News v Cotes and Laptev

NCAT Appeal Panel|2019-02-19

g-gai Council v Chan [2017] NSWCA 226 Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 Legal Profession Complaints Committee v Rayney [2017] WASCA 78 Mackay v Dick (1881) 6 App Cas 251 Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 OC SP 68751 v CA DP 270281 [2015] NSWCATCD 99 Owen v Kim [2017] NSWCATAP 26 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86] Rozenblit v Vainer [2018] HCA 23 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 UBS AG v Tyne [2018] HCA 45 Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 Texts Cited: None cited Category: Principal judgment Parties: Rosemary News (Appellant) Jane Cotes and Constantine Laptev (Respondents) Representation: Counsel: Appellant self-represented V Thomas (Respondents)

Solicitors: Hayden Fox of Australian Business Lawyers (Respondents) File Number(s): AP 18/47742 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 03 October 2018 Before: D Bluth, Senior Member File Number(s): COM17/16467, COM17/16463, COM17/27172

Background to appeal

The appellant lessee entered into a retail shop lease in Marrickville NSW within the meaning of the Retail Leases Act 1994 (NSW) (RLA) on 22 June 2015 with the respondent lessors. The lease use of premises was for a café/shop. The term of the lease was three years beginning 22 June 2015 with two three-year options to renew. The initial rent was $2,592.42 per month plus GST. The parties negotiated a three-month rent-free period (proposed by the lessee and accepted by the lessors) to allow for Council approval and fit out. The premises had been used over the past 25 years as a grocery/mixed business, hairdresser, florist, gallery and second hand shop.
The lessee took possession of the premises shortly after 22 June 2015. She began the fitout process by demolishing the existing kitchen and doing other demolition work. However, the DA was not submitted to Inner West Council (the Council) until 28 October 2015 and a quote for the fitout works was not obtained from a builder until 12 December 2015. The rent-free period ran out on 22 September 2015.
A water leak that occurred on 28 November 2015 was by agreement of the parties repaired by the lessee's tradesperson.
During late 2015 and nearly all of 2016 the fitout works continued. The lessee requested upgrade of the electricity supply and installation of a grease trap amongst other interactions with the managing agent. The café/shop opened in late December 2016.
As at late February 2017 the lessee had alleged rent arrears of $16,341.06. The managing agent served a letter of demand for the alleged arrears and also gave notice of the lessors' intention to terminate the lease and re-take possession of the premises.
On about 9 March 2017 the lessee observed a water leak from the upstairs flat into the kitchen area at the rear of the premises. After various inspections the lessee said that repairs could only be carried out between 9pm and 9am so as not to interrupt the café operation. Rent arrears were still outstanding on 7 April 2017 and the lessee was evicted. The lessor's plumber completed the quoted repair works on 13 April 2017.
On 18 April 2017 the lessee was granted relief against forfeiture by the Tribunal, on condition of paying the then current rent demanded of $2,607.18. There was no order to pay the arrears as a condition of relief against forfeiture. The lessors were ordered to repair the water damage to the ceiling and walls of the premises. These repairs were completed on 1 May 2017.
On 12 June 2017 the tenant of the upstairs flat gave notice of termination, citing among other reasons the noise of the extractor fan and "the putrid smell from the grease trap plumbing since late last year". That tenant left in early August 2017.

