Ushta Pty Ltd atf The AVVM Trust v Babayan

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Coulton v Holcombe (1986) 162 CLR 1, [1986] HCA 33

Crystele Designer Homes PL v Wood [2023] NSWCATAP 242

Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109

Donohoe v Albulario [2025] NSWSC 9

Grey v Australian Motorists & General Insurance Co PL [1976] 1 NSWLR 669

Gumland Property Holdings PL v Duffy Bros Fruit Market (Campbelltown) PL [2008] HCA 10; (2008) 234 CLR 237

Jakin Constructions PL v Shrimpton [2024] NSWCATAP 39 at [49]- [50]

Johnson Bros (Dyers) Pty Ltd v Davison (1935) 79 SJ 306

Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212

Monty Manufacturing Pty Ltd v Platt [2013] VCAT 2137

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Norman v FCT [1963] HCA 21; (1963) 109 CLR 9

Orr v Cobar Management PL [2020] NSWCCA 202

Pholi v Wearne [2014] NSWCATAP 78

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA)

Steak Plains Olive Farm PL v Australian Executor Trustees Ltd [2015] NSWSC 289

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

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62

YHY v YHZ [2024] NSWCATAP 117

1. This is an internal appeal filed under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision of the Consumer and Commercial Division of the Tribunal in proceedings 2023/444425 (Tribunal proceedings) dated 5 March 2025 (and amended by way of costs directions on 5 May 2025) which involved a dispute under the Retail Leases Act 1994 (NSW) (Retail Leases Act) (Decision).
2. The Decision was a dismissal of the application, which was a claim for $400,000. On appeal the appellant seeks to have the Decision set aside, a finding that the respondent is liable to the appellant as guarantor under the retail lease and costs of the appeal.
3. The appellant, Ushta Pty Limited (as trustee of the AVVM Trust), was the applicant in the Tribunal proceedings and lessor of the leased premises. There were two respondents to the Tribunal proceedings - Meditrainean Pty Limited and Babak Babayan. Meditrainean Pty Limited was the lessee of the premises at the relevant time and as we understand it has been in liquidation since 8 October 2024.
4. The claim by the appellant against Mr Babayan in the Tribunal was in Mr Babayan's capacity as a guarantor of the lease. Mr Babayan is the sole respondent to this appeal and will be referred to in these reasons as the respondent.
5. For the reasons set out below we have decided to extend time (to the extent required) for filing of the appeal, refuse leave to appeal and dismiss the appeal.
6. We have made directions for costs submissions in respect of the costs of the appeal; we were told that the costs of the Tribunal proceedings have been deferred pending the appeal so will be determined in due course by the Tribunal.

1. The proceedings concerned a retail shop lease for a restaurant in Crows Nest, on Sydney's lower North Shore. The original lease was undated but commenced about 25 October 2010, for five years with two options to renew each of five years and was registered (Lease). The Lease records the original landlords were persons collectively referred to in the Decision as the Loke family and the original lessee was Hugo Junior Enterprises Pty Limited (the original lessee).
2. The respondent was the guarantor of the original lessee's obligations under the original lease (guarantor). He was also the sole director of the original lessee.
3. About 22 October 2015 an informal monthly occupation by a new company called A Good Company (Aust) Pty Limited (the second lessee) began. It was formalised as a transfer of lease on 2 June 2016 that was registered on 29 November 2016.
4. On 28 November 2016 a further transfer of lease took place from the second lessee to Meditrainean Pty Limited (in liq) who was originally the first respondent in the primary proceedings from which this appeal is brought (the third lessee). This transfer of lease was registered on 7 December 2016.
5. The appellant became the lessor by transfer of lease dated 20 September 2023 when the appellant purchased the premises containing the leased area on about 20 September 2023 from the original lessor, subject to the Lease.
6. At the time of the 2023 transfer of the Lease on purchase of the premises, the original lessor by its solicitors confirmed that the Lease had not been renewed for its second option term, that the third lessee was holding over from month to month and was in arrears of rent. The second option could not have been validly exercised at the time of exercise as the third lessee was in breach because of rent arrears. The original lessor at the time of completion of sale executed a Deed of Assignment of Rights under the Lease (the Assignment Deed) to the second lessor.
7. On 20 September 2023 the appellant issued a notice of termination for rent arrears giving the third lessee 30 days' notice. The appellant took possession of the leased premises on 23 October 2023.
8. The third lessee challenged the notice dated 20 September 2023 terminating the monthly occupancy as invalid under the alleged renewed lease. The appellant locked the third lessee out on 23 October 2023.
9. The third lessee initiated proceedings 2023/00367945 against the appellant contending that the term of the Lease lasted until 2025 although the relief claimed was later changed to damages for dispossession. On 8 October 2024 a liquidator was appointed to the third lessee. The third lessee's proceedings were dismissed under s 55(1)(d) of the NCAT Act on about 25 October 2024 for want of prosecution
10. In Tribunal proceedings 2024/00219811 the respondent in his capacity as guarantor sued directors of the third lessee seeking recovery of any monies that he as guarantor may become liable to pay under the guarantee. Those proceedings are not before us.
11. The Tribunal proceedings the subject of this appeal were heard over the following dates - 25 and 26 June 2024, 23 October 2024 and 5 February 2025.
12. No leave to proceed against the third lessee (as a company in liquidation) in the primary proceedings from which this appeal is brought was sought or granted.
13. Effectively the Tribunal proceedings filed on 7 December 2023 for a claim for $400,000 being primarily for rent arrears, was between the appellant as lessor and the respondent as guarantor; the position is the same with this appeal.

