SuperBurrito Pty Ltd v TNAU Finery Pty Ltd

NCAT Appeal Panel|2024-05-20

combe (1986) 162 CLR 1; [1986] HCA 33 Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 Darzi Group Pty Ltd v Nolde Pty Limited [2021] NSWSC 774, ASIC Norsk Dor Pty Ltd v Tuxfend Pty Limited [2020] NSWCATAP 127 NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 Toradello Property Investments Pty Ltd v GJA Kalra Pty Ltd [2021] NSWSC 1678 Vidal v NRMA Insurance Ltd [2005] NSWCA 390 357 Thornleigh Place Pty Ltd v Shams [2023] NSWCATAP 127 Texts Cited: National Cabinet Mandatory Code of Conduct - SME Commercial Leasing Principles During COVID-19 Category: Principal judgment Parties: SuperBurrito Pty Ltd (First Appellant) Zong Yuan Qin (Second Appellant) TNAU Finery Pty Ltd (Respondent) Representation: Counsel: J Glissan KC and W Chan (First and Second Appellant) D Smallbone (Respondent)

Introduction

This is the second appeal concerning two applications originally commenced in the Consumer and Commercial Division (CCD) in 2020. These applications were proceedings COM 20/49367 and COM 20/52695 (collectively the 2020 proceedings). They concern a dispute about a lease of premises at Waterloo (lease) which was entered into in 2019 and the termination of that lease which occurred on 3 July 2020 during the COVID-19 pandemic (pandemic).
The lease was regulated by the Retail Leases Act 1994 (NSW) (RL Act).
On 24 April 2020 the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (original Covid Regulation) came into effect. This regulation was introduced because of the pandemic. In general terms, the regulation prevented a landlord from terminating a retail lease and exercising other rights in prescribed circumstances, where the lessee was an "impacted lessee".
The original Covid Regulation was amended by the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (NSW) (Amended Covid Regulation) on 3 July 2020.
This legislation in turn referred to the JobKeeper Rules found in Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (JobKeeper Rules), Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020 (Cth) (Alternative Test Rules) and the GST legislation, A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act).
It is the effect of this legislation upon a landlord's right to terminate a lease during the pandemic, whether the first appellant is an "impacted lessee" and whether the respondent engaged in unconscionable conduct in connection therewith which is the subject matter of this appeal.

The parties

The first appellant SuperBurrito Pty Ltd (SuperBurrito/tenant) was the lessee and TNAU Finery Pty Ltd (TNAU/landlord) was the lessor. The tenant conducted a Mexican restaurant on the premises with a target market that included international Chinese students who resided nearby.
The second appellant (Mr Qin/ guarantor) was a guarantor under the Lease and a director of the tenant.
Due to the impact of the pandemic in Sydney from early 2020, the tenant suffered a downturn in business and began having difficulty paying rent. In April and May 2020 the tenant paid a reduced sum of rent to the landlord, then failed to pay any rent in June 2020.
On 3 July 2020, the landlord re-entered the premises, changed the locks and forfeited the lease for non-payment of rent having given two notices.

2020 proceedings

On 24 November 2020, the tenant commenced proceedings COM 20/49367 (tenant's application) against the landlord seeking an order for compensation by reason of the landlord's termination of the Lease. The tenant said the landlord had engaged in unconscionable conduct within the meaning of s 62B of the RL Act in connection with the landlord's obligation to negotiate with the tenant who claimed it was an impacted tenant.
On 16 December 2020, the landlord commenced proceedings COM 20/52695 (landlord's application) against the tenant and the guarantor. The landlord claimed arrears of rent and outgoings and damages.
On 10 February 2022 the Tribunal dismissed the landlord's application, assessed the damages to which the tenant was entitled at $259,949.70 and ordered the landlord to pay that sum to the tenant, to return the bank guarantee, and to pay the tenant's costs. Tribunal published reasons for decision (2022 decision)

First appeal

Both parties appealed the 2022 Decision by proceedings 2022/00068195 and 2022/00069427 (first appeal). Relevantly, the Appeal Panel made the following orders in the first appeal on 3 February 2023: 1. Appeals 2022/68195 and 2022/69427 are allowed 2. Orders (1) to (3) made on 10 February 2022 in proceedings COM 20/49367 and orders (1) and (2) made on 10 February 2022 in proceedings COM 20/52695 are set aside. 3. Both proceedings COM 20/49367 and proceedings COM 20/52695 are remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for determination in accordance with this decision. 4. Leave to the Consumer and Commercial Division the question whether the parties should be permitted to file further evidence.
The Appeal Panel published reasons for its decision (Appeal Reasons/AR).
On remittal the proceedings were assigned the following numbers: 1. COM 23/07365, now proceedings 2023/00409581- the tenant's application; and 2. COM 23/07369 , now proceedings 2023/00411637- the landlord's application. (collectively "remitted proceedings").
The remitted proceedings were heard by a differently constituted Tribunal on 26 and 27 June 2023, and the Tribunal published its decision and reasons on 21 February 2024 (second Tribunal decision/TD). Relevantly, the Tribunal made the following orders: 1 The application by SuperBurrito Pty Limited in proceedings COM 23/07369 (formerly COM 20/49367) is dismissed. 2 TNUA Finery Pty Limited is to have access to the bank guarantees under the Lease. 3 The Respondent SuperBurrito Pty Limited and Mr Zong Yuan Qin in proceedings COM 23/07365 ( formerly COM 20/52695) are to pay jointly and severally TNAU Finery Pty Ltd damages and interest to be calculated after deduction of the bank guarantee from the quantum of $158,231 as updated by the lessor to be provided to the Tribunal and the lessee within 14 days of publication of these orders
The second Tribunal decision is the subject of the present appeal.

History of the disputes

In order to understand the issues raised in this appeal, it is necessary to set out some further brief history of various proceedings between the parties which has been long and protracted. The following information is taken from earlier proceedings between the parties as set out below.

2020 Proceedings

In the 2020 proceedings, counsel for both parties agreed that the pivotal issue in the dispute was whether or not the tenant was an 'impacted tenant' within the meaning of that term in clause 4 of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (the Covid Regulation).
The tenant asserted, that as an 'impacted lessee', it was protected by the Covid Regulation which prohibited the landlord from taking certain 'prescribed actions' to terminate the lease. The tenant claimed that the landlord acted contrary to the Covid Regulation by locking out the tenant from the premises on 3 July 2020. By so doing it was alleged the landlord had unlawfully repudiated the lease and the tenant was entitled to damages.
Conversely, the landlord asserted that the tenant was never an 'impacted lessee' pursuant to the Covid Regulation and that it was entitled to lock the tenant out of the premises on 3 July 2020. The landlord claimed that the tenant breached a fundamental term of the lease by its failure to pay rent prior to 3 July 2020 thereby entitling the landlord to re-enter and take possession of the premises and terminate the lease.
Through its application, the tenant sought an order for compensation by reason of the landlord's breach in terminating of the lease and return of its bank guarantee provided under the lease. The tenant also alleged in points of claim file pursuant to the Tribunal's directions that the landlord had engaged in unconscionable conduct within the meaning of s 62B of the Retail Leases Act 1994 (NSW).
The landlord's application sought relief including arrears of rent and outgoings and damages.
The applications proceeded to hearing on the basis that evidence in one was evidence in the other.
On 10 February 2022 the Tribunal published a decision. In short, the Tribunal found that the tenant had been successful in its substantive application and the landlord had failed in its substantive application. The Tribunal assessed the damages to which the tenant was entitled at $259,949.70 and ordered the landlord to pay that sum to the tenant, to return the bank guarantee, and to pay the tenant's costs. The landlord's application was dismissed.

