Nasreldin v Huang

Grounds of Appeal

1. In their Notice of Appeal filed 4 January 2022, the appellants say they are seeking leave to appeal as the Primary Decision was not fair and equitable and against the weight of the evidence. In addition, they say that significant new evidence is now available that was not reasonably available at the time of the Tribunal hearing.
2. As to the Primary Decision being not fair and equitable, the Notice of Appeal states: 1-the retail and other commercial lease covid 19 regulations, the code of conduct and section 88 retail ACT, has been introduced by the government to support the businesses in the time of the pandemic to keep the businesses open after the pandemic and support the economy. in my case the decision disregarded section 88 and refused to put the code in action saying it is not mandatory and refused the point 9 in the covid regulations to put the code in consideration. asking me to pay 110% of the late rent in addition to my shop fitting which they took by force and then said it was a mistake 2-the decision agreed with evacuating the shop just because there was no protection by the government for the lessee at this time ignoring the recovery time which mentioned in the code conducted by the government. 3-the decision asked me to provide about 220000AUD for the lessor in addition to my shop fitting which they took by force 300000AUD neglecting my losses and all the confirmed misleading information provided by the lessors side, however all the late payment was 203000 and we had agreement to pay half the rent in the time of the pandemic which affected all the world 3-my business was a convenience and sovounirs shop in the sydney CBD, how can I suppose to pay all this while there is no tourists or students and the employees is work from home 4-the decision ordering the guarantours to pay the amount however when they signed as guarantours they signed before the pandemic and no one could have predicted thise (typographical and other errors as in original)
3. As to the Primary Decision being against the weight of the evidence the Notice of Appeal states: 1- the emails that i was trying to negotiate in good faith to solve the problem and their ignorance to waste the prescribed period violating all the covid regulations 2- the notice of default and the termination notice was asking me to pay all the late rent with interest not April rent 3- the quotation of the shop fitting, the depreciation and the tax invoice which give me the right to have half my shop fitting cost, which is not for sure 23000AUD for 97m shop as the lessor side claimed 4- all the misleading information they provided to the tribunal -that they own the fitting then they confessed it was a mistake after they got it by force -that they claimed i signed my contract after the covid regulations and lead to my protection interim order dismissed -that i am not an impacted lessee and refused to negotiate after they accepted my half rent offer and they were aware of the opposite previously 5-the code of conduct, section 88 retail ACT and the covid regulations point 9 (typographical and other errors as in original)
4. As to there being significant new evidence is now available that was not reasonably available at the time of the Tribunal hearing, the Notice of Appeal states: 1 the quotation of the fitting which had been submitted before without the address iis to be submitted with the address to be an evidence showing the true cost of the fitting as it will change the decision completely if the Tribunal accepted it. 2 - screenshots of famous fit out website with average cost of retail fit out per meter which proof that my quotation is the true number not there unresonable letter. (Again, typographical and other errors as in original)

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise, and we have identified a claimed error of law, that being that a wrong principle of law was applied, or a correct principle failed to be applied: Prendergast at 13; Chapman v Taylor [2004] NSWCA 456 at [33].
4. For any other error, the appellants require the leave of the Appeal Panel to bring the appeal.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Appellant's materials and submissions