1. In the Decision the Tribunal member dismissed the appellant's application against the respondent for the following reasons (summarised):

(1) No formal notice of assignment of Lease was given to the respondent and strict compliance with notice requirements under s 12 of the Conveyancing Act 1919 (NSW) (Conveyancing Act) was required, citing Norman v FCT [1963] HCA 21; (1963) 109 CLR 9 (at 37) and other authority. (It should be noted that no issue of an equitable assignment was raised or could within the Tribunal's jurisdiction be raised as the basis of a claim for relief: Steak Plains Olive Farm PL v Australian Executor Trustees Ltd [2015] NSWSC 289 at [67], [73]-[78].) It was not sufficient that some knowledge of the transfer of lease existed in the respondent guarantor (as the evidence appeared to show).

(2) The Assignment Deed was not properly executed and was unilateral (by the assignor original lessor only by way of deed poll, not executed by the appellant as assignee), with no privity of contract. This was not effective as an assignment of rights against the respondent as guarantor.

(3) The mere purchase of property does not transfer personal guarantee rights: at PR [46] "The guarantee contained no express provision for assignment, was personal to the original lessor [identified] and was tied to specific known circumstances". There was no deed in which the original lessor consented to the transfer and the existing and any incoming guarantor stipulated the scope of their obligations, as frequently occurred with transfers of lease.

(4) The change of lessee discharged the guarantor since it constituted a substantial or prejudicial alteration of the liabilities of the guarantor without its consent: Ankar PL v National Westminster Finance (Australia) PL [1987] HCA 15; (1987) 162 CLR 549 esp at 558-559; Caltex Australia Petroleum PL v Troost [2015] NSWCA 64 at [52]. This was said to be the case despite the express contemplation of transfer of lease by the lessee under cl 10 of Annexure B to the Lease (with requirements to be met) and the provisions in cl 13.6 of Annexure B (the standard Law Society lease had been used).

1. An appeal must be filed within the time period prescribed under s 80 of the NCAT Act and r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW). For this matter, the prescribed period was 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 the later): r 25(4)(c). Time may be extended by the Appeal Panel pursuant to s 41 of the NCAT Act.
2. This appeal was filed on 29 May 2025. The Decision with written reasons was first published to the parties on 5 March 2025. On 5 May 2025 a set of orders was notified to the parties which stated in Order 1 that the orders made on 5 March 2025 were amended as follows - Orders 1.1 to 1.7 provided a set of directions in relation to submissions and evidence on costs. The Decision itself was not amended.
3. The appeal was said by the appellant to be filed in time because on 5 May 2025 the Tribunal's orders were amended in respect of provisions for costs submissions in a manner that went beyond extension of time, although there was no authority cited that this changed the material date on which the substantive orders were made.
4. The respondent pointed to no evidence (as opposed to assertion) of particular relevant prejudice from extension of time to appeal and the appeal was in our view clearly arguable.
5. In the circumstances, we shall grant an extension of time for filing the Notice of Appeal to and including 29 May 2025, to the extent that such an extension is required.

