Tanwar Institute of Professional Studies Pty Ltd v Ruggeri

1. The Tribunal ordered the appellant to pay the respondent $16,167.00.
2. The Primary Decision records that the reasons also concerned matter 2023/00390863, (formerly matter COM 23/26495). In that matter, the respondent sought interim orders for "relief from termination of [the] [L]ease". That matter appears to have been overtaken by events. In any event, in this appeal, the appellant seeks no relief in respect of that matter.
3. The Primary Decision also refers to a "cross claim" of the appellant seeking the amount of $22,300: Primary Decision, at [81]. It appears that no formal application was filed for this claim.
4. The cross claim was dismissed: Primary Decision at [103].
5. For the following reasons, we have allowed the appeal in relation to Ground Six of the appeal only.

1. The appellant filed a Notice of Appeal on 16 June 2025, which is within the time provided by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. An Amended Notice of Appeal was filed on 18 July 2025. The Amended Notice of Appeal stated, under the hearing "Orders Challenged on Appeal", that the appellant "challenges the determinations made by the [T]ribunal" with respect to:

(1) the finding at [93] of the Primary Decision that the appellant was in breach of condition 11 of "the Lease";

(2) the findings at [97] and [100] of the Primary Decision that the appellant should reimburse the Lessee four weeks of rent;

(3) the finding at [101(a)] of the Primary Decision that the appellant was required to reimburse the Lessee $4,213.00;

(4) the findings at [101(c)] and [101(d)] of the Primary Decision that the appellant was required to reimburse the respondent $1,720.00;

(5) the finding at [101(e)] of the Primary Decision that the appellant was required to reimburse the respondent $1,067.00;

(6) the finding at [101(f)] of the Primary Decision that the appellant was required to reimburse the respondent $1,072.00;

1. The Amended Notice of Appeal then sets out the appellant's grounds of appeal together with brief submissions addressing each ground. In summary, these are:

Ground 1 - The Appellant being in breach of condition 11 of the Lease, as set out at (93] of the Judgment - The Tribunal erred in its construction interpretation and application of the Lease as it pertains to condition 11 in requiring the Appellant to undertake a duty required under the Lease, but then faulting the Appellant when undertaking said duty. More specifically, if the Appellant did not undertake the work to finalise the pre commencement obligations they would be in breach, but in performing that work, minimising damages to the Respondent, the Tribunal has also found the Appellant to be in breach, resulting in there being no option available to the Appellant that wouldn't result in a breach of the Lease thereby resulting in an unfair prejudice and a decision so unreasonable that no reasonable decision-maker would make it.

Ground 2 - The Appellant being required to reimburse the Respondent 4 weeks of rent for the reasons set out at [97] and [100] of the Judgment - The Tribunal found 2 instances of delay but erred in the application of legal principles concerning damages by failing to combine said delay as both instances of delay fell within the same time period. By treating the 2 instances of delay as separate and awarding damages for both, the Respondent is in receipt of 2 awards of damage, where only 1 instance of damage by delay was incurred resulting in an unfair prejudice and a denial of natural justice as against the Appellant.

Ground 3 - The Appellant being required to reimburse the Respondent $4,213 for the reasons set out at [101(a)] of the Judgment - The Tribunal erred by drawing inferences where there was no evidence to support a finding of fact. The Tribunal relied heavily upon the evidence of Mr Vlahos, the Respondent's witness, in making the determination as to the state of the cool room; yet Mr VIahos's evidence did not support the Tribunal's determination. The Tribunal erred by incorrectly reiterating the evidence of Mr Vlahos, in addition to failing to consider or sufficiently deal with the evidence of the Appellant, being the certification as to the cool room's status. The Tribunal also considered Mr Vlahos's evidence in the nature of an expert, when the requirements for expert evidence were not observed nor complied with and therefore denied the Appellant procedural fairness.

Ground 4 - The Appellant being required to reimburse the Respondent $1,720 for the reasons set out at [101(c)] and [101(a)] of the Judgment - The Tribunal erred in its construction of the Lease reasoning between the term 'maintenance' and 'upgrade' with respect to the electrical services and the obligations the Lease imposed on the parties. In that upgrade works requested solely by the Respondent, resulting in the need to upgrade the Property's electrical infrastructure is a separate consideration and does not fall into the category of obligations required by cl 7.1.3 of the Lease, as that is limited to maintaining electrical services not upgrading them. In addition, the Tribunal erred in its application of section 34 of the Retail Leases Act with respect to the points set out in [101(c)] and [101(d)] of the Judgment in that none of the subparagraphs of section 34(1) were found to be made out with respect to this issue. there was no finding that the Appellant did not rectify the matter in a reasonable manner, to the extent they were required to, and there was no finding that the amount of damage exceeded nominal, given that electrical works were being conducted on the Property regardless.

Ground 5 - The Appellant being required to reimburse the Respondent $1,067 for the reasons set out at [101(e)] of the Judgment - The Tribunal erred in its construction of the Lease regarding the interpretation and application of the term 'structural' with respect to the exhaust, the evidence adduced at hearing and the obligations that were imposed by the Lease on the parties with respect to the maintenance of upkeep of the exhaust. It is erroneous to conclude that because the exhaust could be classified as a 'structure', any works required must constitute 'structural defects' and therefore must be rectified by the Appellant as per clause 7.2 of the Lease. In addition, the Tribunal erred in its application of section 34 of the Retail Leases Act with respect to the point set out in [101(e)] of the Judgment in that none of the subparagraphs of section 34(1) were found to be made out with respect to this issue, there was no finding that the Appellant did not rectify the matter in a reasonable manner, to the extent they were required to, and there was no finding that the amount of damage exceeded nominal, given that the Respondent requested the works to be done.