First Appeal

In part, the first appeal concerned whether the landlord was entitled to terminate the lease for non-payment of rent due 1 April 2024. This date was before the original Covid Regulation commenced.
A determination of this issue involved interpreting clauses 6 and 7 of the original Covid Regulation which prescribed the prohibitions and the circumstances in which a landlord could terminate a lease. It also involved considering whether those clauses applied to rent which was due but had not been paid prior to the commencement of the regulation.
In respect of the rent due 1 April 2020 and whether it was outstanding, the Appeal Panel made a finding at AR [75] as follows: In our view the lessee clearly appropriated two of the three payments to debts other than the April rent and therefore cannot now assert that those payments should be appropriated to the April rent.
Of clause 6 of the original Covid Regulation, the Appeal Panel said at AR [79]: 79. Clause 6 prohibited prescribed action against a lessee "on the grounds of a breach of the commercial lease during the prescribed period consisting of - (a) a failure to pay rent, or (b) a failure to pay outgoings". The clause does not prohibit prescribed action during the prescribed period on the grounds of a prior breach of lease consisting of a failure to pay rent. The prohibition on prescribed action is against action on the grounds of a breach during the prescribed period.
Similarly, at AR [84]-[88], the Appeal Panel concluded that clause 7 did not operate in respect of rent payable before commencement of the original Covid Regulation. Further, even if it could apply, the "the evidence before the Tribunal did not suggest that it could be argued that the tenant had paid the appropriate proportion of the rent due on 1 April 2020": AR [90].
Consequently, the Appeal Panel said at AR [91]: Accordingly, the conclusion of the Tribunal that the lessor had infringed clause 7 of the Covid Regulation by taking action to re-enter the premises was incorrect. It follows that the lessor did not repudiate the lease, and, if the lessee's claim were limited to breach of contract, the lessee's claim would be dismissed and the lessor's claim to unpaid rent and outgoings would succeed.
The Appeal Panel then continued at AR [92]: However, the lessee's claim was not limited to breach of contract. The lessee also maintained a claim for unconscionable conduct in breach of s 62B of the Retail Leases Act. The Tribunal did not determine that claim because it upheld the lessee's claim for breach of contract and it was not suggested that the damages for unconscionable conduct would be any different.
In short, as stated at AR [95], the Appeal Panel "determined that the lessee's failure to pay the April rent entitled the lessor to terminate the lease and to re-enter the premises".
However, while the Appeal Panel found the landlord was not prohibited by the original Covid Regulation from re-taking possession of the premises on 3 July 2020, it held it was necessary for the proceedings to be remitted to the Tribunal to determine the tenant's unconscionable conduct claim which the first Tribunal did not find necessary to consider.
In part, this claim was said to concern whether the tenant was an impacted lessee and whether there had been what the Appeal Panel described as "good faith negotiations".
On the issue of whether the tenant was an impacted lessee, the first Appeal Panel considered the interpretation of the applicable JobKeeper Rules, and the related asserted entitlement to protection under the relevant legislation. Accordingly, the first Appeal Panel held at [41]: 41. The critical question in determining whether the lessee was at relevant times an impacted lessee was whether the lessee "qualifies for the jobkeeper scheme under sections 7 and 8 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 of the Commonwealth".
Assessing the tenant's qualification for the JobKeeper scheme required the application of the JobKeeper Rules. The question arose as to the time of such an assessment. In rejecting a submission from the lessor concerning qualifications for job keeper that "an entity should be qualified at or before the relevant time, but within the "job keeper fortnight" in which the relevant event happened", the Appeal Panel held at [112]: 112. … In our view the provisions of rule 7(1)(b) of the Jobkeeper Rules clearly had the effect that, once an entity had qualified through satisfying the "decline in turnover test" at a time, it continued to qualify subsequently. There was no requirement either in rule 6 or in rule 7 that an entity meet the decline in turnover test during each "jobkeeper fortnight" during the operation of the jobkeeper scheme between 30 March 2020 and 27 September 2020.
Further to the issue of timing, the first Appeal Panel held at [127] that: We accept that the lessor is correct that the relevant date for determination whether the lessee was an impacted lessee was 3 July 2020. Nevertheless, the question whether the lessee "qualifies for the jobkeeper scheme" under the Jobkeeper Rules as at 3 July 2020 is to be determined by reference to the question whether the lessee had satisfied the decline in turnover test "at or before" 3 July 2020.
The Appeal Panel considered the relevant test at [156], holding as follows: 156. A conclusion that the lessee had undertaken a projection of turnover for April or May 2020 and concluded that it would be likely to be reduced by 30% compared to the average turnover for January and February 2020 would be sufficient to enable the Tribunal to conclude that the lessee was an impacted lessee as at 3 July 2020 (and we note is a ground of distinction between this case and NTT Australia v Cover Genius Services where the only evidence before the Court was evidence of enrolment in the jobkeeper scheme and receipt of jobkeeper payments: see [309]).
In considering the evidence proffered, the first Appeal Panel held at [169]: 169. It will be apparent from what we have said above that, in our view, the evidence before the Tribunal, if accepted, was sufficient to establish that the lessee had satisfied the decline in turnover test. That evidence consisted of the affidavit of Mr Qin, but was corroborated by the evidence that the lessee had received jobkeeper payments. We have found that the Tribunal fell into error with respect to a question of law by failing to make findings concerning the disputed evidence of Mr Qin. We otherwise find no error in the Tribunal's conclusion that the lessee had qualified for the jobkeeper scheme and was an impacted lessee as at 3 July 2020.
On the unconscionable conduct claim, and the obligations with regard to clause 7 of the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (NSW), the Appeal Panel noted at AR [193]-[195],: 193. In our view the Tribunal failed to make any finding that the lessor had failed to engage in good faith negotiations, or at the least, failed to provide adequate reasons for so concluding. We do not accept the lessee's submission that the Tribunal, at [135] "made a finding of fact that [the lessor] had failed to raise the defence." 194. If the lessor had engaged in good faith in a renegotiation of the rent and other terms of the lease, clause 7 did not prohibit it from re-entering the premises and terminating the lease on the ground of the lessee's failure to pay rent during the prescribed period. 195. To find that the lessor's re-entry was "unlawful", that is a breach of the lease, by reason of the provisions of clause 7, it was necessary for the Tribunal to find that the lessor had failed to negotiate in good faith. This was not a simple question of onus of proof. There was evidence before the Tribunal of offers made by the lessor and counter-offers from the lessee. The Tribunal was required to consider whether those exchanges between the parties satisfied the requirements of sub-clauses 7(3) and 7(4) of the Covid Regulation.
Relatedly, the Appeal Panel later noted at AR[197]: However, we note that there were at least two bases upon which it might be said that the lessor did not comply with the requirements of clause 7 before entering into possession on 3 July 2020: (1) First, the offers put to the lessee by the lessor on 28 April 2020 and 9 May 2020 limited the period for which rent relief was offered to the three months, April to June 2020, and required repayments of deferred rent to commence on 1 July 2020 or 30 June 2021 respectively. Those offers may not reflect the requirements of Leasing Principles 3, 5 and 9, which required the abatement of rent "during the COVID-19 pandemic period and a subsequent reasonable recovery period" (principle 3) and the amortisation of repayments of deferred rent over a period of "the balance of the lease term and … no less than 24 months, whichever is the greater" (principle 5). Repayments were not to commence until "the earlier of the COVID-19 pandemic ending (as defined by the Australian Government) or the existing lease expiring, and taking into account a reasonable subsequent recovery period" (principle 9). The "COVID-19 pandemic period" was defined in the fifth paragraph of the statement of purpose as being "defined by the period during which the JobKeeper programme is operational". (2) Secondly, although the provisions of the Code of Conduct relating to "binding mediation" were not, strictly, leasing principles, it is arguable that a good faith renegotiation of the terms of a retail lease, including the rent, should include resort to mediation as it could not otherwise be said that the prospects of a successful renegotiation had been exhausted. We note that clause 8 of the Covid Regulation provided that Part 8 of the Retail Leases Act applied to an impacted commercial lease dispute (which the dispute in this case clearly was if the lessee was an impacted lessee). Part 8 of the Retail Leases Act provided for the mediation of retail lease disputes and s 68 required any dispute to be submitted to mediation before proceedings could be commenced in a court (which is defined in s 63 and includes the Tribunal).
Furthermore, the first Appeal Panel said at AR [198]: 198. We recognise, as the lessor submitted, that "bad faith is a serious charge" and that the absence of good faith is not lightly to be found. Nevertheless, we do not consider that the conclusion that the lessor failed to comply with clause 7 of the Covid Regulation was not available on the evidence, if the Tribunal had undertaken a consideration of the issue.
In summary, the Appeal Panel upheld a number of grounds of appeal, most significantly, finding that the landlord was not prohibited by the Covid Regulation from re-taking possession of the premises on 3 July 2020 on the basis of the tenant's failure to pay the rent which fell due on 1 April 2020.
However, the first Appeal Panel held that it was necessary for the tenant's unconscionable conduct claim to be determined. As the parties had not addressed the elements of that claim in submissions to the Appeal Panel, it remitted proceedings to a differently constituted Tribunal (second Tribunal) for determination.
In doing so, it said at AR [263]-[269]: 263. We have upheld a number of grounds of appeal. Most significantly, we have upheld the lessor's first ground and found that the lessor was not prohibited by the Covid Regulation from re-taking possession of the premises on 3 July 2020 on the basis of the lessee's failure to pay the rent which fell due on 1 April 2020. 264. That means that it is necessary to determine the lessee's unconscionable conduct claim which the Tribunal did not find it necessary to consider. 265. We do not consider it appropriate that we seek to determine the unconscionable conduct claim, the parties have not addressed the elements of that claim in submissions to the Appeal Panel. 266. It will be more likely to promote the prompt resolution of the remaining issues for the proceedings to be remitted to the Consumer and Commercial Division of the Tribunal for determination of the lessee's unconscionable conduct claim and, if found to be appropriate, assessment of the lessor's claim (which, if the lessee is found to have been an impacted lessee, may need to be discounted to take account of the impact of the Code of Conduct). 267. In considering the unconscionable conduct claim, the Tribunal may need to make findings concerning whether the lessee was an impacted lessee, whether the lessor participated in good faith negotiations and, if the lessee succeeds in establishing unconscionable conduct, how damages are to be assessed, including whether the appropriate measure of damages is reliance damages and whether the lessor has established that the lessee would not have recouped its investment if the lease had not been terminated. 268. To the extent that it is determined that reliance damages are the appropriate measure of damages, the Tribunal should consider that measure to have been determined at the figure calculated by the Tribunal (before the application of the 35% discount which we have found was applied in error), that is $399,922.61. 269. We note that the Tribunal made a number of findings critical of the way in which the lessor had conducted negotiations and otherwise conducted itself during the pandemic period up until the lessee commenced proceedings in the Tribunal. The lessor's submissions were critical of the Tribunal for making those findings but they were potentially relevant to the question whether the lessor had participated in a good faith renegotiation of the lease. They are also potentially relevant to the question whether the lessor engaged in unconscionable conduct. Nevertheless, the fact that the Tribunal made those findings is a reason why the proceedings should not be remitted to the Senior Member who constituted the Tribunal at the original hearing.
The remitted proceedings were required to be determined in accordance with the first Appeal Panel's findings. Those findings equally apply to this appeal.

Second Tribunal proceedings

The remitted proceedings were heard by a differently constituted Tribunal on 26 and 27 June 2023, and the second Tribunal decision was published on 21 February 2024.
The second Tribunal decision found at [30] that the tenant did not qualify as an "impacted lessee".
As to the unconscionable conduct claim, the second Tribunal held at [65]: 65. I find that the lessor did engage with the lessee in good faith negotiations to the best of its ability even if under the mistaken belief that the lessee was not an "impacted lessee".
The Tribunal dismissed the tenant's application and found the tenant liable to the landlord for damages and interest, in an amount to be determined. The second Tribunal also held that the landlord was to have access to the bank guarantees under the lease.
The orders of the Tribunal on 21 February 2024 were as follows: 1. The application of SuperBurrito Pty Ltd in proceedings COM 23/07369 … is dismissed; 2. TNAU Finery Pty Ltd is to have access to the bank guarantees under the Lease. 3. The Respondent SuperBurrito Pty Ltd and Mr Zong Yuan Qin in proceedings COM 23/07365 … are to pay jointly and severally TNAU Finery Pty Ltd damages and interest to be calculated after deduction of the bank guarantees from the quantum of $158,231 is updated by the lessor to be provided to the Tribunal and the lessee within 14 days of publication of these orders.
Directions were also made concerning any costs application, presently not relevant to this appeal.

Notice of Appeal and hearing of the appeal

On 18 March 2024 the landlord filed a Notice of Appeal. There is no dispute the appeal was filed in time.
We note the Notice of Appeal does not list Mr Qin as an appellant. However it seems clear from the submissions of the parties that that they proceeded on the basis Mr Qin was also appealing the second Tribunal Decision
Following a call over, evidence and submissions were filed in accordance with those directions. The appeal was listed for hearing on 25 May 2024. At that time, Mr Glisson KC of Counsel appeared with Mr Chan on behalf of the appellants. Mr Smallbone of Counsel appeared for the respondent. Each of the parties provided oral submissions.
We will refer to these submissions when considering each of the grounds of appeal.
In the Notice of Appeal, the appellant sought the following orders: 1. The landlord is to pay the tenant the sum of $399,922.61. 2. The landlord is to pay the costs of the tenant as agreed or assessed on a party/party (now called ordinary) basis. 3. The NAB Bank Guarantee (number omitted) dated 31 July 2019 be returned to the NAB at any NAB branch located in Australia so that the sum guaranteed is forthwith with returned to the account of the tenant: and 4. The landlord's application be dismissed
Four grounds of appeal were originally raised in the Notice of Appeal. These were: 1. The Tribunal erred in finding that the tenant, by its directors, did not conclude that it would likely suffer at least a 30% decline in turnover for April or May compared to January and February 2020: TD [29]-[30]. The Tribunal ought to have found that the tenant did conclude that it would likely suffer at least 30% decline in turnover for April or May 2020. 2. Further to ground 1, the Tribunal erred in finding that the tenant was not an "impacted lessee" within the meaning of the Retail and Other Commercial Leases (COVID) Regulations: TD [29]-[30]. The Tribunal ought to have found that the tenant was an "impacted lessee". 3. In the alternative, having found that that the appellant had concluded that it would likely suffer at least a 30% decline in turnover in April or May 2020, the Tribunal ought to have found that the appellant was an "impacted lessee" from that time: TD [29]. 4. The Tribunal erred in failing to find that the landlord's actions were not unconscionable: TD [65]-[67], [69]-[70]. The Tribunal ought to have found that the landlord had acted unconscionably.
The appellants accept that leave is required. They say the decision was not fair and equitable or against the weight of evidence. In this regard, the appellants say in items 3 and 4 of the reasons why leave should be granted: 1. The [Tribunal] accepted that a projection exercise was undertaken by the appellant's directors for the purpose of the Coronavirus Economic Response Package (Payment and Benefit) Rules 2020 (Cth): TD [29]. Despite that finding the Tribunal did not find that the appellants concluded it would likely suffer at least a 30% decline in turnover: TD [29]. 2. In arriving at that finding, in light of uncontested evidence of the witnesses to the contrary, the decision of the Tribunal under appeal was not fair and equitable, or against the weight of evidence.
The respondent filed a reply to appeal. This included the following contentions as to why the second Tribunal decision was correct: 1. the Tribunal's findings that the lessee was not an impacted lessee is supportable on the ground that even if the evidence of either of the lessee's witnesses was accepted as evidence of making a concluded projection, in neither case was a comparison undertaken with reference to the correct comparison. Consequently, in neither case does the projection qualify as one conforming with the statutory requirements for a GST turnover projection. 2. The conduct of the landlord was not, in any event, unconscionable in circumstances where: 1. the tenant did not perform its obligations to make transparent disclosure to the landlord; 2. the tenant did not disclose its actual trading figures to the Commissioner of Taxation; 3. the information disclosed by the tenant to the landlord was not sufficient complete and accurate to enable the landlord to negotiate with the tenant in accordance with Leasing Principal 3; 4. consequently, the tenant was not negotiating in good faith; and/or 5. the tenant was not entitled to the benefit of the Code (referring to the National Cabinet Mandatory Code of Conduct-SME Commercial Leasing Principles During COVID-19) because it did not remain committed to the terms of its lease subject to relief in accordance with the Code.
As to why leave should not be granted, inter-alia the respondent said: 1. there was no substantial miscarriage of justice; 2. the decision concerning no projection qualifying the tenant as an impacted tenant was open on the evidence; 3. the Tribunal rejected some of the tenant's evidence as unreliable; 4. the evidence, as it stood after cross examination, could not support the conclusion that a qualifying GST turnover projection was made, each of the tenant's witnesses identifying a comparison test that did not comply with the legislation; 5. in any event, even if an impacted tenant, the Notice of Appeal does not identify any basis for impeaching the finding that the landlord's conduct was not unconscionable.
In short, the findings of fact and the evaluative judgement of the Tribunal was open to it. There is no issue of principle, question of public importance or general application or any injustice that is reasonably clear that would warrant the grant of leave.
At the hearing, the appellants relied on amended grounds of appeal. This document (found in the Appeal Bundle (AB) 1252-1253) added Ground A1 and grounds 5 and 6.
Ground A1 states: The [Tribunal] erred by making two inconsistent findings of fact, namely: a) Superburrito had made a projection for the purpose of the Covid Regulations: TD [28]. b) Superburrito had not made a projection for the purpose of the Covid Regulations: TD [29] and [30]. The [Tribunal] should have found that Superburrito did make a projection for the purpose of the Covid Regulations. On the whole of the available evidence and taking into account the lack of challenge by the respondent, the [Tribunal] ought to have found that the projection was made in April 2020.
Ground 5 states: The [Tribunal] erred in awarding damages in the amount of $284,034.41 which amount included the figure of $71,074.58 respondent's goods". The [Tribunal] should not have found storage costs as damages at all as it was not a loss or damage suffered by TNAU
Ground 6 states: In the alternative to Ground 5, if damages are to be awarded for "Storage Costs of the Respondent's Goods" it should only be for the period between 20 January 2021 to 13 April 2021.
Leave to amend the grounds of appeal to add the ground A1, is not opposed by the respondent. We will grant that leave.
Grounds 5 and 6 are opposed by the respondent. In this regard the respondent says: 1. the grounds are not stated in the Notice of Appeal. As submitted above, they are contrary to the way in which the rehearing was conducted and it is not open to the appellants to raise them. 2. They are also contrary to the actual orders of the Tribunal which, as mentioned above, directed updating calculation to be supplied in which, though they have been supplied, have yet to be dealt with, due to the miscarriage of communication already described, which is neither the fault of the Senior Member nor of the parties. 3. No submission such as is now made under the head of ground 5 was made on the rehearing and it is too late to raise it now. 4. Ground 6 is incorrect. Ms Nugyen's affidavit and oral evidence stated that the storage charges were continuing. In any event, no such submission was made to the Tribunal on rehearing and this also is too late.
We will deal with the question of leave in respect of grounds 5 and 6 below.

