R M Brothers Pty Ltd v SEBT Pty Ltd; SEBT Pty Ltd v R M Brothers & Morris

NCAT Consumer and Commercial|2017-02-13

Lessor's Solicitors: J S Mueller & Co Counsel: Ali Cheema File Number(s): COM 16/33840 and COM 16/51399 Publication restriction: Unrestricted

reasons for decision

These are the reasons for decision in two related proceedings.

Jurisdiction and legislation

S 28 of the Civil and Administrative Tribunal Act 2013 ("NCAT") provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
The Tribunal is empowered by section 72 of the Retail Leases Act 1994 to make orders in proceedings for a retail tenancy claim as set out in that section, including, but not limited to, an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person.
Section 70 of the RLA defines a retail leases claim as: retail tenancy claim means any of the following: (a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being: (i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund), (ii) a claim for relief from payment of a specified sum of money, (iii) a claim for the doing of specified work or the provision of specified services, (iv) a claim for the surrender of possession of specified premises, (v) a claim for assignment of rights under a lease or for a declaration that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, (vi) a claim for relief against forfeiture, (vii) a claim regarding the rectification of the lease, (viii) a claim regarding the invalidity of a lease for inconsistency with this Act or the regulations, (ix) a claim for a declaration of the rights, obligations and liabilities of the parties under a lease, (x) without limiting the generality of subparagraph (i), a claim for compensation under section 10, 34, 35 or 62E, (xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond, (b) an application for the appointment by the Tribunal of a specialist retail valuer under section 19 or 31, (c) an application for the appointment by the Tribunal of two specialist retail valuers under section 32A, (d) an application under section 19 (3) or 31 (3), or under those provisions as applied by section 32A, by a specialist retail valuer, (e) a claim against a specialist retail valuer under section 19A (3) or 31A (3), or under those provisions as applied by section 32A, for compensation for loss or damage suffered as a consequence of the use or communication or divulging of information.
Section 71A of the RLA provides that: 71A Lodging of unconscionable conduct claims with Tribunal (1) A lessor or lessee, or former lessor or lessee, under a retail shop lease or former retail shop lease may lodge an unconscionable conduct claim with the Tribunal for determination of the claim. (2) A claim may not be lodged more than 3 years after the alleged unconscionable conduct occurred. (3) In this section: lessor or lessee under a retail shop lease or former retail shop lease includes a person who is a guarantor or covenantor under a lease or former lease.
Section 10 of the RLA provides: Right to compensation for pre-lease misrepresentations (1) A party to a retail shop lease is liable to pay another party to the lease (the injured party) reasonable compensation for damage suffered by the injured party that is attributable to the injured party's entering into the lease as a result of a false or misleading statement or representation made by the party, or any person acting under the party's authority, with knowledge that it was false or misleading. (2) The giving of a lessor's disclosure statement to a prospective lessee under a retail shop lease is considered to be the making of a representation by the lessor to the lessee as to the information in the disclosure statement. (2A) The making of a representation by a prospective lessee in a lessee's disclosure statement given to a prospective lessor under a retail shop lease that the prospective lessee has sought independent advice, or as to statements or representations relied on by the prospective lessee in entering the lease, is considered to be the making of a representation by a lessee to the lessor. (3) This section extends to apply to a statement or representation made before the commencement of this section.
Section 62B of the RLA provides: (1) A lessor must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable. (2) A lessee must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable. (3) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a lessor has contravened subsection (1) in connection with a retail shop lease, the Tribunal may have regard to: (a) the relative strengths of the bargaining positions of the lessor and the lessee, and (b) whether, as a result of conduct engaged in by the lessor, the lessee was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the lessor, and (c) whether the lessee was able to understand any documents relating to the lease, and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the lessee or a person acting on behalf of the lessee by the lessor or a person acting on behalf of the lessor in relation to the lease, and (e) the amount for which, and the circumstances under which, the lessee could have acquired an identical or equivalent lease from a person other than the lessor, and (f) the extent to which the lessor's conduct towards the lessee was consistent with the lessor's conduct in similar transactions between the lessor and other like lessees, and (g) the requirements of any applicable industry code, and (h) the requirements of any other industry code, if the lessee acted on the reasonable belief that the lessor would comply with that code, and (i) the extent to which the lessor unreasonably failed to disclose to the lessee: (i) any intended conduct of the lessor that might affect the interests of the lessee, and (ii) any risks to the lessee arising from the lessor's intended conduct (being risks that the lessor should have foreseen would not be apparent to the lessee), and (j) the extent to which the lessor was willing to negotiate the terms and conditions of any lease with the lessee, and (k) the extent to which the lessor and the lessee acted in good faith. (4) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a lessee has contravened subsection (2) in connection with a retail shop lease, the Tribunal may have regard to: (a) the relative strengths of the bargaining positions of the lessee and the lessor, and (b) whether, as a result of conduct engaged in by the lessee, the lessor was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the lessee, and (c) whether the lessor was able to understand any documents relating to the lease, and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the lessor or a person acting on behalf of the lessor by the lessee or a person acting on behalf of the lessee in relation to the lease, and (e) the amount for which, and the circumstances under which, the lessor could have granted an identical or equivalent lease to a person other than the lessee, and (f) the extent to which the lessee's conduct towards the lessor was consistent with the lessee's conduct in similar transactions between the lessee and other like lessors, and (g) the requirements of any applicable industry code, and (h) the requirements of any other industry code, if the lessor acted on the reasonable belief that the lessee would comply with that code, and (i) the extent to which the lessee unreasonably failed to disclose to the lessor: (i) any intended conduct of the lessee that might affect the interests of the lessor, and (ii) any risks to the lessor arising from the lessee's intended conduct (being risks that the lessee should have foreseen would not be apparent to the lessor), and (j) the extent to which the lessee was willing to negotiate the terms and conditions of any lease with the lessor, and (k) the extent to which the lessee and the lessor acted in good faith. (5) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with a retail shop lease by reason only that the first-mentioned person institutes legal proceedings in relation to that lease or refers to arbitration a dispute or claim in relation to that lease. (6) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with a retail shop lease by reason only that the first-mentioned person fails to renew the lease or issue a new lease. (7) For the purpose of determining whether a lessor has contravened subsection (1) or whether a lessee has contravened subsection (2): (a) the Tribunal must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention, and (b) the Tribunal may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement. (8) A lessor or lessee, or former lessor or lessee, who suffers loss or damage by reason of unconscionable conduct of another person that is in contravention of this section may recover the amount of the loss or damage by lodging a claim against the other person under section 71A. (9) If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum as it thinks fit. (10) In this section: "lessee" or "former lessee" includes a person who is a guarantor or covenantor under a lease or former lease.
The Tribunal is satisfied that the Lessor, Lessee and the Guarantor have standing and that the proceedings have been brought within 3 years of the causes of action arising in 2015. The Tribunal finds that it has jurisdiction to hear and determine both applications.