Ground 6 - The Appellant being required to reimburse the Respondent $1,072 for the reasons set out at [101(f)] of the Judgment - The Tribunal erred in its construction of the Lease by way of the legal reasoning applied, resulting in the misinterpretation and misapplication of the Lease resulting in a determination where there was no evidence to support the finding. The obligation concerning the cleaning of the exhaust post-handover was explicitly stated in the Lease as to be that of the Respondent, not the Appellant.

1. The appellant says that all six grounds of appeal raise an "error of law" and therefore leave to appeal is not required. Specifically, the appellant submits that:

(1) Grounds One and Six involve an error in the interpretation of the Lease which constitutes an error of law;

(2) Grounds Four and Six relate to errors of law with respect to s 34 of the Retail Leases Act 1994 (NSW) (RL Act) and therefore no leave is required.

1. However, to the extent that it is disputed that a question of law is raised, the appellant submits that:

(1) in relation to Ground Two, the Primary Decision was not fair and equitable;

(2) in relation to Ground Three, the Primary Decision was against the weight of the evidence.

1. No further documents were filed by the appellant, save for submissions in chief dated 2 September 2025 and submissions in reply dated 19 September 2025.

1. The respondent filed a Reply to the Amended Grounds of Appeal on 28 July 2025.
2. In summary, the respondent submits that the Tribunal did not err in its construction of the Lease, and that other submissions advanced by the appellant are nothing more than a suggestion that the Tribunal was arguably wrong and that the conclusion arrived at does not "cross the threshold" contemplated by Collins v Urban [2014] NSAWCATAP 17 (Collins) at [80]-[84].

1. The respondent also filed a 1,150 page bundle of materials on 22 September 2025. This bundle included the evidence before the Tribunal, a transcript of the Tribunal proceedings and the submissions before the Tribunal and the Appeal Panel.

1. The respondent filed submissions on the appeal on 16 September 2025.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any "question of law" (that is, not an "error of law"), or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique). Relevantly, the Appeal Panel stated:

35 It has become commonplace for parties, and their lawyers, to simply copy from various items listed in Prendergast as questions of law and present them in a Notice of Appeal, without modification of clarification to meet the circumstances of the relevant appeal.

36 Commonly, that will be wrong.

37 What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

38 For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

39 Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required.

40 In light of the above authorities, a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law.

(emphasis added)

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins, the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) Issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
2. As the Appeal Panel stated in Unique:

41 Where the ground of appeal does not raise a pure question of law, the appellant may seek leave to appeal.

42 The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. (Citations omitted)

43 Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 (Hungry Jack's) at [9]:

... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice." (Citation omitted)

(1) Hungry Jack's was cited approvingly in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9].

1. Both parties agreed that these grounds could be dealt with together.

(1) the Tribunal at [98] to [100], awarded the respondent a further three weeks of free rent to compensate for the appellant not complying with their pre-commencement obligations;

(2) overall, the Tribunal awarded the respondent with five weeks' worth of rent;

(3) the respondent was entitled to, and did receive two weeks' rent free, for the period of 9 January 2023 through to 23 January 2023;

(4) accordingly, with the rent-free period provided, plus that awarded by the Tribunal, the respondent was in receipt of seven weeks of free rent.

(5) handover was 9 January 2023 (Handover), with the appellant's pre-commencement obligations being substantially completed by 28 January 2023 and the restaurant opening on 4 February 2023, a total period of three weeks and five days;

(6) accepting that the bargain of one of the two provided rent-free weeks was not enjoyed by the respondent, that reduced the ultimate number of rent-free weeks down to six weeks;

(7) the purpose of awarding damages is to compensate for that which the wronged party has incurred: Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 (Haines) at 63. But where multiple delays occur concurrently, the general principles of compensation dictate that double recovery should be avoided: Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563;

(8) as the respondent was operating within three weeks and five days from Handover, after all pre-commencement obligations had been substantially complied with, the number of rent-free weeks ought not exceed three weeks and five days; and with the one rent-free week provided, the most compensation the respondent is entitled to is two weeks and five days. Any additional rent-free weeks would fall outside of the period in which remedy was needed and would result in the respondent gaining a profit, which is not the intention of compensation: Haines.

