Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wellness Bodycare Pty Ltd v Newtons Pharmacy Services Pty Ltd [2023] NSWCATAP 312 Hearing dates: 16 November 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member P H Molony, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Subject to order 4, no order as to costs. 4. If the respondent seeks an order for costs, the following orders apply: (a) Written submissions (not exceeding five pages in length) and any evidence, are to be provided to the Tribunal and the appellant within 14 days of the date of these orders. (b) Any submissions (not exceeding five pages in length) and evidence in response are to be provided, to the Tribunal and the respondent, within the following 14 days. (c) Any submissions (not exceeding two pages in length) and evidence in reply are to be provided, to the Tribunal and the appellant, within the following 7 days. (d) Any such submissions should indicate whether it is agreed that costs should be determined on the papers, without the need for a further hearing. Catchwords: APPEALS – Whether decision fair and equitable – whether Tribunal required to suggest basis for claim LEASES AND TENANCIES – Retail lease – power of Tribunal to declare rent not payable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act 1994 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Cases Cited: Cachia v Hanes [1994] HCA 14 Collins v Urban [2014] NSWCATAP 17 Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Darzi Group Pty Ltd v Noble Pty Ltd (No 2) [2022] NSWSC 643 Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401 Huang v Abdelwahed Pty Ltd [2021] NSWSCATCD 154 Jamaican Coffee Kitchen t/as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 Jude Trading Pty Ltd v Mosszan Pty Ltd [2022] NSWCATCD 21 Minifie x Maxwell [2020] NSWCATAP 30 Miramax Pty Ltd v Mang Yu Lo [2021] NSWCATCD 12 Norman v Wall [2020] NSWSC 129 NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Sherikey Pty Ltd v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd [2020] NSWSC 996 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd (No 2) [2020] NSWSC 1141 Tnau Finery Pty Ltd v SuperBurrito Pty Ltd [2023] NSWCATAP 29 Tuon v Popo Big Bowl Noodles Pty Ltd [2022] NSWCATCD 172 Texts Cited: None cited Category: Principal judgment Parties: Wellness Bodycare Pty Ltd (Appellant) Newtons Pharmacy Services Pty Ltd (Respondent) Representation: Appellant – S Spring Respondent – A Seo File Number(s): 2023/00282637 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: [2023] NSWCATCD Date of Decision: 10 August 2023 Before: G Sarginson, Senior Member File Number(s): COM 22/43724 REASONS FOR DECISION Outline 1. This dispute is between a sub-tenant (the appellant) and the head tenant (the respondent). At first instance, the appellant sought an order (1) that it did not have to pay an amount of $24,838, and (2) that the monthly rent from April 2022 to February 2023 should be reduced to $2,945.80. It was contended that the appellant's operation of a beauty and massage clinic in Sydney's CBD, which was the subject of a sub-lease dated 23 November 2018, was impacted by the COVID-19 pandemic such as to entitle it to rent waivers and deferrals (rent relief) which the respondent had not granted. 2. After the application was lodged on 29 September 2022, a directions hearing was conducted on 8 November 2022. Following hearings on 10 February and 5 May in 2023, the application was dismissed on 10 August 2023 on the basis that the Tribunal was bound by the Appeal Panel decision in Jamaican Coffee Kitchen t/as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 (Jamaican Coffee), a decision which interpreted provisions of the Retail Leases Act 1994 (NSW) (the RLA), the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (the COVID-19 Regulation) and the Commonwealth government's National Cabinet Code of Conduct – SME Commercial Leasing Principles During COVID-19 (the Code of Conduct). 3. An internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against that decision was commenced by a Notice of Appeal which was subsequently amended. At the outset of the hearing of the appeal, it became apparent that the appeal was confined to two claims: (1) that the decision was not fair and equitable, and (2) that the decision was against the weight of the evidence. Both those claims require leave (ie permission) to appeal. As no error on a question of law was raised, it was only necessary to consider if there is a basis upon which leave to appeal should be granted. Having considered the documents lodged by the parties, and their submissions, we have determined that there is no basis for granting leave to appeal. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, but otherwise only with leave of the Appeal Panel: s 80(2) of the NCAT Act. For leave to appeal from decisions made in the Consumer and Commercial Division, cl 12(1) of Sch 4 of the NCAT Act requires the Appeal Panel to be satisfied that the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) 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), 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 Sch 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, at [84], the Appeal Panel stated 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. either with or without further evidence, in accordance with the directions of the Appeal Panel. Documents 1. The Notice of Appeal, lodged on 5 September 2023, did not set but the basis of the appeal, saying the basis of the appeal awaited receipt of the recording of the hearings. The Amended Notice of Appeal, lodged on 19 October 2023, also did not set out the basis of the appeal, but said, "See submissions". 