DECISION

There is right of appeal on a question of law, or otherwise leave to appeal is required: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In the case of an appeal from a decision of the Consumer and Commercial Division (of which this is one) leave may only be granted if the appellant can establish it may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or there is significant new evidence was not reasonably available at the time of the original hearing: Sch 4 cl 12(1) of the NCAT Act. The decision of Collins v Urban [2014] NSWCATAP 17 sets out the principles applicable to the grant of leave.
It is convenient deal with the appeal under the following headings: 1. The impacted tenant issue (grounds A1- 3) 2. The unconscionable conduct issue (ground 4); and 3. Damages (grounds 5 and 6)

The impacted tenant issue (grounds A1- 3)

This topic involves a consideration of whether the tenant was an impacted lessee for the purpose of the Covid regulations, which in turn requires consideration of the JobKeeper Rules, the GST Act and National Cabinet Mandatory Code of Conduct-SME Commercial Leasing Principles During COVID-19 (Code) and the Tribunal's factual finding that the tenant was not an impacted lessee.
This question revolved around the factual dispute about whether the tenant had undertaken the relevant process of projecting its turnover as required by the JobKeeper Rules and related legislation.

Submissions on grounds A1- 3

The first submission of the appellant in respect of ground A1 concerns an inconsistency between the reasons of the Tribunal at TD [28] and those at TD [29]-[30].
Of the inconsistency, the appellant says that the Tribunal, at TD [28], "found that SuperBurrito had made a projection sometime in April 2020". The appellant said the reference to meetings in TD [28] was a reference to the meetings which took place in April 2020 at which it was said the tenant formed an opinion as to its projected turnover. In this regard the appellant said: There was no allegation that meetings were made in May 2020. The case for [the landlord] was that there was never a projection made for the purposes of the Covid Regulations.
The appellant says the Tribunal's reasons at TD [28] record the finding that the necessary projection was made in April 2020.
However, the appellant continues that there was an inconsistent finding of fact at TD [29]-[30]. Inconsistent findings of fact, the appellants submitted, is an error of law, reliance being placed on the decision of Vidal v NRMA Insurance Ltd [2005] NSWCA 390 at [8]. Consequently, the decision should be set aside and the appellants submit we should decide this issue.
As to why the Appeal Panel should find a projection was made, the appellant made the following submissions: 1. There was no evidence contrary to that of its witnesses (Mr Qin and Mr Lan), their version of events being that they did make a projection at the end of April 2020. Cross examination of Mr Lan proceeded on the basis a meeting did occur at the end of April 2020. However, it was never put to Mr Lan that no projection was made. 2. If it was to be put by way of submission that no projection had been made there was a positive duty to cross examine each of the witnesses to that effect and challenge their versions. Reliance was placed on the decision of Browne v Dunn (1893) 6 R 67 at 70, 76. In the absence of cross examination "the inference is that the respondent accepted that a projection had been made". 3. The fact that a projection was made is corroborated where SuperBurrito did receive jobkeeper payments on application to the Commonwealth. This, the appellant submitted, corroborated the evidence of Messrs Qin and Lan.
In reply to ground A1, the respondent says that on a fair reading of the Tribunal's reasons as a whole, there is no inconsistency. Here, the respondent says the relevant finding is at TD [30]. The respondent says it is "expressly stated at paragraph [30] that the lessee did not qualify as an impacted lessee under the Alternative Test Rules as no concluded position was adopted by the lessee at the time it is alleged that the projection was made".
The respondent says that the appellants' approach "to pick out a few words in the first sentence of paragraph [28] "goes against the whole run of reasoning commencing at paragraph [24] and ignores also the earlier recital at reasons paragraph [23] of the [landlord's] submissions that were again mentioned at paragraph [28] of the reasons".
The respondent says that it submissions before the Tribunal were that: 1. the tenant never reached a concluded projection in the meetings referred to in its evidence; 2. the 29 April 2020 jobkeeper application "was not based on a projection at all, i.e. it was not projecting a decline in turnover for May (which was the pleaded case)", reference being made to the points of claim, paras 7 and 8(iv); and 3. the 29 April 2020 jobkeeper application was asserting an actual decline in turnover for April as the basis the qualification.
The respondent then continues at [62] of its written submissions: Whatever else paragraph [28] of the reasons was doing, it was excepting a submission of the lessor: it is not possible to torture out of it a finding contrary to "the assertion of the lessor when it is expressed to accept an assertion of the lessor and proceeds from premises (lack of formality and lack of records) which, (a) do not support the suggested finding, but (B) do support the finding stated in paragraphs [29] and [30], which in turn do comfortably align with the lessor's submissions.
If the respondent's submission, that the reasons are not inconsistent is rejected, the respondent submits that the Appeal Panel should first determine its notice of contention point 3.A.1 and, if this fails, remit the proceedings to the Tribunal for the provision of adequate reasons. The contention referred to was that, even if the evidence of either of the tenant's witnesses was accepted as evidence of making a concluded projection, in neither case was the comparison undertaken with reference to the correct comparison period. Consequently, in "neither case does the projection qualify as one conforming with the statutory requirements of a GST turnover projection, as defined".
As to the contention that the evidence of Messrs Qin and Lan was uncontested, this should be rejected. Of the evidence of Mr Lan and the submissions made by the appellant, the respondent says at [77]-[81] of its written submissions: 77. The appellants' submissions concerning Mr Lan at paragraphs 11 and 12 are with respect, surprising. The alleged projection was put into issue on the pleadings. Mr Lan was a late witness. He cross examined (sic) it is true for much less time that [sic] Mr Qin, but the issues affected by his evidence were thoroughly traversed with him. He was cross examined on the he did not maintain that he made any projection for the purpose of eligibility of jobkeeper. At T124/24-25 (AB 600) he said, "I reviewed the March and April projection was to projection the future the May June turnover. (Sic) it wasn't used for my projection to determine the JobKeeper eligibility part." 78. At lines 38-39 on the same page he was asked: "This meeting was about a different subject, it wasn't about working out figures for their application that was eventually made in April. Is that right?" 79. He accepted this with the word "because" - introducing his explanation that it was only one of several meetings. It was then put to him that he was waiting for a fuller trading result for April to see whether SuperBurrito would be eligible to make an application for April: AB 600 lines 43-44. He accepted this at line 47. 80. That case, that they waited to see how April went before making an application for April is contrary to the projection case. It is not a May projection. It is not a projection. 81. This is a fair indication of the thrust of Mr Lan's oral evidence taken as a whole. That is he did not assert or maintain that any projection was made for the purpose of determining eligibility for JobKeeper.
In relation to ground 1, namely that the Tribunal should have found that the tenant did conclude that it would likely suffer at least 30% decline in turnover for April or May 2020, the appellant says the Tribunal erred in fact and law.
As to the first proposition, the appellant's repeat their submissions in connection with ground A1.
At [16] of their written submissions, the appellants say: For the reasons set out above it is submitted that the proper finding of fact is that Superburrito did make a projection at the end of April 2020. There is no logical reason why a projection was not made given that the major matter on the directors' minds (and the subject of discussion) was business performance and the availability of government assistance during the Covid-19. Given the fact of lockdowns during that period it would be surprising if those matters were not discussed and a projection not made.
The appellants then identify four matters to which they say the Tribunal referred in TD [29], in concluding that the tenant did not make a projection at the end of April 2020. The matters were: 1. There was no evidence to support a finding a concluded position had been reached. 2. That the meetings were fluid, ad hoc and ongoing, suggest that no conclusion was reached until well after April. 3. That there was no communication to the landlord of the projection. 4. There was no communication to the landlord of receipt of jobkeeper.
Of the first proposition, the appellants say the Tribunal had accepted (at TD [28]) that there was evidence of a concluded position.
Further, the appellants submitted such a finding had been made in earlier proceedings, that fact being referred to by the Tribunal at TD [11], AR [35] - the Appeal Panel there setting out [49] of the 2022 decision.
On this point we note the Appeal Panel reference to the 2022 decision was not a finding by the Appeal Panel that the tenant was in fact an impacted lessee. [49] of the first Tribunal decision simply states that the tenant considered itself to be an impacted lessee at that time.
Consequently, it was not open to the Tribunal to find that the tenant had not made a projection for the purpose of the Covid regulations.
On the second point, the appellants say the "conduct and nature of the proceedings has no bearing on when a conclusion was arrived at". That is, the finding of the Tribunal "does not follow as a matter of logic".
On the third point, the appellants say at [21] of their written submissions: … To use the absence of communication to the landlord as a basis for rejecting the finding of a projection implicitly suggests that there was a requirement to expressly tell the landlord that a projection had been made. There was no such requirement in the legislation. In any case it was also wrong in fact because for Superburrito to claim that he was an "impacted lessee" implies that it had made the projection. At the latest that communication was made on 18 May 2020.
Reference is made to [48] of the affidavit of Mr Qin affirmed 2 March 2020. In passing we note this affidavit was filed 2 March 2021 and the date on the cover sheet appears to be in error. Rather, it would appear the affidavit was affirmed 2 March 2021. This is confirmed by the attestation of the Interpreters Affidavit found at AB 881. As to [48] is of the affidavit, it states: On 18 May 2020 I sent to TNAU a print out of SuperBurrito's JobKeeper application status on the ATO business portal website. Located at Tab 16 is a copy of that email and attachment.
The email and attachment is found at AB 1097-8.
As to the fourth point, again the appellant submitted at [23] of its written reasons that: It does not follow that just because a landlord was not told about receipt of Jobkeeper payments the lessee did not make a projection. It may well have been an impacted lessee in receipt of Jokkeeper but not have told the landlord that it had actually received payment.
In reply, the respondent says that the first criticism "unfairly represents both the reasons of the Senior Member and the decision of the previous Appeal Panel. In particular, the previous Appeal Panel did not find the lessee had made a qualifying projection. Whether or not it did was the very question remitted for rehearing.
Further the respondent says "the specific projection in issue was defined by the pleaded case".
The respondent submits the Tribunal had before it evidence that the tenant's witnesses "were cross examined out of the pleadings and affidavits". The respondent says at [90]-[92] of its written submissions: 90 … There was not (as it was pleaded there was) an occasion on or before 23 April, 2020 as at which the lessee made a projection for May. Rather, there was a series of informal discussions, which never got to a concluded position on a projection. 91. If one waits for an outcome, one does get to a conclusion, but not a projection. 92. That is a perfectly reasonable evaluative a judgement by a tribunal which had the advantage of seeing and hearing the witnesses and of hearing all the evidence from start to finish. That advantage should be respected. There is no persuasive case of error in the Tribunal not reaching in this case the state of affirmative satisfaction of the fact that the appellants sought to prove.
As to the second criticism, the analysis of what occurred at the meetings and the conclusion they were fluid, ad hoc and ongoing is a matter bearing logically and relevantly on the question of whether a concluded position was ever reached.
As to the third and fourth criticisms, communications with the landlord and receipt of JobKeeper were relevant matters in the context of whether a projection had been made. They were matters entitled to some weight and factors which "assists" the conclusion of the Tribunal
Finally, there is no basis for criticism that the JobKeeper application on 29 April 2020 (found at AB 1078-79) was not considered. Here, the respondent says the Tribunal did have regard to it. It was not required to refer minutely to every aspect of evidence. Further, and in any event the application does not refer to a projection at all and this was evidence adverse to a projection having been made.
In relation to ground 2, having referred to it submissions on ground 1 and the error said to have been made there, the appellants said at [25] of their written submissions: Having found that a projection was made it must follow that Superburrito was an "impacted lessee" within the meaning of the Regulations".
In this regard, referring to AR [156], the appellants said all other criteria with respect to this issue were not remitted for rehearing.
In reply, the respondent says that GST turnover projection is only one element of the Alternative Tests for eligibility. Consequently, the appellants' submission should be rejected.
In relation to ground 3, the appellants refer to the statement of the Tribunal at TD [29] that no conclusion was reached until well after April and into May. If this is the finding of the Tribunal, the appellants say that the "only requirement for SuperBurrito (on rehearing) to qualify as an "impacted lessee" was that it had made a projection. Having found that SuperBurrito had made that projection then it was an "impacted lessee" from that point in time onwards.
This, the appellant says, is significant because they were not evicted until 3 July 2020. Consequently, at this time they were entitled to the protection of the relevant Covid regulations even if the tenant was not an impacted lessee in April 2020.
In reply, the respondent says no finding was made as the ground suggests. Rather, the respondent says the reasons of the Tribunal "should be understood as referring to a concluded position after the event and therefore not a projection at all. "
In so far as the appellants are correct that there is an inconsistency of findings, the respondent says that could not lead to a conclusion that there ought to have been an affirmative finding in their favour. Here the respondent refers back to it earlier submissions concerning whether the required test had been satisfied.

