Snounou v TMR Investments Group Pty Ltd

The Notice of Appeal

1. Decisions of the Tribunal, such as the decision before us, are internally appealable decisions and appeals can be made as of right where there is a question of law, and, otherwise, with the leave of the Appeal Panel: see s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. The principles applicable to the grant of leave were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84]. In respect of appeals from decisions of the Consumer and Commercial Division, the Appeal Panel can grant leave only if it is satisfied that the Appellant may have suffered a substantial miscarriage of justice because: 1. The decision was not fair and equitable; 2. The decision was against the weight of evidence; or 3. Significant new evidence is now available that was not reasonably available at the time of the hearing.
3. The Appellants who were represented by Mr Stewart, solicitor, put forward six grounds of appeal as follows: 1) In assessing quantum of damages, the Tribunal Member relied on an illegitimate invoice generated from a company de-registered in November 2015 which should not have been admitted; 2) Did not address the issue that the Appellant was not afforded a chance to remedy the breach; 3) Did not address the issue that the Appellant was intentionally refused the opportunity to attend the final inspection; 4) Did not address the issue that the Appellant had conducted certain rectifications to the direction of the respondent; 5) Did not take into account all of the evidence submitted by the Appellant; 6) The respondent mitigated their loss and rented the subject premises within one week of the Appellant vacating the Premises. Therefore the Respondent is not entitled to break fee charges.
4. The Landlord was represented by Ms T Hope, Managing Agent. By orders made on 20 September 2023, leave was given to the Tenants to be legally represented and leave was given to the Landlord to be represented by Ms T Hope.
5. At the hearing of the appeal, Mr Stewart abandoned the grounds of appeal relating to the break fee charges and only sought to pursue the grounds of appeal relating to the end of tenancy charges and in particular ground 1 relating to the alleged 'illegitimate invoice'.

The reasons of the Tribunal

1. The Tribunal referred to the obligations of the Tenants pursuant to s 51(3) of the RTA. It noted that it was common ground at the hearing that the Tenants had left various items at the premises and that this was, prima facie, a breach of s 51(3)(a), (b) and (d) of the RTA. The Tenants did not dispute this conclusion on appeal.
2. The Tribunal recorded the Tenants' submission that they were installed with the Landlord's approval. The Tribunal noted that this does not excuse the Tenants from complying with s 51(3) of the RTA.
3. The Tribunal then stated the following: The Landlord relies on a quotation by Imagecorp Australia in its calculation of the quantum of damages. The Tenants said at the hearing Imagecorp Australia is an entity that is affiliated with the Landlord, however, the Tenants are unable to provide any evidence as to what is the appropriate quantum of damages. Doing the best I can, I have come to the view that the quotation by Imagecorp Australia is not unreasonable. Accordingly, I order that the Tenants pay the Landlord $4,840.00 by way of end of tenancy charges.

Tenants' submissions

1. The Tenants referred to the Australian Securities & Investments Commission (ASIC) search in respect of the ABN which appeared on the Imagecorp Australia quotation (the Quotation). The Tenants submitted, based upon the ASIC search, that the company, Imagecorp Australia, went into liquidation and was deregistered on 15 November 2015. Secondly, the Tenants referred to the fact that a Director of the Landlord was also a Director of Imagecorp Australia.
2. The Tenants criticised the reasons of the Tribunal on the basis that whilst the Tribunal referred to the common directorship between the Landlord and Imagecorp Australia, it did not address the issue that Imagecorp Australia was an entity that had been deregistered from 15 November 2015. As a result, the Tenants submitted that the Quotation should not have been 'admitted or considered'.
3. Secondly the Tenants referred to the failure on the part of the Landlord to mitigate its loss. Such failure to mitigate its loss was said to arise from the following: 1. By email dated 9 June 2023, the Tenants requested the Landlord to have an opportunity to remove the modifications and fixtures from the premises; 2. The Tenants had engaged painters to paint the premises and they attended the premises and were met by the Landlord who informed the painters of the correct colour to use. Subsequently, the Landlord stated that the paint used was incorrect and that the wall would have to be remedied; and 3. The Landlord had failed to allow the Tenants the opportunity to attend the final inspection.