Consideration of the Facts

Ms Morris is or has been a director of companies operating other retail outlets selling self-serve frozen yoghurt. She is described by her counsel as being an experienced operator of such businesses.
In about May 2015 Ms Morris entered into negotiations with Ms Todaro, as the lessor's agent, in regard to premises at Lot 3, Ground Floor, 283 George Street Sydney (called in these reasons for decision "the Premises") for the purposes of operating a retail outlet from the Premises to sell self- serve frozen yoghurt, toppings and associated condiments. Much of the negotiation was conducted by email and those emails are in evidence before the Tribunal. The details of those negotiations are critical to the Tribunals consideration of the application and relevant parts are set out
On 22 May 2015 Ms Morris offered to lease the Premises on the following terms: Rent per annum = $150,000.00 (including outgoings) plus GST Lease Term = 5 years (option 1+2+2) Lease Start Date = 1/7/15 Rent Free = 4 months Annual Increases = CPI Bank Guarantee = 2 Months
On 27 May 2015 Ms Todaro responded to Ms Morris's offer by email advising that the Lessor's instructions were that it would agree to rent the Premises to Ms Morris on terms as follows: Rent per annum = $150,000.00 (including outgoings) plus GST Lease Term = 5 years Lease Start Date = 1/7/15 agreed Rent Free = 4 months- not agreed. The lessor will give you 2 months' rent Free and two months at half rent (three months' rent free in total) Annual Increases = CPI- Not agreed 4% inclusive of GST Bank Guarantee = 2 Months- Not agreed 3 Months.
Ms Morris, the Lessee's designer, Edward, and Ms Todaro met at the Premises on 29 May 2015. After the meeting at 6 pm that evening Ms Morris sent to Ms Todaro an email advising: …Considering that most food outlets are on the other side of George Street, it is important we make a business decision of optional lease term of 1 + 2 + 2. We obviously do not intend to invest so much money only to vacate in a short while, however, we find this necessary at this stage. Secondly, we believe that the annual increase of 4% is too high. We would make a counter offer of either 3% or CPI. Thirdly, our Fitout is usually well detailed, and would probably take us a bit of time to finalise things, can we have a 3 month rent free and a month's half rent. Fourthly, a bank guarantee of 2 months is only fair, knowing that the rent is on the high side; which would generate a substantial deposit. Finally, our company has both summery and wintery products. We often introduce a quick self-serve mini breakfast during winter (coffee, waffle, pancake, muffins etc) we have machines that disperse these. Our main business though is the self-serve frozen yoghurt and fresh juice. Which (I) am sure you have seen on our Facebook page. Our intended trading hour(s) would be 10-11pm as most people want to eat desert with their friends then. Thanks again for your time today and hope to hear from you soon.
On 1 June 2015, Ms Todaro replied to Ms Morris's email of 29 May 2015 as follows: 1)The lessor has agreed to the 5 year term with the option you have, however, a market review will be conducted after each option period. 2)The annual increase of 3.64% plus GST in (sic) not further negotiable 3)The Rent Free period of 2 months' rent free plus the third and fourth months at half rent is not further negotiable. 4)The bank guarantee of 3 months is not further negotiable. 5)The trading hours of 10.00am - 11.00 pm is acceptable. I have also further enquired about getting water in to the premises. This is possible however, you will a pump system to bring in and out the water (sic).
On that day, 1 June 2015, Ms Morris sent a further email to Ms Todaro as follows: We are happy with the proposal, however, for us to proceed, the following would need to be taken care of: 1) We're not keen on the market review after the first option period, nonetheless, we're happy to change to 2+3 instead of 1+2+2. 2) Our understanding was that there was water supply in the premises. If not, please kindly ensure that you arrange for a proper water supply to the premises prior to finalising the lease.
On 3 June 2015 Ms Todaro replied to Ms Morris and advised: The lessor has come back to me and has advised they are not prepared to negotiate on the points any further: The situation with the water was cleared up with me after our meeting and was advised that this was the way that the previous business was able to extract water into the premises. It may be beneficial to you to have your designer/Architect or builder take a look at the premises so we may move forward.
On that day, 3 June 2015 Ms Morris replied to Ms Todaro as follows: Alright, we can deal with the water issue, but can you tell them about our change of option? There would be 2+3 instead. Please we would like to finalise as soon as possible.
Ms Todaro replied again on that day saying: I have discussed the changed option with the lessor and they have agreed with the 2+3 year option. Also I have discussed with the lessor today about the water and I have been advised that a Strata Meeting held yesterday it was agreed by the owners corporation that a by-law for your lot will be drafted to allow water to be fed directly into the tenancy. Once this by-law has been approved by the Owners Corporation it will be registered and able to be enforced. The plumbing work would undoubtedly be at the expense of the lessee. If you are happy to proceed, could you please fill out the application form and return it back to me so we may check through your references.
On 4 June 2015 Ms Morris replied to Ms Todaro sending a completed tenants application form and saying: Form attached. Just to clarify, it's R M Brothers, but trading as House of Yogurt. Same company/director though. We are currently doing the same at Eastgardens.
On 16 June 2015 Ms Todaro sent to Ms Morris a "Lease Advice Notice", asked for Ms Morris to sign and return it and requested that Ms Morris pay a deposit of $13,750 to be paid into her businesses trust account. The Lease Advice Notice stated (only facts relevant to the issues are reproduced): Property Address: Lot 3, Ground Floor, 283 George Street Sydney Lease Term: Five (5) years Option Period: 2 years + 3 years Initial Rental: $150,000 per annum plus GST Note-1st September 15 rent is $6250.00 plus GST & 1 October 15 rent is $6250.00 plus GST. 1st November 2015 rent is full month instalment of $12,500.00 plus GST. Lease Commencement: 1st July 2015 Rent Commencement: 1st September 2015 Increases: 3.54% plus GST on the anniversary of the lease. Use: Frozen Yogurt Sales Guarantees: 3 Month Bank Guarantee Special Conditions: In the event that the lessee decides to not proceed with the lease, then the lessee agrees to pay the lessor's solicitor's costs for preparing the leases.
Ms Morris made amendments to the Lease Advice Notice under the heading Üse" after the word "Sales" by adding in hand writing the words "+associated toppings/juice/soft drinks/water + breakfast +HOY merchandise", signed it, dated it and returned an emailed copy to Ms Todaro on 19 June 2015.
Ms Morris paid the deposit of $13,750.00 by electronic funds transfer on 18 June 2015.
On 17 July 2015 in response to Ms Morris's enquiry about when she would receive the draft lease for approval, Mr Todaro advised that: Ï spoke to the solicitor yesterday and he is waiting for a piece of information from the Lessor regarding the water. The lease will be with your solicitor by Tuesday which is the minimum required time for the lease to be handed over.
The Lessee and Ms Morris as Guarantor executed the lease in respect of the Premises on or about 15 August 2015 after receiving advice from their solicitor. The relevant details of the lease generally are: Term: Five (5) years Commencing Date: 15 August 2015 Terminating Date: 14 August 2020 Option to Renew: a period of 2 years with a further period of 3 years Permitted use: The Premises must be used only as a: Shop for the retail sale of frozen yogurt and associated toppings, juice, soft drinks, water, breakfast and "House of Yogurt" branded merchandise. Rent: Except as otherwise provided the rent is (i)ANNUAL RENT: $150,000.00 per annum exclusive of GST to be paid in advance equal monthly instalments of (ii)MONTHLY RENT: $12,500.00 exclusive of GST Rent Review Dates: On each anniversary of the commencing date of this lease. Rent review method: Fixed Percentage Increase of 3.64% Bank Guarantee: An amount equivalent to 3 months rent inclusive of GST from time to time
The Lease included two particular covenants, particularly relevant to the Lessee's claim: 30.1 Rent Free Period (a) Notwithstanding any other provision of this Lease, the Lessor agrees that the Lessee is not required to pay rent for a period of two (2) months during the period commencing 15 August 2015 and ending 14 October 2015 (Rent Free Period). (b) For the avoidance of doubt, utilities for the Premises are payable during the Rent Free Period 30.2 Rent Reduction Period (a) Notwithstanding any other provision of this Lease, the Lessor agrees that the Lessee shall pay a reduced monthly rental of $6,250.00 plus GST for a period of two (months during the period of 15 October 2015 and ending on 14 December 2015 (Rent Reduction Period). (b) For the avoidance of doubt, utilities for the Premises are payable during the Rent Reduction Period… 31.1 Lessor Disclosure The lessor discloses and the Lessee acknowledges that at the commencing date of this lease the Premises is not connected to the water supply and associated drainage of the building. 31.2 Water Connection Works (a) Subject to complying with the requirements set out in clauses 11.3(a), 11.10 and 27.3(c) the Lessee may at is (sic) sole expense arrange a direct water connection to the Premises with associated drainage or access the building's water supply to the Premises with the installation of a pump device (Water/Drainage Works) according to such terms and conditions specified by the Lessor (acting reasonably), the owners corporation and any associated by-laws created for such purpose. (b) The Lessor must not unreasonably withhold its consent to the Water/Drainage/Works proposed by the Lessee and must use reasonable endeavours at the Lessee's expense to support and facilitate the Lessee obtaining the owners corporation's consent with respect to such Water/Drainage Works proposed
At a meeting at the Premises on 21 August 2015, it is Ms Morris's evidence that she supplied to Ms Todaro plans and diagrams that were the same plans used for the Complying Development Certificate ("CDC") regarding the proposed plumbing works. These being the same plans and diagrams approved by the Owners Corporation in authorising the plumbing works at the Premises and to be approved at the meeting of the Owners Corporation on 24 November 2015. Although at first Ms Todaro's evidence was that she could not recall the meeting of 21 August 2015, she changed her evidence under cross examination that the first time she received the plans was in November 2015 when she passed them to the Lessor for approval.
The Lessee contends that Ms Todaro's evidence in her affidavits of 27 September 2016 and 23 December 2016 was changed during cross examination from denying she had received any plans from the Lessee before the commencement of the lease, before the by-law was prepared and not before 2016. Ms Todaro said she received the plans after the downstairs tenant had denied access to the Lessee to carry out the work in 2016. Under cross examination she agreed that her evidence in her affidavits was not true.