1. The Tribunal proceedings had a vexed and complex procedural history over which the parties were in disagreement as to responsibility. The appellant made serious allegations against the respondent of providing a non-existent authority, changing affidavits, delay, belated introduction of new case theories, orchestration of the commercial labyrinth of lessees and lease dealings and obfuscation which had the effect in part of reducing the appellant's ability to enforce against the third lessee before it went into liquidation. The respondent said that the appellant knew that there was a mediated settlement prior to its acquiring the property which resolved the respondent's and all other prior obligations and that the appellant was simply seeking to go behind the settlement.
2. As part of the allegations just described, the appellant sought that we conduct an inquiry into the procedural history including the Tribunal's part in allegedly acceding to the respondent's delay tactics and strategy. That is not our role - the nature of an appeal, as described below, was outlined to the parties during the hearing and is well-published information.
3. However, we summarise some of the procedural aspects relevant to the appeal:

(1) On about 3 June 2025 the appellant filed documents seeking a stay of the Decision dismissing its application, which was refused with oral reasons at the callover of the appeal on 6 June 2025.

(2) Pursuant to directions made at the callover of the appeal on 6 June 2025, both parties have lodged submissions and materials to be relied upon in the appeal.

(3) Leave for legal representation in the appeal was sought by both parties but is not required for retail lease proceedings: s 45(2) of the NCAT Act.

(4) On 23 July 2025 a single member Appeal Panel dismissed an interlocutory application by the guarantor that an oral hearing in the appeal be dispensed with.

(5) On 29 August 2025 the respondent's application to be represented by an agent was refused.

(6) On 9 September 2025 an application made on 3 September 2025 by the respondent to appear at the appeal hearing by audiovisual link was refused.

(7) At the appeal hearing the appellant sought, by the legal secretary representing it, to have noted that it had not been told that the guarantor would have representation by counsel and instructing solicitor, so had organised not to have counsel appear. It was confirmed by the Appeal Panel that leave for legal representation was not required in retail lease matters and there was no obligation for a party to disclose the composition of its representation.

(8) In response, the appellant's representative said that it was expected that it should have been told given that other applications were made and refused. There was no adjournment sought by the appellant. The appellant's representative spoke from notes to supplement the existing written material. The status "legal secretary" does not on its face denote that the person so designated is an Australian legal practitioner not requiring leave for this type of matter. No application for leave to appear was made. We note that the notice of appeal was signed by the same legal secretary.

(9) At the conclusion of the respondent's submissions the appellant's representative said that she could not respond on legal matters raised in those submissions without prior notice and needed to review the matters with counsel. Each party was directed to file and serve any further submissions with a maximum of five pages each by 3 October 2025. The decision was reserved and costs issues were deferred.

(10) The appellant filed a submission of seven pages on 3 October 2025; the respondent filed a submission of 4 pages on 29 September 2025. There is no issue with the fact that the appellant's submission exceeded the 5 page limit.

1. An appeal is not an opportunity for an unsuccessful party to have another opportunity to re-argue its case. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:

An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.

1. Section 80(2) of the NCAT Act states, in respect of decisions:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

1. In summary, internal appeals may generally be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel.
2. What is an error on a question of law was extensively discussed in Unique Commercial Property Group Limited v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40], where the Appeal Panel revisited the non-exclusive instances of errors on questions of law previously set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. In Cusumano at [33], the Appeal Panel emphasised that the categories of questions of law are "not closed" and at [37] said:

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.

1. In the course of analysis and by reference to extensive authority, the Appeal Panel in Cusumano referred to the following examples, among others, which constituted questions of law of potential relevance to this appeal: whether a wrong principle of law or a wrong construction of a contract had been stated; whether there was a failure to provide adequate reasons; whether there was a failure to take into account relevant considerations or a taking into account of irrelevant considerations that were integral in a proper exercise of jurisdiction; whether there was a failure to afford procedural fairness.
2. A pure question of law can be decided without any reference to the facts or may proceed by reference to assumed facts. Pure questions of law must be questions whose character as a question of law can be recognised on the face of the question and which do not depend upon the answer given to the question but does not include 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: Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [48] and [109].
3. The interpretation of a statute or contract is directed to ascertaining the document's actual and true meaning; there can be only one correct meaning on a proper construction, so the proper construction of a statute or contract is in itself a question of law. In contrast, a question of mixed fact and law, such as an alleged error in applying correct legal principle or contractual construction to the facts, is generally not a question of law: Crystele Designer Homes PL v Wood [2023] NSWCATAP 242 at [41]- [43]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11] and authority cited in those decisions; Cusumano, especially at [32].
4. However, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
5. Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, 100 NSWLR 578 at [65]- [77] esp at [77]. In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NCAT Act s 62(3).
6. The circumstances in which the Appeal Panel may grant leave to appeal, on alleged errors other than on questions of law, from decisions made in the Consumer and Commercial Division are limited by Cl12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(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. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where:

[76] ...there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. ...

