Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Horan v The Owners – Strata Plan No. 68307 [2024] NSWCATAP 118 Hearing dates: 11 April 2024 Date of orders: 24 June 2024 Decision date: 24 June 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Sarginson, Senior Member Decision: (1) Leave to appeal is granted and the appeal is allowed in part. (2) The orders made 21 November 2020 are varied as follows: (a) Order 2(b) is varied to read: (b) the loss of opportunity to rent the unit for the months of July to December 2020 in the amount of $45,060. (b) Order 2 (c) is varied to read: (c) electricity charges incurred by the applicant in the amount of $429.26 for the period that the lot was unoccupied from 1 January 2021 to 11 November 2021. (c) Order 3 is varied to read: 3. The respondent is to pay the applicant an amount of $46,616.26 within 28 days from the date of publication of these orders. (3) In respect of costs, the following directions apply: (a) The applicant for costs (costs applicant) is to file and serve any application for costs (costs application), including any application concerning costs of the proceedings at first instance, within 14 days from the date of these orders. Such application is to include any evidence and a short submission (not more than 5 pages). (b) The respondent to any costs application is to file and serve any evidence and submissions in reply (not more than 5 pages) within 28 days from the date of these orders. (c) The costs applicant is to file and serve any submissions in reply (not more than 2 pages) within 35 days from the date of these orders. (d) The parties submissions are to include submissions about whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) to dispense with a hearing of the costs application. Catchwords: DAMAGES – assessment under s 106(5) of the Strata Schemes Management Act 2015 (NSW) – loss of opportunity – required proof ADMINISTRATIVE LAW – challenge on basis of unreasonableness – when available Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWC 915 Browne v Dunn (1893) 6 R 67 Collins v Urban [2017] NSWCATAP 17 Henville v Walker 206 CLR 859; [2001] HCA 52 Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 Malec v. J.C. Hutton Pty. Ltd (1990) 169 CLR 638; [1990] HCA 20 Minchin v Public Curator of Queensland [1965] ALR 91 Minister for Immigration and Citizenship v Li 249 CLR 332; [2013] HCA 18 Placer (Granny Smith) Pty Ltd v Theiss Contractors Pty Ltd [2003] HCA 10; 77 ALJR 768; 196 ALR 257 Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Vickery v The Owners – Strata Plan No. 80412 [2020] NSWCA 284 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: Nil Category: Principal judgment Parties: Michael David Horan (Appellant) The Owners – Strata Plan No. 68307 (Respondent) Representation: Counsel: K Koikas (Appellant) M Li (Respondent) Solicitors: Bannermans (Appellant) Kerin Benson Lawyers File Number(s): 2023/00458569 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 21 November 2023 Before: M Gracie, Senior Member File Number(s): 2021/00379238 (formerly SC 21/50211) REASONS FOR DECISION 1. This appeal concerns the assessment of damages for a claim by a Lot owner (appellant) against an owners corporation (respondent) arising from breach by the respondent of its duty under s 106 of the Strata Schemes Management Act 2015 (NSW) (SSMA). 2. The appellant claimed damages under s 106(5) of the SSMA in the amount of $138,228.50. Principally, this claim was for loss of rental income said to have arisen from the inability of the appellant to rent his premises during a period in which it was vacated to facilitate the owners corporation carrying out rectification work. 3. Rectification work was required due to water ingress which emanated from the common property. The respondent required the appellant's lot to be vacated so that the rectification work could be carried out. The premises were vacated on 24 June 2020, the rectification work not being completed until 11 November 2021. As with the decision at first instance, we will refer to this period as the "Vacancy Period". 4. At the time of vacation, the appellant had a tenant in his property who was paying rent. In addition, the appellant had, previously, used his premises for short-term renting through Airbnb. 5. The appellant's claim was heard 24 February and 7 June 2023. At the hearing it was agreed the respondent had breached its duty under s 106 of the SSMA, the only issue being what, if any, damages the appellant was entitled to be awarded. 6. On 21 November 2023 the Tribunal published its decision and provided written reasons (reasons). Relevantly, orders 2 and 3 provided: 2. Order that by reason of the respondent's breach of s 106 of the Strata Schemes Management Act 2015 (NSW), the applicant has a right to the recovery of statutory damages pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW), comprising: (a) the loss of an Airbnb rental booking for the period 3 January 2020 to 7 January 2020 in the amount of $1,127; (b) the loss of opportunity for the applicant to rent the unit for the month of July 2020 in the amount of $7,510; and (c) electricity charges incurred by the applicant in the amount of $688.19 for the period that the lot was unoccupied from 24 June 2020 to 11 November 2021. 