Decision on grounds A1- 3

In order to determine whether leave should be given and, if so, whether the appeal should be allowed, it is necessary to consider the claim made by the appellants and the decision of the Tribunal on remittal. This must be done in the context of the decision of the first Appeal Panel.
As stated above, these grounds concern whether the tenant was an impacted lessee for the purpose of the original Covid Regulation. In turn, this gave rise to a factual dispute about whether a projection had been made by the tenant in the manner required by the GST Act and whether the tenant qualified for the JobKeeper scheme under the JobKeeper Rules, as that expression is used in clause 4 of the original Covid regulation.
Of this issue, the Appeal Panel said at AR [127]: The lessor maintained that the question whether the lessee was an impacted lessee was to be determined at the date the lessor sought to take prescribed action. That date was 3 July 2020. We accept that the lessor is correct that the relevant date for determination whether the lessee was an impacted lessee was 3 July 2020. Nevertheless, the question whether the lessee "qualifies for the jobkeeper scheme" under the Jobkeeper Rules as at 3 July 2020 is to be determined by reference to the question whether the lessee had satisfied the decline in turnover test "at or before" 3 July 2020.
That is, the question was whether the tenant satisfied the relevant test at or before 3 July 2020.
In overturning the 2022 decision of the Tribunal, to which the appeal related, the Appeal Panel said at AS [169]: 169 It will be apparent from what we have said above that, in our view, the evidence before the Tribunal, if accepted, was sufficient to establish that the lessee had satisfied the decline in turnover test. That evidence consisted of the affidavit of Mr Qin, but was corroborated by the evidence that the lessee had received jobkeeper payments. We have found that the Tribunal fell into error with respect to a question of law by failing to make findings concerning the disputed evidence of Mr Qin. We otherwise find no error in the Tribunal's conclusion that the lessee had qualified for the jobkeeper scheme and was an impacted lessee as at 3 July 2020. 170 Much of the lessor's submissions were directed to the proposition that the lessee had not provided sufficient evidence to the lessor to satisfy the lessor that the lessee was an impacted lessee. That is a different question which arises in relation to the lessor's fourth ground of appeal rather than its third ground.
In order to understand what the Tribunal was required to determine on remittal, it is necessary to have regard to the tenant's particulars of claim. At [4] of the document entitled "reasons for asking for orders" (AB 3), the applicant said it was an impacted tenant within the meaning of the original Covid Regulation, having received payment from the Australian Taxation Office (ATO).
The tenant subsequently filed points of claim (AB 144 and following). At paragraphs 7-8 (AB 145) the tenant contended: 7. As at 23 April 2020 SuperBurrito projected that its GST turnover in May 2020 would be at least 30% less than its average monthly current GST turnover over January and February 2020. 8. On 24 April 2020 and until 23 October 2020 SuperBurrito was an impacted lessee within the meaning of reg 4 of the Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020 and rr 7 and 8 of the Corona Economic Response Package (Payments and Benefits) Rules 2020. Particulars i. As SuperBurrito commenced training in mid-December 2019 r6 of the Corona Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020 was applicable. ii. the relevant test. For the purpose of 4 8(7) of the Corona Economic Response Package (Payments and Benefits) Rules 2020 was May 2020. iii. The figure of $5187.39 monthly current GST turnover for the purpose of r 6(3) Corona Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020. iv. SuperBurrito projected GST turnover for May 2020 fell short of its average monthly current GST turnover by at least 30% as required by r8(1)(a) and (b) of the Corona Economic Response Package (Payment and Benefits) Rules 2020. v. SuperBurrito's turnover in the 2018-2019 financial year was less than $50,000,000.
That is, the appellant asserted it had made a projection that "as at 23 April 2020 … its GST turnover in May 2020 would be at least 30% less than its average monthly current GST turnover over January and February 2020".
On remittal, as recorded at TD [10], the Tribunal set out what it described as the "facts as found by the Appeal Panel", being the matters recorded at AR [25]-[38]. At TD [20]-[23] the Tribunal referred to the evidence of the witnesses for the tenant, Messrs Qin and Lam concerning the meetings that were said to have occurred and what was done at those meetings in connection with making a relevant projection and the submissions made by the parties.
At TD [24], the Tribunal said: It is clear to the Tribunal that the oral evidence given by both Mr Qin and Mr Lam is not consistent with their affidavits in particular paragraphs 35 and 36 of Mr Qin where it is asserted that there was one meeting and certain specific matters were considered. I am more persuaded by the submissions of the lessor that whilst the assertion that the Tribunal should not accept that a meeting occurred at all at the first instance, but rather it was more likely that there were a series of meetings between Mr Qin, Mr Lan and Ms Lan (the accounts clerk) where matters were discussed.
The evidence of Mr Qin, to which the Tribunal referred, is found at AB 873. At [34]-[35] he said: 34. It was through this research that I realise that the alternative test was applicable to SuperBurrito as it was a business that had commenced business before March 2020 but had operated for less than one year. 35. After I realise that the alternative test was applicable I had a meeting with Ms Lan bookkeeper and Mr Yun Lan, another shareholder, at the end of April 2020. The purpose of the meeting was to see whether SuperBurrito was eligible for JobKeeper under the alternative test.
At [36]-[39] Mr Qin continued: 36. At this meeting we worked out the monthly average GST turnover figures for January and February 2020 to be $5310 per month from the Xero data. In projecting our May 2020 turnover we considered the following factors: a. about 2 weeks of April 2020 sales data from the POS, handwritten ledger and bank statements showing a significant downturn from March 2020 (that data has since been entered into the Xero system); b. foot traffic was close to nil with the lockdowns in place. c. the longer the lockdown took place the worse the business was going to be impacted; d. very few customers wanted to buy in store in any event because of a fear of catching Covid-19; e. the promotions for food platforms such as FoodPanda, Easi, Deliveroo and Uber Eats had increased sales for March but those promotions had come to an end in April 2020; and f. the lack of foreign international students who were our primary target market. Located at Tab 9 is a copy of the weekly Xero profit and loss figures for April 2020 containing the POS, handwritten ledger and bank statement data. 37. By the end of the meeting concluded that for May 2020 and onwards SuperBurrito was likely to suffer a sales downturn of at least 30%. We also concluded that if the trend continued SuperBurrito was likely to go out of business in the near future. At the meeting we did not calculate a precise figure as a likely outcome because that was impossible to do with any accuracy but we were sure that the downturn would be greater than 30%. 38. As a result I concluded that SuperBurrito's May 2020 income was going to be at least 30% less than the GST turnover average for January and February 2020 and therefore eligible for JobKeeper under the alternative test. 39. On 23 April 2020 I emailed TNAU with the XL sales information generated from the POS which I had on hand and some answers in response to their email of 16 April 2020. This XL spreadsheet was one which held data from the POS less food discounts given to shareholders and other friends but not the discounts to the general public as recorded in the handwritten ledger. The spreadsheet also did not take into account sales recorded in the bank statements. Located at Tab 10 is a copy of my response of 23 April 2020 to TNAU's email of 16 April 2020.
Of the meetings, about which oral evidence was given, the Tribunal said at TD [25]-[26]: 25 I do not accept that these discussion were in a formal and logical manner as specifically set out in paragraph 36. Rather, as suggested by submission on behalf of the lessee the Tribunal should infer that a meeting would take place to discuss the future financial performance and eligibility for government assistance. Further as pointed out through the submission by the lessor Mr Qin in his oral evidence under cross examination resorted to a lapse of memory. I accept this. I accept that it would be hard to recall fully what actually occurred. I believe a lapse of memory is acceptable. And the matters referred to in a paragraph 36 may have been discussed as no doubt they were over a series of meetings , not just one and never in any formal sense. 26 The lack of formality is to be expected and on observing Mr Qin and Mr Lan is understandable. As submitted by the lessor no notes whatsoever were taken or kept. There was no evidence to suggest that any notes were ever made.
Then, at [27], the Tribunal rejected a submission of the landlord concerning the credit of Mr Qin based on inconsistency and evasiveness in responses. Rather, the Tribunal accepted that his evidence was "a result of lapse of memory".
It was at this point, namely TD [28]-[30], that the Tribunal made its critical findings which are the subject of the submissions above: 28. However, the total lack of formality in these meetings, the fact that no notes were taken and the deliberations were not recorded anywhere, in my view supports the assertion by the lessor that the lessee in relation to the projection reached a concluded position contemporaneously with the meetings, not sometime later. The Appeal Panel at [156] held that for the Tribunal to conclude that a lessee was an 'impacted lessee' the lessee had to have undertaken a projection of turnover for April or May 2020 "and concluded that it would be likely to be reduced by 30% compared to the average turnover for January and February 2020." 29. Even if I accept on the evidence that a projection for April or May was undertaken by the lessee, I can find no evidence to support a finding that the lessee had made such a conclusion. The fact that these meetings were fluid, ad hoc and ongoing, suggests the contrary, that in fact no conclusion was reached until well after April and into May. The communication with the lessor assists in coming to this view as the lessee did not tell the lessor of the projection and did not confirm that the lessee was in receipt of jobkeeper (only forwarded a receipt of the application). 30 Accordingly, on the evidence before me I find that the lessee did not qualify as an "impacted lessee" under the Alternative Test Rules as no concluded position was adopted by the lessee at the time that any projection as alleged was made. That is I do not accept that in fact a projection as required by section 6 of the Alternative Test Rules was in fact made.
The first Appeal Panel examined what was the test to determine if a person was an impacted tenant for the purpose of the original Covid Regulation.
Here, the first Appeal Panel noted that the original Covid Regulation defined and "impacted lessee" in clause 4 of the regulation. That clause said: 4 Meaning of "impacted lessee" (1) A lessee is an impacted lessee if- (a) the lessee qualifies for the jobkeeper scheme under sections 7 and 8 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 of the Commonwealth,
It is implicit in the Appeal Reasons that the Tribunal accepted that satisfaction of clause 4 was to be tested by qualification for, not receipt of, Jobkeeper payments. If a contrary view had been taken, it would have been unnecessary to remit the proceedings because both parties accepted that Jobkeeper payments were received by the tenant following its application at the end of April 2020.
In NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 (referred to by the first Appeal Panel), Ward CJ in Eq (as the President then was) said at [310]: On this evidence, and having in mind those matters that I have identified in relation to the discretion concerning r 14.14 (as to which, see at [294]ff above), I see force to NTT's submission that it is somewhat difficult for me to be satisfied that CGS, as a matter of fact and law, qualifies for the JobKeeper payment. Indeed, while perhaps formalistic, the receipt of a payment is not the same as an entitlement to it.
Lest there be any uncertainty about this matter, it seems to us that the test is one of "qualification" not "receipt". If the Legislature had wished to have the provisions of the original Covid Regulation apply simply because a tenant was in receipt of Jobkeeper payments it could have said so. Where the rights of the landlord were to be significantly affected if a tenant was an impacted lessee, it is hardly surprising that the word qualification was used, a landlord only restricted in the manner provided by the original Covid Regulation if the relevant financial circumstances contemplated as qualification for Jobkeeper had been met.
This view is consistent with NTT Australia. It is also consistent with the requirement to negotiate in good faith, which in turn requires an examination of the financial circumstances in which an affected lessee may find themselves due to the pandemic. It would be a curious result a landlord was required to negotiate and give rent concessions to a lessee who did not in fact qualify for JobKeeper, that is, the turnover had not in fact declined by the percentage specified.
Further, and while arguably not relevant, it is consistent with subsequent changes which mandated a lessee claiming to be an impacted lessee was required to provide evidence to support such a claim. See clause 7(3)(A) of the Amended Covid Regulation (which relates to obligations to renegotiate rent and other terms of commercial leases before proscribed action). It is also
However, as recognised by the Appeal Panel, receipt of payment may be a fact relevant in determining whether the qualification test was satisfied, namely a projection had been made in the manner required.
It is unnecessary to set out in detail the first Appeal Panel's analysis of the Jobkeeper legislation. It is sufficient to say the test to be applied was whether, when compared to the "current GST turnover", there was a decline in "projected GST turnover" of 30% or more. As to how these amounts are to be calculated, the first Appeal Panel said at AR [17]: The effect of clause 8(8) of the Jobkeeper Rules was that those provisions were to have effect as if they provided: 188-15(1) Your current GST turnover at a time during a particular period is the sum of the values of all the supplies that you have made during that period. 188-20(1) Your projected GST turnover at a time during a particular period is the sum of the values of all the supplies that you have made, or are likely to make, during that period
What was described by the first Appeal Panel as the Alternative Test Rules applied in determining current GST turnover where a business had only been in operation for a period less than that contained in the "basic tests". Such was the case for the tenant.
The first submission of the appellants is that, at AR [28], the Tribunal made a finding that the tenant had reached a concluded position concerning a decline in turnover.
We do not accept this submission.
While it is clear there is an inconsistency between AR [28] and the statements made in AR [29]-[30], in our view it is also clear there is an error in the text at AR [28]. In accepting the submissions of the landlord, which it had set out earlier in its reasons, the Tribunal could only have been accepting the proposition that a concluded position as to projected turnover had not been reached by the tenant at that time.
It is unfortunate that neither party approached the Tribunal to consider whether an amendment should be made to the reasons for obvious error as permitted by s 63 of the NCAT Act. However, the absence of such an approach does not provide a proper basis for rejecting the Tribunal's ultimate finding being those in AR [29]-[30]. Nor does it provide a reason to accept a statement that is otherwise an obvious error.
As such, it is necessary to consider whether the appellants have established, by reference to the evidence, that the decision of the Tribunal was not fair and equitable or was against the weight of evidence. That is, the Tribunal should have found that the tenant had satisfied the relevant test to qualify for JobKeeper.
As will be clear from the points of claim, which we have set out above, the appellants alleged "as at 23 April 2020 SuperBurrito projected that a GST turnover in May 2020 would be at least 30% less than its average monthly current GST turnover over January and February 2020" and that from 24 April 2020 and until 23 October 2020 SuperBurrito was an impacted lessee within the meaning of clause 4 of the original Covid Regulation.
Suffice to say, at this point, the enquiry conducted by the Tribunal on remittal appeared to examine a broader issue, namely whether, at any time up to the end of April 2020, a concluded view had been formed as to projected GST turnover as required by the relevant test to qualify for Jobkeeper. '
Relevant to considering whether the required projection was made, was the content of the application to in role for JobKeeper lodged on 29 April 2020. The application (AB 1078) includes the following information: For which month have you experienced or are likely to experience a reduction in this turnover of {0}% or more April … Number of JobKeeper eligible employees paid during April JobKeeper fortnight one (30 March-12 April) 1 JobKeeper fortnight two (13 to 26 April) 1
The Tribunal was required to consider two affidavits of Mr Qin, one of Mr Lan, a number of documents and cross examination. In doing so, it was for the appellants to prove the tenant was an impacted lessee and entitled to the benefit of the original Covid Regulation.
In the first affidavit of Mr Qin, affirmed 14 December 2024, Mr Qin says at [14] (AB 843): On 18 May 2020, I emailed the [landlord] and attached eligibility of JobKeeper to prove that the [tenant] is an impacted Lessee. …
The email and attachment appears to be that at AB 1097-8. The email stated "Please see screen shot attached showing the eligibility for JobKeeper from business portal for SuperBurrito Pty Ltd which is the tenant on the lease. The screenshot shows the date on the Business Portal is 18 May 2020 and the status recorded was "Enrolled". Under the item marked "Step 3" it states: Business monthly declaration for JobKeeper payment Confirm eligible employees and turnover each month April declared
That is, at this time the portal showed a declaration had been made for the month of April.