(1) the Tribunal was correct to reject both arguments advanced by the appellant as:

(a) to suggest that the presence of the lessee in the property equates to that which was bargained for - quiet enjoyment, a bargained enjoyment most crucial to allow the lessee to set up the premises for trade - is wrong. The respondent did not get that which he had bargained for he should be compensated for at least that time;

(b) the fact that there was a "rent free period in any event" does not suggest, that because the lessee was always going to get two months' rent free anyway (per special condition 20), that the lessee has not lost anything when the premises were occupied (partially) by the landlord during that period.;

(c) it is wrong to consider that no rent paid equals no loss suffered;

(2) the appellant's argument that there was a 'rent-free period in any event' misconceives the nature of commercial lease negotiations. The rent-free period was not a gratuity - it was purchased consideration, negotiated in exchange for other lease terms. The respondent did not bargain for any rent-free period, he bargained for an undisturbed fit-out period;

(3) when the appellant converted this into a period of shared occupation and disrupted works, it deprived the respondent of the benefit of the bargain. The Tribunal correctly recognised this distinction and properly compensated for the loss. To put it another way: "a disrupted January cannot be replaced with a quiet February";

(4) the crux of this submission by the appellant, "really", is to confront the reasoning at [98]-[100] of the Primary Decision, and the interpretation of s 17 of the RL Act. In so far as the Tribunal acknowledged directly that s 17 engages for a rental period that overlaps with the subject matter of the rent-free period compensation, the Tribunal correctly identified that legislative intention, is not to reward the landlord by allowing the bargained rent-free period to be a substitute to the statutory consequence under s 17. That is to say, Parliament did not intend to punish tenants who have happened to negotiate a rent-free period, or treat them less fortunately than those who have not. There is nothing wrong with the Tribunal's approach;

(5) even though s 17 as a remedial consequence concerns a statutory form of rent abatement, in truth, the contractual basis for calculating remedy on rent free periods, and the s 17 basis are separate and distinct grounds, and the Primary Decision is correct. Clause 11 of the Lease guarantees quiet enjoyment. Section 17 prohibits rent during non-compliance. Special Condition 20 grants two months' rent-free. These are three distinct legal entitlements, not one;

(6) the merit of this approach is only underscored by the respondent's evidence about the cascading delays, plumbers not being able to work, electricians being delayed, and painters having to return. Each day of interference multiplied. The appellant's presence did not just occupy space: it frustrated the very purpose of the rent-free period. It would not be surprising if that frustration had scheduling consequences.

(1) the respondent's submissions that the appellant's argument over double recovery is erroneous is not substantiated;

(2) the respondent's submissions merely go to the specific relief the respondent is entitled to, "not how", and that the relief does not constitute double recovery, nor why double recovery ought to be accepted;

(3) these appeal grounds simply seek the proper application of the compensation principle, and to put the respondent in the position they would have been under the contract, namely, to provide the three weeks and five days of free rent. The appeal grounds have "nothing to do with rewarding the [appellant] or punishing the [respondent], as the respondent would suggest".

1. The respondent accepts that these grounds of appeal involves the Tribunal's interpretation of s 17 of the RL Act. This suggests that the respondent accepts that these grounds of appeal raise a question of law.
2. We do not. As the Appeal Panel made abundantly clear in Unique at [40], a question of law must be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law. In Unique, the Appeal Panel stated at [32](4) that:

Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66].

(emphasis added)

1. In our view, the appellant has failed to make that identification. We consider that, in relation to Ground One, the Notice of Appeal makes it clear that the appellant is appealing "the finding at [93] of the Primary Decision that the appellant was in breach of condition 11 of the Lease", that is, the appellant is appealing a factual finding of the Tribunal.
2. Similarly, in relation to Ground Two, the Notice of Appeal makes it clear that the appellant is appealing the findings at [97] and [100] of the Primary Decision that the appellant should reimburse the Lessee four weeks of rent.
3. In relation to both grounds, the Tribunal found:

93 On the evidence before the Tribunal, it is evident that due to the failure of the Respo[n]dent to carry out its pre commencement obligations that there was a delay. Looking at the point made by Mr Bennett regarding the bargain struck, then that is a rent free period for use by the applicant to prepare the premises in the usual manner of rent free without interference. It is a breach of clause 11 the covenant for quiet enjoyment. The Applicant did not obtain this bargain and the Respondent should reimburse the Applicant for this loss in the sum of $1,519...

94 The second claim is for an allowance of 3 weeks wasted water and electricity supplied by the Applicant at the request of the Respondent for $300. This was not contested.

95 The next claim is for $35,000 for one week's loss of trade ( based on average of the first 4 week's gross sales of $35,000 per week) for breach by the Respondent of its pre commencement obligations regarding the coolroom in particular.

96 On the evidence of the Applicant, it is clear that his intention was for his restaurant to open on 26 January 2023, an auspicious day. The Respondent cavil with is saying it was always going to be 4 February 2023. I accept the evidence of the Applicant. Further the Tribunal has already determined that the Respondent is in breach.

97 I do not accept, however that one week's gross sales is the correct amount of damages. It can only be loss of one week's profit, being gross sales less the cost of running the restaurant. Again, a better measurement is the loss of the bargain that is relevant, that is the loss of a rent free week. The Respondent should reimburse the Applicant $1,519.

98 Item 3 of the Schedule is the claim pursuant to s 17 of the RLA. Contrary to the claim by the Applicant that it is a continuing breach, the Tribunal has found that the Respondent was in breach from 9 January 2023 to 28 January 2023, being 3 weeks. The rent claimed is therefore $4, 557.

99 However, this was during the rent free period. Rent free periods at the commencement of a lease are very common, especially to allow the lessee to fit out and also rent free periods form part of lease incentives. Consequently, if a lessor, as in this case was in breach of its obligations under s 17, yet there was no rent payable due to a rent free period, then there is no penalty on the lessor to delay its pre commencement fit out obligations and be in breach of s 17. That cannot be the intention of the Legislature.