1. We note that attached to the Notice of Appeal were an additional (approximately) 60 pages of materials including submissions, correspondence, some of the evidence before the Tribunal and fresh evidence. In addition to those materials, the appellants filed a bundle of approximately 100 pages of materials on 25 February 2022, which by and large was the evidence the appellants relied on before the Tribunal.
2. In addition to all that material, the appellants filed further fresh evidence and a document titled "Appeal final reply".
3. We also had the benefit of lengthy written submissions of the appellants, which Mr Nasreldin amplified in oral submissions. We summarise the appellant's written submissions as follows.
4. First, the Tribunal made errors of law by failing to take into account or misapplying: 1. section 88 of the Retail Leases Act 1994 (NSW) (RLA); 2. the relevant NSW Regulations relating to retail leases; and 3. the "National Code of Conduct for commercial tenancies - leasing principles" (Code of Conduct) in particular by failing to recognise the leasing principles in paragraphs 6, 9, 12 and in calculating the rental reduction.
5. Secondly, the Tribunal erred: 1. in failing to find that the parties had reached an agreement as to a rental reduction; 2. in failing to take into consideration its decision of 16 April 2021 in a previous matter; 3. by miscalculating the interest due; 4. in finding that the Lessor owned the fixtures and fittings, and otherwise rejecting the Lessee's claim for the value of fixtures and fittings, including by misstating the depreciation rate.
6. Thirdly, the Tribunal when, having concluded that the Lessor was an "impacted lessee", ordered the Lessee to pay the respondent's costs ("the [D]ecision stated clearly that I am an impacted lessee so [I] shouldn't have to pay for costs".
7. Fourthly, in the document titled "Appeal final reply", the Lessee states that "[t]he Appeal has too many points which had been mentioned in the original appeal note to confirm that the decision was not right", in which circumstances the Lessee will focus on the "three main points" being: 1. "[t]he termination of lease was right and the lessee should pay for the lessor his losses as there was no protection for the lessee at that time and the lessee failed to pay April rent for more than 14 days"; 2. the Tribunal was wrong to find that the fittings did not belong to the Lessee and was worthless; and 3. the Tribunal was wrong to find that no agreement had been reached between the parties as to an agreement to reduce, waive or defer the rent.
8. We agree with the Lessee that it has raised many points in this appeal. In this respect, it is not necessary for us to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, and are often unsupported by any evidence at all, and we have not done so: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443; Liang v University of Technology, Sydney [2018] NSWCATAP 285.This is particularly so where, as is the case here, the submissions are voluminous and many lack substance.

Respondent's Reply

1. The Respondent's Reply to Appeal was filed on 27 January 2022. In summary, in relation to both the Decision being not fair and equitable and being against the weight of the evidence, the respondent states: 1. the Tribunal correctly applied the Code of Conduct, and even if the Code of Conduct is mandatory, the Lessee has breached section 2 of the Code of Conduct by failing to pay any of the rents due in April 2021, as the Lessee was not protected by rental waivers or deferrals due to a gap of legislations, depriving it from enjoying any of the benefits under the Code of Conduct, including being protected from the termination of lease; 2. as the Lessee has failed to pay the rent for over one year, it is legitimate for the Respondent to claim interest; 3. as for the value of the shop fittings, the Lessee have simply failed to discharge their onus of proof by failing to produce any tax invoices or receipts in relation to the shop fittings when they were installed by the previous lessee Talia Enterprises Pty Ltd (Talia), the previous lessee, in about August 2016. The Lessee only provided a tender provided by a luxury residential fitout company on 22 April 2021, which is irrelevant and unhelpful. The respondent, instead, provided a copy of Cost Summary Report lodged by Talia in June 2016 in relation to the costs of the fitout of the shop, being $23,980; 4. the Tribunal was correct to find that the parties had not reached any agreement in relation to the reduction of rent as alleged by the Appellants in the Application for Leave to Appeal.

Respondent's submissions

1. In addition to the Reply submissions summarised above, the Respondent also included 9 pages of submissions in its bundle of materials filed on 14 March 2022. We will refer to those submissions where necessary in the Consideration Section of these Reasons.

Questions of law

1. As we have noted, the Lessee has raised questions of law, namely that the Tribunal did not apply or misapplied: 1. section 88 of the RLA; 2. the relevant NSW Regulations relating to retail leases; and 3. the Code of Conduct.
2. We can deal with (1) and (2) together, as the issues are inter-related.
3. Section 88 of the RLA provides: 88 Savings of protections granted during COVID-19 pandemic (1) The Retail and Other Commercial Leases (COVID-19 Regulation (No 3) 2020 continues to apply, despite the repeal of that regulation, to anything occurring in relation to a lease while the lease was an impacted lease within the meaning of that regulation. (2) Schedule 5 to the Conveyancing (General) Regulation 2018 continues to apply, despite the repeal of that Schedule, to anything occurring in relation to a lease while the lease was an impacted lease within the meaning of that Schedule. (3) The regulations may provide for exemptions from this section.
4. As the detailed and careful reasons in the Decision show, the Tribunal appreciated that:

• the Federal Government's response to the COVID-19 pandemic, announced on 4 April 2020, was the Code of Conduct (Primary Decision at [9]);
• the Code of Conduct, although containing the word "mandatory" in its title, did not initially have any legislative force (Primary Decision at [10]);
• on 24 April 2020 the NSW Government enacted the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (First Regulations) which took effect for six months, from 24 April 2020 to 24 October 2020 (the prescribed period) (Primary Decision at [12]);
• on 23 October 2020, when the First Regulations were about to expire, the Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 (Second Regulations) were enacted. The Second Regulations, which took effect from 24 October 2020, extended the prescribed period for the operation of the First Regulations to 31 December 2020 (Primary Decision at [18]);
• on 18 December 2020, the Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 (Third Regulations) which extended the Second Regulations to 28 March 2021, but only for retail leases where the lessee's annual turnover was less than $5 million (Decision at [19]);
• the definition of an "impacted lessee" was amended in the Third Regulations as the result of the eligibility test for the Jobkeeper scheme changing with effect from 4 January 2021 (Decision at [20]);
• there was a "gap" in the prescribed period after 28 March 2021 until the enactment of the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (Fourth Regulations) which applied from 13 July 2021 to 20 August 2021, imposed different criteria, and did not provide for rent relief (either waivers or deferrals). However, the Fourth Regulations did prohibit matters which included termination, seeking damages, and recovering under a guarantee (Decision at [21]);
• the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 (Fifth Regulations) extended the prescribed period for the Fourth Regulations to 13 January 2022.

1. In addition to accurately setting out the relevant legislation and regulations, the Tribunal referred to a number of relevant authorities, including but not limited to Sneakerboy Retail Pty Ltd trading as Sneakerboy v George Properties Pty Ltd (No 2) [2020] NSWSC 1141, Miramax Pty Limited v Mang Yu Lo [2021] NSWCATCD 12, Swiss Concept Australia Pty Ltd v Diamondlite Pty Ltd [2021] NSWCATCD 106, Darzi Group Pty Ltd v Noble [2021] NSWSC 774.
2. Based on its analysis of the operation of the those regulations and the authorities referred to above, the Tribunal concluded that: 48. There was a period between the Third Regulations and the Fourth Regulations, namely from and including 29 March 2021 up to and including 12 July 2021, when there was no prohibition on termination of a retail lease by a lessor for non-payment of rent by a lessee. The failure to pay the monthly rent within 14 days of the 01 April 2021 due date, the 16 April 2021 Notice of Default, the 20 April 2021 Notice of Termination, and the 27 April 2021 termination each occurred during that period. … 50. Since there is no dispute that the lessee had failed to meet its obligation to pay rent under the lease, it follows that the termination was valid, both by reference to the applicable law and the provisions of the deed and the assigned lease.
3. The Lessee submitted that the Tribunal failed to refer to s 88 of the RLA. That submission is correct. But we do not consider that that argument makes any difference to the outcome. That is because s 88 simply indicates that the Third Regulations continued to apply, regardless of their repeal, to anything occurring in relation to a lease while the lease was an impacted lease within the meaning of that regulation.
4. We see no misstatement or misunderstanding by the Tribunal in relation to the effect of s 88 of the RLA or the effect of the various regulations.
5. Turning now to the Code of Conduct, the Lessee submitted that the Tribunal erred in particular by failing to recognise the leasing principles in paragraphs 6, 9 and 12 of the Code of Conduct. Those paragraphs provide that: 6. Any reduction in statutory charges (e.g. land tax, council rates) or insurance will be passed on to the tenant in the appropriate proportion applicable under the terms of the lease. 9. If negotiated arrangements under this Code necessitate repayment, this should occur over an extended period in order to avoid placing an undue financial burden on the tenant. No repayment should commence until the earlier of the COVID-19 pandemic ending (as defined by the Australian Government) or the existing lease expiring, and taking into account a reasonable subsequent recovery period. 12. The tenant should be provided with an opportunity to extend its lease for an equivalent period of the rent waiver and/or deferral period outlined in item #2 above. This is intended to provide the tenant additional time to trade, on existing lease terms, during the recovery period after the COVID-19 pandemic concludes.
6. We see no error in the approach taken by the Tribunal. But regardless of that view, the Lessee has overlooked paragraph 2 of the Code of Conduct (which is specifically referred to in paragraph 12 of the leasing principles on which the Lessee relies) which provides that: Tenants must remain committed to the terms of their lease, subject to any amendments to their rental agreement negotiated under this Code. Material failure to abide by substantive terms of their lease will forfeit any protections provided to the tenant under this Code. (Emphasis added)

