Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pizza Headquarters Pty Ltd v PCA Hunter Pty Ltd & Anor [2022] NSWCATAP 288 Hearing dates: 29 August 2022 Date of orders: 7 September 2022 Decision date: 07 September 2022 Jurisdiction: Appeal Panel Before: S Thode, Senior Member D Fairlie, Senior Member Decision: 1. Leave to Appeal refused. 2. Appeal dismissed. Catchwords: APPEALS - RETAIL LEASE – Retail Leases Act 1994 – whether findings against the weight of evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Cases Cited: Skywing Pty Ltd v Trust Company of Australia [2005] NSWADTAP 10; Tate v Unanderra Heights Pty Limited [2005] NSWADTAP 5; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ; Collins v Urban [2014] NSWCATAP 17; Chapman v Cheng & Anor [2002] NSWADTAP 23; Despot v Dublin Group [2014] NSWCATCD 39; Foodtech Group Pty Ltd v DHK Consolidated Pty Ltd [2013] NSWADT; Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP; Johnson v D & S Australia Pty Ltd [2021] NSWCATCD Category: Principal judgment Parties: Pizza Headquarters Pty Ltd (Appellant) PCA Hunter Pty Ltd (First Respondent) NSRD Pty Ltd (Second Respondent) Representation: J Dandilly (Appellant) L Saccaro ( First Respondent) G Haines (Second Respondent) File Number(s): 2022/00184490 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: 2022 NSWCATCD [*] Date of Decision: 25 May 2022 Before: K Ross, Senior Member File Number(s): COM 21/14603 REASONS FOR DECISION 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 25 May 2022. The matter is a retail lease matter decided pursuant to the Retail Leases Act 1994 (the Act). 2. The parties entered into a retail lease dated 21 November 2021. Pizza Headquarters Pty Ltd (the appellant) leased premises from Hunter PCA Pty Ltd (the first respondent) for a term of five years with a five year option. In or about February 2021 the first respondent sold the building of which the premises form part to NSRD Pty Ltd (the second respondent). 3. The appellant commenced proceedings in the Tribunal on 31 March 2022. The appellant sought orders that: 1. the lessee not have to pay the amount of $4000 (rent and outgoings outstanding); 2. the lessor pay the amount of $2000; 3. that the lessee is liable to pay only the water service and water usage components of the Hunter Water accounts; 4. that the water usage be apportioned between the tenancies; 5. a finding that the lessor's disclosure statement was issued on 27 September 2017 and not provided to the lessee seven days prior to lease commencement date of 30 September 2017; 6. that the grease trap, ducted air-conditioning, front side windows and doors and a mural be returned to the lessee; 7. that the lessee not be required to make good the premises contrary to the written lease provisions 2(a)(v). 1. The matter was heard and determined on 25 May 2022 and the Tribunal ordered that 1. Hunter PCA Pty Ltd is to refund to Pizza Headquarters Pty Ltd any rent and outgoings paid by Pizza Headquarters Pty Ltd for the period ending 30 September 2017 to 10 November 2017 ("the rent credit"). 2. The rent credit is to be offset against the amount owing by Pizza Headquarters Pty Ltd to Hunter PCA Pty Ltd for outgoings representing the charges for Hunter Water invoices payable by Pizza Headquarters Pty Ltd. 3. Either party may on or before 30 June 2022 relist this application to quantify the amounts payable pursuant to orders (1) and (2) in the event that there is any dispute about those amounts. 4. The balance of the application is dismissed The decision below 1. The Tribunal delivered written reasons for decision on the day of the hearing but a transcript has not been provided by the either party. 2. For convenience relevant parts of the Tribunal's decision are set out as follows: Rent paid from 30 September 2017 to 10 November 2017 7 I am satisfied that section 17 of the Act applies. The lessor had fit out obligations which were not substantially complied with when the lessee entered into possession of the premises. The lessee is not liable to pay rent or outgoings in respect of the period before the lessor's obligations were substantially complied with. 8 It follows that Hunter PCA must refund the rent for the period 30 September 2017 to 30 November 2017. Has there been an overpayment of rent in the amount of $916.66? 9 The lessee claims that there has been a withholding of rent paid in advance. He provides a list of payments made. There is no evidence that any of these payments were not credited to the ledger. I am not satisfied that the lessee has proven an entitlement to a refund or credit disclaimed. The outgoings – what is meant by payment of water rates and usage? … 11 The lease is clear that the lessee's share is "100% of the outgoings for the building or property of which the premises are part". There is no basis for the lessees' claim that water usage must be apportioned between the occupants of the building the lessee is responsible for all of the water usage. … I am satisfied that the expression "water rates and usage" refers to the outgoings payable by the lessor to Hunter Water. I am satisfied that the lessee is liable to 100% of those charges. The lessee's fit out 14 … The lessor says that the special condition which provided that the lessee did not have to make good reflected that these items were to be left at the premises. … 16 The alleged ambiguity in the lease is between clause 11(c) and the clause in Annexure B. I am not satisfied that there is any ambiguity between them. Clause 11(c) of the lease requires the lessee to remove its fixtures and fittings and make good. The special condition acknowledges that the lessee "does not have to reinstate the premises to the condition they were in, noting that the lessee is to fit out the premises for the purpose of takeaway food outlet for pizzas". 