[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55].

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32].
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(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. Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said at [77]:

As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

1. In respect of a self-represented non-legally trained appellant, grounds of appeal may be considered generally to determine whether a question of law has been raised: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. We note that the 18 page Written Submissions in Support of Appeal attached to the Notice of Appeal dated 29 May 2025 stated on page 18 that they were filed by Alliance Legal Services and prepared by Byrne & Co State Lawyers and Alliance Legal Services. Accordingly, we have not treated the grounds of appeal as having been drafted by a self-represented non-legally trained appellant.
2. The appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: at Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [45].
3. The Notice of Appeal in itself did not list precise grounds of appeal but, rather, referred to Annexure C. Annexure C was titled Consolidated Evidence Table and as such we have not treated it as a list of grounds of appeal.
4. The Notice of Appeal also attached a document of 18 pages and 95 paragraphs titled "Written submissions in support of appeal", as to its next page "Annexure A - Background summary" and as to its remaining 16 pages, "Annexure B - NCAT procedural timeline". Annexure C being the "Consolidated Evidence Table" was said to summarise the evidence submitted and the Tribunal's alleged failure to consider it. It was said to have been prepared by three named law firms and filed by one of them. There were other annexures in the appellant's material.
5. In our view the 18-page document "Written Submissions in Support of Appeal" as attached to the Notice of Appeal set out what we could discern the grounds of appeal to be. We do not consider that this document complied with the appellant's duty under s 36(3) of the NCAT Act to co-operate with the Tribunal to give effect to the guiding principle in s 36(1) which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". This document did not succinctly identify the grounds of appeal which were based on questions of law, or grounds for which leave to appeal was sought in accordance with the reasons set out in cl 12(1) Sch 4 of the NCAT Act. However, as best as we can, in the paragraphs below we have discerned and summarised from the document the grounds for this appeal and the reasons for which leave is sought.

1. Section 2 of "Written Submissions in Support of Appeal" is titled ERRORS IN LAW: GUARANTEE LIABILITY AND LEASE INTERPRETATION. From this section we discern and summarise the following grounds of appeal based on alleged errors on questions of law:

(1) Failure to give effect to the plain language and express terms and commercial purpose of Clause 13.2 of the Lease, by failing to find that the clause continued the guarantor's obligations across changes in tenancy, including lease extensions, renewals and variations;

(2) Misapplication of the principle set out in Ankar Pty Limited v National Westminster Finance [1987] HCA 15; (1987) 162 CLR 549 (Ankar); specifically, the Tribunal misapplied the principle to conclude that the respondent was discharged from his obligation as guarantor due to a material variation, namely, a change in the identity of the lessee without his consent;

(3) Reversing the legal onus by requiring the appellant to disprove matters that fell within the respondent's evidentiary burden; specifically, the appellant contends that it was the respondent's burden to establish that the variation to the Lease resulted in a discharge of the respondent's obligations as guarantor and not the appellant's burden to establish that the guarantee remained enforceable;

(4) Disregarding "key uncontested evidence" filed by the appellant as well as alleged admissions in the evidence of the respondent, that the respondent had confirmed his continuing status as a guarantor;

(5) Procedural unfairness by "ignoring or excluding" the appellant's "timely submissions" including a "detailed rebuttal" while permitting the respondent to "repeatedly file new arguments and documents in breach of directions and without leave, including a meritless cross-claim that caused undue delay and facilitated the lessee's liquidation";

(6) The Tribunal erred by applying the principles in Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64, when it should have been distinguished;

(7) The Tribunal failed to consider authorities relied upon by the appellant to establish the enforceability of guarantees as enduring obligations where expressly stated in the contract (a list of these authorities is provided in paragraph 2.4 of the document "Written Submissions in Support of Appeal" attached to the Notice of Appeal);

(8) The Tribunal erred by not applying the principles in Monty Manufacturing Pty Ltd v Platt [2013] VCAT 2137 and Johnson Bros (Dyers) Pty Ltd v Davison (1935) 79 SJ 306;

(9) The Tribunal erred in applying contractual principles; particularly, the Tribunal wrongly accepted the respondent's argument that privity of contract precluded the appellant from enforcing the guarantee against the respondent;