100 This is the situation here. The Applicant has lost its bargain of 3 weeks rent free due to the breach by the Respondent of its obligations under s17 of the RLA. Pursuant to special condition 20 of the Lease, the Applicant secured 2 month's rent free to allow for his fitout and commencement of a new business. As a consequence of the delays in the pre commencement obligations of the Respondent and other interferences by the Respondent the Applicant was denied the benefit of this period for 3 weeks. Consequently, the Respondent is in breach of special condition 20 and is to reimburse the Applicant for the 3 weeks rent.

1. We see no question of law raised in relation to Grounds One and Two.
2. In our view, the appellant is clearly challenging factual findings of the Tribunal, and it is difficult to escape the conclusion that the appellant is simply seeking to reagitate factual findings that were available to it. As the Appeal Panel has stated on many occasions, an appeal does not simply provide a losing party in the Tribunal with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10], cited as recently as September 2025 in Nguyen v Nguyen [2025] NSWCATAP 238 at [40].
3. As was noted by the Appeal Panel in Unique at [43], as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9]:

... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice.

1. To the extent that Grounds One and Two raise some other error, leave to appeal is refused and the appeal otherwise dismissed.
2. For completeness, we note that the appellant specifically submitted, in its alternative submission that, in relation to Ground Two, the Primary Decision was not fair and equitable.
3. We disagree. And, even if that ground for leave to appeal had been established, we would not have granted leave to appeal as we would not have been satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

1. After setting out a chronology of events, the appellant submits that by virtue of special condition 33 of the Lease and cl 13 of the Heads of Agreement dated 8 November 2023 (HOA), following the Handover, the respondent bore all the obligations regarding the functionality and maintenance of the cool room. Accordingly, the appellant maintained at the proceedings that at most the cool room was not adequately functional from 9 January 2023 to 19 January, or at the latest, 23 January 2023, when the appellant's cool room technician serviced the cool room; after that date the respondent's obligation to do so was enlivened and applicable.
2. The appellant submits that the Tribunal addressed the cool room issue in the Primary Decision at [53]-[58], placing reliance primarily on the evidence of the respondent's witness, Mr Vlahos. The appellant submits that there are three problems with the Tribunal's treatment of this issue.
3. The first was that the Tribunal treated the evidence of Mr Vlahos as expert evidence. The appellant submits that it objected to this course, and the Tribunal rejected that argument, noting that submissions could be made on the issue and as a matter of weight.
4. Secondly, the respondent did not call the appellant's technician for cross examination to challenge the statement that the cool room was functional as at 19 January 2023. Nor did the Tribunal explicitly deal with this evidence in the Primary Decision.
5. Thirdly, the respondent ignores that under cross examination, Mr Vlahos conceded that he was unable to confirm that the cool room was not functional as at 19 January 2023.
6. Accordingly, the appellant submits that Mr Vlahos' evidence ought to have been considered as lay evidence and therefore that his opinions as to the state of the cool room weeks prior to his cross-examination ought to have been disregarded by the Tribunal. In any event, the fact that Mr Vlahos conceded he lacked the ability to determine the state of the cool room as at 19 January 2023, in light of unchallenged evidence to its functionality, deprived the Tribunal from having any evidence to reach the conclusion as stated in the Primary Decision at [58].

1. In summary, the respondent submits that the appellant is submitting that, in reaching conclusions about the cool room, the Tribunal sided with the respondent, and that the Tribunal should not have done so. The respondent submits that this ground must fail.
2. As to the appellant's first argument, the respondent submits that:

(1) Mr Vlahos gave his opinion based on his observations; the Tribunal scrutinised this, as against other facts and objective material;

(2) the Tribunal clearly approached the question by reference to feelings of an actual persuasion, not based upon mere mechanical comparison of probabilities independent of any belief in reality: Warner v Hung, Re Bellpac Pty Ltd (in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48];

(3) the fact that evidence may or may not be "expert" evidence is apt to confuse:

(a) procedural directions about preparation of evidence, including expert evidence;

(b) questions of admissibility of evidence, where (if the Evidence Act, or other evidence law applied), opinion evidence that might otherwise be inadmissible, is admissible under section 79 for specialised knowledge and belief;

(4) questions of use of evidence, once admitted.

1. The respondent submits that", "put simply", the fact that evidence:

(1) amounts to opinion evidence;

(2) that is expert evidence (that is, based on specialised knowledge and belief);

(3) but was adduced without (usual) directions as to the preparation of expert evidence,

1. As to the appellant's second argument, namely that the fact that there was no cross examination of the appellant's technician, interference with the findings of fact should only occur where the findings are glaringly improbable, contrary to compelling inferences, or demonstrably wrong based on incontrovertible facts or uncontested testimony. No matter whether the testimony was uncontested, this does not elevate that testimony to the contrary conclusion being "demonstrably wrong".
2. In short, the fact that a witness has said something does not mean it is in all the circumstances to be accepted, if not countered in evidence or cross examination. Something that is purely absurd might not be accepted, even where there is no contrary case put.
3. As to the third argument, this proposition was raised at hearing, and dealt with by the Tribunal. The fact that there was a concession about the limits of the witness' perception does not negate that on other material the same conclusion could be reached. So much was identified and articulated by the Tribunal at [57]-[58] of the Primary Decision.