17 … I am not satisfied that the clauses entitled the lessee to remove the grease trap and air-conditioning are not to make good. The imputation is that the premises are to be fitted out for the purpose of takeaway food outlet for pizza us and will be left in the condition at the end of the lease. 18 …Furthermore the lessor agreed to a reduction in rent to the first two years of $20,000 which was the contribution which the lessee had sought.… 1. The Tribunal noted in its reasons that the appellant complains of numerous breaches of the Retail Leases Act 1994 but did not further address the breaches of the Act. 2. In respect of the water rates, the Tribunal noted "that the Hunter Water invoices provided for service charges and usage charges. Together they make up the quote rates, taxes, levies, premiums or charges payable by the lessor because the lessor is the owner" of the premises. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 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 (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of 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 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … 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. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 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: (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. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal lodged filed on 24 June 2022 and attachments . 2. The appellants written submissions and attachments (a) – (q) filed on 1 August 2022. 3. The appellant's written submissions provided to the Appeal Panel on 28 August 2022 and attachments (r) – (v). 1. In the written submissions the appellant articulates the grounds of appeal. An abbreviated excerpt contained at pages 3 to 7 of the written submissions is set out: 1. 'Hunter PCA did not provide either a copy of the lease and/or retail tenancy guide during the negotiation stage. The Act had significant changes made which were in draft form but took effect on 1 July 2017 and the Tribunal erred in law in not addressing this in any detail under section 9 of the Retail Leases Act (the Act)'. 2. 'Hunter PCA issued the lessor's disclosure document on 27 September 2017 which is less than seven days prior to the lease commencement date of 30 September 2017. The Tribunal erred in law in not addressing this in any detail under section 11 of the Act'. 3. 'Hunter PCA did not lodge the lease for registration within one month after the Lease was returned by Pizza HQ and did not provide a signed copy of the Lease within three months after the Lease was returned. The Tribunal erred in law in not addressing this in any detail under section 15 and 16 of the Act'. 4. 'Hunter PCA to immediately forward to NSRD the amount of $916.33 and any other amounts for rent that was paid in advance by Pizza HQ for which Hunter PCA has utilised to offset their counterclaim. There was a failure by the Tribunal to afford the appellant procedural fairness and or an unreasonable or plainly unjust exercise of the Tribunal's discretion to reject the appellant' evidence given Hunter PCA did not provide any evidence that these funds had not been received'. 5. 'Pizza HQ is to only pay in regards to Outgoings: a. The "water service" "water usage" amounts listed within the full Hunter Water Accounts: and; b. That no other amounts are payable to Hunter PCA or NSRD. The Tribunal made an error in interpreting the Act overlooking that the Retail Lease clearly states at Annexure A(c)(i)(1) only water rates and usage (sic) despite stating same as "finding of fact" …. Hunter PCA had not provided evidence in the hearing substantiating the amount claimed for the outgoings or identifying how much is claimed for water rates and usage and how much is water sewerage and drainage charges. Accordingly, the alleged outgoings have not been proved and the claim for outgoings against Pizza HQ should not have succeeded'. 6. The lessee has the right to remove the grease trap, the air-condition, windows and a mural for which the lessee has paid and is not obligated to 'make good' the premises. 1. The appellant asks for leave to appeal because the appellant states he may have suffered a substantial miscarriage of justice because the decision was not fair and equitable; the decision was against the weight of evidence; or significant new evidence is now available that was not reasonably available at the time of the hearing. 