3. Order pursuant to s 232 of the Strata Schemes Management Act 2015 (NSW), the respondent pay the applicant statutory damages assessed under Order (2) above in the sum of $9,325.19 within 28 days of the publication of these Reasons. 1. The appellant appeals this decision. Notice of Appeal 1. The appellant filed a Notice of Appeal on 18 December 2023. The appeal was filed in time. The following orders were sought: 1. Order setting aside orders 2 and 3 made in Michael David Horan The Owners Strata Plan No. 68307 [2023] NSWCATCD dated 21 November 2023 (the "Decision"). 2. Order that the owners corporation pay Michael David Horan damages for lost rental income for the 467 days between 1 August 2020 and 11 November 2021 in the amount of $115,119.04. 3. Order for costs of this Appeal. 4. Any other order the Tribunal deems fit. 1. In seeking these orders, the appellant appeared to seek an order to set aside the award in connection with: 1. The loss of the Airbnb rental for the period 3 January 2020 until 7January 2021; and 2. The award of electricity charges of $688.19 for the period that the lot was unoccupied from 24 June 2020 to 11 November 2021. 1. The effect of the proposed orders, if they were made, would also be to deprive the appellant of the award for loss of rental income in January 2020 and the period July 2020, as well as electricity charges incurred in the Vacancy Period. 2. We invited the appellant to clarify his position. It was confirmed that he did not seek order 1. Rather, additional relief was sought to that already awarded in terms of order 2. Orders 3 and 4 were also pursued. 3. Four grounds of appeal were raised: 1. No reasonable decision-maker would have ordered no compensation for 1 August 2020-11 November 2021 in light of the agreed fact at [5] and subsequent orders at [230(2)(a) and (b)] (Ground 1). 2. The Tribunal asked the wrong question (Ground 2). 3. Failure to afford procedural fairness (Ground 3). 4. The Tribunal took into account irrelevant considerations (Ground 4). 1. The appellant also sought leave to appeal on the basis the decision was not fair and equitable or was against the weight of evidence. 2. The appellant filed evidence and submissions in support of his position. 3. The respondent filed a reply to appeal and evidence and submissions in reply. 4. The appeal was heard on 11 April 2024. Each party was represented by Counsel who provided oral submissions. 5. At the outset of the appeal, we indicated to the parties that it appeared to us from reading the material that the central issue concerned the amount of the award for damages arising from a loss of opportunity during the Vacancy Period. We referred the parties to various decisions including: 1. Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWSC 915 (Boyded Industries); and 2. Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 (Sellars). 1. The parties agreed the issue was whether the Tribunal was correct in its approach to assessing damages for a loss of opportunity and whether this task had been properly performed having regard to the evidence and the award made. In oral submissions we were taken to evidence of the appellant and the appellant's tenant, Ms O'Donoghue (tenant), concerning her intentions to stay in the premises and the effect of that evidence in assessing damages. Consideration 1. The appeal is brought pursuant so s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Insofar as leave to appeal is required, Sch 4 cl 12(1) of the NCAT Act applies to the grant of leave. Collins v Urban [2017] NSWCATAP 17 (Collins) sets out the principles applicable to the grant of leave. Ground 1- No reasonable decision-maker would have ordered no compensation for 1 August 2020-11 November 2021 in light of the agreed fact at [5] and subsequent orders at [230(2)(a) and (b)]. 1. In support of Ground 1 the appellant referred the Appeal Panel for the decision of the High Court in Minister for Immigration and Citizenship v Li 249 CLR 332; [2013] HCA 18 (Li), particularly at 13-14. Essentially, the proposition was that no reasonable decision-maker would have awarded no damages for the period 1 August 2022 11 November 2021. 2. The appellant said rejection of the tenant's evidence that she intended to stay in the premises was unreasonable, particularly as it led to the conclusion that the appellant had not proved its claim for damages for the whole of the Vacancy Period. In this regard, the appellant noted that the tenant was not cross examined and therefore the respondent was not entitled to submit that the effect of her evidence was that she would not have remained in the premises for the Vacancy Period. Reference was made to the decision in Browne v Dunn (1893) 6 R 67. 