In the second affidavit of Mr Qin sworn 2 March 2021, he refers to "a meeting" and gives evidence about what happened at that meeting. The relevant paragraphs (paragraphs [35]-[38] are set out above. Significantly, this evidence is to the effect there was one meeting and that by the end of that meeting a concluded position had been reached by the tenant namely that for "May 2020 income was going to be at least 30% less than the GST turnover average for January and February 2020" and therefore the tenant was "eligible for JobKeeper under the alternative test".
These affidavits were provided as evidence at the first Tribunal hearing in 2022.
On remittal to the Tribunal, in addition to the above material, the appellants relied upon an affidavit of Mr Lan affirmed 23 June 2023. At [6] and following (AB 950-1). As with Mr Qin, Mr Lan gave evidence concerning "a meeting" "towards the end of April 2020": at [6]. As to what occurred at that meeting, his affidavit evidence was to a similar effect of that of Mr Qin.
Having set out what was discussed at the meeting, Mr Lan said at [9]-[13]: 9. On the basis of the above factors I formed the view that business could only drop further and was unlikely to return to pre-lockdown levels. 10. I then discussed my thoughts and reasoning with Mr Qin and Ms Lan. 11. Together we thought that the business would drop at least 50% for the month of May and into the future. 12. I thought this was a conservative estimate because of other restaurant businesses I was working on drop even more than that. 13. At the end of this meeting we together concluded that Superburrito was qualified for Jobkeeper.
Significantly, the affidavits assert an opinion was formed (at one meeting only) for the purpose of JobKeeper in connection with the tenant's projected turnover for May 2020, not the actual or projected turnover for April 2020. In the case of Mr Qin, his affidavits had been prepared in December 2020 and March 2021 respectively, less than 12 months after the meeting was said to have occurred. In the case of Mr Lan, is affidavit was affirmed in 2023. But again no suggestion was made of multiple meetings.
The appellants also rely on the evidence given in cross examination by Mr Qin and Mr Lan which then suggested there were multiple meetings at which a concluded position was reached concerning the May 2020 turnover, such position being reached by the end of April 2020.
In cross-examination, Mr Qin was asked questions concerning his affidavit of 2 March 2021 and the comparison process which he says he undertook. This included questioning about not qualifying in April 2020 on the basis of a comparison of April 2020 with January and February 2020 trading results.
Some of this cross examination is set out at AB 571 and following.
At AB 571 line 48- AB 572 line 13, after referring to communications with the ATO, the following exchanges occurred: Mr Smallbone: Isn't that why you waited until 29 April 2020 to make your application, mainly that you are waiting to see whether the April figures would be low enough to enable you to qualify? Mr Qin: I can't remember that much detail from it, sorry. Mr Smallbone: You never, in April 2020, made any calculation in respect of your expected may turnover, did you? Mr Qin: Okay, can you repeat? Mr Smallbone: In April 2020, you didn't make any calculation about your expected May turnover, did you? Mr Qin: We actually discussed every day, why you say I never calculated this (indistinct) figure for the sale.
At AB 572 lines 30-44: Mr Smallbone: … And the discussion you were having when you were talking about JobKeeper with your bookkeeper or your shareholder was about the April figures, wasn't it? Mr Qin: I - I can't remember exactly what we talking about. Of course, we got to talk business every day in April. Because this 3 people with the same - living together also, we involved in the same business, that's why we - we have been talking about this business every day. Mr Smallbone: well, if you thought you were already qualified because of a May projection, you wouldn't need to wait, would you? You could apply straight away. Mr Qin: Okay, we actually - I can't (indistinct) speak specifically - specifically question, but we did talk about business every day because at that time, at the beginning is - the turnover so bad. So we worried so much. We also panicked that in May it could be worse.
Then at AB 573 line 48 - AB 574 line 19: Mr Smallbone: Mr Qin, by 29 April 2020, when you made SuperBurrito's JobKeeper application, you understood, didn't you, that the trading figures for April 2020 were going to exceed 70 percent of the average sales figures that it had received for January and February 2020, didn't you? Mr Qin: I can't remember exactly on the day. Also, the - the figure, because my mathematics is bad, also my memory also bad as well. Mr Smallbone: Mr Qin, you knew, didn't you, that the comparison period was January and 20 - January and February 2020, didn't you? Mr Qin: Yes, yes, I - I remember that. Mr Smallbone: You had got that from the ATO's website, hadn't you. Mr Qin: yes. Yes, possibly. Mr Smallbone: and you knew when you put the application in on 29 April 2020 that SuperBurrito's figures for April 2020 didn't qualify it to seek JobKeeper, didn't you? Mr Qin: I can't remember, this to specific question, I can't remember that.
Then at AB 579 line 1-29, the following exchange occurred: Mr Smallbone: When you were making this affidavit [referring to the 2 March 2021 affidavit], you were conscious that the application that you made in April 2020 wasn't justified by comparison with your figures for January and February 2020, weren't you? Mr Qin: Actually, I can't remember that much detailed information, I only remember we did try for the JobKeeper payment, and we actually got approved. And, at that time, I think I may can answer your question, but now, it's been after another 2 years, so I can't recall back specific so much detailed information. Mr Smallbone: You've made up this story about a comparison with December 2019 haven't you? Mr Qin: No, I didn't. Mr Smallbone: The ATO didn't tell you that you could compare April with December, did they? Mr Qin: Yes, they did mention. Mr Smallbone: The application you made for JobKeeper on 29 April 2020 was an application that you knew at that time you were not qualified to make. That's right, isn't it? Mr Qin: You - that means you - you just ask when I applied for the JobKeeper payment, I knew I was not qualified for the payment. Mr Smallbone: That's what I'm asking you. Mr Qin: I - I did remember we are - we will qualify for that payment, that's why we applied for that but for the other specific things, I can't remember.
The effect of this evidence was that: 1. there were ongoing discussions "every day in April"; 2. Mr Qin could not, in 2023, recall what was talked about.
When pressed on the position of the financial performance in April 2020 and the application for JobKeeper lodged on 29 April 2020, Mr Qin said he could not remember.
In connection with Mr Lan, the following exchanges occurred in cross examination. At AB 597 line 34-39: Mr Smallbone: Well, in the meeting where you were considering the data that you have referred to in your evidence this morning, was that - that was - that was on or about 21 April or shortly after, wasn't it? Mr Lan: it was after the 25 - I can't remember the exact time is. I remember it was at end of April.
Then, at AB 600 line 21-47: Mr Smallbone: And the circumstances that you were comparing March with April, that was because your meeting was held before you became aware of the alternative test with its requirement for a different comparison month? Mr Lan: I reviewed the March and April projection was to projection the future the May June turnover. It wasn't used for my projection to determine the JobKeeper eligibility part. Mr Smallbone: Eligibility. Mr Lan: Yes. Mr Smallbone: So this meeting that you've been referring to, would it be right to say that there was no specific consideration of the figures required to determine eligibility for their application that was eventually made in April? Mr Lan: Sorry, the question again? Mr Smallbone: This meeting was about a different subject, it wasn't about working out figures for their application that was eventually made in April. Is that right? Mr Lan: That is - because there were several meetings. Mr Smallbone: And you were waiting until you had a fuller trading result for April to see whether SuperBurrito would be eligible to make an application for April. Is that right? Mr Lan: We-yes.
The features of Mr Lan's evidence is that the meeting he attended, to which he refers in his affidavit: 1. "wasn't used for [his] projection to determine JobKeeper eligibility; and 2. there was no specific consideration of the figures required to determine eligibility for JobKeeper.
As will be evident from the above evidence, the Tribunal was confronted with having to determine whether a projection had been made and, if so, when and about what.
The context in which the Tribunal was required to make its decision included: 1. From early April 2020, the tenant was already in discussions with the landlord seeking a rent reduction due to the impact of the pandemic. At that time, the Code was in operation but not the original Covid Regulation 2. The original Covid Regulation commenced on 24 April 2020. 3. JobKeeper was also already in place by 24 April 2020. Eligibility for JobKeeper had been the subject of earlier correspondence in the context of the Code and the tenant's request for rent reduction. At that date it included the Alternative Test Rules, which applied to businesses that had been operating for less than 12 months prior to 1 March 2020. The tenant operated such a business. 4. The tenant found out about the Alternative Test Rules around 23 April 2020. 5. On 23 April 2020 Mr Qin wrote to the landlord, forwarding sales data up to 22 April 2020. Inter-alia, that email said: Thanks for getting back us (sic and your assistance. Referring to the point mentioned in the letter. 1. Eligibility: I have attached sale figures since first day of our trial on last December till current which showing we are heavily impacted by COVID-19. 2. Job Keeper Payment: We have applied for Job keeper payment yet have not received it. For your information we might not granted it because, a. We just open since last December, so we do not have 2019 sales as comparison as required by Job Keeper. b. To save labour costs, shareholders are working at shop most of the time with no payment. However, it will not change the effect we are one of the victims during this event and even worse for a newly open shop with spending half million fit-out costs. 3. Leve of support (sic): We are committed to work with you to get through this extreme situation. As you can see, the sales we are having is only able to support 20% of the rent. 1. We have not been referred to any record of the application for JobKeeper said to have been made by this time, that is before 23 April 2020. 2. The tenant applied for JobKeeper by application lodged 29 April 2020. That application was stated to be based on the April position for the business, not a May 2020 projection. 3. The issue of qualification for JobKeeper was in dispute, the landlord requesting financial information on this matter, while also seeking to engage in correspondence with the tenant concerning a request for rent reduction. 4. Specific information about the application for JobKeeper and the basis of the application, including the basis for any projected GST turnover was not provided to the landlord at this time or up to the date of termination being 3 July 2020. Nor is there any contemporaneous correspondence from the tenant to the landlord to suggest the tenant had made a projection as to its May 2020 turnover to support such an application. This was despite correspondence from the landlord's solicitor dated 2 June 2020 (AB 1104-5), where the solicitor said at AB 1105: As indicated in our correspondence of 20 May 2020, for the lessor or to consider any request whatsoever for rental deduction, you will be required to provide supporting documents proving that you are, and impacted lessee, pursuant to clause 4 of the regulation of Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW).
The appellants particularise the turnover projection made in April 2020 as being in respect of May 2020. That position appears to have been maintained in the appellant's closing submissions before the Tribunal: see AB 402 which refers to a meeting at "End of Apr 2020" and references Mr Qin's 2 March 2021 affidavit at [35]-[38], which is set out above.
It is clear from the Tribunal's reasons that it considered the inconsistency between the affidavit evidence and the evidence on cross examination: see e.g. TD [24]. There the Tribunal rejected there had been one meeting only and found there had been a series of meetings where matters were discussed. In this regard, the Tribunal rejected a submission that witnesses, in particular Mr Qin, were not telling the truth: TD [27].
The Tribunal then concluded, having regard to the lack of notes, the fact that meetings were "fluid, ad hoc and ongoing" that no conclusion was reached until well after April and into May". In doing so, it was entitled to have regard to the evidence of Mr Lan in understanding what occurred. This is so even where, as the appellant states in their reply submissions, Mr Qin "was the sole director of SuperBurrito" and "it is his knowledge and mind that is to be imputed to the company".
In our view, there was evidence to support the Tribunal's finding that no concluded position had been reached in connection with the projected GST turnover for May 2020. This includes: 1. The displacement, through cross examination, of the evidence that there was a single meeting at which the turnover for May 2020 was discussed and a concluded position reached. 2. The evidence of Mr Lan in cross examination that he was waiting for the results for April prior to making any application for JobKeeper 3. The fact the application made on 29 April 2020 was not based on a projection for May 2020. 4. The absence of any statement from the tenant and its representatives between 23 April 2020 until the date of termination on 3 July 2020, that a projection has been made or was made as to the turnover for May 2020 which qualified the tenant as being entitled to JobKeeper. 5. The failure, despite a specific request being made by the landlord solicitor on 2 June 2020 to provide documents, supporting the claim by the tenant that it was an impacted tenant for the purpose of the original Covid Regulation. On this aspect, while the provision of such information was not made mandatory until the Amended Covid Regulation which came into effect on 3 July 2020, one could reasonably expect that such information would be provided both the purpose of answering the landlord's enquiry and to provide relevant information for the ongoing negotiations concerning rent reduction.
As we stated above, it was for the tenant to prove the allegation that it was an impacted lessee for the purpose of clause 4 of the original Covid Regulation. The suggestion that a projection for the May GST turnover was made at a single meeting in April is not borne out by the evidence taken as a whole.
At to the position of a projection being made in respect of the April turnover, this was not an allegation raised in the points of claim, the closing submissions or, indeed, in the affidavit evidence of Messrs Qin and Lam. In any event, such a projection is unlikely to have been made having regard to the evidence of Mr Lam that, at the time the meeting to which he referred was said to have occurred, he was waiting to see what were the trading results for April in order to determine if the tenant would be eligible to make an application for JobKeeper.
Next is the appellants submissions concerning the Tribunal's statement at TD [29], in particular the following statement: The fact that these meetings were fluid, ad hoc and ongoing, suggests the contrary, that in fact no conclusion was reached until well after April and into May.
The appellants submitted that this was a finding the tenant was an impacted lessee no later than May 2020.
We do not accept this submission.
At TD [30], the Tribunal expressly found "that the lessee did not qualify as an "impacted lessee" under the Alternative Test Rules". The Tribunal concluded: That is I do not accept that in fact a projection as required by section 6 of the Alternative Test Rules was in fact made.
Read together, these findings make clear the Tribunal rejected any projection was made. The point being made at TD [29] was simply that the proposition a projection had been made in April (either in respect of April or May 2020) could not have occurred at that time. It could only have occurred later. That was not a finding that in fact the projection was made later or that the tenant qualified as an impacted lessee sometime in May or before 3 July 2020 when the lease was terminated.
Finally, we note the comment of the Tribunal concerning the lack of formality. We agree with the Tribunal that this is another reason why we are not satisfied the relevant projection was made. On the evidence of Mr Qin, he was aware of the requirements for eligibility of JobKeeper, having done research on the Internet and having made telephone enquiries with the ATO. This would suggest that he was aware of the need to make a projection in the manner required by the GST Act. As set out in the extract of the Appeal Reasons referred to above, s 188-20(1) Your projected GST turnover required a projection to be done by summing "the values of all the supplies that you have made, or are likely to make, during that period".
One would expect, in the process of self-assessment in order to make an online application, that some formality would have been adopted to provide any necessary substantiation to the ATO in connection with the claim for JobKeeper should that be requested. While there is some evidence of financial documents being generated for review, these documents tend to support the evidence of the tenant's witnesses that they were concerned and reviewing on a daily basis the performance of the new business and the likely impact of Covid upon the business (a matter they were discussing on a daily basis) rather than reaching a concluded view and making a projection as required under the JobKeeper Rules in the GST Act.
It follows from what we have said that no error is established in respect of the Tribunal's conclusion that the tenant did not qualify as an impacted tenant.
As we noted above, leave to appeal is opposed by the respondent. However, as our analysis shows, the matters raised in support of this challenge are not straightforward. There is an inconsistency in the reasons of the Tribunal and some lack of precision concerning what was in dispute in what was been resolved.
In these circumstances, we are satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence. Consequently, we will grant leave to appeal. However, for the reasons given above, we are not satisfied the Tribunal erred in its decision that the tenant was not an impacted tenant.
Therefore we dismiss the appeal in respect of ground A1-3.