The Lessor submits that Ms Todaro's evidence can be relied upon by the Tribunal. Her evidence was given truthfully. The times that she made concessions in cross examination were the mark of an honest witness. Her evidence was consistent with and corroborated by "contemporary materials, objectively established facts and the apparent logic of events" and should be accepted: Fox v Percy [2003] HCA 22; 920030 214 CLR 118 at [31]. This is in contrast to Ms Morris's evidence where she was an advocate for her own cause, giving lengthy and unresponsive answers designed to plainly further the interests of the Lessee "without regard to where the truth lay".
The Tribunal finds that Ms Morris's evidence given directly and unequivocally is preferred to Ms Todaro's erroneous written evidence which she sought to correct during cross examination. On that basis, the Tribunal finds that on the balance of probabilities Ms Morris's evidence that the plans and diagrams of the proposed plumbing and electrical works were given to Ms Todaro on 21 August 2015.
On 31 August 2015 Ms Morris notified Ms Todaro that her father had died overseas and through her solicitor sought an extension of time for the handover date so that she could grieve and make his funeral arrangements. On 2 September 2015 the Lessee's solicitor advised Ms Morris that the Lessor would not agree to an extension of the handover date.
On 1 October 2015 Ms Morris requested from Ms Todaro documents and consent from the Lessor so that she could obtain the CDC.
Ms Todaro responded on 7 October 2015 saying that she had requested the Centre Plan and Annual Fire Safety Statement for the Common Property needed as part of her application for the CDC and would provide them when they were received. Later that day Ms Morris reminded Ms Todaro that she was still waiting for the Lessor's consent to the works.
During Ms Todaro's leave, another staff member of the Lessor's managing agent, Ms Docker, provided Ms Morris with the Annual Fire Safety Statement and nothing else that had been requested, importantly, the letter of consent from the Lessor for the CDC.
By 27 October 2015, Ms Morris became increasingly concerned at the lack of responsiveness from Ms Todaro resulting in delay to commencement of the building fit out works. In an email on that day, Ms Morris also requested a swipe card for access to the building for her contractor, contact details for the tenancy beneath the Premise and the base building security contact details..
Ms Todaro responded on 28 October 2015 saying that: 1. The Lessor's position about delaying commencement of the Lease remained that no concession would be made; 2. The swipe card is with the lessor and it will hand it over as soon as possible; 3. Questioning the need for the tenant below details and stating that Ms Todaro's company managed that tenancy and any correspondence with that tenant could be through Ms Todaro; and, 4. She had requested the security details and would forward it when she had it.
Ms Morris's frustration in the lack of response from the Lessor is expressed in her email to Ms Todaro on 29 October 2015 with a plea to provide what she has requested to allow the CDC to be obtained and the works completed to enable the Lessee to commence trading from the Premises. There was no response to this email from Ms Todaro. Under cross examination Ms Todaro could not explain the failure to respond and agreed when put to her that she was responsible for delay she replied "not in totality" and then if the Lessor was responsible for the delay she replied "it could be, yes".
Ms Morris's and the Lessee's counsel submits that it is open to the Tribunal to infer that the failure by the Lessor to give direct evidence on this point or at all is that any evidence that it could give would not have assisted its case.
On this question of fact the Tribunal is satisfied that it can infer that some delay in providing Ms Morris and the Lessee with the requested documents and consent to the CDC was caused by both Ms Todaro and the Lessor, but only to the extent referred to later in these reasons.
On 30 October 2015 Ms Todaro sent to Ms Morris the signed CDC signed consent by email and invited her to attend Edge Property Group's office to collect the swipe key. The Principal Certifying Authority ("PCA") issued the CDC on 31 October 2015, one month after Ms Morris's first request for the information needed to allow it to be issued.
Ms Morris again expressed her frustration and stating in her email to Ms Todaro that she felt that she had been "set up for failure" due to the delays by the Lessor and Ms Todaro in responding to requests for documents and consents to allow fit out work to be commenced and the failure to provide information, such as the Owners Corporation managers contact details.
Ms Todaro's evidence is that she justified the delays in responding to Ms Morris by saying that Ms Morris was not ready to start building.
On 3 November 2015 Ms Todaro requested from the Lessee's building contractor, Blade Developments, a general description of the works and a technical description of the works affecting the common property to assist the solicitor preparing the by-law. On that same day, the builder provided the requested description, caused the PCA to send the Plans in pdf form and referred to the "Electrical and Hydraulic Plan Sheet 106".
On 9 November 2015 Ms Morris sought from Ms Todaro the Lessor's consent to a City of Sydney Application for Development to extend the trading hours of her proposed business. The Lessor failed to provide such consent at all.
On 24 November 2015 the Owners Corporation passed the by-law authorising the works carried out and to be carried out by the Lessee.
The Lease provided that there was a rent free period from 15 August 2015 until 14 October 2015 and then reduced rent from 15 October 2015 until 14 December 2015 at half the monthly rate. The deposit paid by the Lessee of one month's rent of $13,750 should have been applied to the rent for 15 October 2015 until 14 December 2015.
Between the period 5 November 2015 and 3 December 2015 Ms Todaro erroneously sent Ms Morris five rent demands with demands that unless they were paid then termination of the Lease, lockout or drawing on the bank guarantee would follow.
Ms Morris responded to the demand reminding Ms Todaro that no rent was due until 15 December 2015 and that she also sought a rent waiver under the circumstances of the delay caused by the Lessor in failing to respond to the Lessee's requests in a timely manner.
Ms Todaro submits that the sending of the demands for non-payment of rent was a genuine mistake caused by an error in the rental ledger that automatically generated rent demands without taking into account the rent free and half rent periods and that any suggestion otherwise should be rejected by the Tribunal.
On 22 December 2015 Ms Morris's builder advised her that the tenant of the premises ("Lot 1") beneath the Premises had refused access to allow pipework to be installed on the ceiling of the Lot 1. Ms Morris reported the tenant of Lot 1's refusal to allow access. Ms Todaro requested that Ms Morris leave it to her to negotiate with the tenant. Ms Todaro did not respond to Ms Morris until 19 January 2016 saying that the tenant of Lot 1 continued to refuse access to allow the pipes to be installed. Ms Todaro also said that: The lessor will enforce their rights under the lease to allow the access however, this may take time. Has your designer considered raising the floor level within the wet area which would minimise impact to the basement tenant? If this is an option, this may speed the process up.
The evidence before the Tribunal is that Lot 1 is owned by Sebastiana Todaro, the director of the Lessor and mother of Ms Todaro.
On 22 December 2015, the fit out of the Premises was nearly complete, but without the pipework being installed through Lot 1, the work could not be completed and the Lessee was unable to trade from the Premises.
On 1 February 2016, in an email to Ms Morris, Ms Todaro said that to gain access to Lot 1 would be a legal matter and that she did not know how long the process would take and suggested that Ms Morris's designer could provide alternate plans for the pipework to minimise or eliminate the impact on Lot 1.
Ms Morris's and the Lessee's counsel submits that Ms Todaro in cross examination responded at this point she was attempting to induce the Lessee to remain as a tenant, while at the same time conveying to Ms Morris that the Lessor would enforce the right of access to Lot 1. She was clearly attempting to communicate to the Lessee that the impediment caused by failure to gain access to Lot 1 would come to an end and that a right to access could be legally enforced.
The Lessor contends that at no stage did the Lessee submit plans using a "pump system", which the Lessor says was what was specifically contemplated as the means by which water was to get to and from the Premises.
On 9 February 2016 Ms Todaro sent a rent demand to Ms Morris for the rent from 15 December 2015 until 14 February 2016, to which Ms Morris responded to the effect that the Lessee should not be expected to pay rent in the circumstances while waiting for the Lessor to exercise its legal rights to remove the obstruction caused by the tenant of Lot 1. In response Ms Todaro, said on 12 February 2016 that the rent of $27,500 is overdue and that for the first time claimed that the fit out "has not been approved on reasonable grounds".
On 12 February 2016 the Lessor re-entered the Premises and the Lessee was locked out. The Lessor terminated the Lease by re-entering the Premises.
Following the termination of the Lease, a meeting was held at the offices of Edge Property Group on 19 February 2016 attended by Ms Morris, Ms Todaro and the principal of the Edge Property group, Mr Achilles Peshos. . Generally at that meeting the problem of the pipes entering Lot 1's premises were discussed and Ms Morris left the meeting to consider alternative plans. On 1 March 2016 Ms Morris's builder sent to Ms Todaro alternate plumbing plans for the Lessor's approval. Ms Todaro replied to Ms Morris's emails seeking an update on the progress of Lessor's approval that she was "awaiting the Lessor's response".
Without warning, on 15 March 2016 Ms Todaro sent to Ms Morris a Termination letter notifying her that the Lessor will not be "re-entering into an agreement with R M Brothers".
Between 15 and 23 March 2016 the Lessor drew down the Bank Guarantee in the amount of $41,250. Ms Morris submits that to do so alone, under the circumstances was unconscionable, but when considered in the light of the Lessor's delay with regard to supplying documents and consent needed for the CDC so that the fit out works could commence, the refusal to sign the late night trading application form, the erroneous rent demands and refusal to negotiate with the Lessee further regarding the alternate plumbing plans, after inviting Ms Morris to submit such plans, all amount to unconscionable conduct under the Act: section 62B of the RLA and Attorney General New South Wales v Worlds Best Holdings Ltd (2001) 63 NSWLR 557 at 553.
The Lessee submits further that in making a finding of unconscionable conduct the Tribunal may have regard to applicable industry codes; Section 62B(g) of the RLA. Specific industry codes relating to Real Estate Agents and their conduct or representations may impute unconscionable conduct on a Lessor; Putri Kenanga Pty Ltd v Pham [2009] NSWADT 301 at [166]. Where a Lessor obstructs a Lessee from fulfilling its obligations under the lease by unreasonably withholding consent for a development application, may amount to unconscionable conduct; World Best Holdings Ltd v Sarker [2010] NSWCA 24 at [87], [92].