Other errors

1. We shall deal with each of the other errors claimed by the appellants.

The Tribunal erred in failing to find that the parties had reached an agreement as to a rental reduction

1. On this issue, the Tribunal found at [65] that the Lessee conceded that no agreement was ever reached in relation to a rent reduction. The Tribunal further found that a "consideration of the contemporaneous documents … confirms that, while offers were made, there was no agreement, either written or oral".
2. The Lessee submits that: It has been mention in the decision point 65 that we haven't achieve any agreement about the rent reduction, however the fact that before the lessor started to claim that I am not impacted lease, we had agreement, i had sent an email on 23rd of July 2020 offering to pay half the rent without interest on the end of the job keeper period which was the end of September at that time and they accepted that on 29th of July 2020, evidences submitted in my counter claim pages 27 and 28 and that was mentioned in the hearing. (typographical errors and bolding as in original)
3. The respondent submits that the Tribunal was correct to find that the parties had not reached any agreement in relation to the reduction of rent because:

• in the email from Mr Nasreldin on 23 July 2020, he stated clearly that "THIS OFFER VALID ONLY FOR 24 HOURS NO MORE NEGOTIATIONS", so the offer was not able to be accepted after 24 July 2020;
• the response on 29 July 2020 only stated it "will be acceptable for now", which did not constitute acceptable for lack of certainty;
• the respondent continued to issue invoices to the Lessee with the full amount of rent for payment;
• even if there was an agreement, it would have been breached by the Lessee, because it has not paid any rent; and
• Mr Nasreldin was actually aware and understood that there was no agreement.

1. We make two comments. The first is that we have carefully reviewed the email evidence relied on by the Lessee which was before the Tribunal. We do not agree that there was concluded agreement between the parties about a rental reduction. As is common in the experience of the Appeal Panel, the parties documents were not clear about whether 50% of the rent was being waived, or simply deferred.
2. The second comment is that, as submitted by the respondent, in the Lessee's own documents put before the Tribunal, the Lessee conceded that no agreement had been reached. At [40] of the Primary Decision the Tribunal found that Mr Nasreldin indicated that there were negotiations as to rent reduction, but the parties were unable to agree. This was also reflected in documents provided to the Tribunal by the appellants for the purposes of the appeal.
3. This appears to be a complete change of position by the Lessee between its stance at the Tribunal and its stance at the appeal hearing. It is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it is contrary to principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, they failed to put during the hearing when he had an opportunity to do so: Coulton v Holcombe [1986] HCA 33 at [9]; Drivas v Burrows [2014] NSWCATAP 87 at [33].

The Tribunal erred in failing to take into consideration its decision of 24 April 2021