The primary hearing and its outcome in findings and orders

In the current proceedings lodged in 2017 the lessee claimed $183,629.15 comprising a rent abatement and damages for alleged loss of trading due to the delay in the fitout programme for which the lessors were alleged to be responsible.
In their points of defence the lessors denied any liability for rent abatement or for alleged loss and claimed (originally in a distinct Tribunal claim lodged 14 June 2017) for the unpaid rent to April 2017, interest, possession and rectification works by essentially removing the lessee's fitout, and loss of rent from the tenancy upstairs.
The hearing began on 31 October 2017 and was adjourned part-heard to 1 and 2 March 2018. On 31 October 2017 the lessee was legally represented by solicitors and counsel, as were the lessors, the legal representation being that which each party had had for at least part of the preparation for hearing. On 1 March 2018 the lessee applied for an adjournment because of the withdrawal of her previous representation. The adjournment was refused and the hearing completed within the two days allotted, with the lessee representing herself and the lessors being represented by previous counsel.
During the hearing the lessors conceded that the rent increase provision was void by reason of RLA s 18(3)(c), so rent arrears needed to be re-calculated against the base rent of $2,592.42 per month and credit given for the overpayments up to termination. After the hearing the parties provided written submissions. The lessors did not press termination but maintained that the eviction in April 2017 was valid.
The primary member delivered his reserved decision and reasons on 3 October 2018. It should be noted that a copy of reasons provided in the appeal papers began, after the titles and formalities, at paragraph [4] in its consecutive numbering under the heading "Reasons for Decision" rather than paragraph [1], whereas a copy from the Tribunal primary files properly commenced at paragraph [1]. The content of the reasons was the same. We have used the numbering beginning with paragraph [1], and refer to those paragraph numbers in these appeal reasons by a number in brackets.
The primary member stated in the course of his reasons at [32]-[35] that in essence the lessee complained that the lessors engaged in unconscionable conduct by delays to essential structural repairs and the current state of plumbing and electrical supply in the building and in the development consent process, and that this delayed the lessee's ability to trade and pay the rent, entitling her to resist dispossession, to a rent abatement and to compensatory damages.
The primary member summarised at [36] the lessors' response in essence as the tenant causing her own loss and inability to pay the rent by not managing the fitout process (including delays by the Council), with a late opening and slow client build. These were not the responsibility of the lessors and any conduct by the lessors did not equate to the behaviour that constituted unconscionable conduct.
At an unnumbered paragraph, which was for convenience of reference labelled paragraph [42A] during the appeal hearing (but really should be [39A] on the copy where the numbering began with [1] not [4]), the primary member listed three areas under the heading "Brief summary of facts and circumstances regarding the work on the premises": 1. The lessee "had to request" the lessors and their managing agent "numerous times for a copy of the rates notice so the [lessee] could provide this to the Council to progress the development application. The delay in supplying this threw the timing out of the fit out and opening of the café". 2. "The claims around the upgrade of electricity to the premises so the [lessee] could complete the fitout, relate to works required to be done by the [lessors], which the [lessors] engaged a supplier to do. However that supplier was unlicensed and did a poor job (on the submission of the [lessee]), thereby causing undue delay to the timing of the fitout. It was not clearly proven that it was necessary for the electrician to be licensed to do certain work." 3. The "general conduct" of the lessors and their managing agent "was such that the significant delays and lack of co-operation caused the [lessee's] fitout programme to be substantially delayed. The [lessors] moved slowly and inefficiently when called upon to consent, or effect necessary repairs. But the repairs were eventually completed and consent provided".
The primary member then followed through a list of issues for determination provided by the lessors' counsel, which he had set out at [31] and clearly accepted as the matters for his findings and conclusions, although he varied the wording non-substantively and slightly changed the order. The italicised issues set out below are taken from the lessors' counsel's wording set out at [31].
The first issue for determination was "Have the [lessors] breached any terms of the lease?".
Having earlier recited at [37]-[39] passages from leading authorities on the meaning of unconscionable conduct cited by the lessors' counsel, the primary member said at [40] "it is quite clear on the evidence that none of this conduct is to be considered unconscionable. None of the alleged conduct, even at its highest level could be viewed as falling into the category of sharp practice or conscious wrongdoing".
He then went on at [41] et seq to another aspect of the issue, namely, to examine whether or not there was any other term, express or implied, that the lessors had breached: "[41] There are no express provisions in the Lease to require the [lessors] to respond to any requests from the [lessee] efficiently and to ultimately consent to such requests. The question for the Tribunal is whether there are any implied terms in the Lease for the [lessors] to co-operate with the [lessee]. [42] The [lessee's] position is that there is an implied term in the Lease that the [lessors] would within a reasonable time provide any consent or document within its control required for the [lessee] to obtain all approvals and permits in connection with any fitout of the premises and to cooperate with the applicant and act fairly". This in substance reflected matters in the lessee's points of claim.
The primary member then at [43]-[44] recited the lessors' counsel's submissions that the relevant term must meet the test in BP Refinery (Westernport) PL v Shire of Hastings (1977) 180 CLR 266 for a term implied in fact and the submission (set out at [45]-[46]) that the term sought to be implied was in "direct contradiction" to an express written term in clause 35 of the lease, which provided in essence that the lessee had satisfied itself, before entering into the lease, regarding the need for and availability and existence of all approvals, consents and licences required for the intended and permitted use of the premises and the lessee's business in the premises, and that the lessee had full responsibility, at its expense, to ensure that it had all approvals, consents and licences required for the conduct of the lessee's business and use of the premises and the fixtures and fittings in the premises.
The primary member at [46] did not accept the submission of inconsistency of that provision with an implied term "that the [lessors] act reasonably and fairly in their business dealings with the [lessee]".
The primary member then set out at [47] his understanding that the implied term sought by the lessee was "along the lines of co-operation between the parties and that the [lessors] should be cognisant of the endeavours of the [lessee] to start a new business and undertake the fitout. The implied term is that each party act in good faith in its business dealings with each other, to act timely and responsibly noting the requirements of the other party, notwithstanding the obligations of the [lessee] to be responsible for the fitout under [clause 35]".
The primary member referred at [48] to the implied terms as discussed in Advance Fitness Corp PL v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 at [86], [96], [118]-[123], being the implied term on co-operation necessary to achieve the object of the contract (often referred to as the rule in Mackay v Dick (1881) 6 App Cas 251 at 263) and to exercise contract power reasonably and in good faith, to the extent that the obligation was not grounded in the covenant for quiet enjoyment and the implied covenant not to derogate from the grant.