(10) The Tribunal erred by failing to recognise the effect of Clause 12.4 of the Lease which was a holding over provision;

(11) The Tribunal erred in its interpretation of Clause 10 of the Lease which permitted assignment of the lessee's interest without requiring the guarantor's consent and erred by failing to apply the principles in the authorities set out in paragraph 2.8.39 of the document "Written Submissions in Support of Appeal";

(12) The Tribunal erred by failing to consider equitable principle or to address the estoppel raised by the evidence;

(13) The Tribunal erred in concluding that the appellant could not enforce the guarantee against the respondent due to alleged defects in the Deed of Assignment when the guarantee remained binding due to Clause 13.2 of the Lease and under s s117 of the Conveyancing Act.

1. As noted above, one of the appeal grounds raised that the respondent was estopped in equity from denying his continuing obligations as guarantor despite changes of lessor and lessee. There is no indication in the Decision and there appeared to be nothing in the voluminous materials provided to us that this issue was before the Tribunal. We expressly asked the lessor's representative to identify for us where it was raised clearly before the Tribunal member. That has not been done. If not so raised, there was clearly the possibility of further factual evidence to meet it and it accordingly could not be raised on appeal: Coulton v Holcombe (1986) 162 CLR 1, [1986] HCA 33 at [7]- [9]; Jakin Constructions PL v Shrimpton [2024] NSWCATAP 39 at [49]- [50]. In any event the Tribunal as already said, does not have equitable jurisdiction to deal with such claims.
2. Section 4 of "Written Submissions in Support of Appeal" as attached to the Notice of Appeal is titled "PROCEDURAL FAIRNESS". We have treated the matters in Section 4 as a ground based on a question of law. Whether there has been a breach of procedural fairness will generally raise a question of law: see YHY v YHZ [2024] NSWCATAP 117 at [23].
3. In summary, the appellant contends that the Tribunal failed to afford the appellant procedural fairness because:

(1) The appellant's final written submission filed on 1 December 2024 was not acknowledged in the Decision;

(2) The Tribunal failed to consider prior submissions filed by the appellant (as set out in paragraph 4.1.66);

(3) The Tribunal gave preferential treatment to the respondent, including but not limited to: allowing repeated extensions for filing of documents including a new case theory and cross-claim which were permitted 10 days before the hearing; allowing a short recess to give the respondent time to formulate arguments; listing further hearings after the June 2024 hearing - in October 2024 and February 2025 - despite the appellant's objections;

(4) On 24 November 2024 the respondent was permitted to provide further new written material over the objection of the appellant;

(5) The cumulative effect of procedural irregularities and indulgences towards the respondent resulted in a substantial prejudice to the appellant;

(6) The Tribunal did not finalise the proceedings in a timely manner which prevented the appellant from bringing its claims against the third lessee Meditrainean Pty Limited(in liq) prior to its voluntary liquidation in October 2024 and which denied the appellant a fair and cost-effective opportunity to recover its losses.

1. Section 3 of "Written Submissions in Support of Appeal" as attached to the Notice of Appeal, is titled "Factual Errors and Evidence Ignored" and sets out under sub-headings 3.1, 3.2 and 3.3 a series of contentions where the Tribunal allegedly erred in relation to the evidence. These sorts of matters do not fall into the category of errors on a question of law (nor does the appellant submit that they do). However, if they are not grounds on a question of law, then leave to appeal is required in accordance with the bases set out in cl 12(1) of Sch 4 and the principles in Collins v Urban.
2. As already noted by us, none of the grounds set out in Section 3 is identified in accordance with any of the reasons for leave to appeal as set out in cl 12(1) Sch 4, namely:

(1) That the decision was not fair and equitable: cl 12(1)(a);

(2) That the decision was against the weight of evidence: cl 12(1)(b);

(3) That there was significant new evidence that was not reasonably available at the time of the hearing: cl 12(1)(c).

1. In relation to the last basis cl 12(1)(c) it was confirmed at the hearing that leave was not being sought on the basis of there being significant new evidence. This leaves the other contentions that the Decision was not fair and equitable and/or that the Decision was against the weight of evidence.
2. Working as best as we can, we discern the following grounds from Section 3 for which leave to appeal is required in accordance with cl12(1) Sch 4 of the NCAT Act:

(1) The Tribunal failed to consider extensive uncontested evidence which demonstrated that the respondent remained continuously involved in the business, the premises and all lessee entities during the relevant period, which was central to the enforceability of the guarantee, including that the respondent did not seek to discharge his liability under s 41A of the Retail Leases Act;

(2) The Tribunal failed to address material contradictions in the respondent's three affidavits as set out in paragraphs 3.2.58-60 of "Written Submissions in Support of Appeal";

(3) The Tribunal failed to engage with the affidavit evidence of the respondent's co-lessees and business partners Mr Roffe and Mr Hovagimian which allegedly confirmed the respondent's ongoing operational control and financial involvement.