2. The documents submitted by the appellant were (1) a copy of the first instance reasons, (2) the documents tendered at first instance, (3) transcripts, (4) statements of Jaeyeon Lee dated 4 and 17 October 2023, (5) submissions lodged on 6 October 2023 and submissions in reply lodged on 19 October 2023. 3. No Reply to Appeal was lodged by or for the respondent. The documents submitted by the respondent were (1) submissions received on 11 October 2023, (2) three pages of emails, and (3) the documents tendered at first instance. Grounds of Appeal 1. As the basis of the appeal was not set out in either the Notice of Appeal or the Amended Notice of Appeal, which is procedurally unfair to the respondent and does not assist the Tribunal, Mr Spring was asked to provide those details at the outset of the appeal. 2. He did not suggest there was any error of law, contending that (1) the decision was not fair and equitable, (2) the decision was against the weight of the evidence, and (3) that there was significant new evidence that had become available that was not reasonably available at the time of the hearing. Time to appeal 1. The challenged orders were made on 10 August 2023. The 28-day requirement of r 25 of the Civil and Administrative Tribunal Rules 2014 gave a due date of 7 September 2023. As the Notice of Appeal was received on 5 September 2023, this appeal was commenced within time. Hearing 1. After ascertaining the basis of the appeal, and identifying the documents submitted by the parties, it was necessary to consider documents upon which the parties sought to rely that were not before the Tribunal at first instance to see whether they constituted fresh evidence that should be considered. 2. The first of those documents was the three-page statement of Jaeyeon Lee dated 4 October 2023. The first two paragraphs referred to the accompanying documents (pages numbered 1 to 187) that were before the Tribunal at first instance. The third paragraph referred to what Ms Lee had been advised after the hearing. The fourth and fifth paragraphs refer to provisions in the sub-lease. The sixth paragraph refers to what was alleged to have occurred after the hearing concluded on 5 May 2023. 3. Paragraphs 1 to 5 of this statement are not fresh evidence as they contain material that was reasonably available to the appellant prior to the hearing. Paragraph 6 relates to what is said to have occurred after the hearing and cannot assist with the determination of the questions raised by this appeal. 4. The appellant is entitled to have the documents that were before the Tribunal taken into consideration in this appeal but is not entitled to re-run the hearing as an appeal is confined to considering the published reasons by reference to questions of: (1) whether there was any error on a question of law and (2) whether there is any basis upon which leave to appeal should be granted. 5. Secondly, the two-page statement of Jaeyeon Lee dated 17 October 2023. As this statement was confined to matters said to have occurred after the hearing, on 29 and 30 August 2023, it does not constitute fresh evidence as it represents an attempt to raise matters said to have occurred after the challenged decision. 6. Thirdly, the respondent submitted emails, dated 10, 29 and 30 August 2023, which post-date the decision and do not qualify as fresh evidence. Post-hearing negotiations do not aid a determination of the issues raised in this appeal. 7. As a result, there was no fresh evidence and the appeal raised only three questions for determination: (1) whether the decision was not fair and equitable, (2) whether the decision was against the weight of the evidence, and (3) if either (1) or (2) is established, whether leave to appeal should be granted. 8. Before hearing oral submissions, the parties were advised/reminded that an appeal to an Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again, as was indicated in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. That point is also made clear by the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) which includes the words: "an appeal is not an opportunity to have a second go at a hearing". 9. Further, that it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: an appellant must demonstrate either that an error was made on a question of law or that there is a basis warranting a grant of leave to appeal. 10. The parties were also advised of the sequence submissions, namely appellant then respondent then appellant in reply, and that the purpose of that sequence was to give each party an opportunity to speak in support of their case and to respond to the case of the other party. Appellant's submissions 1. The matters contained in the written submissions of the appellant may be distilled in the following propositions: 1. The appellant was self-represented, had a non-English speaking background, and the appellant's representative was not a lawyer. 2. The subject matter was complex, and the Tribunal should have "spelt out any defects in the appellants (sic) Application". 3. It was contended: NCAT's guiding principles with unrepresented litigants is a positive obligation to explain in clear, simple terms [any] potential defects and give permission, if that's what's needed, to re fashion and re-frame the application, even on the day or to adjourn. 