The primary member then returned to the topic of unconscionability in conjunction with dealing with the sources of implied term and the difficulty he saw (at [49]) "in implying such terms as that the parties act fairly and efficiently" before expanding on that observation: "[50] Whilst the actions or inactions of the [lessors] may have been unreasonable, such as the lock out, such actions were not unconscionable, just unfriendly and unhelpful. On the evidence before the Tribunal the [lessors], the agent and tradespeople appeared to be less than efficient and in certain respects dilatory and unco-operative with the applicant. However, there is no law requiring parties to be efficient or for that matter co-operative. Even if the Tribunal could imply a term of fair dealing between the parties, such as to be fair and efficient in dealings, the conduct of the [lessors] and the [managing agent] in particular may not have breached such an implied term. It is a very difficult matter to prove lack of fair dealing with extraneous purpose. Not everyone is efficient and co-operative nor are they generally obliged to meet the timing of another party rather than their own timing to do things".
The primary member then said at [51]-[52] that, even if the term of fair dealing might be reasonable and equitable, it failed the BP Refinery test because the lease could stand without the term (so it was not necessary to give business efficacy to the lease) and it was not so obvious that it went without saying because there were express obligations on the lessee with respect to fitout in clause 25 to ensure compliance with all laws and requirements and authorities including obtaining all necessary approvals and permits before commencing the works.
The primary member concluded on the topic: "[53] If the [lessee] wished to keep the [lessors] accountable and to deal fairly, responsively and efficiently it was necessary to write such requirements into the Lease, similar to the clauses requiring the [lessee] to be accountable in undertaking the fitout. If this had been done at the commencement of the Lease then perhaps things may have been different, and the [lessors] and [managing agent] may have been more responsive to the [lessee's] requirements".
The second issue for determination was "If there have been breaches [by the lessors], is the [lessee] entitled to abatement [of rent] and, if so, how much"?
Having quoted at [54]-[55] clause 8.2 of the lease and RLA s 34 as the governing requirements, the primary member said at [56] "In order to trigger the entitlement to an abatement under this provision, the [lessee] must establish that, due to damage, the premises became inaccessible or unusable, or usability was diminished. The only events that can be looked at here are the two leaks, being physical damage".
The primary member referred at [57]-[61] to the occurrence of the first water leak on 28 November 2015 and its repair by the lessee's tradesman by 28 January 2016. The lessee claimed an abatement of all rent for that entire period of 62 days; the lessors allowed 30 days (28 November 2015 to 21 December 2015 and 23 to 28 January 2016). The primary member found that abatement satisfactory on the evidence, "especially for premises where trading had not commenced": "[60] There is no evidence that the premises were unusable or its usability was diminished during this period. At the time of the leak, the premises were not being used for trading or occupation. The fit out was proceeding, albeit slowly. On the evidence presented to the Tribunal the damage did not prevent any fitout work being undertaken. A construction certificate was only issued in August 2017 so any work that could have been undertaken in respect of the fitout at the time of the leak must have been extremely limited."
For the second water leak in March 2017, the primary member found at [62]-[63] no entitlement to rent abatement. The evidence, rather, showed continued trading because the lessee would allow the plumber access only after business hours, "indicating that she did not want her trade interrupted". The evidence did not show that this leak rendered the premises unusable or inaccessible or that the useability of the premises was diminished. Inconvenience was not sufficient.
The third issue for determination was "if the [lessors] have breached the Lease has the [lessee] thereby suffered any loss and, if so, how much?".
The primary member described at [64]-[65] the lessee's expert accounting report and critique of it, including objection to it for non-provision of underlying material, that the projections of trading results were "overly ambitious" against "actuals" and that "No proper explanation was provided to support" a figure of $94,000 for the cost of rebuilding the business after the lock out and after four months of trading.
The primary member concluded at [65]: "As the [lessee] was not successful in proving any breach of Lease by the [lessors], consequently there are no damages payable by the [lessors]. The Tribunal does not need to go into the inadequacies of the Report".
The fourth issue for determination as dealt with by the primary member was "Ultimately how much rent is unpaid and owing to the [lessors]?".
The primary member noted at [66] that the lessors' figure of $15,062.74 including GST as at 2 March 2018 plus interest of $2,026.56 was unchallenged by the lessee. This ultimately was reflected in the orders. It presumably took into account the lessors' concession, noted earlier, that the rent increases could not be sustained as enforceable.
The fifth and sixth issues for determination as dealt with by the primary member were "Has the [lessee] breached any term of the Lease" and "if so, have the [lessors] suffered loss and, if so how much?".
The lessors sought $5,700 for loss of rent from the upstairs tenant leaving prematurely. The primary member dismissed this claim at [67]. In the absence of a formal response by the lessee, he nevertheless said that the lessee's action or inactions regarding the grease trap and noise were too remote and were (it appeared) part only of the reasons that the upstairs tenant left.
The final issue for determination as dealt with by the primary member was "Should either party be ordered to carry out specified work?".
At [68] the primary member found that the lessee should reinstate courtyard paving tiles disturbed when with the lessors' consent the lessee installed the grease trap. He accepted the lessors' allegation that the rough cement bedding was unsightly and difficult to maintain and keep clean and said that the lessee did not adequately respond to this claim.
At [69] the primary member found that, "While it appears that that the repairs were done, perhaps in a rather inexpensive manner, no doubt to save costs", in respect of the 2017 leak damage, the applicant "did not demonstrate to the satisfaction of the Tribunal that the water leak had not been stopped and that any smell, as such, was not necessarily as a result of leakage in the sewer line". No order for further work was made in those circumstances.
In a paragraph at [70] headed "Summary", the primary member concluded: "I am sure that the [lessee] when she first embarked on this endeavour of the [café] had every intention of creating a quality food take-away and café in Marrickville. The first problem was the terms of the bargain struck, namely a rent free period of only 3 months. A fit-out for a café from a former recycled furniture retailer, plus Council approval would take at least six months, if not more likely nine months in the current local government circumstances. Accordingly, this lease transaction was doomed from the very beginning, because it was commercially unrealistic for the [lessors] to expect rent to commence, after only three months and well before any trading by the [lessee]. However, that was the bargain struck and it is not for the Tribunal to rewrite contracts".
The primary member dismissed the application, ordered the lessee to pay within 14 days the rent arrears of $15,062.74 plus interest from 2 March 2018 and to reinstate the paving tiles around the grease trap.

