to the circumstances surrounding the emergence of those documents, and dismissed the Appellant's complaint that the Tribunal at first instance erroneously refused to receive them into evidence. Our conclusion with respect to that ground is not determinative of the Appellant's Application for Leave to Appeal in reliance upon that evidence, although our reasons do inform our consideration of that issue.
The provisions of clause 12(1)(c) of Schedule 4 to the NCAT Act refer to "significant new evidence" which was "not reasonably available at the time the proceedings under appeal were being dealt with". In Minister for Immigration and Multicultural Affairs v Madafferi (2001) FCA 250 at 30 the Full Court of the Federal Court of Australia observed that, in order for "fresh evidence" to be received in those proceedings, the applicant for the exercise of discretion must determine that "if the evidence had been available there was at least a firm chance that the result would have been different".
The circumstances in which the purported "new evidence" emerged, and the cross-examination of the Appellant, to which we have earlier referred, do not establish that the purported filed BASs constitute "significant evidence". As we have earlier recorded, we are not persuaded that the evidence was "new" in that it was "not reasonably available at the time the proceedings under appeal were being dealt with". In those circumstances, we are not persuaded that, if received, the "new" evidence relied upon by the Appellant would establish "an injustice which is reasonably clear, in the sense of going what is beyond merely arguable", or even that the Tribunal at first instance was "arguably wrong".
It is not suggested that the further evidence application raised any issue of principle, or any question of general public importance. We are not persuaded that leave to appeal should be granted on any of the grounds sought by the Appellant.

Conclusion

No ground of appeal having been established and no entitlement to a grant of leave to appeal having been demonstrated, the appeal will be dismissed.

Costs

Given that neither party has been legally represented, the potential for any order for costs being made is limited, but the opportunity to seek costs in accordance with Regulation 38(a) of the NCAT Regulations should be afforded to the Respondent.
It is unlikely that, the Appeal and Application for Leave to Appeal being dismissed, the Appellant could successfully seek costs, but we will make orders which contemplate that prospect.
If a party seeking costs claims expenses paid or payable with respect to the appeal, submissions in support of such claim are to address the legal and factual basis on which such expenses are claimed. In addition the submissions should address whether we may decide costs" on the papers" by considering the written submissions and dispensing with a hearing on costs.

Orders 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. That within 7 days any party seeking an order for costs file and serve written submissions, not exceeding 5 pages, in support of such application. 4. That any party resisting an application for costs file and serve within 14 days written submissions not exceeding 5 pages in opposition to such application.

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: 01 December 2021

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (22)

Cited By (1)