1. The appellant submits that Mr Vlahos was clear in his evidence:

Q: "...is it fair to say you are unable to comment as to state cool was at 19 January, is that correct?"

A: "Yes, I can't comment."

(1) Mr Vlahos could not have observed the cool room prior to 28 January, as he was not in attendance;

(2) any opinion Mr Vlahos might have otherwise expressed about the cool room prior to 28 January exceeds what leniency, concerning the admissibility of opinion evidence might be available for lay witness, and enters that of an expert witness.

1. The appellant further submits that non-compliance with the requirement concerning expert evidence falls into the category of a lack of procedural fairness.
2. In conclusion, the appellant submits that the unchallenged evidence of Mr Vlahos necessarily extinguishes any notion of there being an incontrovertible fact concerning the cool room.

1. At [53]-[58] of the Primary Decision, the Tribunal stated:

Provide a working coolroom

53 Mr Bennett submitted that the coolroom was not keeping the temperature necessary for the food grade, in circumstances where it was running at commencement at around 10-12 degrees (in lieu of 2-5 degrees), the door seals were not working and the inside condenser was freezing over, as confirmed by Mr Vlahos, a refrigeration mechanic and Mr Philips, the electrician..

54 Mr Kaylinger submitted that the Applicant primarily relies on the evidence of Mr Vlahos, who in cross examination conceded that while he attended the coolroom on 26 January 2023 he could not confirm if the coolroom was not in working order as of 23 January 2023.

55 Mr Kaylinger's further submissions are that the applicant did not conduct, prior to, or at handover a sufficient inspection of the premises and that immediately after handover a number of trades people engaged by the applicant commenced work in the premises. Further, as in this contention it is some time after the commencement date that evidence is deduced regarding the functionality of the coolroom as at 9 January 2023.

56 Mr Bennett responded by submitting that the evidence of Mr Vlahos that he could not confirm if the coolroom was not in working order at 23 January 2023 does not diminish the evidence he can give about the work he carried out on 26 January 2026.

57 The evidence from Mr Vlahos was clear. As at 26 January 2023 the coolroom was malfunctioning due a significant number of faults being[:]

(1) The coolroom evaporator was freezing over and operating at around 10 degrees. Australian Food standards for walk in cool rooms is between 2-5 degrees allowing for many openings through-out the day.

(2) the sliding door had no bottom guide rail and also swung outwards.

(3) the analogue temperature gauge was set at its maximum at minus 30.

(4) the compressor was not pumping refrigerant gas at all and was faulty.

(5) The running gear was not serviceable, it needed new components to make it functional.

58 Given the many faults it would be extraordinary to find that the coolroom was functioning on 23 January 2023 but a mere three days later, all of a sudden, it had manifested these underlying faults and was defective. The Tribunal accepts the evidence of Mr Vlahos and based on his observations on 26 January 2023 finds that the coolroom was not functioning satisfactorily on 23 January 2023, nor on 9 January 2023 and probably before.

1. We see no question of law being raised in this ground with any precision, or at all.
2. The Notice of Appeal makes it clear that the appellant is appealing the findings at [101(a)] of the Primary Decision that the appellant should reimburse the respondent $4,213.00.
3. The appellant submits that the Tribunal's conclusion was against the weight of the evidence, and that leave to appeal should be granted.
4. In his affidavit affirmed 21 September 2023, Mr Vlahos (a refrigeration mechanic) had stated:

3 I was contacted by Domenic Ruggeri around the 26th of January 2023 regarding a coolroom that was keeping temperature at around 10-12 degrees. He told me the work was urgent as he needed to open his restaurant having had delays with getting the coolroom working.

4 I attended on site that day and inspected the coolroom and the outside compressor.

5 The coolroom evaporator was freezing over and operating at around 10 degrees. Australian Food standards for walk in cool rooms is between 2-5 degrees allowing for many openings through-out the day.

6 the sliding door had no bottom guide rail and also swung outwards.

7 the analogue temperature gauge was set at its maximum at minus 30.

8 the compressor was not pumping refrigerant gas at all and was faulty.

9 The running gear was not serviceable, it needed new components to make it functional.

10 I gave Domenic a quote to install a new indoor evaporator unit, digital temperature gauge and TX valve and new compressor together with new door guides and seals for $4,213.00. This quote utilised reconditioned parts that were in good condition and with a one-year warranty. The cost of new equipment would have been double my quote.

11. Domenic gave me the go ahead to start the work, I came on the Saturday the 28 January started around 7 am and worked till around 6.30pm. We utilised existing external wall holes to replace old pipework and install new pipework, the existing compressor brackets were rusted and did not hold, due to time I did what I could to secure them but also supported the new compressor with a milk crate. We tested the unit, and it was running at 3.6 degrees. The new compressor was secure and stable. The sliding door held and sealed correctly. I am awaiting the ok to come back and secure the new compressor with new brackets.

12. We did not interfere with any roofing sheets or guttering.

13. I provided a report marked "A" dated 29/01/2023 the next day a copy of which is attached together with photos Marked "B" of the old indoor evaporator unit which was internally badly corroded and blocked with debris thus the reason for its freezing over.

14. Domenic's restaurant would not have passed food and local council health regulations with the coolroom as was inspected by me on the 26t January, 2023 running at 10-12 degrees and not having a functioning door that sealed shut.