Course of appeal hearing and distilled grounds of appeal

The Notice of Appeal lodged on 2 November 2018 said that it challenged the dismissal of the lessee's application and the order for payment on the lessors' separate claim. There was no express challenge to the reinstatement of the courtyard paving tiles.
The grounds of appeal were summarised in the Notice of Appeal as follows: "1. The Tribunal erred in considering fully the applicants legal obligations in relation to compliance with Fair Trading Act, Retail Leases Act and the Lease. 2. The Tribunal erred in not fully considering the opinion of the only expert witness presented and the statements of licensed contractors in regard to the compliance obligations under the law. 3. Erred by relying on the inference made by the respondent that it was unclear whether there were any legal obligations in relation to the services provided by trades. Miscarriage of justice (a) not fair and equitable, (b) against the weight of evidence, 2. Written evidence was materially different to oral evidence. 3. Information that should have been considered was not, dysfunctional and broken down relationship, and communication."
The relief sought, in addition to dismissal of the lessors' claim for rent and costs, was to award damages to the lessee based on an amended claim which formed part of the appeal materials, "Enable the Appellant to have a new lease to enable her to on sell the business in the next 6 months" and award any additional damages the Tribunal thought appropriate.
There were handwritten marginal comments and rule-throughs on the notice of appeal, including to two of the appeal grounds (confusingly, both numbered "4:"), which were in the following terms: 1. "4. Failed to properly examine an equitable outcome."; and 2. " 4. In proceedings in October, then legal representation sort (sic) leave to address issues of reliance in the March proceedings."
There were also references to attachments which were not physically attached. However, there was substantial material in folders at the appeal hearing which, from the context of reference to attachments in the Notice of Appeal, seemed to be the material either attached or referred to in any attachment.
In the appeal hearing the appellant lessee again represented herself and the respondent lessors were represented by the same counsel (instructed by the same solicitor) as at the primary hearing in March 2018.
At the outset of the appeal hearing we identified with the parties, and marked on the papers, what was before the primary member, what was treated as submissions on appeal, and what was not before the primary member. The material not before the primary member had been referred to in the Notice of Appeal as some photos and a letter from the Council relating to the history of the property. Other references in the "new evidence" section of the Notice of Appeal did not relate to new evidence.
The present Notice of Appeal is not an easy document to understand. Having regard to the approach taken in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where it appears that there has been no legal representation in preparing and arguing the appeal, we have distilled the following from the entire contents of the appeal notice taken with the material considered on appeal.
The grounds of challenge to the primary decision that we have distilled are, in summary, as follows: 1. The primary member erred in law in identifying and characterising the lessors' legal obligations, particularly in relation to implied duties and how that impacted what the lessors and their contractors were required to do in relation to works at the premises. 2. There were errors of fact, for which leave to appeal ought to be granted for their correction, in the areas in the following sub-paragraphs, which rendered the primary decision not fair and equitable and against the weight of evidence. 3. The first was that the primary member did not fully consider the only expert evidence on loss. 4. The second was that the primary member did not fully consider the statements of licensed contractors, particularly in relation to the contention that the electrical work could be done by an unlicensed contractor and the absence of evidence of sign-off on the work as contended by the lessors. 5. The third was that the primary member did not fully consider the discrepancies between the oral and written evidence. 6. The fourth was that the primary member did not fully take into account the effect of the dysfunctional and broken relationship on communication and on consideration of the lessee's information provided. 7. The fifth was that there was no evidence to support the member's observation that the business was doomed to failure. 8. The sixth was that insufficient weight was given to "The regulations and laws that the appellant was obliged to meet to gain certification to open her business", to "The delaying and subterfuge between the Agent and the Landlord, and the intentional delays in attending to repairs to force the tenant to eventually pay for items that are the responsibility of the Landlord", to "The Landlord failing to meet her obligations under the Lease, and the Act in terms of Fire safety", to "Leasing a space not fit for purpose and failing to disclose substantial structural damage prior to leasing", and that "Too much weight was placed on the Notes the Barrister for the other party prepared based on how she perceived the case, to make the paperwork easier for the Member".
The last matter (para 50(8)) could be characterised as an alleged error of law to the extent that it claimed procedural unfairness in the final quoted item.
There may also be an implicit claim of procedural unfairness amounting to error of law. This arises from claims under the new evidence heading that the lessee ought to have been allowed an adjournment. The claims were based on the lessee's assertion as to the withdrawal "at 5pm on the day before the hearing" in March 2018 of her previous legal representation and that she "has subsequently put her case together". The contention therefore appears to be that a re-hearing is necessary because it is the only procedurally fair way ahead.
The lessors' reply to the notice of appeal disputed any alleged error of law and opposed any grant of leave to appeal on alleged errors of fact. It stated that: "There is no basis on which the Appeal Panel can be satisfied that the appellant has suffered a substantial miscarriage of justice within the meaning of clause 12 of Schedule 4 to the Civil and Administrative Tribunal Act 2014".