2. Although the appellant refers to the Tribunal erring at law, we consider that each of the five grounds of appeal raised by the appellant concerned grounds for which the leave of the Appeal Panel is required. We now turn to each of the five grounds of appeal in turn Notice of Appeal 1. The Notice of Appeal was lodged on 24 June 2022, which is within the 28 day time period specified in cl 25(3) of the Civil and Administrative Tribunal Rules 2014 (the Rules) in respect of the lessee's application. Grounds of Appeal 1. At the hearing, the appellant confirmed the grounds of appeal are specified in the appellant's written submissions. The appellant asked the Appeal Panel to have particular regard to his written submissions. We have considered both of the seven-page submission filed on 1 August 2022 with annexures, as well as the appellant's written submissions in reply, also seven pages in length with annexures, emailed to the Appeal Panel on the morning of the hearing. 2. The appellant confirmed during oral submissions that the grounds of appeal may be summarised as follows: 1. Ground 1 - the Tribunal erred because the reasons for decision to not address the first respondent's non-compliance with section 9 of the Act. For that reason the appeal should be allowed. 2. Ground 2 – the disclosure statement was not provided in accordance with section 11 of the Act and for that reason the appeal should be allowed. 3. Ground 3 - The lease was not lodged within one month after the lease was returned by the lessee and for that reason the appeal should be allowed. 4. Ground 4 – the Tribunal rejected the appellant's evidence and preferred the respondent' evidence in respect of an alleged overpayment of rent in the amount of $916.33. The Tribunal should have preferred the appellant's evidence because the respondent did not tender evidence of payments made and did not refute that the rent payment of $916.33 made on 11 November 2019 was credited towards 'outgoings' that the lessor was not entitled to charge. 5. Ground 5 – the Tribunal erred in not apportioning the water rates and water usage. The appellant relies on five cases said to be authority for the proposition that the lessee is not required to pay for water sewerage and drainage charges, regardless of the requirements of the written lease entered between the parties 6. Ground 6 – neither the heads of agreement nor the lessor's disclosure statement reflect a $20,000 lessor contribution nor do the documents state that any assets installed by the lessee should pass into the ownership of the lessor. Consideration 1. At the hearing of the appeal the parties supplemented their written submissions with further oral submissions. 2. The following are the relevant provisions of the Act for the purposes of the issues to be determined in this Appeal. 3. Part 2 of the Act sets out in sections 9 to 11A procedures that must be complied with and documents that must be provided before a lease is entered into. Under section 9, penalty provisions apply for failure to provide a copy of the lease as soon as the person enters into negotiations with the prospective lessee concerning the lease. By section11 there is also a penalty for failure to provide a Disclosure Statement at least 7 days before a retail shop lease is entered into. 4. Section 12A(1) provides that the lessee under a retail shop lease is not liable to pay any amount to the lessor in respect of outgoings unless the liability to pay the amount was disclosed in the lessor's disclosure statement for the lease. Subsection (4) permits a lessee to recover from the lessor any amount paid to the lessor that the lessee was not liable to pay because of the section. 5. Section 16(1) requires a retail shop lease that is for a term of more than 3 years to be registered in accordance with the Real Property Act 1900 within three months after the lease signed by the lessee is returned to the lessor, the lessor's lawyer or agent. Subsection (3) provides that the term of a retail shop lease includes any term for which the lease may be extended or renewed at the option of the lessee. 6. The Tribunal is empowered to make the orders found in section 72 of the Act in respect of a retail shop lease. Relevantly they include the power to order a party to pay money to a person (subsection (1)(a)); do or perform, or refrain from doing or performing, any specified act, matter or thing (subsection(1)(c)(iv)); grant relief against forfeiture (subsection (1)(d)); require rectification of the lessor's disclosure statement (subsection (1) (e)); deem a disclosure statement given by the lessor after the lease is entered into to have been given in compliance with section 11 before the lease was entered into (subsection (1) (e1)); declare the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not (subsection (1)(f) (iii)); and make such ancillary orders as the Tribunal considers necessary for the purposes of enabling an order under the section to have full effect (subsection (2)). Ground 1 1. We consider that that the appellant has failed to establish an error of law, or an error for which the leave of the appeal panel is required. 2. In respect of the first ground of appeal, the appellant contends that the Tribunal erred in not referring to a breach of section 9 of the Act. 3. First, we are not certain whether this ground of appeal was raised with the Senior Member below, other than by a cursory reference in the application form itself. We have been provided with all documents that the appellant tendered in the proceedings below. We are not satisfied that the appellant raised breaches of the Act in the proceedings below in any meaningful way. 4. Although it appears that the lessor did not comply with section 9 of the Act, a breach of this section by the lessor has no effect on the validity or duration of the lease involved, nor does it give the appellant a private cause of action nor any entitlement to a remedy as sought. Section 11(2) of the Act provides a remedy, namely that a lessee who is not given a disclosure statement as required by s 11(1) may terminate the lease within six months after the lease is entered into. However, that was not the relief sought by the applicant in the proceedings as pleaded and particularised below. 