3. In the course of submissions both parties referred us to various extracts from the transcript, being the cross examination of the appellant and submissions and exchanges between Counsel and the Tribunal. In this regard, Counsel for the appellant noted that the tenant had given some evidence of her intention to stay in the premises (Tab 5 of the appellant's bundle (AB)) and had not been cross examine despite being available. 4. Each party's Counsel also referred to the findings made by the Tribunal in its reasons concerning this evidence, the surrounding circumstances of the tenant (who had relocated to Sydney from Western Australia for her work) and the Tribunal's conclusion that the appellant had not proved its loss for the Vacancy Period, other than July 2020. 5. In Li, French CJ said at [30]: The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgement with which a court disagrees even though the judgement is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable as an emphatic way of suppressing disagreement with it "may have no particular legal consequence". As Professor Galligan wrote: "The general point is that the canons of rational action constitute constraint on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgement and choice both as to the substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed." 1. In the present case, the decision made was based on the Tribunal's findings of fact. It was also based on the Tribunal's view of the law concerning the manner in which damages should be assessed. In an appeal, there may be disagreement with the legal principles applicable to the task at hand, the facts as found and the application of those facts to the legal principles. But that does not, of itself, render a decision unreasonable and liable to be set aside on the basis of the principle in Li. 2. Whether or not the decision is wrong because of legal or factual error is a separate question. In the present case, in our view the comments of French CJ at [30] are apposite and this ground of appeal should be dismissed. Ground 2- The Tribunal asked the wrong question. 1. In Annexure A of the Notice of Appeal (Annexure A), at para 12, the substance of ground 2 was stated thus: Member Gracie erroneously concerned himself as to whether the person occupying the premises in the month of July 2020 would continue to occupy the premises for the balance of the Vacancy Period. The correct question to have asked was: "What is the market prepared to pay to occupy the premises during the Vacancy Period?" In support of this proposition, the appellant referred in written submissions to the reasons of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 (Shirt). There, at [13] - [15] His Honour said: 13. A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] UKHL 2; (1951) AC 850 , may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. 14. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 15. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. 1. In our view, the decision in Shirt is irrelevant to the disposition of the present appeal. Shirt is authority for the common law test of reasonable foreseeability in respect of breach of duty of care in the tort of negligence. What is being considered in this appeal is not whether the owners corporation owed the respondent a statutory duty under s 106 of the Strata Schemes Management Act 2015 (NSW) to keep and maintain common property in a state of good repair; or whether the duty had been breached. Those issues were not in dispute. 2. There is also no dispute that it was foreseeable that the appellant may suffer damages in the form of loss of rent in the circumstances that occurred (i.e. that loss of rental income was a reasonably foreseeable type of loss arising from breach of the duty by the owners corporation). 3. In relation to the principles arising from the decisions in Vickery v The Owners – Strata Plan No. 80412 [2020] NSWCA 284 and Henville v Walker 206 CLR 859; [2001] HCA 52 (Henville), the appellant submitted at para 16 of his written submissions: … the task Member Gracie was to perform in relation to damages was to "select a measure of damages which conforms with the remedial purpose of the statute and to the justice and equity of the case". With respect, the appellant submits that had Member Gracie embrace the High Court's approach to statutory damages, the Tribunal would have granted Mr Horan damages for the entirety of the Vacancy Period at the monthly rate for which the premises was being tenanted in June 2020 before the tenant was displaced to make for the restorative works to be carried out. 1. The appellant then continued at para 25: Ultimately, Member Gracie erred in law by requiring Mr Horan to prove that his tenant was going to occupy the premises for the entirety of the Vacancy Period or that some other tenant (ES) would rent the premises for that period. Member Gracie's approach in that regard resulted in a measure of damage for lost rent during the Vacancy Period which fell significantly short of the remedial purpose of s 106(5) of the SSMA. 1. Regardless of the submissions made by the respondent, to which the appellant refers at para 23, there is nothing in the reasons of the Tribunal to suggest that the Tribunal misunderstood its task, namely, to assess damages under s 106(5) of the SSMA and determine what was the "reasonably foreseeable loss suffered by the owner as a result of a contravention of [s 106 of the SSMA] by the owners corporation. The Tribunal undertook this task by analysing the evidence and reaching conclusions concerning: 1. the actual loss suffered; 2. whether the appellant had established loss of opportunity damages. 