1. Reference was made to what was said in Norman v Wall [2020] NSWSC 129 (Norman) at [7]. 2. It was contended, at [16], that the member hearing the application should have "made it plain to the parties" that either a bad faith or a lack of good faith on the part of the respondent could be considered unconscionable conduct which may provide the appellant with a remedy. 3. Further, that there was inconsistency in decisions of the Tribunal, some of which have made orders varying the rent payable, as sought by the appellant. 4. After referring to what was said in Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401 (Hanson) at [56], and s 38(5) of the NCAT Act, it was submitted that the Tribunal is required to ensure the parties understand the proceedings and have an opportunity to be heard. 5. Mr Spring also referred to a case in which he appeared, Sherikey Pty Ltd v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218 (Sherikey) at [13]-[14], being a case where an allegation of unconscionable conduct was made. 6. It was also noted that Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 (Darzi) suggested that a landlord/lessor who failed to comply with its obligation under the Code of Conduct to renegotiate rent in good faith may be perpetually barred from recovering shortfalls in rent. 1. Additional matters raised in oral submissions were as follows: (10) There was no issue that the appellant was an impacted lessee. 1. The issue before the member was the conduct of the respondent who was alleged to have refused to negotiate as required by the Code of Conduct. 2. The appellant's representative assumed the Tribunal had the power to void or vary the lease. This was the source of the problem because the Tribunal did not have that power. 3. The effect of Jamaican Coffee is that a lessor can "sit back and do nothing" and later commence proceedings to recover rent which is not the intention of the applicable provisions. 4. It was also suggested that the appellant only "found out during the time of the hearing" that the Tribunal had no power to vary the rent payable. 5. The appellant's representative at the hearing did not know of an argument that would assist the appellant's case, being a case based on an allegation of the respondent's lack of good faith in negotiations amounting to unconscionable conduct, but the presiding member did and "should have suggested that avenue even though it was not raised". Respondent's submissions 1. The written submissions for the respondent noted that an interpreter was provided for the appellant's Ms Lee and referred to post-hearing conduct which is not relevant to the issues in this appeal. 2. The respondent's case was said to be that it acted in accordance with the regulatory requirements and provided rent relief. It was also observed that the subject lease had ended in May 2023 and that, since the Code of Conduct refers to amortisation of deferred rent over 24 months or until the lease ends, any deferral no longer applies. 3. In oral submissions, Ms Seo questioned why there was an appeal, saying that rent relief was offered and provided, referring to ledger pages in support of the provision of rent relief. Submissions in reply 1. The written submissions provided in reply repeated the reference to what were said to be conflicting and confusing opinions as to the Tribunal's power in relation to rent relief for impacted lessees when the parties were unable to reach agreement. There was reference to three first instance decisions, Miramax Pty Ltd v Mang Yu Lo [2021] NSWCATCD 12, Jude Trading Pty Ltd v Mosszan Pty Ltd [2022] NSWCATCD 21, and Huang v Abdelwahed Pty Ltd [2021] NSWSCATCD 154, followed by what was presented as a quote from the last of those decisions. However, the quoted words do not appear either in that decision or the other two cited decisions. 2. After referring to Darzi Group Pty Ltd v Noble Pty Ltd (No 2) [2022] NSWSC 643 at [26]-[27] and to "Sneakerboy", which could be a reference to either Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd [2020] NSWSC 996 or Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd (No 2) [2020] NSWSC 1141 (Sneakerboy No 2), again a passage was quoted which does not appear in any of those three decisions. In fact, the quoted words are from Tuon v Popo Big Bowl Noodles Pty Ltd [2022] NSWCATCD 172 at [89]. 3. The points made, in the submissions in reply at [5], were that (1) there is uncertainty as to what follows when a lessor fails to comply with the obligation to renegotiate, and (2) that the RLA and COVID-19 Regulation should be read broadly. However, it is not clear what it is suggested flow from those submissions. If they are intended to suggest Jamaican Coffee should not be followed then, as that point was not taken at first instance, it cannot be raised for the first time on appeal, and not in written submissions in reply, especially when there is nothing in either the Notice of Appeal or the Amended Notice of Appeal to put either the Tribunal or the respondent on notice as to such an argument. 4. There was then a reiteration of the contention that the appellant should have been given an opportunity to ventilate the allegation that the respondent failed to act in good faith. 