Extension of time if required

The lessors said that the lodgement of the notice of appeal was one day out of time and opposed extension of time. The Appeal Panel has power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) to extend time. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the CAT Rules) requires, unless an extension of time is granted, lodgement of an appeal such as the present within "28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)".
There is no formal evidence as to the date on which the appellant lessee was notified of the decision and reasons. There is in the appeal papers a copy of the communication conveying to the appellant the reserved decision and orders, addressed to her former lawyers by post and dated 3 October 2018. If that was the only form of communication then it is likely the appeal was filed within time from when the lessee was in fact notified in the ordinary course by her former lawyers once they received the post in the ordinary course.
There is also an indication, in correspondence from the lessors dated 23 October 2018 handed to us in the course of hearing. That correspondence deals with the lapse of the option to renew because it was not exercised within the extended time provided by the Tribunal's orders). The contention which appears to arise is that to the lessors' knowledge the lessee received the decision and reasons on or no later than 8 October 2018. In a further affidavit affirmed by the female lessor on 14 November 2018 that lessor said she received the decision and reasons on 8 October 2018 and arranged for the decision and reasons to be emailed by the managing agent to the lessee on that day which was done.
Even if the decision was communicated by (for instance) email on 3 October 2018, the lodgement of the notice of appeal was one day out of time and the lessors have put forward no evidence or submission of prejudice from that minimalist late lodgement, apart from the inherent prejudice of having to meet an appeal, which is not relevant prejudice for this purpose. We grant an extension of time (to the extent an extension is required) for the lodgement of the notice of appeal.

Applicable legal principles

Section 80(2)(b) of the states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
Clause 12 of Schedule 4 to CATA states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust", and also an analogy with legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].
The Appeal Panel has stated that in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12].
Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [74]-[75], [78]-[79] and [84] as follows: 74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. … 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 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.
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]: 37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]).and the matters summarised in Collins v Urban, above, at [84] will come into play in the Appeal Panel's consideration of whether to exercise that discretion.
In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations. The first of these is where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ. The decision must be accepted as legally correct unless it has been overturned or varied on appeal. The second situation arises where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].