1. In this regard, the Tribunal said at [132]-[136]: 132 I am not satisfied on the evidence, particularly in light of the contemporaneous records and the owner's initial and contemporaneous claim for his costs of alternative accommodation, that the OC's insurer rejected and the owner later abandoned in these proceedings, that the owner has established on the balance of probabilities that but for the OC's breach of s 106 of the SSMA and the need for the unit to be vacant during the OC's repair works for the Vacancy Period, he would have otherwise received $127,670 in rent from either his existing tenant, Ms O'Donoghue, or another tenant for that entire period. 133 The owner did not advance or provide evidence for an alternative case or claim an alternative amount for loss or rent based on the vicissitudes and contingencies to be taken into consideration for the periods when the unit might have otherwise been occupied by the owner and his family during the Vacancy Period and interspersed with ad hoc holiday and intermittent periods of some short term rentals. 134 That leaves, on the evidence and the owner's submissions, an "all or nothing" scenario. 135 Having regard to the principles referred to above, I am cognisant that the owner had within his means the ability to adduce reasonably precise evidence of what had been lost by reference to the matters listed by the OC as to the historical tenancy records. Without that evidence, I must do "the best I can" because some loss, whether loss of rent or the cost of alternative accommodation would be expected to have been incurred during the Vacancy Period, either because the owner was unable to live in the family home or by not being able to rent the unit, or as is most likely a mix of both. 136 For the reasons discussed above, I am not satisfied that any claim for loss of rent beyond July 2020 has been proved. I allow $7,510 for the possibility that the tenant may have stayed another month beyond June 2020. The OC accepted that as a possible finding: RS2 [134]. In the absence of any signed Residential Tenancy Agreement before 30 June 2020, I am not satisfied that there is any objective evidence to allow more than a further month's loss of rent. Neither the contemporaneous evidence referred to above or the evidence of the owner and Ms O'Donoghue establish a sound basis for the claim made by the owner to justify any amount for loss of rent beyond July 2020. 1. Having then noted that the claim for loss arising from the inability to occupy the premises as the appellant's own accommodation had not been pressed, the Tribunal concluded at [139]: In adopting a "conservative" approach (Minchin) and in the absence of evidence that was within the capacity of the owner to adduce but did not (Placer), I am left in the position of allowing loss of rent for the month of July 2020 in the sum of $7,510. I do so because the evidence does not afford me a proper basis to allow any other amount on the case that the parties conducted without me "plucking" some arbitrary figure that is unsubstantiated on the evidence. 1. Consequently, we are not satisfied the Tribunal erred in relation to the correct statutory test and this ground of appeal fails. 2. The statement at [123] does not affect this conclusion. The Tribunal recognised the award is for "statutory damages". The reference is to restorative damages to compensate for what has been lost. The paragraph, when read as a whole, is consistent with the statement in Henville that effect must be given to the remedial purpose of the statute and to the justice and equity of the case. In this regard, the manner of assessing damages in contract or tort "may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise under the application of [particular legislation]": Henville per Gleeson CJ at [18]. 3. In saying so, in our view the real issue is whether the Tribunal was correct in its decision concerning the assessment of damages for actual loss and/or damages for loss of an opportunity for the period 1 August 2020 to 11 November 2021. This issue includes whether the Tribunal was correct in its approach to what facts must be proved on the balance of probabilities. This appears to be a mixed question of fact and law. We will return to this issue below. Ground 3- Failure to afford procedural fairness. 