Lessor's disputed facts

The Lessor contends that at the meeting on 29 May 2015 Ms Todaro denies she said words to the effect of "water will not be a problem; I will do everything in my power to facilitate the installations being completed properly". In her evidence Ms Todaro says about the water issue "should not be an issue as a previous business [being hair salon] was able to get water into the premises and that they used a pump to direct it out of the premises, with permission of the owners corporation". The Lessor submits that Ms Todaro's version should be accepted as it is consistent with the subsequent email exchange and contractual documentation as follows: 1. The 1 June 2015 exchange of emails included an email from Ms Todaro advising Ms Morris that "I have also further enquired about getting water in to the premises. This is possible however you will need a pump system to bring in and out the water" to which Ms Morris replied "Our understanding was that there was water supply in the premises, if not, please kindly ensure that you arrange for a proper water supply to the premises prior to finalising the lease" 2. In the exchange of emails of 3 June 2015 Ms Todaro's: 1. said "the lessor…has advised they are not prepared to negotiate further on the points any further." The Lessor contends that this was in response to the Lessee's issue with the water supply amongst other things. 2. Told Ms Morris that "this was the way the previous business was able to extract water into the premises", contended to be a reference to the hair salon using a pump system to extract water; 3. Was responded to by Ms Morris "Alright, we can deal with the water issue…" 4. Further replied to Ms Morris: 5. "..I have discussed with the lessor today about the water and I have been advised that at a Strata Meeting held yesterday it was agreed by the owners corporation that a by-law for your lot will be drafted to allow water to be fed directly into the tenancy. Once this by-law has been approved by the Owners Corporation it will be registered and able to be enforced. 6. Plumbing work would undoubtedly be at the expense of the lessee".
The Lessor further submits that: 1. The Lessors disclosure statement which Ms Morris as director of the Lessee acknowledges she received, described the Lessee's fit out works as "Water connection and associated drainage works as set out in clause 31 of the Lease"; 2. The Lessee's disclosure statement, which Ms Morris signed and in which she represented that "no…promises, representations, warranties or undertakings (other than those contained in the Lease) have been made by the lessor to the lessee in respect of the premises or the business to be carried out on the premises". 3. On 13 August 2015 the Lessee signed the Lease and Ms Morris signed as guarantor in her personal capacity. Clause 31 is included in the signed lease and it provides: 1. At Clause 31(a) that at the commencing date "the Premises is not connected to the water supply and associated drainage of the building"; and 2. The Lessee was permitted at its expense to arrange "a direct water connection to the Premises with associated drainage or access to the buildings water supply with the installation of a pump device". 1. The lease commenced on 15 August 2015. 2. The Lessor contends that Ms Todaro sent text messages to Ms Morris on 20 and 24 August 2015 to "arrange for a handover". The Lessor contends that those messages provide strong corroborative evidence of Ms Todaro's evidence that she did not meet Ms Morris on 21 August 2015 and she was not provided with plans on or about that date. 3. Ms Todaro sent another text message on 15 September 2015 "just wondering how you were going and if you are ready for us to handover to you yet?" 4. Until 13 October 2015 Ms Todaro was on leave. On that day Ms Morris's email to Ms Todaro's assistant, Ms Docker included an "attached design for our store". The Lessor contends this is the first time that the Lessee had provided an emailed copy of the plans. These plans did not contain a hydraulic design. 5. On 12 October 2015 The Lessee's builder gave a quote to the Lessee for the carrying out of the fit out. The Quote excluded "[a]ny work beyond the property boundary". 6. On 22 October 2015 the Lessee's private certifier for the fit out works sent an email to Ms Docker asking for the Lessor to sign the consent for the application for a complying development certificate for the fit out works.

Breach of an implied term

The Lessee submits that a necessarily implied term of the Lease was that rent would not be payable until the Lessee could procure water being fed directly into and out of the premises, provided that the lessee had taken all reasonable steps for that purpose. The Lessee was defeated in its steps to take all reasonable steps by reason and circumstances beyond its control, but attributable to the Lessor. It is implicit that the Lessee should not be obliged to pay rent without obtaining any benefit from the Lease. The premises were unable to be used for their permitted use.
The Lessee was delayed because of: 1. The failure by the Lessor to provide to the Lessee in a timely manner the consent to the CDC and associated papers in support of the CDC; 2. The delay in the by-law authorising the works to proceed;
The Lessee further submits that the erroneous demand for rent prior to 14 December 2015 when the Lessee had paid its rent for that period and the demand for rent on 9 February 2016 made when the Lessor caused the delays were invalid. The termination notice based on the non- payment of rent was therefore also invalid.

Damages and Lessee's Loss

The Lessee submits that it suffered loss as a result of the Lessors unconscionable conduct and wrongful termination of the Lease as claimed in the Lessee's Application except that is amended as follows and seeks leave to do so: 1. The claim for three twin twist top Yogurt Machines in the amount of $30,709.57 is not pressed;
The Tribunal granted leave for the Lessee to amend its claim by reducing it claim from $278,858.38 by $30,709.57. The amount claimed by the Lessee is $248,148.81.