Errors of law

It seems to us that, in dealing with the first (and apparently major) issue, the primary member has mischaracterised the applicable implied contractual term in relation to co-operation between the parties. This occurred in two ways.
The first is that this was seen as an example of a term implied in fact that was required to pass the BP Westernport test.
However, it appears clear, from the high authority discussed and followed by a unanimous NSW Court of Appeal in Alcatel Australia PL v Scarcella (1998) 44 NSWLR 349 (CA) at 363-370, that the term is one implied by law. It is often known as the Rule in Mackay v Dick (1881) 6 App Cas 251 at 263 and is regarded as a duty imposed by law on the contracting parties to co-operate on undertaking what is necessary to achieve the object of the contract - what is sometimes called loyalty to the promise or loyalty to the bargain.
This is a long-standing, entrenched and distinct duty in a term implied by law, in contrast to the more contentious implications of terms of good faith and fair dealing. It is a concomitant of the term implied by law to exercise a contractual power in good faith and for proper purposes (and, more controversially, reasonably) that are discussed in the same passages from Alcatel.
The primary member with respect therefore spoke too broadly when he said at [50] "there is no law requiring parties to be co-operative" if he was intending to exclude such an implied term.
The discussion at [40]-[53] of the primary reasons not only erred in law in not recognising the implication of such duty by law but also in mixing the analysis and discussion with the requirements to establish unconscionability and an implied term of good faith and fair dealing.
This led the primary member to reject a broad-ranging implied term that the parties act fairly and reasonably or fairly and efficiently and, in that broad sense, co-operatively, matters with which we do not, on this particular lease contract, disagree.
However, it also led the primary member to fail to consider or to apply the clear term implied by law; being the implied term that the parties co-operate to the extent necessary to achieve the contractual objective.
The primary member correctly indicated that the implied term of loyalty to the promise, like the other implied terms with which he dealt, must be read in the context of what the promise is and that it is intrinsic to what the promise is to see what the express terms do by way of allocating contractual responsibilities. He referred to the relevant obligations on the lessee (as already noted).
The primary member also correctly, with respect, referred to the discussion in Advance Fitness v Bondi Diggers which itself referred to the "broadly analogous factual context" in Alcatel. These authorities illustrated that terms implied by law of any of the above varieties do not extend to impose a duty on a contracting party to preserve the benefit of the contract for another contracting party by the first contracting party refraining from certain action such as contacting a third party regulatory authority. Thus, the lessor in Advance and in Alcatel was able to raise with the Council matters that led to imposed fire safety requirements (that prejudiced the possession of the lessee or put the lessee to expense) even for the lessor's collateral benefit (such as leading to vacant possession for re-development).
The distinction in the present case, in relation to the implied term imposing a duty of co-operation to achieve the bargain, is that the lessee was seeking co-operation to carry out the lessee's obligations under the lease, namely, to obtain approvals to do the works for the intended use under the lease. What was required to be considered, and was not, was whether or not any activity required from the lessors to enable the lessee to carry out those obligations and achieve the fitout and use of the premises fell within the scope of necessary co-operation and was not done or was done in a way that breached the implied term to co-operate. A failure to consider that matter, distinct from all the other aspects considered in issue 1, was an error of law, in our respectful view.
We consider that the other matters that potentially raised errors of law do not do so when properly examined.
The primary member properly referred to and properly made use of the assistance that the lessors' counsel was required to give, and in our view did properly give, to the decision-maker as a matter of professional and legal duty. There is nothing unusual about counsel providing a suggested schema of issues with which to enable the matter properly to be considered and determined. The schema provided was entirely appropriate and comprehensive. The lessee has not made out a case that it was inadequate. The primary member chose, properly, to adopt it to provide a framework for his consideration of the issues and his decision on those issues. The schema did not foreclose or prevent proper consideration and determination of the evidence or the arguments. Rather, it facilitated that proper consideration and determination.
The primary member's exercise of discretion in refusing an adjournment was well within the range provided for in decisions of the High Court such as Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175, [2009] HCA 27, Rozenblit v Vainer [2018] HCA 23 and UBS AG v Tyne [2018] HCA 45. It was also within the principles governing dealing with self-represented litigants, including in relation to adjournments, in the Tribunal: White v Sunrise Pools Australia PL [2017] NSWCATAP 216 at [30]-[40] and authority there cited.
In respect of the refusal of adjournment, we were assisted on appeal by a matter that properly was the subject of evidence about what happened before the primary member on this question. The female lessee, in her affidavit affirmed 14 November 2018 previously mentioned, referred to the absence of notice of an adjournment request and to having only briefly seen the letter handed up to the primary member at the time it was handed up. The letter, to her recollection, disclosed that the reason for the lessee being legally unrepresented close to the resumption of the hearing was that her solicitors had withdrawn because she had not followed their advice and had not paid outstanding fees. The lessors' solicitor's evidence added a further reason communicated to him, being the lessee's failure to provide instructions in respect of matters of financial information since at least early February (we assume 2018).
There was no denial of procedural fairness on either of the two preceding matters.

Grant of leave to appeal on questions of fact

There appears to us to be no basis for a grant of leave to challenge as errors of fact the findings of the primary member and the process by which he reached those findings. Of course, as a result of our finding of an error of law, in one discrete area the primary member's findings of fact need to be re-considered to determine if the implied term of co-operation on matters necessary to achieve the contractual object was breached by the lessors. We return to that below.
The primary member's relevant factual findings on co-operation and the other behavioural duties or implied terms considered by the primary member appear in what we have called [39A] and in [50] and [53], and also in the summary in [70].
The language in [39A] at points reads as a record of a submission rather than a finding. For the purposes of the appeal we have treated them as findings. The matters of fact addressed in [50], [53] and [70] are clearly factual conclusions.
The matters in [39A] treated as findings, and in [50] and [53], are uniformly in favour of contentions of the lessee, except for the finding that it was not clearly proven that it was necessary for the electrician to be licensed to do some of the required work.
What the primary member went on to find was that the conduct was not such as to qualify as unconscionable and that the other formulations of the implied term were not present as a matter of law. Rather, the bargain struck was inadequate, in terms of the time it negotiated for dealing with the degree of approval and fitout required given the nature of the premises, their prior uses and their different intended use. The lessee did not complain about the negotiation or the terms of the bargain struck.
We have already indicated that we have agreed with the primary member's conclusion on the legal test for unconscionability and on the other formulations of the implied terms, as a matter of law.
We also agree that the primary member's findings of fact as summarised in [39A] (if they are all findings), [50] and [53] are not sufficient to meet the high standard for unconscionable behaviour.
The question then becomes: do those findings as recorded go sufficiently against the weight of evidence and otherwise meet the criteria for a grant of leave to consider them as errors of fact.
We have reviewed the entirety of the evidence alleged by the lessee to support a finding of a graver level of impugned behaviour. In our opinion the requirements for a grant of leave, on that review, are not made out and the primary member's findings at [39A] and [50] and [53] fairly and equitably reflect the weight of evidence. If we were wrong on that, in our view there was insufficient imbalance or prospect of a different outcome as to constitute a substantial miscarriage of justice against the lessee or to qualify for the exercise of discretion to grant leave, on the principles already recorded, to overturn the lesser level of behavioural finding.
The primary reasons for those conclusions are fivefold. First, one must assess the quality of lapses by the lessors and the managing agent against the short time available under the lease for what was a substantial amount of work to be done to allow the business to become operational and generate the rent. Secondly, the lapses by the lessors and the managing agent were relatively brief in the chronology of events. Thirdly, there was inadequate evidence to support the assertion that the said lapses caused the delays either substantially or primarily, compared with other matters in the fitout and early operational stages. Fourthly, there was no evidence sufficient to support any finding of malign intent by the lessors or the managing agent. Fifthly, the lessors' lay and expert evidence on repairs was cross-examined on, not all the lessee's witnesses were made available for cross-examination (although the lessee and her expert witness on water damage repairs were) and the primary member's findings was within the range of acceptable choices on balancing the contested evidence.
Turning to the other factual issues, it seems to us that the primary member's findings on the effect of water leaks and on the degree of abatement are positively supported by the evidence and that all relevant evidence was considered and exposed in the reasoning reaching those findings.
The question of damages is consequential on a finding of liability, for which we have already agreed with the findings of the primary member subject to re-consideration of the implied term of co-operation.
However, it seems to us that the recorded critique of the lessee's expert report is well-founded and that such report would not be found to be an appropriate basis for a loss assessment, all the more so when the accountant who gave the report was not made available for cross-examination and the primary supporting records were not in evidence.
The remaining findings of fact were either in favour of the lessee or not contested by the lessee, as recorded earlier in these reasons.
Accordingly, we consider there is no basis for a grant of leave and, in our view in any event, no material errors of fact in the primary member's conclusions on matters grounding the orders that he made.