1. This issue is a "red herring". As the Tribunal notes in the Decision: 45. On 01 August 2016 the lessor granted a lease to Talia Enterprises Pty Ltd (Talia) for a term of five years from that date. On 18 March 2020 a deed was executed which resulted in (1) the assignment of Talia's interest in the lease to the lessee, (2) personal guarantees being provided by each of the three guarantors, and (3) a bank guarantee of $46,400.64 in favour of the lessor being provided on 31 March 2020. That assignment was subsequently registered. 46. The lessee did not pay any rent during the period it occupied the premises. On 01 March 2021 the lessor's agent sent a Rental Demand to the lessee. On 26 March 2021 the lessee lodged an interim application which sought a reduction of rent based on it being an "impacted lessee", as defined in cl 4 of the Third Regulations. 47. On 16 April 2021 that interim application was heard and dismissed. On that day a Notice of Default was issued and on 20 April 2021 a Notice of Termination was issued. On 24 April 2021 the lessee vacated the premises and on 27 April 2021 the lessor terminated the lease and took possession of the subject premises. On 03 May 2021 the lessee withdrew the substantive application that had been lodged with its interim application.
2. The appellants accepted they had not sought to appeal the decision of 24 April 2021. They had claimed at that hearing that the Lessor had provided misleading information. It would appear that that claim was not accepted.
3. We agree with the respondent that this issue is irrelevant in this appeal.

The Tribunal erred by miscalculating the interest due

1. The Tribunal stated in the Decision at [87] that: The second component of the lessor's claim for damages is interest on unpaid rent in Annexure A of the lease, Item 15 provided for an annual interest rate of 10% while clause 5.1 made interest payable whenever a payment of rent was 14 days overdue, calculated from that due date to the date of payment, The Tribunal's calculation of interest is set out in Appendix 1. An amount of $17,293.74 is found to be payable in respect of interest.
2. The appellants claimed that "... the calculation of interest in the Primary Decision was wrong, since it provided for interest on amounts that should have been deferred and on amounts recovered under the bank guarantee".
3. We see no error in the Tribunal's calculation of interest. Interest was not calculated on that portion - namely 50% - of the rent which was proportionate to the approximate 60% reduction in turnover at the business. This notional apportionment was consistent with the approach under the Code of Conduct, of providing half the rent relief as a waiver, and half as a deferral. Moreover, while Item 19 of the Schedule of Terms to the Lease provides for the amount of the bank guarantee to be calculated as three months' rent plus GST, clause 1.1(c) of Annexure A to the Lease makes it clear that the bank guarantee is not "… restricted to specific expenses such as rent". The approach at [99] of the Primary Decision, to deduct the amount recovered under the bank guarantee from the total amount properly claimed by the lessor, is thus consistent with the terms of the lease.

The Tribunal erred in finding that the Lessor owned the fixtures and fittings, and otherwise rejecting the Lessee's claim for the value of fixtures and fittings, including by misstating the depreciation rate

1. The Tribunal stated in the Decision at [53] and [54] that: 53. The first component of the lessee's claim for damages was an amount of $297,000 for loss of shop fittings. While a quotation for that amount from Bespoke Projects NSW provided, it was dated 22 April 2021 (the date of the termination notice), and did not indicate to which premises it related and, did not indicate the expenditure of any item as it is only a quotation. 54. The remaining documents which suggest amounts relate to other premises. There is no evidence of any expenditure on shop fittings, and it appears that the lessee did no more than make use of the fittings installed by Talia. From the evidence, cost a total of $23.980 and were installed late July or early August of 2016. Of course, the depreciated value of those fittings well over four years later would have been considerably less. Further, the fittings installed by Talia but not removed when Talia vacated the property of the lessor by reason of clause 12.3.2 in Annexure B of the lease. The lessee has not proved any amount in respect of this claim. It is noted that, in an email dated 24 April 2021 (2/43), Mr Nasreldin said "I have left the shop fitting for you as per your request".
2. The effect of the appellants' submissions is set out above. Even if we allow the fresh evidence being the quotation with the address of the premises, we see no reason why that would affect the Tribunal's conclusion as that was simply a quotation to replace fixtures and fittings, and to replace old fixtures and fittings with new one at that.
3. We consider that the Tribunal's conclusion and the approach taken was correct. We agree that when the lease terminated on 27 April 2021 (as to which see [62] and [63] below) with the fixtures and fittings still in situ, consistently with clause 12.3.2 of the Annexure to the lease the tenant ceased to have any interest in them sufficient to support the cross-application.
4. Finally, the appellants' submission that "the depreciation for the fitting by the ATO which is supposed to be 10 years and the decision said 4 only" is entirely misconceived.

