Swedzah Pty Ltd v Moama Waters Providore Pty Ltd

BSE17 v Minister for Immigration & Anor [2018] FCCA 201

Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280

Corcoran v Far [2019] NSWSC 1284

Craig v South Australia (1994/5) [1995] HCA 58; 184 CLR 163

Donohoe v Albulario [2025] NSWSC 9

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) (2003) 73 ALD 321

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Yang v New South Wales Land and Housing Corporation [2025] NSWCA 58

YHY v YHZ [2024] NSWCATAP 117

Swedzah Pty Ltd and Rodney Lawrence Perry and Michelle Kirsten Perry (Appellants)

2021/00416395 (formerly COM 21/02840); 2021/00401137 (formerly COM 21/18396)

1. This is an appeal pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision made in the Consumer and Commercial Division (CCD) of the NSW Civil and Administrative Tribunal under the Retail Leases Act 1994 (NSW) which was delivered on 20 June 2024. In that decision, the parties were referred to as the landlords and the tenant, and we will remain consistent with that terminology for the sake of clarity.
2. The Appellants in this case are the owners of a caravan park in Moama, New South Wales (the landlords). The Respondent (the tenant) entered into a written lease (the Lease) over a restaurant (the Restaurant) within the caravan park.
3. The decision at first instance (the decision) was concerned with two applications:

(1) An application by the tenant (the tenant's application) (2021/00416395 (formerly COM 21/02840)) for damages in the sum of $428,534 following the landlords' repudiation of the Lease, on the basis of which the tenant then terminated the Lease. The Tribunal at first instance found that the landlords had repudiated the Lease and the tenant had therefore validly terminated the Lease. After deducting the landlords' claim for unpaid rent and electricity, the Tribunal awarded the sum of $31,603.67 to the tenant; and

(2) A cross-application by the landlords (the landlords' application) (2021/00401137 (formerly COM 21/18396)), for an order that the tenant pay for unpaid rent, utilities, cleaning and rubbish removal. That application was dismissed.

1. Only the orders in the tenant's application were the subject of the Appeal.
2. The Tribunal's orders were dated 20 June 2024. The Tribunal directed a timetable for a costs application and delivered a costs decision (the costs decision) on 1 November 2024.
3. The landlords lodged a Notice of Appeal on 22 November 2024. The Notice of Appeal listed the details of the decision under appeal as the decision dated 20 June 2024. A copy of the costs decision was included with the Notice of Appeal but was not the subject of any substantive submissions in the Appeal. When the question of whether the landlords also sought to challenge the costs decision was raised by the Appeal Panel at the end of the hearing, Counsel for the landlords confirmed that the costs decision was also appealed and that the result in relation to the costs decision should follow the Appeal Panel's decision in relation to the decision itself.
4. For the reasons which follow, we have decided that the landlords have failed to establish that the Tribunal made an error on a question of law. Leave to appeal on grounds other than a question of law was not sought. As the Notice of Appeal was filed out of time, leave to extend time was not granted and the Appeal will be dismissed.

Proceedings in the Consumer and Commercial Division

1. The history of the matter is set out by the Tribunal in paragraphs [8] - [67] of the decision. For present purposes, the relevant facts, uncontested on appeal, are as follows.
2. The Lease commenced on 26 December 2019. The initial term was one year, with three options to renew, each for five years. The commencing rent was $35,000 plus GST.
3. The tenant entered into possession of the Restaurant on 24 December 2019 and traded daily from 28 December 2019 to 18 March 2020.
4. On 23 March 2020 the Restaurant fell under the Public Health (COVID-19) Places of Social Gathering) Order 2020 (NSW) and was required to close to the public. The premises were closed for the months of April and May 2020.
5. In May 2020, Mr Perry (one of the landlords) and Mr Moran (the director of the tenant and guarantor for the Lease) discussed reopening the premises. The caravan park was fully booked for the June long weekend and Mr Perry told Mr Moran that he wanted the Restaurant to be open by then and stay open seven days a week. Mr Moran informed Mr Perry that the Restaurant would open for the long weekend, then close and reopen for the June/July school holidays commencing 27 June 2020, after which it would close again and possibly relaunch in September.
6. The tenant re-opened the Restaurant for the June long weekend from 4 to 8 June 2020. On 8 June 2020 the Restaurant closed early. The encounter which followed was variously described by Mr Perry as a discussion between him and Mr Moran and by Mr Moran as a phone call, the gist of both being that Mr Moran was closing the restaurant and would not return until September 2020. On 9 June 2020 the Restaurant manager returned to the restaurant and discovered that the locks had been changed and she was unable to enter the premises. On Mr Moran's version of events, he telephoned Mr. Perry who informed him that he had changed the locks and that if Mr Moran did not wish to operate the restaurant business full-time then he was out, and another tenant would be found to operate it.
7. On 3 July 2020 the tenant's solicitor sent an email to the landlords' solicitor asserting that the changing of the locks by the landlords and denying the tenant possession of the premises was a breach of the lease terms and the COVID regulation. The solicitor asserted that, by their actions, the landlords had repudiated the Lease and the tenant accepted the landlords' repudiation and foreshadowed a damages claim.