5. We are therefore not satisfied that the Tribunal's failure to refer to the breach has caused the Tribunal to fall into error. The failure to provide a disclosure statement is not relevant to the issues between the parties below, nor to the disposition of this appeal. This ground of appeal must be dismissed. Ground 2 1. The appellant contends that the Tribunal erred in failing to refer to a breach of section 11 of the Act. Section 11 provides that at least seven days before a retail shop lease is entered into the lessee must be given a disclosure statement for the lease. However the consequences of a breach of section 11 go no further than specified in the section (Tate v Unanderra Heights Pty Limited [2005] NSWADTAP 5). In that case, the lessee argued unsuccessfully that, on account of a breach of section 11 the lessor should not have the benefit of subsection 16(1), extending the term to five years. Notwithstanding a finding by the Tribunal that a detailed breakdown of outgoings did not appear in the disclosure statement, the lessee's claim under section 11 in Skywing Pty Ltd v Trust Company of Australia Ltd [2004] NSWADT 169 was dismissed. According to the Tribunal, "the purpose of disclosure statements is to ensure that tenants have adequate information and there can be no question that this tenant had all information available to it." On appeal the Appeal Panel agreed with the Tribunal's conclusion that the lessee had no remedy under this section but the basis of its decision was that the lessee had not exercised its right to terminate the lease under subsection 11(2) within six months – Skywing Pty Ltd v Trust Company of Australia [2005] NSWADTAP 10. The rights in subsection 11(2) are the statutory rights that apply in the absence of the provision of a disclosure statement. The absence of a disclosure statement is not relevant to the circumstances of this appeal and is not relevant to the accounting for rent and or whether water usage is apportionable. 2. For these reasons we are not satisfied that the Tribunal's failure to refer to a breach of section 11 of the Act establishes an error of law or an error for which the leave of the Appeal Panel is required. This ground of appeal must be dismissed. Ground 3 1. The appellant contends that the Tribunal erred in not referring to sections 15 and 16 of the Act. The first respondent did not "lodge" the lease for registration within one month after the lease was returned by the appellant and did not provide a signed copy of the lease within three months after the lease was returned. 2. The Act provides, whether or not a lease is to be registered, the lessor must provide the lessee with an executed copy of the stamped lease within one month after the lease is returned to the lessor (see section 15). Section 16 provides that any option for renewal of the lease must be not less than 5 years in duration. The combined effect of sections 7 and 16 of the Act is to override clauses in leases which provide for termination within less than five years but do not operate to prevent parties from terminating a lease before the expiry of five years if the parties are minded to do so (Chapman v Cheng & Anor [2002] NSWADTAP 23). In the event of a breach the Act does not provide for a remedy, and in any event the appellant does not state he has suffered any loss arising from the breach nor does he seek a remedy. 3. We note that the first respondent's submissions state that the lease was registered on 25 May 2018. It appears that section 15 was not complied with. We are not persuaded that this issue was raised before the Senior Member below other than by reference to the application form. 4. Even if the retail lease was not lodged within a month, the issue is not relevant to the disposition of the appeal. It is not sufficient for the appellant to state that the Tribunal erred in failing to refer to ss 15 and 16 of the Act. Something more is required of the appellant. He must establish by reference to transcript, submission or evidence the nature of the argument advanced before the Senior Member below, and how the Senior Member failed to take account of the relevant evidence or failed to address a relevant issue. We consider that the mere absence of reference to section 15 of 16 of the Act does not establish an error. 5. We consider that ss 15 and 16 of the Act are irrelevant to the issues in dispute between the parties and we therefore conclude that this ground of appeal must be dismissed also. Ground 4 1. The appellant contends that "the [first respondent] must pay $916.33 to the [second respondent], and any other amount for rent that was paid in advance by Pizza HQ which Hunter PCA has utilised to offset their counter claim". 