5. It was submitted that was said in Minifie v Maxwell [2020] NSWCATAP 30 at [67] supported the appellant's claim there had been a denial of procedural fairness, based on the presiding member's failure to bring a possible avenue of recovery to the attention of the appellant, but that paragraph is referring to the altogether different situation of when a finding is made based on the decision-maker's own knowledge of a matter that does not form part of the evidence. 6. Another submission, one of many that was not in reply, was that the appellant's representative did make oral submissions about the respondent's lack of willingness to negotiate, which it was conceded did not refer to s 72 or s 62B of the RLA, but which it was asserted were ignored. It is to be noted that was the first reference to s 62B of the RLA by the appellant's representative and was made at a time when the respondent would not have an opportunity to respond. 7. The penultimate submission was a reference to what was said in favour of mediation in NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 at [315] in the context of making an order for mediation but the quoted words are a statement of general application as to the value of mediation that does not assist in the determination of this appeal. 8. The submissions in reply concluded with a sentence that said: "Costs should be in accordance with the NCAT's rules in the usual way". 9. In oral submissions it was contended that if a lessor specifies an amount which the lessee must accept then that is not a negotiated outcome as required by the Code of Conduct and the COVID-19 Regulation. It was said that the period when the rent credit referred to was given, namely June 2021, was a time when the subject premises were mandated to be closed with the result that the rent credit provided did not accord with the appellant's reduction in trade and thus did not comply with the Code of Conduct. Consideration 1. In the NCAT Act, s 38(5) provides as follows: (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. Having read the transcript of the hearings on 10 February and 5 May, both in 2023, we are satisfied that the presiding member complied with s 38(5). We do not accept that it is the role of a Tribunal member to provide advice to a party. The essence of the appellant's case on appeal is that the presiding member should have told the appellant it could not win on one basis, but might win on another basis, and set out that basis. Any such suggestion is rejected. 2. It is pertinent to note that s 38(5) does not contain the word "party", only "parties". By way of analogy, if the Tribunal were a football match, the presiding member is a referee and not the coach of one team. That analogy is useful because a Tribunal member can and should consider whether what they are saying or doing amounts to coaching rather than refereeing. 3. It is necessary to set out and consider portions of the COVID-19 Regulation, namely cls 7 and 9, which (excluding notes) are quoted below: 7 Obligation to renegotiate rent and other terms of commercial leases before prescribed action (1A) This clause applies to a commercial lease to which an impacted lessee is a party (an impacted lease). (1) A lessor under an impacted lease must not take or continue any prescribed action against the impacted lessee concerned on grounds of a breach of the impacted lease consisting of a failure to pay rent during the prescribed period unless the lessor has complied with this clause. (2) Any party to an impacted lease may request the other parties to renegotiate the rent payable under, and other terms of, the impacted lease. (3) A party to an impacted lease must, if requested, renegotiate in good faith the rent payable under, and other terms of, the impacted lease. (3A) An impacted lessee must give the lessor the following in respect of the impacted lease— (a) a statement to the effect that the lessee is an impacted lessee, (b) evidence that the lessee is an impacted lessee. (3B) If the impacted lessee does not comply with subclause (3A), the lessor is taken to have complied with this clause. (4) The parties are to renegotiate the rent payable under, and other terms of, the impacted lease having regard to— (a) the economic impacts of the COVID-19 pandemic, and (b) the leasing principles set out in the National Code of Conduct. 9 Tribunal and court consideration of National Code of Conduct leasing principles The Tribunal and any court, when considering whether to make a decision or order relating to any of the following, is to have regard to the leasing principles set out in the National Code of Conduct— (a) the recovery of possession of premises or land from a lessee, (b) the termination of a commercial lease by a lessor, (c) the exercise or enforcement of another right of a lessor of premises or land. 1. While cl 7 contains an obligation to renegotiate, it is to be noted that cl 9 requires a court or tribunal to have regard to the Code of Conduct only in relation to three situations, each involving a claim by a lessor, and does not refer to any claim made by a lessee. 2. The Code of Conduct could produce three outcomes: (1) negotiation in good faith which resulted in agreement; (2) negotiation in good faith which did not result in agreement; and (3) either no negotiation no negotiation in good faith. 3. In the first of those situations, there is no need for any legal proceedings. 4. The second leaves a gap which was raised by in Sneakerboy (No 2) at [84] and made clear in Jamaican Coffee, at [262]-[263], where it was held that s 72(1)(b) "does not confer power on the Tribunal to waive or defer rent where there is a failed negotiation under cl 7 of the COVID-19 Regulation". 