Other matters

We should briefly deal with one further aspect arising from submissions made in connection with the question of whether the tenant was an impacted lessee.
As recorded above, the Appeal Panel found that the landlord had not repudiated the lease and had a right to terminate.
Submissions made during the course of this appeal suggested that, if the tenant was an impacted tenant, this would prevent termination of the lease in respect of defaults occurring before 23 April 2020 when the original Covid Regulation came into effect. Reference was made to the decision of Darke J in Todarello Property Investments Pty Ltd v GJA Kalra Pty Ltd [2021] NSWSC 1678 (Toradello). There, His Honour said at [76]: However, the plaintiff did not pursue such a course. Its purported termination was expressly based, in at least substantial part, upon breaches consisting of failures to pay rent during the prescribed period. In circumstances where the plaintiff had not complied with cl 5, that action was prohibited by Schedule 5 to the Conveyancing Regulation. That the plaintiff may have been able to effect a termination of the lease in another way does not detract from the fact that the termination was effected contrary to a legislative prohibition. In my opinion, the purported termination was thereby invalid and of no effect.
In Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 (Croc's Franchising), Payne JA said at [162]-[163] (Stern JA agreeing): 162. The decision referred to by the primary judge of Darke J in Todarello Property Investments Pty Ltd v GJA Kalra Pty Ltd [2021] NSWSC 1678, was directly on point. There Darke J found: 75 I am satisfied, based on the ledgers in evidence, that amounts of management fees (as claimed by the plaintiff in the period from July 2019 to April 2020) were in arrears as at 24 April 2020. Those amounts appear to make up the majority of the total arrears of $17,530.44 that stood in the account at the end of March 2020. It might have been open to the plaintiff in October 2020 to seek to terminate the lease on the grounds of breaches of the lease that had occurred before 24 April 2020 and remained un-remedied. Clause 8 makes it clear that nothing in Schedule 5 prevents a lessor from taking prescribed action on grounds not related to the economic impacts of the COVID-19 pandemic. 76 However, the plaintiff did not pursue such a course. Its purported termination was expressly based, in at least substantial part, upon breaches consisting of failures to pay rent during the prescribed period. In circumstances where the plaintiff had not complied with cl 5, that action was prohibited by Schedule 5 to the Conveyancing Regulation. That the plaintiff may have been able to effect a termination of the lease in another way does not detract from the fact that the termination was effected contrary to a legislative prohibition. In my opinion, the purported termination was thereby invalid and of no effect. 163, Alamdo's purported termination on 3 December 2020 was entirely based upon breaches consisting of failures to pay rent during the prescribed period. Alamdo did not seek to rely upon non-payment of rent on 1 April 2020. For essentially, the same reasons as Darke J in Todarello I would reject ground 1 of the notice of contention. 164. If it were necessary to do so, I would accept that Alamdo elected to affirm the lease in the present case by acceptance of part payment of the April 2020 rent. That is, as I have found on issue 9, Alamdo did not waive Croc's ongoing breaches during the prescribed period, but Alamdo did waive the breach constituted by failure to pay the rent due before the prescribed period. The history of the April rent payment was as follows:
In our view Croc's Franchising is authority for the proposition that termination on the basis of a breach existing prior to the introduction of the Covid regulations is not prohibited by those regulations.
In this regard, Darke J's comment in Toradello, that the "purported termination was expressly based, in at least substantial part, upon breaches consisting of failures to pay rent during the prescribed period" should be considered in the context of what Payne JA in Croc's Franchising, set out above. In this regard, Payne JA's reference to Toradello is a reference to the fact that termination in Toradello was expressly based upon breaches consisting of failures to pay rent during the prescribed period.
If it were otherwise, it would not have been necessary for Payne JA to have considered the question of affirmation concerning breaches occurring before the prescribed period.
As to the appellants' reference in their submissions in reply to the decision of Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27 and the passages from the judgement of Bell, Keane and Nettle JJ at 175-177, that case provides little or no assistance in determining the issues we are required to resolve. This is not a case where the appellant chose to terminate a contract in a deceitful manner by unlawful means. To the contrary, the first Appeal Panel determined that as at 3 July 2020, there was an entitlement to terminate the lease for a failure to pay rent in a period before the original Covid Regulation came into effect.
As a result, even if the tenant in this case was an impacted tenant, the termination on the ground of non-payment of rent up until 23 April 2020 was still effective.

The unconscionable conduct issue (ground 4)

In light of our decision that the tenant was not an impacted lessee, it is unnecessary to deal with this ground. However, having regard to the lengthy litigation between the parties, it is appropriate to express our views in the event there is a challenge to our decision.
This ground raises an issue of what constitutes unconscionable conduct for the purpose of s 62B of the RL Act and whether, on the facts of this case, such conducted been established.