Consideration

1. In respect of the invoice from Imagecorp Australia, we note that the Tribunal is not bound by the rules of evidence and may inform itself in such manner as it thinks fit, subject to the rules of natural justice: see s 38(2) of the NCAT Act.
2. Ms Hope, on behalf of the Landlord, informed us that the Landlord before the Tribunal below submitted that the invoice had an incorrect ABN number on it and with the correct ABN there was no issue about the company being deregistered. We note the Tenants did not tender any transcript before us.
3. The issue before the Tribunal was what is a reasonable amount for the work required to remove items left behind by the Tenants in breach of lease and to patch up, repair and make good the premises.
4. We note the Tenants did not lead any evidence on this issue before the Tribunal below. Mr Stewart accepted at the hearing that the Tenants received the Landlord's evidence before the hearing, including the Quotation and had not lead any evidence on the matter.
5. In the absence of any evidence to the contrary, we see no error in the Tribunal accepting the Quotation as providing evidence of a reasonable quantum for the work to be performed.
6. In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 their Honours Mason CJ and Dawson J said at [31]: The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can: Fink v. Fink [1946] HCA 54; (1946) 74 CLR 127, at p 143; McRae v. Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377, at pp 411-412; Chaplin v. Hicks (1911) 2 KB 786, at p 792. Indeed, in Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303, Menzies J. went so far as to say that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation": at p 308. Where precise evidence is not available the court must do the best it can: Biggin and Co. Ltd. v. Permanite Ltd. (1951) 1 KB 422, per Devlin J. at p 438.
7. In these proceedings, the evidence before the Tribunal in relation to the assessment of damages was the quotation from the Tenant. The Tribunal in it's reasons considered the submission of the applicant that the entity who produced the quotation was affiliated with the landlord, but that the Tenant has not provided any evidence as to the appropriate quantum of damages. The Tribunal, doing the best it could, was of the that the quotation was not unreasonable. The quotation, which has been provided to us by the Tenant, itemises each item requiring repair and gives a brief description of the works required to undertake those repairs. It also itemises the cost in relation to each of the 5 items requiring repairs.
8. In our view, this ground of appeal does not raise an error of law and leave to appeal is required. Insofar as the Landlord challenges the fact that the proper allowance was $4,840.00, the Landlord must obtain leave to appeal the assessment. We are not satisfied that the Tribunal's reliance on the Quotation as evidence of quantum of damages and the conclusion thereby reached was against the weight of the evidence or otherwise that the decision was not fair and equitable.
9. Accordingly, we decline to grant leave to appeal in respect of this ground of appeal and submission.
10. In respect of the submission centring around the failure to mitigate its loss, the Landlord pointed to its submission before the Tribunal that the Tenants were advised of the end of tenancy items that would need to be addressed including cleaning.
11. In response, the Tenants organised their own cleaners to attend. However, in the Landlord's submission to the Tribunal, the Tenants did not request again access to the property at this time to rectify the items.
12. The Landlord, consistent with the correspondence, put to the Tribunal that it was not until four weeks after the vacation of the premises that the Tenants asked to remove the modifications when the property was already leased.
13. In our view, this ground of appeal does not raise a question of law and leave to appeal is required. There was no legal obligation under the RTA for the Landlord to permit the Tenants to remove the modifications after possession of the premises has been given to the landlord..
14. In our view, the Tenants have failed to demonstrate that the Tribunal's conclusion that the Tenants should pay the Landlord $4,840.00 by end of tenancy charges was in error based on the material before it. We are not satisfied that this conclusion was against the weight of the evidence or otherwise it was not fair and equitable.
15. Accordingly, we decline to grant leave to appeal in respect of this ground of appeal and submission.
16. That leaves the submission in respect of the alleged failure to allow the Tenants to attend the final inspection.
17. This does not raise any question of law and leave to appeal is required.
18. Whatever may be the underlying facts in respect of this claim, we fail to see any relevance in any alleged failure to permit the Tenants to attend the final inspection as a defence to a claim that the Tenants breached the RTA by failing to remove items from the premises. This is particularly so where the items in question were not in dispute.
19. Accordingly, we are not satisfied that the final award of damages for end of tenancy claims was against the weight of evidence or otherwise not fair or equitable.
20. Accordingly, we refuse to grant leave to appeal in respect of this ground of appeal and submission.

Disposition

1. The orders of the Tribunal are: 1. Leave to appeal refused. 2. Appeal dismissed.

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: 31 October 2023