5. It is understandable that there were first instance decisions, prior to Jamaican Coffee, which proceeded on the basis that the Tribunal did have a power to waive or defer rent when neither party raised that point. However, any inconsistency in those decisions became irrelevant after the decision in Jamaican Coffee, which binds presiding members at first instance. 6. It is telling that Mr Spring was unable to bring to our attention any decision after Jamaican Coffee which suggested an inconsistency. Accordingly, no inconsistency has been demonstrated in relation to the period from when Jamaican Coffee was decided on 22 June 2022 until the 5 May 2023 hearing. 7. The third situation is covered by the decision in Darzi which suggests, at [139], that a lessor who fails to negotiate in good faith cannot recover rent for the relevant period. That suggests a defence but not the basis for a claim by a lessee, a situation which lawyers would say gives the lessee a shield but not a sword. 8. Just as a police officer has a power to arrest but needs basis for the exercise of that power, there must be a basis for the exercising a power conferred on the Tribunal by the RLA. In the RLA s 72 confers power on the Tribunal to make orders in relation to retail tenancy claims and s 72AA confers power on the Tribunal to make orders in relation to unconscionable conduct claims. 9. It is noted that Jamaican Coffee held that s 72(1)(b) does not confer the power to defer or waive rent where there is a failed negotiation. So far as is presently relevant s 72 is in the following terms: (1) In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate— … (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings, 1. However, s 72AA, which provides a power when an unconscionable conduct claim is made out under s 62B of the RLA, contains the following words: (1) In proceedings for an unconscionable conduct claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate— … (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings. 1. Since s 72 and s 72AA each have the same wording in paragraph (b) of subsection (1), that raises the question of why what was said in Jamaican Coffee should not apply to a claim based on s 72AA as well as a claim based on s 72. Of course, in addition to that question of law, any claim of unconscionable conduct would appear to involve contested questions of fact, namely whether the respondent either failed to negotiate or, if it did, failed to do so in good faith. 2. It is noted that the issue to be determined in this appeal is not the strength or otherwise of a claim of unconscionable conduct but the suggestion the appellant should have been advised of such a potential claim by the Tribunal. 3. What is fatal to the appellant's case in this appeal is that the appellant was given notice by the Tribunal of the prospect of a claim based on unconscionable conduct, in an acceptable manner, by reason of bringing to the attention of the appellant's representative, on 10 February 2023 (T126, line 126 in the transcript), the decision in Tnau Finery Pty Ltd v SuperBurrito Pty Ltd [2023] NSWCATAP 29 (Tnau). 4. That decision contains no less than 11 references to unconscionable conduct, including the sentence "In points of claim filed pursuant to directions of the Tribunal, the lessee also alleged that the lessor had engaged in unconscionable conduct within the meaning of s 62B of the Retail Leases Act 1994 (NSW)" as early as in [3]. After that decision was brought to the appellant's attention on 10 February 2023, there was ample opportunity to raise a claim based on unconscionable conduct prior to the hearing on 5 May 2023. 5. For the reasons set out above, we reject the suggestion that the decision was not fair and equitable. There was no elaboration of how it was suggested the decision was against the weight of the evidence and we are unable to see how that ground could be established when the decision was that the Tribunal did not have the power to make the order sought by the appellant. 6. The submissions in reply have already been dealt with. Responses to the written and oral submissions in chief, which were numbered to facilitate reference to them, are set out below. 1. The appellant was not self-represented but chose to be represented at the hearing by Mr Foster. Ms Lee was provided with an interpreter, and the presiding member adjourned the hearing on 10 February 2023 so that would be the case. 2. The Tribunal warned the appellant twice that the case involved a complex area of the law and of the decisions in Jamaican Coffee and Tnau. Based on the former decision, the appellant was warned that "there is an issue as to whether the Tribunal's got the power to make the orders that are sought in the application" (T239). The latter decision was a case in which a claim of unconscionable conduct had been made. 3. The appellant was not an unrepresented litigant, having chosen to be represented by Mr Foster (not a lawyer) and leave was granted for such representation. The hearing was adjourned, from 10 February 2023 to 5 May 2023, after warning the appellant of a defect in its application. 4. Unlike this case, where the appellant had chosen a representative, Norman was a case involving a self-represented litigant. 