1. In the Tribunal at first instance, the tenant claimed that as a consequence of the landlords' conduct, it had suffered loss and damage to the value of $428,534. This claim was based on the tenant's position that, but for the conduct of the landlords, it would have made profits from the conduct of the business during at least the first year and the first renewal of the Lease term. The amount claimed represented the net present value of the profits from the first year and the first renewal. The amount claimed by the tenant was based on a report by Ms Sanchia Veale dated 13 August 2021 (Veale Report).
2. The Tribunal at first instance described the counter-claim by the landlords as a "moveable feast". The Tribunal's decision in relation to the counter-claim has not been appealed and it is not necessary to go into detail on that claim, apart from noting that the landlords sought (relevantly) orders for the tenant to pay $1925 for unpaid rent, utility costs of $996, cleaning costs of $963 and rubbish removal costs of $300.

1. The Tribunal identified the substantive issues and answered them as follows:

(1) Have the landlords pleaded the repudiation claim, and if they have, has that claim been made out? The Tribunal found that the landlords had neither asserted nor pleaded the repudiation claim in either version of their points of defence and counterclaim and the Tribunal rejected the claim.

(2) If the repudiation claim is rejected, did the landlords repudiate the lease when they locked the tenant out on 8 June 2019? The Tribunal found that by changing the locks on 8 June 2020 and excluding the tenant from the premises, the landlords repudiated the lease. The Tribunal also found that the tenant had accepted the landlords' repudiation by the solicitor's email of 3 July 2020 and the Lease was terminated.

(3) If the answer to the preceding question is yes, is the tenant entitled to damages and, if so, in what amount? The Tribunal found that the tenant was entitled to damages in the amount of $34,524.93. The Tribunal discussed the Veale Report in depth in this context, before deciding (at [174]) that the Veale Report was not admissible. The Tribunal set out the reasons for not allowing the tenant to rely on the $44,462.50 weekly revenue forecast or the $30,000 weekly revenue forecast which had been provided by Mr Moran to Ms Veale. The Tribunal then had regard to case law which required it to do its best with the information available to calculate damages and relied on historical trading information and information obtained by Ms Veale from sources other than Mr Moran from which damages could be calculated (195] - [196]). The Tribunal reached its own calculation as to damages based on the historical trading figures of approximately $9000 per week.

(4) Are the tenant and Mr Moran liable to the landlords for their monetary claim? The Tribunal found that the tenant was liable for unpaid rent and utilities in the amount of $1925 which was then deducted from the damages.

1. The landlords' counterclaim in COM 21/18396 [2021/0041137] was dismissed.
2. Only the order in relation to the third issue was contested (order 1) by the landlords in the appeal. Order 1 set out:

(a) Pursuant [to] section 72(1)(a) of the Retail Leases Act 1974, Swedzah Pty Ltd, Rodney Lawrence Perry and Michelle Kirsten Perry [are to] pay to Moama Waters Providore Pty Ltd the sum of $31,603.67 within 14 days.

1. The Tribunal's substantive decision was delivered on 20 June 2024.
2. In the orders, a timetable was directed for a cost application. The costs decision was delivered on 1 November 2024, ordering that the landlords pay 70% of the tenant's costs as agreed or assessed.

1. The landlords lodged a Notice of Appeal on 22 November 2024 with an application for a stay of the orders of 20 June 2024. Both the decision and the costs decision were included with the Notice of Appeal. The landlords also sought an extension of time.
2. On 11 December 2024, the landlords were permitted to lodge an amended Notice of Appeal and a timetable was set for the tenant's reply, the tender of an agreed joint bundle of documents (Appeal Books (AB)) and written submissions.
3. The matter was set down for hearing on 20 March 2025. By consent, the operation of Order 1 was stayed until further order of the Tribunal or finalisation of the appeal on condition that the landlords pay $31,603.67 into the tenant's solicitor's trust account by 13 December 2024 to be released on the order of the Tribunal or by the written consent of the landlords and the tenant. The application for a stay was otherwise dismissed by consent.

1. The landlords contend that the tenant made a forensic decision in the running of its case at first instance to base its claim for damages on projected future earnings in an amount of $44,000 per week. It did not claim or make any alternative argument to the effect that, if that claim did not succeed, it should be awarded a lesser sum of damages based on the historical trading figures which showed earnings of only $9000 per week.
2. The landlords contended that the Tribunal had failed to accord procedural fairness to the landlords by determining a new damages figure on the basis of the historical figures without giving the landlords the opportunity to make submissions or otherwise address that course.
3. Further, the landlords argued that the historical trading figures were not included in the tenant's pleadings or proven by the tenant. Once the Tribunal found that the Veale Report was not admissible, there was no evidence upon which to base the damages assessment.
4. The landlords also contended that the decision was unreasonable.