Lessor's response to Lessee's case

The Lessor responds to the Lessee's by denying the Lessee's claim and contends that the Lessee's application should be dismissed with costs.
The Lessor submits that the Lessee seeks to avoid its obligations under the Lease by relying on three arguments: 1. That an implied term of the Lease relieves the Lessee from its obligation to pay rent; 2. By an argument that an allegation of misleading and deceptive conduct in breach of s 10 and or s 62D of the RLA; and , 3. By an allegation of unconscionable conduct in breach of s62B of the RLA
The first argument is that the implied term alleged by the Lessee does not satisfy the conditions necessary for the implication of a term as set out in BP Refinery Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 282-283 approved by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 919820 149 CLR 337 at 347 That is it is it: 1. Must be reasonable and equitable; 2. Must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; 3. Must be so obvious "it goes without saying"; and 4. Must be capable of clear expression; 5. Must not contradict an express term of the contract, namely the obligation to pay rent.
The Lessor submits that the suggested implied term ("term") is incapable of satisfying those requirements.
The term is neither reasonable nor equitable. The Lessee had an express contractual right to get water into and out of the Premises using a pump system. Where the Lessee chose to not use the permitted pump system does not imply a term that an alternative system be used that required the approval of both the Lessor and an adjoining lot owner; 1. The term is not necessary to give business efficacy to the contract. The Lease contained a provision in clause 31 that specifically referred to the use of the pump system to allow water into and out of the Premises. 2. The term is not so obvious that "it goes without saying" The Parties contemplated the water issue and the Lessor expressly allowed the Lessee to take water into and out of the Premises using a pump system. It does not go without saying that the Lessee should not be able to avoid paying rent because it proposed a design to take water into and out of the Premises which did not use a pump system as expressly contemplated by clause 31 of the Lease. 3. The term contradicts the express term in the Lease to pay rent monthly in advance. 4. The Lessee has not satisfied the test in BP Refinery Westernport) Pty Ltd v Shire of Hastings and therefore its claim for the implication of a term should be dismissed.
Secondly, the Lessee has not established that the Lessor has engaged in misleading and deceptive conduct in breach of either s 10 or s 62B of the RLA. The Lessor contends that:
S 10 of the RLA requires intentional misleading and deceptive conduct, a proposition that the Lessor says was not put to Ms Todaro and on no view of the evidence can be made out;
The conduct of Ms Todaro must be viewed: she was a third party conducting negotiations with an apparently successful businesswoman. The Lessor contends that at all times Ms Todaro understood that the Lessee and Ms Morris were acting with the benefit of legal advice, accounting advice and design advice. The Lessee relied on its advisors and not Ms Todaro to ensure that the plans that it had for the premises were capable of implementation in accordance with the terms of the Lease.
The disclosure statement signed by the Lessee contains an express acknowledgement that the Lessee had not relied on any representation by the Lessor;
There is no suggestion that the Lessee was misled about how water could be brought into and out of the Premises. Clause 31 of the Lease provides "direct water connection to the Premises with associated drainage or access the building water supply with the installation of a pump device". The Lessor contends that this is how a previous hairdressing lessee had obtained and drained water from the premises.
For the Lessee's claim to succeed under s 10 of the RLA there must have been "false or misleading statement or representation made by the party or any person acting under the party's authority, with knowledge that it was false or misleading". The Lessor contends that:
It was not put in cross examination that Ms Todaro intentionally made a misleading statement to Ms Morris. It is a serious allegation and it should have been put as a matter of fairness before a finding to that effect can be made: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11: 243 CLR 361 at [67];
There is no basis in the evidence for such a finding to be made. The evidence is unequivocal that Ms Todaro throughout referred to the need for a "pump system", in emails, the disclosure statement and the contractual terms contained in the Lease.
Further, whether the claim is under s 10 or section 62D of the RLA, there must be a causal link between the alleged conduct and loss and damage allegedly suffered by the Lessee.
The Lessor cites Choo v Zhang [2016] NSWCA 193 in regard to s 18 (1) of the Australian Consumer Law (in similar terms to s 62D of the RLA) as setting out the principles in relation to a claim for misleading and deceptive conduct. That is (at [55]):
It is necessary to identify the contravening conduct;
to determine whether there is a causal connection between the conduct and the loss or damage allegedly suffered by the claimant:
That requires a sufficient link to be established between the misleading conduct and errors made by persons exposed to the conduct.
In Choo v Zhang the Court of Appeal cited: 56. Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 French CJ where he said that: "[T]he question of whether conduct is misleading or deceptive within the meaning of s 18(1) [of the ACL] is logically anterior to the question of whether a person has suffered loss or damage thereby. An answer to the first question generally requires consideration of whether the impugned conduct as a whole has a tendency to lead a person into error. Where the conduct involves dealings between individuals, as the present case, characterisation of the conduct requires objective consideration of the circumstances and context of the impugned conduct, which may include the knowledge of the person to whom the conduct is directed". 57. McHugh J explained in Butcher v Lachlan Elder Realty Pty Ltd, in reference to a document said to be misleading or deceptive, that: "The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s52 [of the Trade Practices Act 1974(Cth) has occurred, the task of the court is to examine the relevant course of conduct in light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporations conduct. The effect of any relevant statements or actions or any silence must be deduced from the whole course of conduct. Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole. The court is not confined to examining the document in isolation. It must have regard to all the conduct of the corporation in relation to the document including the preparation and distribution of the document and any statement, action, silence or inaction in connection with the document" 58. It is, however, important to appreciate that whether or not a person contravenes s 18(1) of the ACL is not necessarily answered simply by asking whether the person's conduct in fact misled someone else, although evidence to that effect might be significant. Misleading conduct may take many forms and is not confined to representations. But in a cae where the impugned conduct was misleading or deceptive ordinarily must be determined by what a reasonable person in the position of the representee would have made of the representations, taking into account all relevant circumstances. 59. It is true that there are many cases which turn on what the representee makes of the representations, whether or not the representee acts reasonably. The majority in Butcher v Lachlan Elder Realty Pty Ltd gave as an example a case where a representor with commercial experience knows that the representee has limited experience and is acting without professional advice in rushed circumstances. Nonetheless, the impugned conduct viewed as a whole must be capable of leading the representee into error.
In Miller & Associates v BMW Australia [2010] HCA 31, 241 357, French CJ and Keifel J said as [14]: "In determining whether there has been a contravention of s 52 of the Trade Practices Act, it is necessary to determine 'whether in the light of all the relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive' [a reference to Demagogue Pty Ltd v Ramensky [1992]FCA 557; 919920 39 FCR 31 at 41]". The Lessor submits that having regard to Ms Todaro's conduct as a whole and in all the circumstances there was no misleading or deceptive conduct".
The Lessor contends that when Ms Todaro's conduct is considered as a whole and in all the circumstances, there is no misleading and deceptive conduct, namely: 1. Ms Todaro repeatedly referred to in the correspondence the need for a "pump system". 2. Ms Todaro was not a builder or an architect and her knowledge about water supply was based on how the previous tenant had brought water into the Premises; 3. Ms Todaro understood that Ms Morris had a designer drawing up plans who had attended the Premises on 29 May 2015 and Ms Morris had said to Ms Todaro "we can deal with the water issue"; 4. Ms Morris and the Lessee were at all times acting with the benefit of design advice, legal advice and accounting advice; 5. On behalf of the Lessee, Ms Morris acknowledged in the disclosure statement that the Lessee had not relied on any representations by the Lessor; 6. Clause 31 of the Lease expressly contemplates that the Lessee would arrange water to and from the Premises via a pump device; 7. It was within the Lessee's power to proposes a water solution as contemplated in the lease and did not intrude into Lot 1's space; 8. It was open to the Lessee before entering into the Lease to negotiate intrusion into Lot 1, but throughout all the negotiations accepted the pump system as the method to water and drain the Premises.
There is no implication that the Lessor's conduct was misleading conduct. The representations by the Lessor were explicit in all regards, that the water into and out of the Premises would be by a pump system that did not involve penetration of Lot 1's space.
The Lessor submits that the claim by the Lessee that the Lessor's conduct was unconscionable within the meaning of s 62B of the RLA is without foundation and should be dismissed.
The Lessor submits that it is important to recognise the limits of statutory unconscionability. It is not a concept of fairness or justice or good conscience requires in the particular circumstances of the case. Restraint in judicial decision-making is appropriate: Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261 at [121]. A court will only make a finding that conduct is unconscionable if a party has engaged in conduct that involves some moral fault or responsibility, which would normally involve a deliberate or at least a reckless act: Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491; [2003] FCA 850. The Lessor contends that nothing in the Lessor's or Ms Todaro's conduct would justify a finding to that effect. The Full Federal Court said in Hurley v McDonald's Australia Ltd (2000) 22 ATPR 41-741, 40 585 in relation to s51C of the Trade Practices Act: "For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated…Whatever "unconscionable" means in s51AB and s 51AC, the term carries the meaning given by the Shorter Oxford Dictionary, namely, actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable … the various synonyms used in relation to the term "unconscionable" import a pejorative moral judgement."
To be regarded as "unconscionable". The conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably: Tonto Home Loans Australia Pty Ltd v Tavares [2011]NSWCA, (2011) 15BPR 29,699 at [291]; Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; the conduct must be irreconcilable with what is right or reasonable; Tonto Home Loans Australia Pty Ltd v Tavares; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [1996] FCA 1483; (1996) 66FCR 246 at 262; and factors similar to those that are relevant to the Contracts Review Act 1987; Spina v Permanent Custodians Ltd [2009] NSWCA 206 at [124]. Without limitation, the range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of the vulnerability or lack of understanding, trickery or misleading conduct: Tonto Home Loans Australia Pty Ltd v Tavares; and a finding requires an examination of all the circumstances: Tonto Home Loans Australia Pty Ltd v Tavares.
To establish the "moral obloquy", the conduct will usually involve some deliberate wrongdoing, although there may be cases of recklessness, including wilful blindness, is sufficient: Violet Home Loans Pty Ltd v Schmidt & Anor [2013] VSCA 56 at [58], [62].
The Lessor submits that nothing about the Lessor's (or Ms Todaro's) behaviour satisfies these statements of principle to establish unconscionable conduct.
In relation to the factors that the Tribunal is required to have regard to in s62B(3) of the RLA when considering whether the Lessor has engaged in unconscionable conduct the Lessor submits that: 1. There was no disparity in the bargaining power of the Lessor and the Lessee. Ms Morris is an experienced operator of similar businesses; she ran another House of Yogurt business at Hurstville with her business partner; she used a trust structure to operate that business; she had attempted to open a further House of Yogurt store at Westfield Eastgardens in late 2013 and had bought equipment for that shop and she had an alternative site under negotiation in Redfern. 2. The Lessee was not required to comply with a term of the Lease that was not reasonably necessary for the legitimate interest of the Lessor. 3. Ms Morris' correspondence demonstrates an understanding of terms of the Lease and an ability to negotiate those terms and was represented by a solicitor at all times; 4. The Lessor did not engage in unfair tactics. The Lessee's complaint about the mistaken rental demands that were explained as an honest mistake. Other than these demands Ms Todaro took no other actions which had any adverse effect on the Lessee other than those that were legally justified under the Lease. A mistake for a demand subsequently withdrawn and apologised for is an honest mistake and not unconscionable conduct. 5. The Lessee could have acquired an equivalent lease from another lessor. At the time of negotiating this Lease she was also negotiating leases of sites at Redfern and Westfield Eatsgardens. 6. There is no evidence that the Lessee was treated differently to any other of the Lessor's lessees. 7. The Lessee does not particularise its complaint about any breach of any industry code; 8. There was no unreasonable failure by the Lessor to disclose anything. At all times the Lessor disclosed to the Lessee and Ms Morris in prior email correspondence, the Disclosure Statement and the Lease that water into and out of the Premises would require a pump system.
The Lessor submission in regard to its complaint that the Lessor engaged in unconscionable conduct is contained in the factual account set out in the Lessee's submissions and the Lessor answers that factual account as follows: 1. It was not the Lessor or Ms Todaro's role to review plans of the fitout to ensure they were capable fo being built, that was the role of the Lessee's designer. When the problem with access to Lot 1 was identified in 2015, the Lessor submits that Ms Todaro tried to solve the problem, as such, such conduct was not unconscionable; 2. The delay with regard to the CDC relied upon by the Lessee as a foundation for finding unconscionabilty of about 1 month ignores what took place. In that time the Lessee changed certifiers on 15 October 2015 and the new application was provided to Ms Docker on 22 October 2015 and the application signed by the Lessor was returned by Ms Todaro on 30 October 2015. Such a time was not unreasonable. Other factors contributed to the delay including MS Morris's need to travel overseas for significant family reasons; insurance as required under the Lease being obtained only on 12 October 2015; the building quote only being obtained on 12 October 2015 and the bank guarantee required under the Lease being obtained on 17 October 2015. 3. The complaint about the delay in providing a swipe card, only received by the Lessee on 31 October 2015 was only requested on 27 October 2015 and has no causal significance and is without real foundation. The builders permitted work hours were from 7am to 3:30pm. Any delay in providing the out of hours common property swipe card, small as it was would not hamper the works because of the limited hours of work in any case. 4. The Lessors contention that the Lessors failure to accept the alternative plans after the Lease had been validly terminated was unconscionable is without basis. The Lease had been terminated and the Lessors obligations to the Lessee had ended. The Lessor through its agent to have discussions after the termination demonstrated a willingness to attempt resolution of the dispute. The Lessee's refusal to pay rent after the rent holiday was evidence of the Lessee's intransigence. In those circumstances the Lessor was justified in relying on its legal rights. 5. The Lessor's submission in regard to it not engaging in misleading and deceptive conduct demonstrates that it did not engage in unconscionable conduct.
Thirdly, the Lessor contends that the Lessee has not established that the Lessor has engaged in unconscionable conduct in breach of s64B of the RLA. The Lessor directs the Tribunal's attention to its submission set out in paragraph 72 (a)-(d) above to support its contention that nothing about the Lessor's conduct could be said to demonstrate the high level of moral obloquy required to justify a finding of unconscionable conduct: Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389, (2011) 15 BPR 29,699 at [291].