1. In Section 3.3.63 the appellant repeats the contention that the tribunal misapplied the legal onus and the principles in _Anka_r. As this has already been listed as an error on question of law, we do not consider it a basis for leave to appeal.

1. We summarise the response to the appeal as follows:

(1) There is no enforceable legal relationship between the appellant and the respondent;

(2) The document proposing to assign the benefit of the guarantee to the appellant was not signed by the appellant and did not constitute an effective assignment of rights;

(3) S 12 of the Conveyancing Act requires that written notice of any assignment must be given before the assignee may enforce the assigned rights but the appellant had not provided such notice to the respondent for any purported assignment of the guarantee;

(4) The guarantee was discharged through novation, material variation and the mediation settlement process;

(5) In accordance with the Ankar principle, a guarantee is automictically discharged where the underling contract is materially altered without the guarantor's knowledge or consent; the Tribunal correctly applied the established legal test set out in Ankar;

(6) Clause 13.2 of the Lease did not operate to override the statutory requirements of the Conveyancing Act, nor could it be relied upon to apply to fundamentally new tenancy arrangements with unrelated assignees;

(7) The authorities relied upon by the appellant had been fundamentally misunderstood by the appellant and none involved the circumstances of this case;

(8) A guarantor's personal obligation does not run with the land or automatically continue through changes in lease arrangements;

(9) The respondent rejected allegations of procedural impropriety and misconduct and rejected the proposition that it relied on case authorities which were fictitious;

(10) Minor variations within affidavits bore no consequence to the substantive legal issues requiring determination; the Tribunal made no adverse findings based on such matters and focused on the core legal issues of assignment validity and guarantee discharge;

(11) The respondent rejected any suggestion he exercised any operational control over Mediterranean Pty Limited following the 2016 assignment - he was not a director, shareholder or financial stakeholder in the entity;

(12) The Tribunal member engaged with the evidence but was not persuaded by the appellant, which is different from failing to consider it;

(13) In its Decision the Tribunal expressly referred to and weighed the relevant documents and testimonial material;

(14) The appeal ought be dismissed and leave to appeal refused.

1. We shall deal initially with the first-stated ground of appeal, which was that the Tribunal erred on a question of law by its failure to give effect to the plain language and express terms and commercial purpose of Cl 13.2 of the Lease, namely, that the clause continued the guarantor's obligations across changes in tenancy, including lease extensions, renewals and variations.
2. Above the respondent's signature on the Lease (being the registered original lease) appeared the words:

The Guarantor guarantees the due performance of this Lease.

1. The Lease incorporated Annexures A and B.
2. Annexure A referred to the original lessor and original lessee and stated at Item 10 that the guarantor was "Babak Babayan", being the respondent.
3. Clause of Annexure B was titled "The Parties".
4. In cll 2.1, 2.2 and 2.3 of Annexure B the parties were identified, respectively, as the named original lessor, named original lessee and named guarantor. Cl 2.4 of Annexure B provided that, if a party consisted of two or more persons, obligations of that party could be enforced against any one or more of them.
5. There was no definition or other provision in cl 2 expanding the terms lessor, lessee or guarantor to assigns or transferees of any such party.
6. Clause 10 of Annexure B, being the clause titled "Transfer and Sub-lease", referred to transfers by the lessee. There was no provision in Cl 10 or otherwise in Annexure B referring to transfers or assignments by the lessor.
7. Clause 13 of Annexure B titled "Guarantee" relevantly provided as follows:

13.2 The guarantor guarantees to the lessor the performance by the lessee of all the lessee's obligations (including any obligation to pay rent, outgoings or damages) under this lease, under every extension of it or under any renewal of it or under any tenancy and including obligations that are later changed or created.

13.6 Even if the lessor gives the lessee extra time to comply with an obligation under this lease, under any extension of it or under any renewal of it or under any tenancy, or does not insist on strict compliance with the terms of this lease or any extension of it or renewal of it or of any tenancy, the guarantor's obligations are not affected.