1. Under rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is later), unless the Tribunal grants an extension under s41 of the NCAT Act. Section 41 NCAT Act gives the Tribunal the power to extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
2. The Notice of Appeal was lodged nearly four months out of time.
3. The landlords' submissions in support of the application for an extension of time noted that the landlords' lawyers had advised the landlords that their right of appeal from the decision lay in the District Court of NSW. The landlords issued a summons commencing an appeal in the District Court on 5 July 2024 and the tenant filed a notice of appearance on 30 July 2024. Further orders were made in a directions hearing in the District Court which the parties followed until the District Court proceedings were discontinued on 18 November 2024.
4. The landlords' submissions asserted that there had only been a short delay and the reason for the lateness in lodging the appeal was an error by the landlords' lawyers, not by the client. Both parties had proceeded in the District Court on the same incorrect assumption. The landlords' lawyers did not recognise their error until the tenant filed submissions in the District Court on 15 November 2024 which included submissions objecting to the jurisdiction of the District Court to hear and determine the appeal in that forum.
5. In Yang v New South Wales Land and Housing Corporation [2025] NSWCA 58 (Yang), Kirk JA considered the question of an extension of time to lodge an appeal in the context of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Kirk J noted (at [24]) the findings of Ward JA in Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406, at [42], that in such circumstances the Court is to have regard to what the interests of justice require in all the circumstances of the case, including "the reason why the appeal was not lodged in time; the period for which an extension is sought; any prejudice to the opposing party; and the apparent prospects of success on the appeal", where the latter issue involves considering whether there is a "fairly arguable case" in circumstances where there was a reasonable explanation for the delay and no significant prejudice. This is consistent with the Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (at [22]).
6. In response, the tenant's only contention against granting an extension of time was whether the landlords' appeal had any merit.
7. In circumstances where the tenant had similarly laboured under the misapprehension that an appeal lay in the District Court, it is difficult for the tenant to argue that the delay was unwarranted (and it did not so argue). Upon discontinuing those proceedings, the landlords lodged the Notice of Appeal with the Appeal Registry quickly. The tenant similarly could not complain of being prejudiced by the delay (and did not so); it was aware that the landlords contested the decision, albeit in the incorrect forum.
8. The landlords gave a reasonable explanation for the delay in filing the Notice of Appeal and no distinct prejudice was caused to the tenant by that delay. Accordingly the question of whether it is appropriate to extend time will turn on whether the Appeal has prospects of success.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) NCAT Act.
2. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]-[40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. The principles set out in Unique which are relevant to the present proceedings include that (citations omitted):

(1) An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal;

(2) There is a distinction between an error of law and a question of law. A question may disclose an error of law, but not raise a question of law;

(3) An appeal is against orders and not reasons... Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. In AW v WW (No 2) [2024] NSWSC 146 (AW v WW), Kunc J noted at the outset:

1. In law, as in life, simple questions are not always simple to answer. This appeal from a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal turns on a simple question: what is a question of law? However, "the expression "question(s) of law" and cognate expressions are not deployed uniformly in the statute books and ... there is no universal meaning or understanding of what is a question of law"...

1. The semantics involved in identifying a pure question of law are described by Basten JA in Donohoe v Albulario [2025] NSWSC 9 (Donohoe). The issue of what constitutes a question of law has been widely discussed by others "higher in the judicial hierarchy" (see particularly Kirby P in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi)) and it serves little purpose for us to go over that ground. It is sufficient to note that, in Donohoe, Basten AJ gives valuable guidance in relation to establishing whether a question of law has been raised in paragraphs [30] - [33]. We particularly note His Honour's view that

30 In construing the phrase "question of law", statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises. Reformulating the statutory criterion as referring to a "question of law alone", or as excluding "a mixed question of fact and law", may prove a distraction...

1. Accordingly rather than becoming entangled in the theory, we will move on to analyse whether each of the questions set out in the landlords' amended Notice of Appeal raises a question of law in its particular context.

1. The questions of law set out in the amended Notice of Appeal were:

(1) The 'no evidence' question: Whether there was any evidence to support the finding made by the Tribunal that the tenant had proved damages in the sum of $34,524.93 for breach of lease. Specifically, in circumstances where the damages entitlement (as found by the Tribunal) was not pleaded by the tenant, and the tenant's expert evidence report of Sanchia Veale (forensic accountant as to loss) was held by the Tribunal to be inadmissible.

(2) The 'unreasonableness' question: Whether the decision of the Tribunal to award damages to the tenant in the sum of $34,524.93 was so unreasonable that no reasonable decision maker would make it.

(3) The 'procedural fairness' question: Whether the Tribunal failed to afford procedural fairness to the landlords by finding an entitlement to damages in the sum of $34,524.93 (on the basis of historical trading figures) in favour of the tenant in circumstances where:

(i) such a claim was not pleaded by the tenant;

(ii) nor did the tenant make any submissions in support of such a claim; and

(iii) the Tribunal did not raise with the landlords that it was considering awarding damages to the tenant on the basis of historical trading figures (as ultimately found).