Lessor's submission on Damages

The Lessor submits that the damages claimed by the Lessee is unable to be supported by the evidence as: 1. The claim for the designers fee of $7,700 is invoiced to George Chalhoub and it is his obligation; 2. The claim for payouts to Capital Finance of $41,351.72 and to the Thorn Group Ltd of $30,709.57 were both obligations of House of Yogurt Pty Ltd; 3. The claim for plastic spoons, cups, lids and custom costs for $5,450 and $4,732.30 were obligations of House of Yogurt Pty Ltd; 4. The claim for legal fees for $8,997.50 was invoiced to Ms Morris and was her obligation; 5. The claim for accounting fees is not supported by an invoice to prove the claim; 6. The claim for equipment purchased by House of Yogurt Pty Ltd was for the Eastgardens store; 7. The claim for loss of profits in an amount of $40,000 by "reference to the Business Plan" is no proof of the damages alleged to be suffered. There was no other evidence to support the claim.

Lessors claim

The Lessor submits that the Lessee has breached the Lease by failing to meet its obligation to pay rent as it fell due on 15 December 2015 and 15 January 2016. The rent due on 15 December 2015 was $13,750.00 payable in advance until 14 January 2016 and then $13,750.00 payable in advance on 15 January 2016 until 14 February 2016. As at 15 January 2016 the Lessee was in arrears of rent under the lease in the amount of $27,500.00.
Despite serving notice of the breach of the Lease requiring the Lessee to pay the arrears of rent on 9 February 2016, the Lessee did not pay the rent arrears as demanded or at all.
The Lessee being more than 14 days in arrears of rent at 1pm on 12 February 2016 the Lessor became entitled to terminate the Lease by re-entry or notice and on the afternoon of 12 February 2016 the Lessor terminated the Lease by re-entering the Premises and changed the locks. The Lessor contends that pursuant to section 129(8) of the Conveyancing Act 1919 there was no requirement to issue a notice of breach before terminating the lease for non-payment of rent.
The Lessor further contends that on the date of termination the Lessor was vested with the right to loss of bargain damages: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] 157 CLR 17 at 31 where Mason J said that repudiation for fundamental breach entitles the innocent party to rescind the contract and sue for damages and loss of bargain.
In Shervill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620 Gibbs CJ at 626 and 627 referred to situations where there has been a breach of a fundamental or essential term of the contract in the following terms: In Suisse Atlantique Societe d'Armement Maririme S.A v NV Rotterdamsche Kolen Centrale (3) Lord Upjohn said: "A fundamental term of a contract is a stipulation which the parties have agreed either expressly or by necessary implication or which the genral law regards as a condition which goes to the root of the contract so that any breach of that term may at onceand without further reference to the facts and circumstances be regarded by the innocent party as a fundamental breach…' The test accepted in Associated Newspapers Ltd v Bancks [31], at p.337, is whether the term 'is of such importance to the promise that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor.'… It is clear that a covenant to pay rent isn advance at specified times would not, without more, be a fundamental or essential term having the effect that any failure, however slight, to make payment at the specified times would entitle the lessor to terminate the Lease. However, the parties to a contract may stipulate that a term will be treated as having a fundamental character although in itself it may seem of little importance, and effect must be given to any such agreement: see Wickman Tools v Schuler A.G [32], at p.251. In other words, a right to forfeit a Lease might arise 'in the case of covenant however trifling, if the parties had agreed that a breach of that covenant should create a forfeiture': Campbell v Payne and Fitzgerald [33], at p. 539 …"
In Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited (2008) 234 CLR 237 at 258-259; [2008] HCA 10 at [58] the High Court said: "Save for any applicable statutory requirements or rules of law, there is no reason in law why the general contractual principles do not apply to leases in this respect. Under the general contractual principles, an innocent promise can terminate the contract, and recover loss of bargain damages, where there is repudiation, or a fundamental breach, or breach of condition-ie a breach of an essential term. And under these principles it is possible by express provision in the contract to make a term a condition, even if it would not be so in the absence of such a provision- not only in order to support a power to terminate the contract, which the lessee concedes, but also to support a power to recover loss of bargain damages".
In the Lease in the present case, clause 32 stipulates that the obligation to pay rent in clause 4 was "an essential term of this Lease". The Lessee was in breach of an essential term of the contract, entitling the Lessor to loss of bargain damages. Similarly, the Lessee was entitled to loss of bargain damages under clause 28 of the Lease. Under clause 23 Ms Morris guaranteed the Lessee's obligations pursuant to the Lease and indemnified the Lessor: Ms Morris is therefore liable to the Lessor for its losses under the Lease.
The Lessors evidence is that after termination of the Lease: 1. The Lessors agent advertised through its agent the Premises for rent; 2. The Lessor drew down the Lessee's bank guarantee of $41,250.00 in March 2016 and by doing so it mitigated its losses up to 14 March 2016; 3. In July 2016 it relet the Premises to another tenant. That lease: 1. commenced on 1 August 2016; 2. had a rental of $140,000, being $10,000 per annum less than the rent for the Lease; 3. had a 3 month rent holiday from1 August 2016 until 5 November 2016.
The Lessor's claim for damages for loss of bargain against the Lessee and Ms Morris is: Date Description Amount (ex GST) N/A Commission payable under new lease $11,666.66 15 March 2016 to 5 November 2016 Period where no rent paid under the Lease commencement of rent being paid under the New Lease, namely 6 months and 22 days, being 6.733 months at $12,500 per month $84,162.50 6 November 2016 to 14 August 2020 Ongoing loss due to reduced rent under New Lease, being $10,000 per annum X 3 years and 282/365 days $37,726.03 SUB-TOTAL $133,555.19 GST $13,355.52 TOTAL $146,910.70

Lessee's reply to Lessors claim

The Lessee contends that since entering into the Lease the Lessor has acted in a manner so as to frustrate, and or, significantly inhibit, the ability of the Lessee to carry out works on the premises to bring them to a commercially viable condition in a timely manner within the meaning of s34(1) of the RLA.
The Lessor was on notice of the Lessee's proposed works at the time of entering in the Lessee and the Lessor represented to the Lessee that the works could be performed and completed. Relying on those representations the Lessee, organised and paid third party contractors to complete the necessary fit out on the premises and was therefore ready willing and able to have the works completed to begin trading.
The Lessee submits that the courts have long held the principle that a party cannot complain of breach of a contract where its actions have prevented or obstructed performance of an essential term of the contract by the party: Peter Turnbull & Co Pty Ltd v Mundus Trading Co Australasia) Pty Ltd [1954] 90 CLR 235, 246; Foran v Wright (1989) 168 CLR 385 at 395, 418.445.456; cited with approval in World Best Holdings Limited v Sarker [2010] NSWCA 24 at 59-63. In such a situation a contract remains on foot in a varied form and performance shifts from being required at a specified time, to one requiring performance within a reasonable time: Foran v Wright.
In the present case the Lessee had not repudiated its obligations to pay rent under the Lease. That obligation arose only when the Lessor's acts of obstruction and delay came to an end. The Lessor had induced the Lessee to embark upon exploring alternate plumbing methods with aview to resolving the impasse. The Lessor did not respond to the alternate plumbing proposals in any meaningful way.