2. It is trite to say that the appellant cannot prosecute a claim for outstanding rent on the second respondent's behalf. We are not aware of any claim or demand the second respondent has made on the appellant. It is the appellant's contention that a payment of $916.33 made by it to the first respondent on 11 November 2022 was not accounted for and that the first respondent has failed to provide rental ledgers demonstrating how this payment was attributed. If we understand the appellant correctly, it is alleged that the rent payment of $916.33 made on 11 November 2019 was used for outgoings, rather than rent. 3. The relevant written submissions are contained on pp 4 and 5 of the submissions in reply. We have repeated part of the appellant's submissions verbatim for convenience. All of the submissions filed on 1 August 2022 and on the morning of the hearing have been considered: …the respondent has not refuted that rent payments were utilised to offset their counterclaim – in fact they agree as shown in the twice revised counterclaim emails in the respondent's and nature of… Where various non-rent transactions on 30 April 2020 and 29 May 2020 are reconciled using rent payments.… The records appear questionable especially in relation to $916.66 which in the respondent's annexure "O" …suggests that the payment was received on 31 March 2020 but as per the appellant's annexure S the last payment for that amount was made on 11 November 2019.… Again, the rental should have been transferred to NSRD at settlement of the sale of the building on 14 May 2021 as it has been incorrectly (and is unconscionable conduct under section 62 B of the RL Act) to offset their claim on outgoings… 1. The Tribunal makes the relevant finding at paragraph 9 of the decision: The lessee claims that there has been a withholding of rent paid in advance. It provides a list of payments made. There is no evidence that any of these payments were not credited to the ledger. 1. We are not satisfied that the lessee has proven an entitlement to a refund or credit as claimed. We have had regard to the payments made by the appellant on page 85 of the appellant's bundle. The respondent does not dispute that the payment of $916.66 was made on 30 November 2019. The Respondent explained that the appellant underpaid rent and continue to pay 50% rent even when after rent free period concluded and that all payments made by him were credited but that the tenant owed both rent and outgoings at the time title was transferred to the second respondent. 2. The appellant claims that the Tribunal failed to consider two critical email contained at page 87 of his bundle of documents. 3. We refer to the two emails. The first is an email by G Haines, the director of the second respondent, addressed to the appellant's director dated 14 October 2021 at 12:03 pm: Hi Jason, attached is the ledger from Starr Partners. The last payment they received was on 19 July which paid the rent through to 29 June 2021. We've received just one months rent since. Can you organise to pay the outstanding rent immediately and confirm once you have processed? Thank you Kind regards, Gerard Haines Senior Property Manager 1. The appellant responds on 18 October 2021 at 1.54pm: Hi Gerard further to phone conversation last week, note your reply on 24 August 2021 attached when I raised concern with rent. I have today made a payment of one months rent ($1833.33); had a brief looked (sic) over the Starr Partners/Tony Cant document you forwarded; and then extracted my Xero data to produce the attached xls file – which doesn't appear to match the outstanding completely. Overall, it appears that is at least a credit balance of $916.33 CR that should have been forwarded to ledger at Leah Jay. That is, when rent transitioned from $916.66 to $1833.33 at the end of year two, the payment of 30 November 2019 (916.66) less the 0.33 short paid at start of lease) created a credit balance. If you count backwards you will see are 27 x $916.66. Can you sort this out please an update? Kind regards Jason 1. It is not in contention that a payment of $916.66 was made by the appellant on 30 November 2019. It is further not in contention that the amount was not credited on the Starr Partners ledger until March 2020. In our view the Starr Partners ledger establishes that a payment was made and credited. It does not establish that the payment of $916.66 was wrongly credited or credited towards water usage nor has it been explained why the issue is relevant to the overall debt owed by the appellant. 2. The appellant contends that the respondent(s) did not provide all financial documents and therefore a finding should have been made that funds were misappropriated. However, the appellant has tendered the first respondent's ledger and the Hunter Water Invoices. The Tribunal when presented with the appellant's evidence concluded that "…[t]here is no evidence that any of these payments were not credited to the ledger". Having regard to the evidence, and the additional emails highlighted by the appellant, we arrive at the same conclusion. The Tribunal on the evidence as tendered, was entitled to reach its finding that the critical payment of $916.66 was credited. The appellant tendered the necessary documents to reach that conclusion. As to the allegation that the funds were credited towards outgoings the appellant failed to establish on the evidence that this was the case, or how it is relevant to the overall debt as accounted for between the parties, or why he is entitled to a refund. This ground of appeal must be dismissed also. Ground 5 1. The appellant contends that water usage must be apportioned between the tenancies. He also argues that the requirement for him to pay water rates and usage means that he is not liable to pay the sewer service, environmental improvement and sewer usage components of the Hunter invoices. The appellant stated that his ground of appeal in respect of apportionment of water charges between tenancies was withdrawn, but he pressed the ground of appeal relevant to water 'usage'. 