1. In the report marked "A", Mr Vlahos relevantly stated:

Checked and found compressor not pumping at all, compressor is faulty. Also, evaporator is not compliant very dirty, and evaporator is corroded. Door track was work out replaced with new and put spacer for the roller. Also, thermostat is faulty set at -30 doesn't work. The refrigeration plant was not working needed to be replaced.

1. We do not accept the appellant's submissions on this issue. While we accept that Mr Vlahos apparently said in cross-examination that he was unable to comment as to state of the coolroom as at 19 January 2023, we do not consider that the Tribunal's conclusion at [58] was not reasonably available to it.
2. Leave to appeal on this ground of appeal is refused.

(1) the argument advanced by the respondent before the Tribunal was that the appellant was liable to pay the $1,720, pursuant to ss 17 and/or 34 of the RL Act;

(2) this argument had to fail because:

(a) for s 17 of the RL Act to apply, the upgrade of the electrical services would have to had formed part of the pre-commencement obligations, to which they did not;

(b) for s 34 of the RL Act to apply, this required a finding that the appellant acted unreasonably in responding to the issue, in respect of which no evidence was adduced.

(3) the Tribunal did not consider either section; rather, the Tribunal determined that as the electrical services was an essential service and that pursuant to cl 7.1.3 of the Lease, being the maintenance provision, the appellant was liable for the cost of the new shop fit out electrical work.

1. The appellant submits that the Tribunal's reasoning raises an important question "as to where the line between upgrading and maintenance falls". The appellant accepts that pursuant to the Lease, it was and is required to maintain the electrical services for the subject property. However, if the respondent insists on installing significantly more electrically demanding machinery and equipment that exceeds the current capacity of the property, as was the case, the appellant's maintenance obligations should not extend to upgrades. The appellant submits that the Tribunal provided no insight as to how this issue was resolved or what test was applied to reach his conclusion.
2. Importantly, the appellant was not given an opportunity to address the distinction between maintenance versus upgrades as it was no part of the case prosecuted by the Lessee, which was raised by the Tribunal at the hearing.
3. The appellant submits that either the respondent's claim fails because neither of ss 17 and 34 did not apply, or because the Appeal Panel must find error in the Tribunal's findings, as the appellant cannot be subjected to a finding on an issue they were not given an opportunity to address with evidence and submission, and to do so would be a denial of procedural fairness.

(1) "simply put", the Tribunal's conclusion on cl 7.2 must be correct;

(2) even if procedural unfairness occurred in identifying the case to meet, no injustice arises where the ultimate conclusion is inevitable;

(3) clause 7.2 unambiguously places the obligation for structural defects on the landlord.

(1) the respondent did not advance any argument regarding cl 7.1.3 of the Lease before the Tribunal;

(2) both the respondent's position that the distinction between maintenance and upgrades is 'illusory' and the respondent's submission that the position would have been the same, "are fundamentally flawed as the evidence was neither adduced nor tested, nor submissions made with cl 7.1.3 of the Lease in mind, such that is it entirely unclear what the position would have ultimately been".

1. As with the other grounds of appeal, the appellant does not articulate how or why this ground raises a question of law; save for the invocation of ss 17 and 34 of the RL Act, no question of law a question of law has been articulated with any, let alone, sufficient precision.
2. Accordingly, we discern no question of law being raised.
3. In any event, the Notice of Appeal states that the appellant is challenging the findings at [101(c)] and [101(d)] of the Primary Decision that the appellant was required to reimburse the Lessee $1,720.00.
4. It may be implied that the appellant is attacking the adequacy of the Tribunal's reasons on this matter, which would raise a question of law. However, again, no such question of law has been stated with any precision.
5. In any event, while the reasons may be brief, we consider they meet the minimum acceptable standard required: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 23 at [66].
6. Accordingly, leave to appeal is required.
7. We note that the appellant correctly submits that it had been pleaded that the respondent was entitled to "reimbursement of electrical supply make good to bring supply and new Circuit board to code" pursuant to ss 17 and 34 of the RL Act. That said, this was not raised in the respondent's closing written submissions before the Tribunal, save for the reference at [76](d) that the respondent was seeking reimbursements for electrical supply, which is repeated at [4](a) of Annexure A to the respondent's submission, being the respondent's Schedule of Damages and Orders.
8. And, as we do not have the benefit of a transcript of the Tribunal hearing, we do not know how this matter was argued before the Tribunal.
9. The issue was dealt with by the Tribunal on the basis of cl 7.1.3 of the Lease. That clause provided:

CONDITIONS AND REPAIRS

Who is to repair the property?

7.1 The lessor must -

...

7.1.3 maintain essential services.

1. All the Tribunal says on the issue is found at [101](c), namely:

Reimbursement of electrical supply to bring the new circuit board to code cost $1,720. The Respondent has an obligation to maintain essential services pursuant to s 7.1.3. electricity is an essential service. The is Respondent is to reimburse this amount.

1. We discern no error by the Tribunal, and would not grant leave to appeal in respect of this ground of appeal.

1. The appellant submits that this ground of appeal refers to a "hierarchy of issues as it pertains to the findings" made in the Primary Decision at [101(e)], namely:

(1) what case was the appellant supposed to meet;

(2) procedural fairness following consent orders, and

(3) errors in the Tribunal's findings.