1. In the amended Notice of Appeal, the landlords then posited as "grounds of appeal," a list (from (a) - (j)) of alleged errors of law arising in the proceedings in the District Court. At the hearing, Counsel for the landlords was asked to link these alleged errors of law to the questions of law to which they were related. Submissions were not comprehensive in this regard. We have attempted to weave such allegations contained in the list as we can see are relevant into the discussion of each question of law below.
2. Grounds 1(a), (b), (c) and (f) appear to be incorporated in the submissions regarding the procedural fairness question. Grounds 1(d), (e) and (h) appear related to the no evidence question.
3. Ground 1(g) contends that the Tribunal erred by failing to consider evidence as to how the tenant would have conducted the business over the remainder of the Lease term; however the Tribunal found (at [207]) that it was highly improbable that the tenant would have exercised the first lease option and limited the damages calculation to the period 9 June to 25 December 2020. Evidence as to anything that might have happened after that time was irrelevant to the Tribunal's calculations and there is no substance or relevance in this ground. Ground 1(i) appears to argue with the facts as found by the Tribunal and its relevance to the questions of law has not been established. Ground 1(j) was not pursued.
4. As the second ground of appeal, the landlords set out "The Tribunal erred in law by awarding costs to the applicant in proceeding number 2021/00416395001 in circumstances where that proceeding ought to have been dismissed." No written or oral submissions were made on that point. When we raised the issue at the hearing, Counsel for the landlords contended that the error of law on the costs decision related back to the unreasonableness question of law. However in light of our findings below that there has been no error made out on any of the questions of law, it has not been necessary to consider whether or not the costs decision was in fact a subject of the Appeal or whether its orders should be disturbed.

1. The tenant contended that this question was not a question of law; rather it was a complaint about findings of fact which the landlords had tried to dress up as a question of law.

1. In YHY v YHZ [2024] NSWCATAP 117 (YHY) at [54] the Appeal Panel found that, on the basis of authority, a procedural unfairness challenge should be heard and determined prior to any other challenges. Here, as the central claim, it is the logical place to start.
2. Firstly, whether the decision-maker has failed to accord procedural fairness has been found in many cases to constitute a question of law; see Craig v South Australia (1994/5) [1995] HCA 58; 184 CLR 163 (at p170); In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at p 351) and Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) (at p 385 [202]).
3. In Donohoe at [39] Basten JA overturned an Appeal Panel's conclusion that a denial of procedural fairness did not raise a question of law:

... The conferral of jurisdiction upon the Tribunal is conditioned by an obligation to accord each party procedural fairness. To deny that a ground asserting that the Tribunal has exceeded its legal powers raises a question of law is untenable, both as a matter of principle and authority.

1. As noted by Basten AJ in Donohoe at [36] - [37], the NCAT Act specifically requires the Tribunal to conduct its enquiries and inform itself subject to the rules of natural justice; s38(2). The Tribunal is further required to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s38(5)(c).
2. In YHY at [28] the Appeal Panel also found the question of whether the Tribunal had failed to accord procedural fairness to be a question of law:

28 In determining proceedings before it, NCAT is under a duty to afford procedural fairness to the parties. Procedural fairness, or the duty to act fairly, applies to courts and tribunals which are empowered to determine matters affecting the rights and interests of a person. Procedural fairness requires that NCAT give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act). Procedural fairness will usually raise a question of law and "conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585; [1985] HCA 81.

1. The requirement to afford procedural fairness can overlap with the requirement to exercise jurisdiction. A wrongful denial of, or failure to exercise, jurisdiction can be jurisdictional error, including by a court: see again Craig (p177).
2. The tenant contested whether this was a question of law or a challenge to findings of fact. However, in circumstances where the landlords contend that they were denied procedural fairness because they were deprived of an opportunity to be heard, on the basis of the existing case law we are satisfied that the landlords are raising a question of law.
3. We need to note at this point that the requirement to be heard is not the only type of procedural fairness which will raise a question of law. A posited failure to consider a submission which goes to the heart of the proceedings can equally raise a question of law.
4. Constructive failure to exercise jurisdiction arises where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter. That matter might, for instance, be a statutory precondition to the exercise of the power which it was necessary for the decision-maker to be satisfied of before the power is enlivened. Or it might be a critical argument raised by a party.
5. This further variant of constructive failure to exercise jurisdiction was discussed by members of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321. In that case Gummow and Callinan JJ (with whom Hayne J agreed) held that for an administrative decision-maker "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts" was both a constructive failure to exercise jurisdiction and a failure to accord natural justice at [23]-[25]. Kirby J similarly found a constructive failure in that case where the decision-maker's mistake "amounts to a basic misunderstanding of the case brought by an applicant" at [88].
6. It is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons; Corcoran v Far [2019] NSWSC 1284 at [64].The failure to address an issue must be of sufficient significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (p 599 - 600 [25] - [27] per Kiefel CJ, Keane, Gordon and Steward JJ).
7. So there can be at least two types of failure to accord procedural fairness which raise questions of law. The relevance of this will become clear below.
8. Having established a question of law on which the landlords have a right of appeal, the next question becomes, were the landlords in fact denied procedural fairness by the course which the Tribunal took?

Did the Tribunal fail to accord procedural fairness in the manner described?