Estoppel

The Lessee submits that the High Court has held that representations about future conduct that have led a party to act to its detriment on the basis of an assumption induced by another party will give rise to an estoppel so as to deny that party from relying on its strict legal rights: Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 at 675 as cited in Foran v Wright (1989) 168 CLR 385 at 412 per Mason CJ. In this case, the representation that the right to draw water in and out of the tenancy would be enforced legally against the tenant of Lot 1 was one made before the Lease was entered into (as well as subsequently). The objective evidence shows that the Lessee placed heavy reliance on the representation when it went ahead and executed the contract).
Further, the Lessor through Ms Todaro continued to make representations to the Lessor (once the Lot 1 tenant has allegedly raised an objection) that it would enforce the legal right so that the tenant re commence the necessary building works. In those circumstances the Lessor cannot demand rent to be paid when it was responsible for the resulting delay obstructions and unenforceable promises.
The Lessee contends that a pre-contractual assurance, even one involving the qualification of a subsequently written lease, may found equitable estoppel. The party giving those assurances may be prevented from acting contrary to those assurances, whether or not they are oral or written and regardless of the form of the written agreement, provided there is evidence of reliance upon those assurances by the prospective lessee to their detriment: Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; Liangis Investments Pty Ltd v Daplyn Pty Ltd (1994) 117 FLR 28 at 34-35.
The Lessee further submits that the delay and representations made by the Lessor caused it to suffer detriment once it placed reasonable reliance on the representations. The Lessee's losses include the material purchased and the cost of the fit out and works undertaken which it would not have undertaken if it were not for the assurances given by the Lessee. But for the statements and conduct of the Lessor the Lessee would not have incurred the losses it has pleaded.

Findings: Lessee's Application

The Tribunal has fully set out the correspondence passing between the parties in these reasons for decision so that the representations complained of by the Lessee in its claim can be completely considered. Having alleged misrepresentation, deceptive and unconscionable conduct on the part of the Lessor and the Lessor's agent, the Lessee bears the onus of establishing to the civil standard of proof the conduct to satisfy the Tribunal that conduct exceeds the threshold to be successful in such a claim.
The Tribunal having considered all the evidence before it and the extensive submissions of both parties is not satisfied that the Lessee has established that the Lessor has engaged in misleading, deceptive or unconscionable conduct.
The body of decisions considering such conduct under the RLA (and under similar provisions of the former Trade Practices Act 1974 (Cwth) and the Australian Consumer Law) give clear guidance to the Tribunal on the elements and factors that must be satisfied for a party to establish a breach of s10 or s 62D of the RLA.

Misleading or deceptive conduct

A lessor is liable to the lessee of a retail shop lease for reasonable compensation for damage suffered by the lessee that is attributable to the lessee entering into a lease as a result of a false or misleading statement or representation, made with knowledge that it was false or misleading: s 10(1) of the RLA. The ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive: s 18(1). The RLA specifies that the giving of a lessor's disclosure statement to a prospective lessee is considered to be making a representation by the lessor to the lessee as to the information in the disclosure statement: s10(2). The making of a representation by a prospective lessee in a lessee's disclosure statement given to a prospective lessor that the prospective lessee has sought independent advice, or as to statements or representations relied on by the prospective lessee in entering the lease, is considered to be the making of a representation by a lessee to the lessor: s10(3).
The Lessee contends that the Lessor's agents representations made before the Lease was entered into, including: 1. That in light of the email exchange between the Ms Morris and Ms Todaro after the meeting at the premises on 29 May 2015, it is apparent that water and its importance to the business was most likely discussed and that where Ms Morris's evidence conflicts with Ms Todaro's evidence, Ms Morris's evidence should be preferred. Of significant importance is that she discussed with Ms Todaro the "lack of plumbing for drinking water and drainage at the Premises" and that she informed Ms Todaro that "it is an essential condition of the [Lessee's] entry into a lease over the Premises that the water and drainage installations are put in place". 2. On 3 June 2015 Ms Morris's email asked Ms Todaro the ensure that she arrange a proper water supply to the premises before finalising the Lease. 3. On 3 June 2015 Ms Todaro made representations that the Owners Corporation held a meeting and agreed to draft a By-law to allow water to be fed directly into the tenancy and that once approved it would be registered and it would then be enforceable. 4. The next day Ms Morris completed and sent an email an Application for a Commercial Tenancy Form to Ms Todaro to commence the procedure for entering into a formal lease. Ms Morris relied on this representation from Ms Todaro and entered into the Lease in circumstances where the Lessee would not be able to commence the works necessary for water to be fed directly into and out of the premises and as a result not be able to commence trade so as to pay rent in accordance with the lease. 5. It was implicit in the representation that there would be no impediment to water being fed directly into the premises and associated drainage including that there was no impediment affecting the owners or other tenants in the building. It was this implicit representation that Ms Morris relied upon to complete the Application for Commercial Tenancy Form and proceeded to execute the Lease when there was no reasonable basis for the Lessor to make such a representation, Ms Morris not having any reasonable awareness that the promise to enforce the By-law was false and misleading. 6. The By-law was not passed until 24 November 2015 and the Lessee submits was not capable of being enforced at all. The By-law defined the "Works" approved by the By-law to include: (j) Works means…: (vii) plumbing work for new water supply to the lot and drainage work required: (viii) water supply to be installed into the Lot [3]: (ix) floor waste to sewer needs to be install[ed] and cut through the existing slab and ran[sic] to sewer/basement: (x) drainage for the sink needs to be cut through existing slab and ran[sic] to sewer/basement. 1. Notwithstanding the representation was not included in the Disclosure Statement, this does not preclude relief under s10. 2. It is Ms Morris's contention, which she says is supported by the evidence and her cross examination, that any suggestion that the Lessor was at all times referring to a pump system as being adequate was simply contradicted by the objective evidence. Ms Morris contends that at all times the correspondence reveals that what was being discussed was water being fed directly into the premises. Ultimately the By-law refers to the plumbing work penetrating the slab.
The Lessors response to the Lessee's submissions is that: 1. That s 10 of the RLA requires intentional misleading and deceptive conduct, which on no view of the evidence can be made out and not put Ms Todaro in cross examination. 2. Ms Todaro was a third party negotiating with a successful businesswoman in Ms Morris. Ms Morris and the Lessee were acting with the benefit of legal advice, accounting and design advice and relying on those advisers and not on Ms Todaro to assess the suitability of the premises for the permitted use. 3. The Lessee's Disclosure Statement expressly acknowledges the Lessee had not relied upon any representations by the Lessor. 4. Clause 31 of the Lease expressly agreed that the Lessee would "direct water connection to the Premises with associated drainage or access the buildings water supply with the installation of a pump device". This method of water supply and drainage was how the previous tenant had water services. That tenant was a hairdresser and by the nature of that business also needed the supply of water and drainage to the premises to conduct their business.
For the Lessee to establish that the Lessor's misrepresentation or deceptive conduct, the Lessee must satisfy the Tribunal that the representation complained of was made with knowledge that it was false or misleading. The Tribunal is satisfied that the complained of representation is not founded in fact. Ms Todaro consistently referred to the need for a pump system in the email correspondence, the Lessor's Disclosure Statement discloses it, the Lessee's Disclosure Statement does not identify a representation relied upon to the contrary and the Lease refers to the pump system as the method to supply water and drainage that the Lessee is to supply and use. To imply otherwise is contrary to the facts established by the evidence.
Ms Morris reliance on an implied misrepresentation cannot be sustained. Even if the Lessee had established an implied misrepresentation the Lessee must establish that it was made with knowledge and it has not.

Unconscionable conduct

A lessor of retail shop premises must not engage in conduct that is in all the circumstances unconscionable: s62B of the RLA. In determining whether the conduct of a lessor is unconscionable the Tribunal is to have regard to the relative strengths of the bargaining positions of the parties; whether the conduct of the lessor, required the lessee to comply with conditions that were reasonably necessary for the protection of the legitimate interests of the lessor, whether the lessee was able to understand any documents relating to the lease; if there was any undue influence or pressure exerted on the lessee or unfair tactics by the lessor or a person acting on the lessors, behalf; if identical or equivalent premises could have been acquired form a person other than the lessor and for what amount; the extent to which the lessors conduct was consistent with their conduct in similar transactions between the lessor and other lessees; the requirements of any applicable industry or other code; the extent to which the lessor failed to disclose intended conduct of the lessor that might affect the interests of the lessee or risks arising from the lessors intended conduct; the extent to which the lessor was willing to negotiate the terms and conditions of any lease with the lessee and the extent to which the lessor and lessee acted in good faith: S 62B(3) of the RLA. The Tribunal must not in having regard to alleged unconscionable conduct to circumstances that were reasonably foreseeable at the time of the alleged contravention: s62B(7).
S21 of the ACL provides that a person involved in trade or commerce in the provision or supply of goods and services must not engage in conduct that is unconscionable. S 22 of the ACL provides the same matters to be had regard to as in s 18 of the RLA. Guidance given by the courts in matters involving unconscionable conduct under the previous Trade Practices Act and the ACL are relevant in considering unconscionability under the RLA.
Unconscionability is a concept which requires a high level of moral obloquy: per Spigelman CJ in Attorney General of New South Wales v World Best Holdings Limited & ors [2005] NSWCA 26. Courts will only find unconscionableness when the conduct complained of exceeds a high level of moral obloquy on the part of the person alleged to have acted unconscionably: Tonto Home Loans Australia Pty v Tavares; Attorney General of New South Wales v World Best Holdings Limited & ors;
The Lessee has not demonstrated that the Lessor's conduct complained about by her reaches the highest moral obloquy. An examination of the facts relied upon by the Lessee in relation to the circumstances surrounding the presentation of the plans to the Lessor, Ms Todaro's recanting of her denial that she had seen the plans , the unreliability of Ms Todaro's evidence, the change of her evidence under cross examination, the delay in signing the CDC, the failure of Ms Todaro to secure a Lessor consent to Late Night Trading after the Lease had been entered into, the erroneous rent demands, ultimately Lot 1's objections to the works penetrating their demised premises, all alleged to be unethical by the Lessee, do not constitute unconscionability. Neither does the delay caused in signing the development application. While Ms Todaro might have been shown to be unreliable, that does not in itself establish unconscionability on the part of the Lessor.
The Lessee has not demonstrated that the matters for which the Tribunal must have regard in S62B(3) are present. Ms Morris and the Lessor are experienced in business and by her evidence Ms Morris has shown that she had a complete understanding of the requirements for her business and was able to forcefully and robustly defend her position as to what she needed for the Lease of the premises. There was no imbalance in the pre-lease negotiations between the parties. Ms Morris willingly and without pressure or undue influence entered into the Lease; she was supported and advised about the lease before and upon entering into it by design, legal and accounting advice. The issue of the water supply to and drainage from the premises was in the minds of the parties from the outset. The solution for the issue was as recorded in the email exchange between Ms Todaro and Ms Morris, the Disclosure Statement and the expressly in the Lease, that is, by means of a pump. It may have been in Ms Morris's mind to not use a pump design, but on the evidence before the Tribunal this was never agreed to by the Lessor. The extent of the Lessor's agreement is expressly recorded in the Lease.
The Tribunal is not satisfied that the Lessee has established the element of unconscionable conduct and accordingly this head of the Lessee's claim must fail.