1. The appellant then submits that, "first and foremost", there are a number of important considerations "with respect to this ground and the relevant issues therein", namely:

(1) there is a distinction that the Lease and HOA make explicit with respect to the exhaust, that being the cleanliness of the exhaust and for it to be in working order; the Primary Decision at [101(e)] referring to the cleanliness of the exhaust system only;

(2) the cost of $1,067 relates purely to the cost of inserting cleaning hatches;

(3) the cost of $1,067 was incurred on 18 March 2024, 9 months after the commencement of the proceedings below and after two full days of hearing, being 27 and 28 February 2024.

1. The appellant then addresses the "hierarchy of issues" set out above, and submits that it is not clear:

(1) on what basis the Tribunal determined that the exhaust constitutes 'a structure' with respect to the Lease and or the property, as opposed to machinery, equipment or another component. The appellant submits that the Lease does not provide a definition for the term structure, nor does the Senior Member articulate any such definition;

(2) what test the Tribunal employed to determine what constitutes a "structural defect versus maintenance", as no test was articulated by the Tribunal;

(3) how the Tribunal determined that the panels were necessary to cure the apparent 'structural defect' as the evidence provided refers to them being necessary for cleaning purposes only, not structural.

1. The appellant submits that these issues individually result in error by the Tribunal, but "combined produce nothing short of an error that renders the finding at [101(e)] of the Primary Judgment wrong and subject to being overturned".

1. After setting out "noteworthy" "matters of context", the respondent submits:

45 ... Simply put: Tribunal's conclusion on clause 7.2 must be correct. Even if procedural unfairness occurred in identifying the case to meet, no injustice arises where the ultimate conclusion is inevitable. Clause 7.2 unambiguously places the obligation for structural defects on the landlord.

12 In addressing the ambush nature of the access hatch claim, when provided the opportunity to amend their application, the [respondent] decided to not include orders to reflect that previously stated in the affidavit of Dominic Ruggeri 27 September 2023 at [99]. Accordingly, the [appellant] cannot be expected to guess what the [respondent] will or will not press, and simply cannot respond fairly, nor can they address the grounds for orders which have not been clearly outlined in the application.

13 To address the procedural fairness following from the consent orders claim, as noted above, the [respondent] in their application were not seeking orders to install the hatches and as noted in the [appellant's] written submissions, the Lessee's argument was made pursuant to section 17 of the RLA, to which no relief could be granted requiring said hatches to be installed. Accordingly, but for the consent of the Landlord to allow the [respondent] to install the hatches, the Tribunal was in no position to make such an order, such that the relevant costs would not have been incurred. To now retrospectively press for the recovery of an expenses incurred, only as a result of the [appellant's] consent, is quintessentially prejudicial.

14 The [respondent's] position at [44] of their written submissions simply does not follow, the pre-commencement obligations cannot both be substantially complied with and yet not.

CONDITIONS AND REPAIRS

Who is to repair the property?

...

7.2 The Lessee must otherwise maintain the property in its condition at the commencement date and promptly do repairs needed to keep it in that but the lessee does not have to-

7.2.1 alter or improve the property;

7.2.2 fix structural defects; o

7.2.3 repair fair wear and tear.

1. While not expressed in terms, the appellant's submissions set out at [84] above appear to be challenging the adequacy of the Tribunal's in the three ways identified.
2. Paragraph [101(e)] of the Primary Decision deals with the cost of inserting cleaning hatches, being $1,067. The Tribunal states:

Mr Kaylinger disputes that this is covered by s34 of the RLA nor anywhere in the Lease. Clause 7.2 is relevant here, it is agreed that the [respondent] once in possession, and after the Respondent has completed its cleaning of the kitchen exhaust is responsible for the cleaning and maintenance of the leased premises which includes the exhaust. However, clause 7.2 states that the lessee does not have to fix structural defects. The Tribunal accepts the evidence of VMA Ventilation Maintenance Australia that to efficiently clean the roof mounted kitchen exhaust access panels are necessary. The exhaust system is part of the structure being connected to the roof. The absence of access panels to allow proper maintenance is a structural defect for which the Respondent is responsible. In turn the Applicant attended to this and is entitled to be reimbursed.

1. In our view, par [101](e) adequately explains the Tribunal's reasons on this issue, and we see no error by the Tribunal.
2. We see no other question of law articulated with any precision.
3. In any event, the Notice of Appeal states that the appellant is challenging the findings at [101(e)] of the Primary Decision that the appellant was required to reimburse the Lessee $1,067.00.
4. Therefore, leave to appeal is required.
5. Again, we see no error by the Tribunal warranting a grant of leave.

1. In summary, the appellant repeats earlier submissions in relation to [101(e)] of the Primary Decision. Alternatively, the appellant further submits that if the Appeal Panel accepts any of its submissions, then it necessarily follows that the Senior Member erred with respect to the finding at [101(f)] as "said finding relies on the Primary Judgment at [101(e)]".
2. Alternatively, the appellant submits that even if one were to accept the Tribunal's reasoning at [101(e)], pursuant to cl 7.2 of the Lease, the installation of hatches was necessary to rectify a structural defect of the exhaust; and there is "no line of argument connecting that finding" to the $1,072 in costs incurred by the respondent in having the exhaust ducts cleaned.
3. The appellant concludes:

66 Not only does the Lease at cl 7.2 require the Lessee to maintain the Property, which one would reasonably read as including the cleaning of the exhaust, the Lease, at special condition 24 and the HOA at cl 5, are explicit and direct, the Lessee will maintain and keep the exhaust extraction clean, a requirement not contested by the Lessee.