Exercise of costs discretion at primary hearing

There was no appeal against any costs orders made in respect of the primary hearing. Those orders are not before us. We accordingly simply note the absence of appeal.

Appropriate relief on appeal

CATA s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive or mutually exclusive because the wording referring to them in s 81(1) is "including (but not limited) to orders that provide for any one or more of the following" listed examples of orders. The list includes: allowing the appeal under para (a), setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions under para (e), confirming, affirming or varying the decision under appeal under para (b), and under para (d) setting aside the decision under appeal and substituting another decision for it.
The error of law that we have identified necessitates reconsideration of one issue raised on appeal according to law, being whether the implied term of co-operation necessary to achieve the object of the contract was breached.
In our view it is appropriate for the Appeal Panel itself to undertake the re-consideration of that issue. The Appeal Panel has before it the material before the primary member on the factual matters underpinning determination of that issue that the parties have chosen to put before the Panel. Those factual matters were exhaustively agitated in the primary hearing, which means that the occasion for further evidence does not arise. Litigation on this matter has had a number of interlocutory and final rounds. It is consistent with the guiding principle in CATA ss 3(d) and 36, that proceedings be resolved justly, quickly, cheaply and with as little formality as possible, that it be brought to a conclusion: cp Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 at [47].

Reconsideration of the issues raised on appeal

We have reached the conclusion that the primary member's findings of fact do not support a conclusion that there was a breach of the implied term that the parties co-operate in activity necessary to achieve the contractual objective (in the way that objective arose in this dispute), relating to approvals and lessor works. In so saying, we shall refer to and not repeat our findings and conclusions above that there were no factual errors in the primary reasoning that would lead to a grant of leave to appeal and reconsideration of those findings on appeal.
We consider first the behaviour by the lessors and the managing agent that the primary member found was not of sufficiently serious character as to breach the duty. As the primary member put it when considering other alleged implied terms and unconscionability, the behaviour might not have been efficient or co-operative, but it did not amount, in terms of timing or disruptive effect in the overall pattern, to an absence of co-operation.
Thus, the provision of material in relation to the DA was not demonstrated to have so delayed the DA approval that it delayed seriously the engagement of the builder and the completion of the works. The water leak in December 2015 was similarly not demonstrated to have had such a serious delaying effect on progress, nor was the electrical work in the latter part of 2016 nor the water damage and repair in March 2017. Rather, there were substantial delays, including in obtaining a construction certificate, that were beyond the scope of the lessee's complaint.
Such matters go to the failure to establish causation of loss. In addition, there is no demonstrated breach of the implied term.
If we had considered the matter afresh, we could well have come to a more charitable conclusion on the conduct of the lessors' agent, the lessors and their contractors than the primary member in fact did. We consider there is substantial merit in the characterisation of that conduct in the lessors' written submissions on appeal, when that characterisation is assessed against the primary evidence.
However, even on the basis of the primary member's less charitable findings of fact, in our view what has been put before us is insufficient to demonstrate either:: 1. a breach of the implied term of co-operation ; or 2. any loss arising from that conduct, even if it had been a breach.

Outcome of substantive appeal

The appeal accordingly succeeds on identifying an error of law. However, our reconsideration of the issues in contest according to law comes to no different conclusion from the relief granted by the primary member, with the necessary variation in payment machinery to accommodate the passage of time and the possibility that those orders have been satisfied in whole or part. We set out our orders below.
We note that an application to stay the primary member's orders pending appeal was refused on 16 November 2018.