Breach of an implied term of the lease

The Lessee relies on an implied term of the Lease that rent would not be payable until the Lessee could procure water being directly fed into and out of the premises. The obligation to pay rent arises when the premises are in a state where they can be used for their stated purpose. The Lessee contends that the delay caused by the Lessor failing to sign documents for the works to proceed caused the Lessee to be unable to complete the works to put the demised premises into a state for the business of the permitted use to be carried on. On that basis, the rent demand by the Lessor made on 9 February 20-6 for rent from 15 December 2015 was invalid and as such the termination of the lease based on failure to comply with that demand was also invalid.
The Lessor contends in its submission that the requirements for an implied term of a contract are well settled in BP Refinery (Westernport) Pty Ltd v Shire of Hastings approved by the High Court in Codelfa Constuction Pty Ltd v State Rail Authority of New South Wales. The implied term must be: 1. reasonable and equitable; 2. necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; 3. be so obvious that it "goes without saying"; 4. capable of clear expression; and not contradict any express term of the contract.
The Lessee alleged implied term does not reach the threshold of these elements. The Tribunal accepts the Lessors submissions and reasoning and is satisfied that there is no implied term that the express provision for the payment of rent should be waived until such times as the Lessee can use the premises for the permitted use.
The Tribunal is not satisfied that the Lessee has made out its case for the reasons in the preceding paragraphs and accordingly the Lessee's claim is dismissed.

Findings: Lessor's Application

The Lessee was under an express obligation to pay rent under Clause 4 of the Lease. That obligation was an essential term of the Lease by Clause 32. After the rent free period and the half rent period had expired the rent became due from 15 December 2015. Despite the rent demand of 9 February 2016 the Lessee failed to pay the rent due and as a result of the breach, the Lessor terminated the Lease by re-entering the premises on 12 February 2016.
By breach of a fundamental term of the lease to pay rent and the Lessor terminating the Lease the Lessor became entitled to damages arising from the Lessor's loss of bargain: Progressive Mailing House Pty Ltd v Tadali Pty Ltd.
The Lessee contends that the Lessor could not comply with the terms of the Lease as a result of its conduct. It relies on the principle that a party cannot complain of a breach of contract where its actions have prevented or obstructed performance of an essential term of the contract: Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd; Foran v Wright cited with approval in World Best Holdings Limited v Sarker. The Tribunal is not satisfied that the Lessee had not repudiated its obligations to pay rent under the Lease, because of the Lessee's contention that the Lessor delayed and obstructed the Lessee.
The Lessee further contends that an estoppel arose so that the Lessor could not rely on its strict rights. The Lessee maintains that the Lessor continued to maintain the right to draw water in and out of the tenancy before and after entering into the Lease could be enforced against the tenant of Lot 1 and that the Lessee placed a heavy reliance on this statement.
The tenant of Lot 1 raised its objection to the water being drained through its tenancy in December 2015. The Tribunal has found that the obligation of the parties is as set out in the Lease at Clause 31, that is that the Lessee was to use a pump system to bring water into and drain out of the premises. The Lessee contention cannot be sustained against that finding.
The Tribunal is satisfied that the Lessor has established that the Lessee breached a fundamental term of the Lease and as a result is liable to the Lessor for the damages arising from loss of bargain. The Tribunal cannot on the findings already made be satisfied that the Lessee contention that the Lessor is estopped from claiming damages. The Lessee's claim has failed. The Tribunal finds that there was no significant delay or obstruction on the evidence before the Tribunal. Any delay must be considered in light of the rent free period and the length of time between the commencement of the Lease and the commencement of the obligation to rent.
The Tribunal is satisfied that the Lessor's claim for damages and the quantum of those damages are a reasonable amount for the loss suffered by the Lessor for the loss of bargain, which is the right to receive rent for the term of the Lease.

Damages

By the Lessee's breach of the Lease, the Lessor has suffered a loss. The Lessor has mitigated that loss (as it was obliged to do under Clause 16 of the Lease) by reletting the premises to another tenant. The Tribunal is satisfied that the costs incurred by the Lessor as a result of the Lessee's breach is: 1. The cost involved in reletting the premises properly includes the commission paid to the Lessors managing agent for reletting the premises. This expense would not have been necessary had the Lease to the Lessee continued to the end of its term. The Tribunal allows the claim for the commission in the amount of $11,666.66; 2. The rent commenced under the Lease on 15 December 2015. As at 14 March 2016 the Lessee was $41,250.00 in arrears. The Lessor drew down the Lessee's bank guarantee of $41,250.00 in March 2016 to pay those arrears. 3. The Lessor relet the premises in July 2016 ("New Lease"). The rent payable under the New Lease was $140,000 per year being $10,000 per year less than the rent payable under the Lease. That New Lease provided for a three month rent free period from 1 August 2016 until 5 November 2016. The Tribunal is satisfied that such a rent free period would not have been necessary had the Lease remained on foot. The Lessor is entitled to recover the lost rent for that period. The rent during the period that the premises were vacant from 15 March 2016 until the commencement of rdent payable under the New Lease being 6 months and 22 days was $84,162.50. The Lessor is entitled to be compensated for the period that rent was not paid. 4. Had the Lease continued for its full term of five years it would have ended on 14 August 2020. For the period 6 November 2016 until 14 August 2020 being 3 years and 282 days, the Lessor's rent is now $10,000 per annum less than would have been payable under the Lease. The Lessor is entitled to an amount of $37,726.03 for compensation for loss of rent for that period. 5. The amount of the loss is $133,555.19 plus GST of $13,355.52 being a total of $146,910.70.
The Tribunal orders that the Lessee pay to the Lessor the amount of $146,910.70 by way of damages.
Clause 23 of the Lease provides that the Guarantor named in Item 3 of the reference schedule guarantees to the Lessor the due and punctual performance by the Lessee of the obligations on its part to be performed under the Lease. Clause 23 (h) provides that the Guarantor is liable to the Lessor if the Lessee breaches the Lease and must pay the Lessor any money for the Lessor's loss arising from the Lessee's breach of the Lease. Sylvia Morris is named in Item 3 of the Schedule and has signed the Lease as Guarantor.
The Tribunal is satisfied that Sylvia Morris is the Guarantor under the Lease and is also liable for the loss determined by the Tribunal against the Lessee.
The Tribunal finds that Sylvia Morris is jointly and severally liable with the Lessee to the Lessor for the amount of $146,910.70

Interest

The Lessor claims interest on the amount of the damages. The provides at Clause 6.2(a) (iii) that the Lessee must pay to the Lessor interest at the rate of 10% when payment of the reasonable cost to the Lessor of remedying a default by the Lessee is more than 14 days overdue.
The Lessor has not pleaded on what amount and for what period the interest is claimed. The Tribunal makes no order as to interest.

Costs

Any application for costs by the Lessor is to be supported by evidence and submissions of no more than 3 pages in length and is to be filed with the Tribunal and served on the other party on or before 21 July 2017.
If there is no application made for costs by 21 July 2017 there will be no order as to costs.
Any evidence and submissions in response to an application for costs from the Lessee and Ms Morris opposing the application for costs is to be filed with the Tribunal and served on the Lessor on or before 18 August 2017.
The parties are to advise the Tribunal in their respective submission if they consent to the issue of costs being determined dealt with on the papers.
Alternatively the parties are to make submissions as to why such an order should not be made pursuant to section 50 of the Civil and Administrative Tribunal Act 2013.

Civil and Administrative Tribunal of New South Wales

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: 23 August 2017

Trade Practices Act 1974(Cth)

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