2. The Tribunal found that "…[t]he lease is clear that the lessee's share is 100% of the outgoings for the building or property of which the premises are part. There is no basis for the lessee's claim that water usage must be apportioned between the occupants of the building. The lessee is responsible for all of the water usage." 3. The relevant appeal submissions are contained at pages 4 and following of the appellant's submissions in reply. The appellant submits that he has always questioned whether he is responsible for all of the invoices and queried this as early as 2017 and early 2018 but continued to make payments for outgoings in good faith whilst the respondent incorrectly allocated rental amounts towards outgoings. At page 6 of the 1 August 2022 written submissions he states that he should be refunded amounts relating to sewer service, environmental improvement and sewer usage because the lessor has failed to comply with section 12A of the Act. Section 12A provides that a lessee under a retail shop lease is not liable to pay any outgoings unless the liability is disclosed in the lessor's disclosure statement. It is submitted "that the lessor's disclosure document does not have any amounts at 14.9 or 14.12 which would be relevant to the Hunter Water invoices for the sewer service, environmental improvement and sewer usage amounts". 4. The first respondent has provided the Hunter Water accounts for the last five periods from 3 September 2019 until 3 May 2021. In his submissions on page 6 and continuing the appellant refers to four authorities he states are relevant to this ground of appeal. They are Despot v Dublin Group [2014] NSWCATCD 39 at [42] to [49]; Foodtech Group Pty Ltd v DHK Consolidated Pty Ltd [2013] NSWADT at [3]; Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP at [61] – [65]; Johnson v D & S Australia Pty Ltd [2021] NSWCATCD at [191]. We have had regard to all authorities. None of the decisions are authority for the proposition that water rates are apportionable or that contrary to the direct written provisions of the lease (emphasis added) the lessee cannot be liable for sewer and environmental charges. There is no requirement by a lessor to particularise water charges in the lessor's disclosure document (other than to specify that the overall water cost is approximately $2000) as the lease states that the lessee is liable for 100% of the outgoings. There is further no authority for the proposition that the lease is rendered void by reason of the fact that the lessor has not provided a more detailed breakdown of water charges. We have not been taken to an authority that establishes an error of law on the Tribunal's behalf. 5. We are not satisfied that this ground of appeal has been established. Ground 6 1. We refer to the submissions at page 6 of the 1 August 2022 written document. The appellant contends that he has the right to remove all items for which it has paid that are not the assets of the respondent(s). The appellant furthers seeks orders that it is not obligated to return the property to its original condition. 2. It is submitted that the Tribunal erred in law in not considering the condition of the premises at the commencement of the lease and that the lessor's disclosure document makes no mention of any contribution by the lessor to the fit out costs. 3. The submissions do not grapple with the terms of the lease and the findings of the Tribunal. The critical findings of the Tribunal is contained at paragraphs 16 and continuing and are set out earlier in these reasons. The Tribunal found, as a matter of fact, that the parties have negotiated to relinquish the grease trap and other items in exchange for a contribution by the lessor in the amount of $20,000 towards the costs of those items (see paragraph 14 of the decision). The submissions by the appellant do not address the Tribunal's careful analysis of the agreement reached by the parties during their pre-lease negotiations. 4. The Tribunal resolved that there was no ambiguity between the terms of the lease and that by operation of the special conditions the appellant does not have to reinstate the premises to the condition they were in at the beginning of the lease, while noting that the lessee fitted out the premises as a takeaway food outlet. Further the Tribunal concluded that by reason of the pre-lease negotiations, the parties had agreed that the premises would be fitted out by the lessee and would be left in that condition at the end of the lease in return for a 50% rent reduction during the first two years which amounted to a $20,000 contribution towards the fit out by the lessor. No attempts were made by the appellant to impugn these findings of fact nor do the submissions identify an error of law or an error for which leave is required. This ground of appeal must be dismissed also. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2022