Costs of appeal

Rule 38A of the Rules applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60.
It may be useful to the parties to indicate our provisional view on costs on the basis of the above findings.
CATA s 60, together with rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW), provide that the ordinary costs rules apply, even in the absence of special circumstances required by s 60, where "the amount claimed or in dispute in the proceedings is more than $30,000".
Rule 38 was satisfied in this case.
The starting point for exercise of costs discretion on the usual principles is that costs follow the event. "The event" is usually the overall outcome of the proceedings - did the successful party have to go to the Tribunal (in this case) to get what it achieved, rather than being offered at least that relief. If there are distinct issues on which the party seeking relief did not succeed, that may be taken into account in the exercise of costs discretion.
Some recent Appeal Panel decisions have made no order as to costs (to the intent that each party paid its or their own costs) where there has been a measure of success on both sides: Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45 at [25]-[29]; applied in Oppidan Homes PL v Yang [2017] NSWCATAP 67. The exercise of discretion in Johnson was in relation to the costs on appeal only: Johnson at [4]. The clear mixed outcome on appeal grounds meant that the original decision was maintained in a central respect but the original claim was otherwise to be the subject of a re-hearing. The outcome in Oppidan reflected the outcome of the primary hearing which involved claims by both parties.
For an award of costs on other than the ordinary basis, a party's conduct of the proceedings themselves, or the nature of the proceedings themselves (for instance, misconceived), or an outcome less favourable than an offer, are considered. The principles are explored in Latoudis v Casey (1990) 170 CLR 534, Oshlack v Richmond River Council (1998) 193 CLR 72 and in this Tribunal in Thompson v Chapman [2016] NSWCATAP 6 and Bonita v Shen [2016] NSWCATAP 159, citing earlier consistent authority. The principles have resonance with at least some of the "special circumstances" in CATA s 63 that are required to justify a costs order when rule 38 does not apply.
Our provisional view is that there should be no order as to the costs of the appeal, to the intent that each party bears her or their own costs of the appeal, absent the provision of further submissions or material which justifies a special costs order.
The appellant lessee has had the success on appeal of establishing an error of law in the consideration of a central aspect of her case. However, she has not established any basis for being granted leave to appeal on errors of fact. When the primary member's findings of fact are applied to the correct characterisation of the implied term on a central aspect of the lessor's case, she has had no greater success than at primary hearing.
So the appellant has had success on the primary decision being reviewed, but the primary decision stands when it is reconsidered because she has not succeeded in challenging the basis of factual findings. Here the outcome could well have been costs of the appeal in favour of the lessee, but then the costs on a further hearing in the Tribunal being in favour of the lessors if the matter had been remitted for a further primary hearing. The bringing together of the two aspects has not lengthened the appeal and has saved the parties the costs of a further round and having to calculate and set off costs of the appeal and costs of the further primary hearing.
It seems to us, subject to arguments that the parties may wish to put, that the foregoing outcome fits prima facie within the principle discussed and applied in Johnson and Oppidan, leading to no costs order on the appeal.
The orders will reflect that the parties have the opportunity to put forward submissions and any material on costs that either reinforces or opposes, or seeks to modify, our provisional views on costs. Such submissions should include any request for an oral hearing on costs and reasons for that request, or a consent that costs be determined on the written submissions and material relevant to costs. We have provided for two rounds of written submissions in chief and in reply. Those submissions would of course include any challenge based on offers made to compromise the proceedings.
In providing for the opportunity to make submissions about an oral hearing on costs, we do not indicate that we shall come to the view that CATA s 50 requires to be complied with in respect of a costs hearing if there has been a hearing on the substantive merits of the case.
If there are no submissions and material lodged and served, then the order will be that there is no order as to costs.

Orders

The orders we accordingly make are as follows: 1. Time for lodging the notice of appeal is, to the extent that extension is required, granted to and including 2 November 2018. 2. Leave to appeal, to the extent that leave is required, is refused. 3. The appeal is allowed on an error of law, with a re-consideration by the Appeal Panel of the matter according to law on the existing evidence and material before it. 4. On re-consideration of the matter by the Appeal Panel, confirm the orders of the Tribunal made 3 October 2018 for different reasons to those given by the Tribunal and with variation by date alteration, to the following effect of the orders: 1. The application is dismissed. 2. The applicant is to pay to the respondents on or before 1 May 2019 the sum of $15,062.74 plus interest from 2 March 2018 to and including date of payment, to the extent that such principal amount and interest have not already been paid under order 2 made on 3 October 2018. 3. The applicant is to reinstate the paving tiles around the grease trap. 1. Note that there has been no appeal against any costs orders made in respect of the primary hearing. 2. Note the preliminary view of the Tribunal that there should be no order as to the costs of the appeal. 3. Note the Tribunal's view that questions of costs can be decided on written submissions without the need for further hearing on costs. 4. Order as follows: 8.1 Any party's written submissions and any further evidence in chief on costs (including any reasons for seeking a hearing on costs) is to be lodged with the Appeal Panel Registry and served on each other party on or before 5 May 2019. 8.2 Any party's written submissions and any further evidence in reply on costs is to be lodged with the Appeal Panel Registry and served on each other party on or before 19 May 2019. 8.3 If there are no submissions and material lodged and served pursuant to 8.1 and 8.2, then the order will be that there is no order as to costs of the appeal. 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: 30 April 2019

Retail Tenancies Act 1994(NSW)

At a glance

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Decision date

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Judgment (15 paragraphs)

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Legislation Cited (4)

Cases Cited (52)

Cited By (1)