1. The essence of the landlords' argument on this question was that the tenant made a deliberate forensic decision to run a bold damages claim on the basis of hypothetical future earnings. In making that case, the tenant was prevented from running an alternative case on the basis of the historical trading figures.
2. The landlords claim to have been denied procedural fairness by the Tribunal finding that the case pleaded by the tenant's Counsel and the opinions put forward by Ms Veale were unsuccessful, but then still awarding damages on the basis of a case which had never been pleaded by the tenant. On the landlords' argument, once the quantum of the tenant's damages claim was found to be unsustainable on the case as pleaded, the entire case was doomed to fail and the Tribunal was wrong to fossick for some other claim (grounds 1(a),(b) and (f)).
3. The landlords argue that if the tenant had made its claim on historical data, the landlords would have required the data to be disclosed. However, when the Tribunal embarked on deciding the award of damages on the basis of a claim not made, it had denied procedural fairness to the landlords by failing to provide them with the opportunity to make submissions on taking that course (ground 1(c)).
4. The crux of the landlords' argument on this point was that once the tenant's case as pleaded was unsuccessful, the tenant's case was doomed to fail and it was incorrect for the Tribunal then to make its own assessment as to damages on the basis of the historical data and procedurally unfair to do so in the absence of submissions from the landlords on taking that course.
5. The landlords' argument as to the incorrectness of the Tribunal's course is inconsistent with the established case law cited in the tenant's submissions and in the decision itself. The argument as to the Tribunal's course being procedurally unfair is inconsistent with the manner in which the proceedings ran, the submissions made in the course of the proceedings and ss 36(1) and 38(1) and (2) of the NCAT Act.
6. The Tribunal was obliged to consider both the pleadings and the central submissions made in the proceedings. Failure to do so would raise a question of law, as noted above.
7. In its reply submissions in the Appeal, the tenant listed various points in the submissions at first instance where the tenant raised the point that the established case law required the Tribunal to do the best it could to reach its own estimate of damages in circumstances where there was uncertainty as to the evidence presented. Particularly, in closing written submissions, Counsel for the tenant (Ms Excell) argued that ordinary contractual principles apply (AB 234 [120] - [125]). She concluded (AB 261):

188. For the reasons set out above the tenant submits its claim for damages in the amount of $428,534 should succeed with costs. Alternatively, the Tribunal may make an adjustment of any damages to be awarded on account of the matters set out above (as to Mr Moran's association with the Bendigo cafes, the Moama Waters historical trading figures, the forecast weekly revenue or the proof of Mr Moran's ability to fund any hypothetical losses).

1. As set out in the decision at [153] - [158] Ms Excell submitted that:

153. ... contractual principles apply in assessing the tenant's loss or damage, the applicable principles being the following summarised by Black J in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 (Sabouni) at [41] - [42]:

154. As for any difficulty or uncertainty in assessing damages, Ms Excell referred to the High Court decision in Commonwealth of Australia v Amman Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 (Amman) where at page 83, Mason CJ and Dawson J said this:

... mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffman, Menzies J went so far as to say that the "assessment of damages... does sometimes, off necessity involve what is guesswork rather than estimation." Where precise evidence is not available, the court must do the best it can. Any uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.

...

157. It was further submitted by Ms Excell that should this view not find favour with the Tribunal, the relevant legal principles as to the assessment of damages in a hypothetical scenario such as the present matter require the tribunal to do the best it can, and if unsatisfied by Ms Veale's assessment, the tribunal can make an adjustment to the damages to be awarded. This was a submission repeated a number of times by Ms Excell.

1. As noted in the Appeal by Counsel for the tenant, the landlords filed their final written submissions almost three weeks after the tenant and so had the opportunity to address this point. Those submissions are considered further below.
2. In oral submissions before us, the landlords referred to the tenant's points of claim at first instance in which it claimed the net present value of the profits from the first year and first renewal period in the amount of $428,534 (AB 46). The landlords submitted that, having made that claim, the tenant's expert in the Veale Report set out that the total income for the trading period from 28 December 2019 - 19 March 2020 and 4 June 2020 to 8 June 2020, amounted to $105,881.74 (AB 403). Counsel for the landlords (Mr Stirling) referred to the cross-examination of Mr Moran at first instance where he could not recall whether the business had made a profit in the first trading period (AB 862):

Stirling: So did the business make a profit in that first trading period?

Moran: I can't recall. I'd have to have a look at the QuickBooks file. But if you take in the capital costs, which I guess would be on the balance sheet, not many businesses make a profit in the first 12 months of operation.

1. The landlords submitted that Mr Moran had not confirmed that he had made any profit at all.
2. However, in their final written submissions before the Tribunal at first instance, Counsel for the landlords did not run their case on the basis that the historical trading figures were incorrect. The landlords acknowledged the historical trading figures and, whilst not specifically accepting them, used them to argue against the damages figure of $428,534 which was claimed by the tenant (AB 262 and 263):

The case of the applicant (MWP) is that it has suffered damages as a result of being wrongfully locked out of the premises on 8 June 2020. The applicant claims damages based on projected revenue of $44,000 per week, despite its historical trading being $9,000 per week, and despite an earlier estimate that its weekly trading would be$33,000 per week. The applicant relied solely (at a factual level) on the evidence of Paul Moran, who had a chequered history in his ownership of hospitality venues. ...