5. It was not appropriate for the presiding member at first instance to advise the appellant's representative of a potential remedy based on an allegation of unconscionable conduct. That would have clearly involved giving advice to the appellant and would have provided a basis for the respondent to allege that the presiding member, by providing one party with a potential remedy, was not acting impartially. 6. The Tribunal was not referred to any decision after Jamaican Coffee that was inconsistent with that decision. Accordingly, there was no relevant inconsistency by the time of the hearing. 7. A consideration of the transcript reveals that the presiding member did take steps to ensure the appellant understood the proceedings and provided both parties with an opportunity to be heard. The appellant provided no details of how it is suggested the appellant was denied an opportunity to be heard. Leave was granted for the chosen representative to conduct the appellant's case. The hearing was adjourned so that Ms Lee would have the benefit of an interpreter. 8. The decision in Sherikey does no more than indicate that Mr Spring raised in that case what he wishes Mr Foster had raised at first instance in this case, namely, a claim that a refusal to renegotiate in good faith constitutes unconscionable conduct. 9. Darzi suggests that a lessor who does not negotiate in good faith will not be able to recover rent for the relevant period. While that may not provide a basis of a claim by a lessee, it does provide the basis for a defence to a claim by a lessor. 10. As the first instance proceedings and the appeal were conducted on the basis that the appellant was an impacted lessee, that was not in dispute. 11. It was open to the appellant to raise the alleged refusal to negotiate at first instance, but the claim presented was governed by the decision in Jamaican Coffee which the presiding member was bound to apply. 12. If the appellant's representative assumed the Tribunal had the power to void or vary the lease, that representative failed to heed the warning that was provided by the presiding member on 10 February 2023 and failed to consider the decision in Tnau. 13. The suggestion that the effect of Jamaican Coffee is that a lessor can "sit back and do nothing" and later commence proceedings to recover rent is a submission that overlooks what was said in Darzi. 14. The suggestion that the appellant only "found out during the time of the hearing" that the Tribunal had no power to vary the rent payable is clearly inaccurate. It is clear beyond any doubt that on 10 February 2023 (T185-240) the appellant and her representative were put on notice of that point, almost three months prior to the hearing on 5 May 2023. 15. As indicated above, it is not the role of a presiding member to advise a party. Further, to tell one party there is another claim that could succeed against the other party would not be acting impartially. 16. See (14) above. 1. As the appellant has not established either that the decision was not fair and equitable or that the decision was against the weight of the evidence, it is not necessary to consider whether leave to appeal should be granted. Accordingly, leave to appeal should be refused. 2. Since there was no suggestion of any error on a question of law, an order refusing leave to appeal is sufficient to finalise this appeal. However, for the avoidance of doubt, an order should be made dismissing the appeal. Costs 1. The applicable rule for costs in relation to appeals is rule 38A which provides that the rule as to costs of an appeal should be the same rule as was applied at first instance. As there was no costs order at first instance, that suggests there should be no order as to costs of this appeal. 2. While it may be that the last sentence of the submissions in reply for the appellant was intended to suggest that, if the appeal was allowed, the appellant was entitled to an order for costs, there is no basis for such an order as the appellant has not been successful. 3. As the respondent did not have an opportunity to make submissions as to costs, procedural fairness requires that we provide a facility for the respondent to make an application for costs. 4. However, it is noted that the decision of the High Court in Cachia v Hanes [1994] HCA 14 made it clear that self-represented litigants cannot claim for the time they spend on legal proceedings, with the result that there may be little or nothing that the respondent can claim in relation to costs. 5. Indeed, we will determine that there should be no order as to costs unless the respondent expressly seeks costs. Orders 1. For the reasons set out above, the orders that will be made are as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Subject to order (4), no order as to costs. 4. If the respondent seeks an order for costs, the following orders apply: 1. Written submissions (not exceeding five pages in length) and any evidence, are to be provided to the Tribunal and the appellant within 14 days of the date of these orders. 2. Any submissions (not exceeding five pages in length) and evidence in response are to be provided, to the Tribunal and the respondent, within the following 14 days. 3. Any submissions (not exceeding two pages in length) and evidence in reply are to be provided, to the Tribunal and the appellant, within the following 7 days. 4. Any such submissions should indicate whether it is agreed that costs should be determined on the papers, without the need for a further hearing. ********** 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: 24 November 2023