Submissions on ground 4

The appellants say the Tribunal was in error in failing to find the respondent acted unconscionably. Referring to its points of claim at [31]-[41], the appellant say the respondent took prohibited action "in circumstances where it knew or ought to know, that SuperBurrito was an impacted lessee. The conduct said to constitute prohibited action was: 1. demanding outstanding rent; 2. taking possession of the premises; 3. taking action to recover the security Bond; and 4. failing to renegotiate rent in accordance with the National Cabinet Mandatory Code of Conduct.
The appellants say the Tribunal found that TD [65] that the respondent had engaged in good faith negotiations. Otherwise, the matters identified above were not in dispute, reference being made to the reasons of the Tribunal at TD [69].
The appellants then refer to the Tribunal's statement at [70], where the Tribunal said that the landlord acting on a misunderstanding or misinterpretation of relevant legislation does not make the conduct does not make the conduct of the landlord unconscionable within the terms of s 62B of the RL Act.
At [33] of the written submissions, the appellants say that the Tribunal "did not see it as necessary to determine as unconscious the other actions".
The appellants then submitted that the Tribunal's view of the law of unconscionability was incorrect, reference being made to the decision of Darzi Group Pty Ltd v Nolde Pty Limited [2021] NSWSC 774, Australian Securities and Investment Commission v Kobelt 267 CLR 1; [2019] HCA 18 (Kobelt) and 357 Thornleigh Place Pty Ltd v Shams [2023] NSWCATAP 127 (357 Thornleigh).
The appellants relied upon the reasons of Nettle and Gordon JJ in Kobelt at [153] where they said, in evaluating unconscionability: … at least in the Australian statutory context, what is involved is an evaluation of business behaviour (conduct in trade or commerce) in light of the values and norms recognised by the statute. The problem of indeterminacy is addressed by close attention to the statute and the values derived from it, as well as from the unwritten law.
As to the decision of 357 Thornleigh, the appellants relied upon statement at [133], where the Appeal Panel said of the meaning of "in all the circumstances" in s 62B of the RL Act and what were the relevant standards: In addition to the Code, the COVID-19 Regulation was a source of relevant community standards, not unlike an industry code referred to in s 62B(3)(g). It gave definition to the requirement to negotiate with lessees suffering from the financial effects of the pandemic and for good faith dealings between the parties in this context, including the need for transparency.
The appellants submitted, in light of these decisions that, given the status of the Covid regulations and the Code, the Tribunal was incorrect in holding that a breach of that legislation could never be unconscionable if a landlord held a misguided view of the law because of incorrect legal advice. The appellants then say that "unconscionable conduct is concerned with the conduct of the parties in all the circumstances. It is not merely concerned with the person's subjective state of mind only. If it were not so then the most unscrupulous conduct would not be unconscionable provided the actor was of the honest belief that his conduct was acceptable". In this regard, Mr Kobelt was found to have engaged in unconscionable acts despite acting with no dishonesty: Kobelt at [263]-[264].
In the present case, the appellants reiterate that the tenant was an impacted lessee and the landlord took action against it which it was expressly prohibited by legislation. The appellants say that this legislation "was put in place to expressly state the societal norms expected in landlord/tenant relationships during the Covid-19 period. The landlord took deliberate action against the tenant after being told the tenant was an impacted lessee and that the relevant Code and regulations applied.
This conduct, the appellant submits, was unconscionable.
Consequently, the appellant submits, "the quantum of damages is not in issue by reason of the earlier decision of this Appeal Panel".
In reply, the respondent says that this ground only arises if the tenant was an impacted lessee.
The respondent says the Tribunal did not misdirected itself as suggested at [38] of the appellants' submissions. That is, the Tribunal did not decide that a breach of legislation could never be unconscionable if a landlord held a misguided view of the law because of incorrect legal advice.
As to the matters which the appellant suggests the Tribunal did not address in its reasons, the respondent submits at [103] of its submissions that the Tribunal made the following findings: 1. the Tribunal rejected that the landlord had failed to negotiate in good faith; 2. the previous Appeal Panel found the terminating and taking position was not prohibited in this case. 3. Demanding outstanding rent is not causally significant. In this regard the respondent says: [This matter] was not relied on in the closing submissions at AB 391 paragraph 16(b) and is not now open to be pursued on appeal. He could not be in error to "fail" to deal with a submission that was not pursued. 1. Demanding the bank honour the security Bond occurred after termination and repossession and was neither prohibited conduct nor causally significant for the alleged loss of the balance of the term of the lease. Also, this point was not relied on in the closing submissions (AB 391 paragraph 16(b)) and is not now open to be pursued on appeal.
Next, the respondent refers to the expression "in all the circumstances" found in s 62B of the RL Act. Here, the respondent addresses the element of knowledge and says it "could not be unconscionable to act in ignorance of something that the [tenant] chose not to reveal: the existence of the very projection on which is whole case is based."
Referring to the appellants' points of claim at paragraphs 31 and 32, the respondent says its witness, Ms Nguyen, gave evidence concerning her state of mind and intention and motivation. She was not challenged on this point. Further, in written submissions at [108], the respondent submits the tenant "had not communicated to the [landlord] that it had been approved as eligible for JobKeeper - until it was too late, after the event of re-entry and termination, after months of enquiry for information had gone without cooperation."
Finally, the appellant refers back to the conduct of the tenant and its failure to: 1. mention the alleged projection; 2. supply true and accurate figures; 3. answer enquiries; and 4. make a single offer in accordance with the Code.

Decision on ground 4

Section 62B of the RL Act provides: 62B Unconscionable conduct in retail shop lease transactions (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.
The Tribunal dealt with the unconscionable conduct claim at TD [33]-[70].
In its reasons, the Tribunal referred to the decision of the High Court in Kobelt, Stubbings v Jams 2 Pty Ltd [2022] HCA 6 (Stubbings), 357 Thornleigh Place, and Norsk Dor Pty Ltd v Tuxfend Pty Limited [2020] NSWCATAP 127 ) and (Norsk Dor).
Two propositions emerge from the appellants' submissions.
First, the appellants said the Tribunal's statement at TD [70] was in error. Consequently, the Tribunal did not see it necessary "to determine unconscionability with respect to the other actions".
At TD [70] the Tribunal said: Even now the issue of whether the lessee in these proceedings is an " impacted lessee" for the purposes of the Covid Regulations and the Mandatory Code is still unsettled more than three and half years after the termination of the Lease. There was no evidence as to the lessor taking advantage of the lessee or the lessee operating at a disadvantage. For the lessor to conduct itself upon a misinterpretation or misunderstanding of the Covid Regulations and the Mandatory Code does not make the conduct of the lessor unconscionable within the terms of s 63B of the RL Act in accordance with the relevant principles as set out in Norsk and Stubbings.
A review of the Tribunal's decision at TD [55]-[69] does not support the appellant's contention. As is evident from a review of those reasons, the Tribunal looked at each of the elements alleged to constitute unconscionable conduct to determine whether "in all the circumstances" unconscionable conduct had been made out.
The pointed made by the Tribunal at TD [70] was that acting on a mistaken view of the law may not, of itself, constitute unconscionable conduct.
This conclusion is supported by the comments of Robb J in Dazri. At [144] His Honour observed: Further, it is not necessary to consider whether Nolde's conduct was unconscionable. It would be difficult to make that finding in the present case because, although I have found that Nolde did not engage in the renegotiation process in the manner required by clause 7 of the COVID-19 Regulation (No 1), that was because of an understanding of the effect of the Regulation that Nolde most likely genuinely held. Although Nolde did not accept that Darzi was entitled to reduce its rent without Nolde's prior agreement, and it served the second s 129 notice on the basis that Darzi's conduct constituted a breach of the Lease, it did not attempt to take any prescribed action against Darzi and awaited the outcome of these proceedings. The situation may have been different, for example, in a case where a lessor caused substantial loss to a lessee by ignoring its obligations under the COVID-19 regime, and obliging the lessee to continue to pay the full rent on a protracted basis without engaging in the required good faith renegotiation. This is an issue that should be faced only when it arises. (emphasis added).
It is also supported by the other authorities to which the parties referred us to.
It can be accepted that dishonesty is not a necessary element in finding a party is engaged in unconscionable conduct. So much is clear from the members of the High Court in Kobelt, both those in the majority and the minority (which includes Nettle and Gordon JJ). It can also be accepted that the enquiry as to what constitutes unconscionable conduct is wide-ranging, having regard to the introductory words "In all the circumstances" used in s 62B of the RL Act. Those circumstances include those matters in subs 62B(3).
However, as the authorities make clear, finding conduct to be unconscionable is not simply a process of working through a checklist. In Kobelt, Gageler J (as he then was) described the test as follows (at [91]-[93]): 91 In Paciocco v Australia & New Zealand Banking Group Ltd, I referred to unconscionable conduct within the meaning of s 12CB as requiring "a 'high level of moral obloquy' on the part of the person said to have acted unconscionably". "Moral obloquy" is arcane terminology. Without unpacking what a high level of moral obloquy means in a contemporary context, using that arcane terminology does nothing to elucidate the normative standard embedded in the section. The terminology also has the potential to be misleading to the extent that it might be taken to suggest a requirement for conscious wrongdoing. My adoption of it has been criticised judicially and academically. The criticism is justified. I regret having mentioned it. 92 What I meant to convey by the reference was that conduct proscribed by the section as unconscionable is conduct that is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience. To that view of the statutory standard I adhere. 93 The judgment required of a court exercising jurisdiction in a matter arising under s 12CB is a heavy one. For a court to pronounce conduct unconscionable is for the court to denounce that conduct as offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the court to prevail within contemporary Australian society. Those values are not entirely confined to, or entirely removed from, the values which historically informed courts administering equity in the development of the unwritten law of unconscionable conduct. They include respect for the dignity and autonomy and equality of individuals. They include respect for the cultural diversity of communities.
Similarly, in Attorney General (NSW) v World Best Holdings Ltd and Others 63 NSWLR 557; [2005] NSWCA 261, when considering s 62B of the RL Act, Spigelman CJ said at [121]: 121 The Ministerial Second Reading speech, quoted above, indicates a similar concern to distinguish what is unconscionable from what is merely unfair or unjust. Even if the concept of unconscionability in s62B of the Retail Leases Act is not confined by equitable doctrine, as the decisions under s51AC of the Trade Practices Act suggest, restraint in decision-making remains appropriate. Unconscionability is a concept which requires a high level of moral obloquy. If it were to be applied as if it were equivalent to what was "fair" or "just", it could transform commercial relationships in a manner which the Minister expressly stated was not the intention of the legislation. The principle of "unconscionability" would not be a doctrine of occasional application, when the circumstances are highly unethical, it would be transformed into the first and easiest port of call when any dispute about a retail lease arises.
Seen in this light, the factual conclusions of the Tribunal and the approach taken do not demonstrate error.
The second proposition was that "given the status of the Covid Regulations and the Code as set out in 357 Thornleigh the Senior Member was incorrect in holding that legislation could never be unconscionable if the landlord held a misguided view of the law because of incorrect legal advice".
Again, a fair reading of the Tribunal's decision does not reveal an error of the type stated in the appellants' submissions.
As the Tribunal makes clear, it did consider the manner in which negotiations were conducted. It examined the nature of the obligation cast upon a lessor under the original Covid Regulation and the Code. Referring to the decision in Crocs Franchising the Tribunal examined the obligation to negotiate in good faith and whether that imposed "a positive obligation upon the landlord to in fact granted relief by means of a particular formula", rejecting that proposition.
At TD [67] the Tribunal also examined whether the original Covid Regulation provided any right to damages for breach and also took account of "the reluctance of the lessee to provide to the lessor or any information on the turndown of trade".
It seems to us that the approach undertaken was permissible and, even if the tenant was an impacted lessee, it was open to find that the conduct of the landlord (who had been in negotiations with the tenant before the original Covid Regulation came into force) was not unconscionable in all the circumstances.
There is no substantial miscarriage of justice in relation to this ground of appeal and leave to appeal is refused.

Damages (grounds 5 and 6)

The final matter to consider is damages.
Two matters need to be dealt with in connection with these grounds. First, should leave be granted to amend the Notice of Appeal to include these grounds. Secondly, if leave to amend is granted, should leave to appeal be granted and, if so, what orders should be made.
Grounds 5 and 6 concerned a challenge to the inclusion of an amount of $71,074.58 the storage costs.