3. The contentions of the respondents may be summarised as follows:

...

(6) Specifically, the projected weekly revenue of $44,000 per week was asserted but not proved; there was no credible explanation (or any explanation at all) given for why the historical weekly trading revenue of $9,000 per week (of actual trading during these summer holiday season) might possibly become $33,000 and then $44,000 per week; ...

1. In those written submissions, the landlords responded to the tenant's submissions that ordinary contractual principles apply. Noting the relevant paragraphs in the tenant's submission, the landlords submitted (AB 281):

That the court is entitled to estimate damages and do the best it can.

That principle does not apply where a party fails to adduce evidence in its possession, and fails to call witnesses in support of its case, and generally ignores its burden of proof. This is the case with the applicant, either through ignorance or by deliberate decision, has failed to adduce the best evidence available. Even so, the proofs, which the applicant did offer up were entirely unsatisfactory.

158. Mr Stirling submits that the tenant has failed to prove its damages case and that Ms Veale's report should not be admitted into evidence. Even if the report was allowed into evidence, Mr Sterling says its conclusions should not be accepted.

1. Further, the landlords' argument that they did not have the opportunity to contest the historical figures cannot be sustained. The figures were discussed in the hearing, by the landlords' Counsel, for example at (AB 774 - 775):

Stirling: ... his expert Ms Veale looks at his historical trading figures from that 12 week period from late December, 2019 until about the 15th of March, 2020.

And over that., the total takings were was a figure like $105,000. There's something like about $8,000 per week ...

...

Yes. If you go down to the 4th item, total sales/revenue and then run across the page, it's for December 19. The trading was 8,800 for January, it was 49,200, February, 13,950, March 23900. Then the premises closed on about the 15th of March or so, reopened for the five days in June, and it was 9,800. So that's the $105,000 of total revenue in the period of trading. So that's the historical trading, and you'll see under 7.3 in that table, the 5th item down as total income, 105,881.

...

1. Mr Moran was further cross-examined on this point as set out at [70] above (AB 862) and it was not put to him that the figures were incorrect. Counsel for the landlords submitted that it was for the tenant to prove the figures; however it is a matter for the Tribunal to weigh the evidence before it.
2. While this extract is from a discussion as to why the landlords should have leave to file expert reports on the day of the hearing, it serves to demonstrate that the landlords relied on the historical trading figures in order to contest the projected future earnings. The landlords had the opportunity to contest the historical trading figures and also made a forensic decision to rely on them in its argument that they demonstrated the far lesser state of the tenant's business than the projected future earnings asserted by the tenant. The Tribunal was entitled to rely on such figures which were in evidence (to this point, see further under the 'no evidence' question below) to 'do the best it [could]' to estimate damages.
3. The landlords submitted that they were denied procedural fairness because the Tribunal did not raise with the landlords that it was considering awarding damages to the tenant for the period 23 June 2020 to 25 December 2020 based upon the historical trading figures. The landlords claim they were denied the right to plead to such a claim, to insist upon relevant discovery, to cross-examine witnesses and to make submissions as to why no such claim had been established.
4. However the submission that "the Tribunal may make an adjustment of any damages to be awarded on account of the matters (set out above at [67] as to Mr Moran's association with the Bendigo cafes, the Moama Waters historical trading figures, the forecast weekly revenue or the proof of Mr Moran's ability to fund any hypothetical losses)" was raised by the tenant and needed to be addressed by the Tribunal. The landlords were on notice that the submission had been raised and had the opportunity to address it in their own written submissions. The Tribunal was under no obligation specifically to warn the landlords that it might use the historical trading figures in assessing damages, particularly not in circumstances where the Tribunal was obliged to deal with the central submissions which were made by both parties.
5. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the High Court found that the Refugee Review Tribunal had not accorded the appellant procedural fairness because it did not give the appellant a sufficient opportunity to give evidence, or make submissions about what turned out to be two of the three determinative issues arising in relation to the decision under review (in particular, the appellant's credibility). The High Court made further points, one of which is particularly apposite here (at p166 [48]) (citations omitted):

...as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369]:

"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

1. The submission was raised and the landlords had the opportunity to respond. The Tribunal had no obligation to shine a spotlight on the issue for the landlord, particularly in the context where the landlords had already been using the historical trading figures to attack the projected future earnings relied on by the tenant.
2. In the face of clear submissions on the existing case law from the tenant, if the Tribunal had failed to make its best estimate of damages on the basis of the existing evidence, it ran the risk of a constructive failure to exercise jurisdiction. In our view, the Tribunal did not fall into error by failing to accord procedural fairness to either party as argued.
3. The Tribunal did not fail to accord procedural fairness in the manner described.
4. In oral submissions, Counsel for the landlords appeared to include the Tribunal's reliance on the historical trading figures from the Veale Report as part of the procedural fairness question. We do not see that angle as relevant to this question; however even if it were, no error on this point would be made out for the reasons set out below in relation to the no evidence question.