The Tribunal erred in that the termination of lease was right and the lessee should pay for the lessor his losses as there was no protection for the lessee at that time and the lessee failed to pay April rent for more than 14 days

1. Again, the effect of the appellants' submissions is set out above. In the Primary Decision the Tribunal gave careful and detailed consideration to each of these issues, concluding at [55] that the termination of the lease was valid (as there was no dispute that the Lessee had failed to meet its obligations to pay rent) both under the RLA and at common law.
2. We see no error in the Tribunal's approach or its conclusions.

Additional new evidence

1. We have left to last our consideration of whether additional evidence which was not before the Tribunal should be allowed to be relied on in the appeal. The relevant rule is cl 12(1)(c) of Sch 4 of the NCAT Act which requires the Tribunal to consider if "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were dealt with)".
2. The meaning and effect of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 which stated: 24. … something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). 25. Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence. 26. In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division.
3. The Appeal Panel concluded at [27] that the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.
4. As in Al-Daouk, there is no feature of the evidence sought to be relied on to suggest it could not have been obtained at an earlier time and therefore was not, in that sense, reasonably available. As to the evidence of the quotation now with the address, as we have noted, this would have made no difference to the outcome. In this respect we reject the submission that acceptance of this evidence would "change the decision completely".
5. Nor do we see any substance in the submission that screenshots of a "famous fit out website" assists the appellants. This is because we are not persuaded that this evidence was not significant evidence was not reasonably available at the time of the Tribunal hearing.
6. We do not allow any new evidence on the appeal.

Conclusion

1. An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states, "an appeal is not an opportunity to have a second go at a hearing".
2. In so far as the appeal raises a question of law, the appeal in relation to the Primary Decision is dismissed.
3. In so far as the appeal raises other errors, leave to appeal is refused. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Appeal in relation to the Costs Decision

1. At [106] of the Primary Decision, having set out the relevant rules and authorities, the Tribunal stated that it appeared that the Lessor was entitled to an order for costs in relation to both his application and the cross-application of the appellants, but allowed the parties opportunity to make submissions on the issue.
2. Subsequently, the Tribunal published the Costs Decision. The Tribunal noted at [4] that while Mr Nasreldin had filed submissions, these went to substantive issues and not the issue of costs. As a result, there were no submissions either the Lessee or guarantors (being the other appellants) on the issue of costs: Costs Decision at [4].
3. After thoroughly and accurately sitting out the relevant legislative provisions and one relevant authority (being 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29) the Tribunal ordered the appellants In COM 21/32611 to pay the Lessor's costs in the sum of $21,995.75, and made no order for costs in COM 21/38733.
4. The only ground of appeal advanced by the appellants in relation to the Costs Decision was that the Lessee should not have to pay costs as it was found to be an "impacted lessee".
5. That submission does not raise a question of law. Therefore, the appellants require leave to appeal
6. As the submission is without substance or merit, leave is refused, and the appeal in relation to costs is otherwise dismissed.

Costs of the appeal

1. Rule 38A of the Civil and Administrative Tribunal Rules 2014 provides: 38A Costs in internal appeals (1) This rule applies to an internal appeal lodged on or after 1 January 2016 if the provisions that applied to the determination of costs in the proceedings of the Tribunal at first instance (the "first instance costs provisions" ) differed from those set out in section 60 of the Act because of the operation of - (a) enabling legislation, or (b) the Division Schedule for the Division of the Tribunal concerned, or (c) the procedural rules. (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
2. Accordingly, and in summary, "costs follow the event". The appellants have been unsuccessful in relation to both appeals. Therefore, they must pay the respondent's costs as agreed or as assessed.

Orders

1. The Appeal Panel orders that: 1. In relation to the decision of 8 December 2022: 1. as to any error of law, the appeal is dismissed; 2. as to errors other than errors of law, leave to appeal is refused and the appeal otherwise dismissed. 1. In relation to the decision of 28 March 2022, leave to appeal is refused, and the appeal is otherwise dismissed. 2. The appellants are to pay the respondent's costs of the appeal as agreed or as assessed.

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: 19 April 2022