Submissions on grounds 5 and 6

In respect of ground 5, the appellants say "there is no evidence of any invoice to support the mere assertion of loss" the only evidence being in the affidavit of Ns Nguyen affirmed 13 April 2021 (AB 882 and following) at paragraphs [10]-[12].
At [45] of the appellants' written submissions they continued: Where there is no contract and no liability has been proved to have been incurred by TNAU then it is suffered no provable loss for the storage of the goods. For that reason no damage should be found for this item and the award of damages set aside. The questions then arise as to what (if any) damage has been sustained by TNAU and what is the proper measure of the damage. These would fall to be determined on the evidence before Senior Member Bluth. No such evidence was led.
As to ground 6, the appellants say that if damages are to be awarded in the evidence in the case of storage costs went no further than 13 April 2021. That was "the date of Ms Nguyen's one and only affidavit". As such no awarded should be made beyond 13 April 2021.
In reply, the respondent says: 1. The grounds were not stated in the Notice of Appeal. They are contrary to the way in which the hearing was conducted and it is not open to the appellants now raise them. 2. The grounds are contrary to the actual orders of the Tribunal which have directed updating calculations to be supplied. 3. No submission was made to the Tribunal at first instance as now sought to be made by ground 5. Thus, it is too late to raise that matter. 4. As to ground 6, the evidence of Ms Nguyen was that storage charges were continuing. In any event, no submission was made to this effect in the proceedings at first instance and it is now too late to do so.

Decision on grounds 5 and 6

The Tribunal determined the respondent was entitled to damages in the sum of $158,231 as at 13 April 2021, being amount set out in the affidavit of Ms Nguyen affirmed 13 April 2021. At TD [74] the Tribunal said: The damages claim in their various heads and amounts are set out in the affidavit of Ms Nguyen. They amount to $158,231 as at 13 April 2021. They were not the subject of any challenge by the lessee.
The amount awarded was to be updated to include amounts for continuing loss up to the date of the decision on 21 February 2024.
How the amount of $158,231 was calculated is set out at [21] of Ms Nguyen's affidavit: The items of losses incurred by the [landlord] as of the date of this affidavit are as follows: Rent $125,400.95 Outgoings $16,594.83 Storage $4506.90 Agents These $10,528.33 Cleaning and removal list costs $1,200.00 Total: $158,231.01
In the appellants points of defence to the landlord's claim (AB 206-209), the appellants said in response to the claim for damages (at [23]-AB 209): 23. In the alternative to paragraphs 13-22 above, the [appellants] deny that SuperBurrito is liable to TNAU as a leads save as to outstanding rent, outgoings and interest between April 2020 and 2 July 2020 and further says that TNAU has repudiated the lease. Particulars i. Admitted rent outstanding between March and July 2019 of $23,204.50. ii. Admitted outgoings outstanding between March and July 2019 of $3375.00; and iii. Admitted contractual interest at a rate of 12% per annum thereon. iv. Paragraphs 25-30 of the POC are repeated.
That is, at the time the points of defence were filed, the appellants were only admitting rent, outgoings and interests. At this time, the tenant's points of claim sought rent, outgoings, interest, legal costs and "damages ongoing (loss of bargain), totalling $487,183.02: see particulars of claim at AB 162.
As to the claim for storage costs, we have not been referred to any amended claim of the tenant where this item of claim was identified.
As the appellants point out in their submissions in reply dated 8 July 2024, at the first Tribunal hearing, the lack of entitlement to damages for storage costs was raised in oral submissions by Mr Chan for the appellants. At AB 836 line 24 the following oral submission was made: Now, my learned friend then also covered the storage fees which he says his client had suffered. But Senior member (indistinct) and from an examination of Ms Nguyen's affidavit, there is no contract between TNAU and its related entity, no invoices and no payment. No damage was suffered. Nothing to be provided from that
This followed the cross examination of Ms Nguyen on this topic. This cross examination commences at AB 770 line 38. At AB 770 commencing line 48, the following exchange occurred: Mr Chan: … And you say that they [referring to the tenant's goods] were moved to a premises which was a related entity to the respondent. That is related to TNAU; is that correct? Ms Nguyen: Yes. Mr Chan: And you now claim for a certain sum, saying that the storage costs; correct? Ms Nguyen: Yes. Mr Chan: Was there a contract between TNAU and this related entity? Ms Nguyen: No. Mr Chan: So no invoices were issued by this related entity to TNAU for the storage? Ms Nguyen: No. Mr Chan: No further questions.
Ms Nguyen was then re-examined and confirm the goods were still in the storage site. She also said that if the goods were not there, storage space would have been used for something else.
Our review of the transcript of the hearing on remittal indicates that these matters do not appear to have been revisited at the second Tribunal hearing.
The only reference we can find to the claim for storage costs in the remitted proceedings is in the closing submissions of the landlord commencing AB 412. The topic of the tenant's claim for damages is found in section P, AB 450-51. There is no specific reference to storage costs. However, the "Schedule of Interest (4 October 2023)", attached to those submissions provides a calculation of the storage costs and interest thereon, totalling $71,074.58, being the award challenged in grounds 5 and 6.
The appellants, in their 9 July 2024 submissions, say that "Even if the point was not taken at the rehearing it is open to be raised on appeal provided no prejudice is identified. No prejudice is alleged because there can be none where the point was taken at the first hearing", the appellants referring to the submission of Mr Chan which we have set out above.
The appellants also refer to clause 12.3 of the lease (AB 1002) which states: Anything not removed becomes the property of the less or who can keep it or remove and dispose of it and charge to the less or the cost of removal making good and disposal.
The respondent's reasons why the amendment should not be permitted a set out above.
As will be evident from what we have said, it would appear that the topic of damages was not a matter expressly raised with the Tribunal when the proceedings were heard on remittal. Nor does it appear the submissions of the parties dealt with the entitlement to an award of damages for storage costs in any specific manner, save for the closing written submissions of the respondent which we have identified above.
This is regrettable.
However, it seems to us that the resolution of this issue requires an examination of what the Tribunal on remittal was required to decide and whether or not it made a decision about that subject matter.
In the case of damages, this was all matters other than the admissions made in the points of defence of the appellants which we have set out above.
The Tribunal correctly stated at TD [73] the concessions that were made in respect of rent, outgoings and interest. As noted above, at TD [74] in respect of the other claims, the Tribunal said "They were not the subject of any challenge by the lessee". However, those concessions were not in respect of storage costs.
Significantly, the Tribunal did not say that the claim for storage cost was agreed as to liability or amount.
In this appeal, neither party suggested agreement had been reached in the remitted proceedings as to liability or assessment of storage costs. Our review of the documents provided in the appeal does not suggest such an agreement was reached.
Having identified the concessions that were made, it remained the task of the Tribunal to assess damages in respect of those amounts not admitted.
It did not do so.
It is regrettable that the need to make such an assessment was not identified by the parties at the original hearing. No doubt this was in part due to the focus of the parties on the primary issues which had been remitted from the first Appeal Panel, namely whether the tenant was an impacted lessee and whether the landlord had engaged in unconscionable conduct.
The point now taken by the appellants in relation to this head of damage does not, in our view, contravene the limitation in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33. The issue is not one of whether a party is bound by the manner in which they conducted their case, but rather whether the Tribunal has discharged its decision-making function to determine all relevant issues in dispute.
There is no prejudice which has been identified that would make it inappropriate to allow the Notice of Appeal to be amended to add grounds 5 and 6. The amount in dispute is significant and the matters identified by the appellants, if correct, may cause a variation to the award of damages.
Accordingly, leave should be granted to amend the Notice of Appeal to add grounds 5 and 6.
The grounds raise a mixed question of fact and law. However, leave to appeal is sought.
For the same reasons as to why the amendment should be allowed, we are satisfied that the appellants may have suffered a substantial miscarriage of justice because the decision was not fair and equitable and/or against the weight of evidence and that they have been deprived of a significant chance of a different outcome.
Having reached this conclusion, we will also grant leave to appeal and allow the appeal on this aspect.
Again, regrettably, we are not in a position to finally determine this matter. It is clear it was not the subject of examination in the remitted proceedings. It is unclear to us whether there may be factual matters to which our attention has not been drawn which might impact on any decision concerning this head of damage.
In these circumstances, we will make the following orders concerning grounds 5 and 6: 1. Grant leave to appeal in respect of grounds 5 and 6 and allow that appeal in respect of storage costs, 2. Set aside so much of order 3 made 21 February 2024 in application 2023/00411637 (being the application by TNAU Finery Pty Ltd) that relates to storage costs and interest thereon. 3. Remit to the Tribunal constituted by Senior Member Bluth the question of whether the respondent (TNAU Finery Pty Ltd) is entitled to an award under this head of damage and, if so, how much.

Stay

In light of our decision, in effect dismissing the appellants' claims and setting aside only that part of the award that relates to storage costs, the question is whether the stay made by the Appeal Panel on 27 March 2024 should remain in effect.
As will be evident from our reasons, we have not set aside so much of the award that is unrelated to storage costs. It seems to us that there is no reason why the stay should continue or the respondent being prevented from enforcing that part of order 3 made 21 February 2024 that remains unaffected by our decision.
On the other hand, before any steps are taken to enforce that order, it will be necessary to consider the terms of any variation to order 3 made in consequence by any information that may have been provided to the Tribunal at first instance as directed by that order and what should be the final form of order in light of that information and what we have set above.
To avoid any injustice, we will vary the stay so that it remains in place until the proceedings are listed before the Tribunal on remittal as required by the above. We will direct the remitted proceedings be listed for a directions hearing as soon as possible, the stay of the Appeal Panel continuing until that date. If there is a need for a stay after the directions hearing, the appropriate application can be made to the Tribunal at first instance.

Costs

The parties have had mixed success. We will make directions to permit any application for costs. In this regard, it would appear that r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies to this appeal by reason of r 38A and that the amount claimed or in dispute is more than $30,000.
No doubt the parties will address this matter as necessary any application.
Having said so, the parties should not be discouraged from considering whether, in light of the protracted history these proceedings have had, some basis might be found to settle any remaining issues in dispute.

Orders

The orders of the Tribunal are as follows: 1. Leave is granted to the appellants to amend their Notice of Appeal to include grounds A1, 5 and 6 in the terms set out above. 2. Leave to appeal is granted in respect of grounds 5 and 6 and the appeal is allowed in respect of the award for damages for storage costs. 3. The award for damages (order 3 made 21 February 2024 is set aside insofar as it relates to the award of damages for storage cost. 4. The question of whether the respondent (TNAU Finery Pty Ltd) is entitled to an award under this head of damage and, if so, how much, is remitted to the Tribunal as originally constituted. 5. The remitted proceedings are to be listed before Senior Member Bluth for directions as soon as reasonably possible. 6. The stay granted by the Appeal Panel on 27 March 2024 is varied to continue up until 5pm on the day of the directions hearing referred to in the previous order. Any application for stay after that date is to be considered by the Tribunal at the directions hearing of the remitted proceedings 7. In respect of grounds A1-3, leave to appeal is granted but the appeal is dismissed. 8. In respect of ground 4, leave to appeal is refused. 9. In respect of costs of the appeal, the following directions apply: 1. Within 14 days from the publication of these reasons, any applicant for costs (costs applicant) is to file and serve any application for costs (costs application) which is to include any evidence and submissions. 2. Within 28 days from the publication of these reasons, the respondent to the costs application is to file and serve any evidence and submissions in reply. 3. Within 35 days from the publication of these reasons, the costs applicant is to file and serve any submissions in reply.

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

Amendments 14 October 2024 - Order 3 coversheet - replace "the" with "for" Para 17 - change "Tribunal's" to "Tribunal" Para 26 - change "substantial" to "substantive" Para 56 - deleted "decision" and added "second Tribunal decision" Para 60(3) - deleted "appellant's" and changed to "appellant". Para 60(3) - deleted "appellant's" were and changed to "appellant was" Para 61(2) - deleted "their" and changed "to the" Para 107 - deleted "one in the" and added "1 and the error" Para 134 - deleted "the" on the first line Para 169(9) - deleted "less" and added "lessor" Para 201 - added "as" Para 232 - deleted "less or" and added "lessor" Para 240 - deleted "for storage costs" and added "of storage costs" Para 281(3) replace "the" with "for" 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: 14 October 2024

Retail and Other Commercial Leases (COVID-19) Regulation 2020(NSW)

Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020(NSW)

(JobKeeper Rules), Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020(Cth)

Coronavirus Economic Response Package (Payment and Benefit) Rules 2020(Cth)

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