1. The tenant submitted that the 'no evidence' question was not a proper question of law but a challenge to evidence and finding of fact.

1. In Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 (per Hayne, Heydon, Crennan and Kiefel JJ at [90] - [91], French CJ agreeing) the High Court found that

the ground usually described as a "no evidence ground" raises a question of law. ...

... Whether there was no evidence to support a factual finding is a question of law, not a question of fact. ...

1. According to Glass JA (Samuels JA agreeing) in Azzopardi at 156B-F :

To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. .... Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof.

1. As set out in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; per Mason CJ, (Brennan and Deane JJ agreeing) (citations omitted):

87. The question whether there is any evidence of a particular fact is a question of law: ... Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: ... This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: .... So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: ...

1. The tenant submitted that the question formulated by the landlords was determined by reference to the pleadings and the exclusion of an expert opinion, complaints about procedure and about findings of fact.
2. On the basis of the authorities cited above, we are satisfied that a 'no evidence' question is a question of law, even though it arises in the context of the fact finding process. On the basis of this case law, we are satisfied that the question of whether there was no evidence to support the Tribunal's finding that the applicant had proven damages in the sum of $34,524.93 for breach of the Lease is a question of law.

Was there 'no evidence' on which to base the Tribunal's findings in the manner described?

1. The landlords' contention on this question of law hangs on what the Tribunal intended when it decided that the Veale Report was "not admissible" at [174] of the decision.
2. Consideration of this point requires the relevant paragraph of the decision to be set out in full:

174. After weighing up all the evidence and taking into account the submissions made on behalf of the parties, I have decided that the Veale report is not admissible. In short, the facts on which the report is based have not been proven to support Ms Veale's conclusion that the tenant has suffered a loss of $428,534 due to the landlords' repudiation of the lease. I have reached this decision for a number of reasons. ...

1. According to the landlords, the Tribunal intended that the Veale Report was to be excluded in its entirety. All of the evidence upon which the Tribunal based its calculation of damages was drawn from that report and therefore there was no evidence upon which to base the damages calculations.
2. We do not accept this contention for two main reasons;

(1) Interpreting 'not admissible' in context: Paragraph 174 of the decision must not be read in a vacuum. The Tribunal's finding needs to be read in the context of the highly detailed analysis of the Veale Report which it undertook from [145] - [152] (over 15 pages of the decision) and its explanation of the reasons for its findings from [175] - [190].

(2) Other sources for historical trading figures: the Veale Report was not the only source for the historical trading figures in evidence.

1. Interpreting 'not admissible' in context: The tenant submitted that the Tribunal ruled that the Veale Report was inadmissible to prove that the tenant's loss and damage was $428,534. Under s38(2) NCAT Act, the Tribunal was entitled to 'inquire into and inform itself on any matter in such manner as it [though] fit". Despite having rejected the Veale Report as to its conclusion on loss and damage, the Tribunal was entitled to rely on such parts of that report as it saw fit.
2. It has long been held that the reasoning of tribunals and administrative decision-makers should not be 'construed minutely and finely with an eye keenly attuned to the perception of error". In Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280 (at [20] - [22]) Neaves, French and Cooper JJ considered what might and might not constitute a question of law in the setting of a decision of the Administrative Appeals Tribunal and commented on how to read a decision by such a body in that context (citations omitted):

20. The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law .... Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie ....

21. The limits within which the jurisdiction is conferred require that it be exercised with restraint. Only in exceptional circumstances should the decision of the Tribunal not be the final decision ...

22. This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts ... The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error ...

1. These sentiments were approved by the majority in the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
2. Recent case law supports a flexible, contextual approach to interpreting Tribunal reasons. The Owners - Strata Plan 87003 v Raysons Constructions Pty Ltd [2025] NSWSC 66 (Raysons), concerned an NCAT Appeal Panel decision in a similar context to the present, where Leeming J found that a seemingly contradictory finding in the Tribunal's decision at first instance should not be construed strictly at face value, and it should be read in the context of the surrounding reasoning (see particularly [122] - [139]). Accordingly, a finding which might be ambiguous or incongruous should not be held to its literal meaning where its context clearly demonstrates a different intention.
3. From the context in which paragraph 174 appears, it is clear to us that the Tribunal did not exclude the Veale Report in its entirety in deciding that the Veale Report was "not admissible". The Tribunal conducted a careful consideration of the Veale Report's contents in the preceding paragraphs. The Tribunal provided a detailed explanation of the shortcomings of Mr Moran's evidence and the consequent defects in the ultimate opinions by Ms Veale which relied on his evidence in the subsequent paragraphs. From this, we are satisfied that the Tribunal found that the Veale Report was 'not admissible' in the way that the Tribunal went on to explain in the same paragraph: that "the facts on which the report is based have not been proven to support Ms Veale's conclusion that the tenant has suffered a loss of $428,534 due to the landlords' repudiation of the lease." The Tribunal was then at liberty to rely on other data in the Veale Report and elsewhere in coming to its own calculation of damages and at [196] - [197] summarised its analysis of the historical trading information and the reasons for relying on it.
4. On that basis, we find that the 'no evidence' question of law has not been made out. This dispenses with the purported ground of appeal at 1(d).
5. Other sources for historical trading figures For the sake of completeness, there were also other sources for the historical trading figures which were in evidence. As we noted in relation to the procedural fairness question, Counsel for the landlords noted (and did not contest) the historical trading figures in the process of challenging the projected future earnings on which the tenant's damages claim had been based.
6. Those sources included cross examination of Mr Moran by Counsel for the landlord, for example (AB 870 - 871):