67 In short, the very clause the Senior Member relies on unambiguously obligates the Lessee to clean the exhaust, an obligation emphasised by the above reference to the HOA and Lease.

68 To the extent it is raised, this cleaning costs does not relate to the Landlord's pre commencement obligations as the Senior Member determined they were substantially complied with by 28 January 2023, 13 months before this cost was incurred.

69 The Senior Member provides no further reasoning to substantiate the finding at [101(f)] and for the reasons set out above said finding must be found to be in error.

1. The respondent commences his submissions by noting that "Just as the [appellant] repeats submissions in respect of ground 5 as equally applicable to ground 6, so does the [respondent]".
2. The respondent submits that that is because Ground 6 is affected by "the materiality applicable to Ground 5". The respondent submits that no matter whether the ground is made out, the conclusion on appeal will be the same, as the appellant has identified no alternative outcome that could flow from perfect procedural compliance.
3. The respondent submits that the appellant inappropriately tends to treat the post-access cleaning as an equivalent to the type of cleaning contemplated by the relevant clauses and special condition of the Lease. That, the respondent submits, is inappropriate because the cleaning that was in fact being carried out after the access hatches were installed is that which should have been done by the appellant, which is contemplated as the condition precedent to special condition 24 and the HOA at cl 5.
4. The respondent further submits that, in any event, the argument fails for materiality, and that cl 7.2 of the Lease, when properly construed, does not do what the appellant suggests. The clause is to be read in context with the surrounding clauses and sub-clauses, in particular, cll 7.1 and 7.2, make clear that the respondent is not responsible for something as significant as creating access hatches. To interpret the contract, as it applies, to suggest that:

(1) the appellant could avoid cleaning the exhaust, including because, there were no access hatches;

(2) hand over the property, having not satisfied that condition precedent;

(3) later, through without admission consent order, arrange for such access hatches;

(4) and by virtue of that order of events,

1. would "saddle" the respondent with responsibility to do what the appellant was meant to have done pre-commencement, which would be an "absurd interpretation".

1. The appellant submits that it reiterates that as:

submitted above at [0] as it pertains to the only applicable statutory threshold, that being section 17 of the RLA and the need to substantially comply with the pre-commencement obligations, which was done by 28 January. Any attempt to stretch those obligations post 28 January is simply not supported by the findings of the Tribunal.

1. Paragraph [101(f)] of the Primary Decision deals with the cost of cleaning ducts, being $1,072. The Tribunal states that "For the reasons in (e)", the appellant should reimburse the respondent.
2. We see the appellant's strongest submissions being those set out at [66]-[69] of its submissions which we have set out above.
3. Special Condition 24 provides:

24. Kitchen Exhaust

The Lessor will hand over at the commencement of the lease kitchen exhaust extraction to be thoroughly degreased and in full working order. However, thereafter, the Lessee will maintain and keep the exhaust extraction in clean and working order. If the kitchen exhaust extraction is damaged, the Lessee must replace it with the same or upgraded system.

1. Clause 5 of the HOA is in identical terms.
2. We agree with the appellant that special condition 24 and cl 5 of the HOA unambiguously places the cleaning obligations on the respondent. We also consider that the Tribunal's reasons for finding otherwise (that is, "[f]or the reasons in (e)", to be incorrect. Accordingly, we would allow the appeal in relation to Ground Six.
3. However, we do not agree, as submitted by the appellant, that as we have allowed the appeal in respect of Ground Six, it follows that the Tribunal was incorrect in relation to Ground Five. The two grounds deal with different issues.

1. We would allow the appeal in relation to Ground Six.
2. It follows that Order (1) of the orders of the Tribunal of 19 May 2025 should be set aside and in lieu thereof the following order substituted:

1. The Respondent is pay to the Applicant the sum of $15,095 within 7 days of the date of this order.

(1) to the extent that the appeal raises a question of law, the appeal is dismissed;

(2) to the extent that the appeal raises any other error, leave to appeal is refused and the appeal otherwise dismissed.

1. We have included in our orders a timetable for the filing of submissions on the costs of the appeal.
2. We propose to deal with costs on the papers and without a hearing: see Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85]. Any party opposing that approach must address that issue in their submissions.
3. Submissions are to be limited to five pages, and must identify the relevant costs rule.

(1) Order 1 of the orders of the Tribunal of 19 May 2025 should be set aside and in lieu thereof the following order substituted:

The Respondent is pay to the Applicant the sum of $15,095 within 7 days of the date of this order.

(2) Otherwise, to the extent that the appeal raises a question of law the appeal is dismissed;

(3) To the extent that the appeal raises any other error, leave to appeal is refused and the appeal is otherwise dismissed.

(4) If the respondent seeks his costs of the appeal, he is to file and serve any submissions (and if necessary evidence) as to costs on or before 19 January 2026.

(5) The appellant may respond on or before 2 February 2026.

(6) The respondent may reply on or before 9 February 2026.

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.