1. Under cll 13.3 and 13.4 the guarantor was obliged to pay and perform the lessee's obligations on demand even if the lessor had not tried to obtain payment or performance from the lessee.
2. The Assignment Deed had as its operative provision:

Assignment: The [original lessor] hereby assigns, transfers, and conveys to the [second lessor] all of its rights and interest in and to the Lease Contract [defined as the registered lease dated 22 October 2010], including but not limited to all rights to payment and performance under the Lease Contract, from the date of the Lease Contract to 20 September 2023.

1. It is not in issue that there was privity of estate between the appellant (as second lessor) and the third lessee (Meditrainean Pty Limited (in liq)) and that as such the obligation to pay rent and the other lease obligations that touched and concerned the leased land were directly enforceable, without express assignment, as between those parties (subject to translation of such obligations and rights by the liquidation of the third lessee): Gumland Property Holdings PL v Duffy Bros Fruit Market (Campbelltown) PL [2008] HCA 10; (2008) 234 CLR 237 (Gumland); Conveyancing Act 1919 (NSW) s 117(1), extended to Torrens registered title by s 116.
2. There was also not in issue in the present proceedings the question of the guarantor's liability to the original lessor for performance of the "lessee's" obligations under the Lease. The guarantee contract was binding as between those two contracting parties.
3. What was centrally in issue was whether the appellant as the second lessor, who did not have a contractual relationship directly with the respondent as guarantor named on the Lease, had the benefit of the original lessor's rights against the respondent and, if so, what was the content of those rights. This was the focus of the Decision, rather than the myriad factual disputes (reflected in some of the appeal grounds described earlier). If there was no legal basis for the appellant to make a claim against the respondent as guarantor then the other factual disputes were not relevant.
4. In Gumland the High Court held that an original guarantor's obligations touched and concerned the land and were enforceable without express assignment against the guarantor by an assignee from the original lessor.
5. The distinctions from Gumland in the present facts are significant.
6. First, in the present proceedings there were transfers of lease so that the identity of the lessee had changed, even though the obligations to be performed by the lessee had not changed.
7. Secondly, in the present proceedings there were no provisions equivalent to those in the lease under examination in Gumland.
8. Recital B of the lease in Gumland stated:

It is intended that the benefit of this Guarantee shall subsist for the benefit of not only the First Lessor but any person or company who may become the Lessor the said premises to the Lessee (as hereinafter defined).

1. Clause 1(f) of the lease in Gumland provided:

"Lessor" shall mean the First Lessor whilesoever the First Lessor owns the freehold of the said premises without granting a concurrent lease thereof and thereafter shall mean the person or company who shall be the owner of the freehold of the said premises to the Lessee or holder of the leasehold estate subject to the lease to the Lessee hereinafter defined but with the intent that rights accrued in favour of the first Lessor or any subsequent Lessor as at the date of change of ownership of the freehold or granting of any such concurrent lease shall remain enforceable against the Guarantor.

1. Clause 1 (g) of the lease in Gumland provided:

"Lessee" shall mean the First Lessee until the First Lessee shall assign its right of occupation of the said premises with the consent of the Lessor and thereafter shall mean each person or company who is in occupation or shares in the occupation of the said premises during the term of operation of this agreement as defined in clause 4 hereof.

1. The provisions in Gumland defined "Lessor" to mean "the Lessor its successors and assigns", which gave express extended definitions to "Lessor" and "Lessee" to include the current holder of the premises or occupant under the lease and contained a recital expressing the intent that the benefit of the guarantee was extended to subsequent lessors: at [2], [4].
2. The content of the present guarantee in the Lease was that it was provided to no-one but the original lessor and covered rent and other obligations of the original lessee, since there was no extended definition of either lessor or lessee. The guarantee, in contrast to that in Gumland, was of no benefit to anyone but the original lessor and burdened in respect of no obligations other than those which were borne by the original lessee: see examination in Gumland at [96]-[102].
3. In our view, that is sufficient to render the guarantee in this case as one that does not touch and concern the land, unlike the guarantee in Gumland. The guarantee in this case, added no enduring value to the land, unlike the guarantee in Gumland.
4. Further, the same factors indicate an intent that the guarantee was personal to the original lessor and the named guarantor, being the respondent.
5. These matters are not overcome by s 70A of the Conveyancing Act to the extent, if any, that provision may apply to the terms of the guarantee as a "covenant relating to any land" - it is unlikely to do so because of the guarantee's personal nature. Even if it applied, it merely extends the burden of the guarantee to the successor lessees' obligations but only for the benefit of the original lessor.
6. Similarly, s 70 of the Conveyancing Act does not assist in imputing intent that the appellant as the second lessor may take the benefit of the guarantee if the guarantee does not touch and concern the land because of its personal characteristics.
7. The guarantee is not a negative obligation. Accordingly, even if the guarantee was a covenant touching and concerning the land, it cannot be enforced in equity beyond the original parties to it (the original lessor and the guarantor). In any event, as already said, the Tribunal does not have the relevant equitable jurisdiction to do so.
8. It is not clear whether the Tribunal was taken to Gumland - it is not mentioned in the Tribunal's reasons. However, the Tribunal's reasons with respect reach the same conclusion in substance at [46]:

The guarantee contained no express provision for assignment, was personal to the original lessor [identified] and was tied to specific known circumstances and parties.

1. We do not consider that the Tribunal has erred in respect of this ground.
2. It also follows that there was no occasion for the respondent to have the lessee seek the protection of the procedure under s 41A of the Retail Leases Act if the guarantee itself is limited in the manner found.
3. Even if the foregoing analysis was wrong, and the other grounds found by the Tribunal were in error and the guarantee was enforceable by the appellant against the respondent, its content does not cover the rent which is now sought to be recovered under the guarantee. Clause 13.2 guarantees the performance "by the lessee of all the lessee's obligations", which is not extended beyond the original lessee as already noted. The remainder of the clause is predicated on that scope - that is, the performance by the lessee of its obligations whether the lease is extended or renewed or another tenancy is created.
4. There was no evidence provided to us that the claimed rental arrears or any other claimed amounts included amounts payable by the original lessee, which is the scope of the guarantee obligations. Indeed, the Tribunal application filed on 7 December 2023 stated that "From 6 November 2019" the third lessee failed to pay correct rental and outgoings, with no reference to any existing rental arrears. The lessor's written appeal submissions stated that "the substantive breach in lease occurred after it became lessor".
5. That was sufficient to uphold the Decision to dismiss the application by the appellant. Even if the Tribunal erred in law or in a manner justifying a grant of leave to appeal in the ways described in the grounds of appeal, for the foregoing reasons there would be no material difference in the outcome.
6. We agree with the Tribunal's reasons at [55] to [57] that the Assignment Deed was ineffective to operate as a legal assignment for the reason of absence of notice as required by s 12 of the Conveyancing Act.
7. We respectfully disagree with the Tribunal that the Assignment Deed was ineffective to effect an assignment at law without communication to or the signature of the assignee (subject to the assignee's right to disclaim upon receiving notice of the assignment) - that is contrary to the decision in Grey v Australian Motorists & General Insurance Co PL [1976] 1 NSWLR 669 esp at 673, which appears not to have been cited to the Tribunal member.
8. We agree with the Tribunal's conclusion that the change of lessee contained the possibility of prejudice to the guarantor and that the lessor did not demonstrate, without inquiry, that the change was self-evidently unsubstantial or beneficial to the guarantor, or that the guarantor consented, as required by the authorities referred to by the Tribunal. There was no reversal of onus of proof as contended by the appellant.
9. Clause 10 of the Lease of itself was not sufficient since it merely provided a procedure for transfer of lease by the lessee and did not provide one way or the other for the guarantor's consent to be obtained or position to be assessed.
10. Clause 13.6 of the Lease was too narrow in its drafting to encompass a change of lessor or a change of lessee. It simply protected against extra time being given by the original lessor to the original lessee and the original lessor not insisting on strict compliance.
11. In the foregoing circumstances, it is not necessary to consider the remaining grounds of appeal. As already referred to at [91], even if leave were granted and errors established as alleged, the narrow scope and operation of the guarantee is sufficient to exclude the respondent's liability for the matters claimed.
12. The appeal is to be dismissed.

(1) Extend time (to the extent if any extension is required) for filing the notice of appeal to and including 29 May 2025.

(2) Leave to appeal refused.

(3) Appeal dismissed.

(4) In respect of costs of the appeal:

(a) Any application in respect of costs together with submissions not exceeding five pages with standard size font and margins and any further documents in respect of costs to be filed and served within 28 days after date of these orders;

(b) Any submissions and further documents in respect of costs in response are to be filed and served within 42 days after date of these orders;

(c) Submissions on costs are to address whether a hearing on costs may be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) and that costs may be determined on the written submissions, documents and materials provided by the parties.

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.