We are requesting precisely nothing. We are making comments through the witness about the case and we're putting propositions to the witness through the case. We are not, well, we have invited Mr Moran to go and show us what his financial wherewithal was, but trust, whether he does or he doesn't, it's up to Mr Moran to prove his case. So you won't be receiving any written requests from us other than what we've stated in the court. Mr Moran, your historical trading amounted to $105,000 of revenue from the 28th of December to the 15th of March. Is that correct?

Moran: That's what's being noted, I think, yes.

Stirling: And so that's 12 weeks, isn't it?

Moran: Correct.

Stirling: And so 12 nines are 108, so it's a little bit under 9000 a week, isn't it?

...

1. Further references to the historical trading data were made by the landlords as set out in paragraphs [70] and [75] above.
2. "No evidence" means "not a skerrick"; per Moshinsky J in BSE17 v Minister for Immigration & Anor [2018] FCCA 201 at [33]:

33. There is no issue between the parties as to the applicable principles, which may be briefly stated as follows. The "no evidence" ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [39]-[41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J.

1. We are satisfied that the historical trading figures were before the Tribunal even aside from the Veale Report and the 'no evidence' question (and grounds 1(e) and (h)) also falls down on this point.

1. In Azzopardi (an appeal against a decision from the Compensation Court where appeals were limited to questions or points of law) at 143E - 151A Kirby P (as he then was) set out the legal history of the facility of appeal, discussing in depth the development of the concept of a question of law. For present purposes, it is unnecessary to delve into that analysis, but Kirby P relevantly set out at 146G that:

A line of authority in Australia stretching back many years suggests that, if there is evidence to support a conclusion (or even if the only basis to support the conclusion is a judges assessment of the evidence which he prefers to believe), no amount of perversity or unreasonableness will elevate a decision on a question of fact to one manifesting such an error of law which will attract the court's jurisdiction of appellate review.

...

1. At [52] in AW v WW Kunc J tussled with the notion which was raised by the Court of Criminal Appeal in Orr v Cobar Management Pty Ltd [2020] NSWCCA 220; (2020) 103 NSWLR 36 (Orr) at [109] that a question of law should not draw the Court of Criminal Appeal into questions of fact - except questions which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be know without scrutiny of the facts;

52. Their Honour's exclusion [in Orr] at [109] of "a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts" is a reminder of one source of complication in this area of discourse, being that some questions of law, properly framed and understood as such, will require an examination of the facts. However, in my respectful opinion, this latter category is generally and necessarily confined to submissions of jurisdictional error on grounds such as 'Wednesbury unreasonableness' or constructive failure to exercise jurisdiction. This reflects the nature of such challenges which the High Court summarised in its recent judgment of Mounib Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (emphasis added):

25 The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.

1. On this basis we find that the unreasonableness question is a question of law.

1. The unreasonableness question was based on either or both of the procedural fairness question and the 'no evidence' question succeeding. Both have failed and there is no further discernible basis in the Landlords' submissions for arguing that the decision was unreasonable.
2. There is nothing "overwhelming" in the decision such that it could be found to be unreasonable. On the contrary, it is considered, detailed and consistent with the relevant legal authorities.
3. This complaint also cannot be sustained.

Conclusion on the questions of law and consequent findings on the application for an extension of time

1. In light of the reasons we have set out, it is apparent that the Appeal does not have prospects for success. Accordingly it is futile to grant an extension of time in which to lodge the appeal and the application is refused.

1. When we raised the issue of what question of law was relevant to the costs decision, Counsel for the landlords submitted that the costs decision should follow the course of the substantive decision. Counsel for the tenant objected to the costs decision being included in the appeal as no question of law had been stated in relation to the costs decision and no submissions had been made in this regard.
2. As it turns out, we have not found any reason to disturb the orders made by the Tribunal in the decision. Accordingly, even if it is included in the appeal, there is no reason to disturb the costs decision either.

1. The stay order in relation to Order 1 which was made by the Appeal Panel on 11 December 2024 (per order 10) will cease as a result of the finalisation of the appeal. No further orders are required in that regard.

1. As a consequence of the reasons set out above, we make the following orders:

(1) The application for an extension of time for filing of the Notice of Appeal is refused.

(2) The appeal is dismissed.

(3) The parties are to file any written submissions in relation to costs within 14 days and are to reply to each other's submissions 7 days thereafter. Submissions are to include whether the parties consider that the issue of costs may be determined on the papers pursuant to s 50(2) of the NCAT Act.

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.