1. At para 17 of Annexure A, the appellant casts the procedural fairness ground in the following terms: Having rejected the [appellant's] evidence for lost rent between 1 August 2020 to 11 November 2021, member Gracie should have given the parties an opportunity to provide submissions as to what amount ought to be ordered for the 467 days between 1 August 2020 and 11 November 2021 in the apparent absence of evidence. This was particularly appropriate in circumstances where the parties had agreed that the premises were vacant during the Vacancy Period. 1. We do not accept this contention. The appellant was afforded an opportunity to make submissions concerning the assessment of damages. Its ability to do so was not limited and it was not prevented from addressing any matter of fact which might arise in the decision-making process nor how the Tribunal might approach the task of assessing damages if not satisfied that certain facts had been proved. 2. This ground of appeal fails. Ground 4- The Tribunal took into account irrelevant considerations. 1. In para 21 of Annexure A, the appellant described the relevant error in the following terms: In its Decision, the Tribunal considered the Appellant's credibility while undertaking the task of assessing his damages. However, the Appellant's credibility is irrelevant to the assessment of his damages suffered. 1. The appellant then says at para 22: Member Gracie's Decision spent a great deal of time assessing the evidence of the Appellant and his witness as it related to his credibility. From an assessment of the Appellant's evidence, Member Gracie made a factual finding that the Appellant's tenant would not have stayed in the property past 31 July 2020. 1. The appellant, having set out the Tribunal's reasons at [115], continued at para 24: Even if correct, the factual finding that the Appellant's tenant would not have stayed more than one additional month in the property, has no bearing on the Appellant's loss of opportunity to rent property. The fact remains that the Appellant lost the opportunity to rent out the property during the vacancy period (as admitted by the owners corporation), and that these losses were reasonably foreseeable, on the basis that he had a tenant occupying the property prior to the commencement of the vacancy period. 1. An examination of what the Tribunal said at [115] does not support the contention that the Tribunal took into account an irrelevant consideration. In that paragraph, having referred to the decision of Lee J in Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223, the Tribunal said: Although his Honour's comments were made in the context of an assessment of general damages in a defamation action, I emphasise that any misgivings I have about the credibility of the owner based on his evidence, does not disentitle to (sic) him to a claim for statutory damages provided he has discharged his onus of proof on the balance of probabilities. My consideration of the previous claim made by the owner is because it casts doubt about the veracity of his evidence at the time of the tenant vacating and that he had an arrangement with the tenant that she would likely occupy the unit for an indeterminate but long term period. 1. Properly understood, the Tribunal was considering the possibility that the appellant might return to his property, rather than rent it out. As such, the veracity of his evidence concerning his arrangements for accommodation with his father and the likelihood of where he would live (that is at the subject premises or premises provided by his father) was relevant to the Tribunal's consideration of whether the agreement with the tenant would be extended by the appellant and/or whether the premises would be let on a short-term basis. Since the appellant had eschewed any claim arising from his own inability to occupy the premises, this gave rise to what the Tribunal described as a "all or nothing" claim: reasons at [134]. 2. There was no error in analysing the evidence and considering issues of credit in this way. It follows that this ground of appeal fails. Leave to appeal 1. The last matter to deal with is whether leave should be granted to appeal on other grounds. Appellant's submissions 1. Leave to appeal is sought on the basis "the decision was not fair and equitable in circumstances where Member Gracie awarded damages for the loss of opportunity to rent the premises for the month of July 2020 … in the amount of $7510, and 3-7 January 2020 was in the amount of $1127, however made no order for loss of opportunity to rent the premises between 1 August 2020 and 11 November 2021 (being a total of 467 days, months and 10 days)." 2. Reference was made to the agreed facts concerning ingress of water, and the need to carry out rectification work during the Vacancy Period. The appellant said the Tribunal also found he had suffered reasonably "foreseeable loss … for a period of 1 month in 4 days in 2020" and that there was no evidence that there was any other reason why the appellant lost the opportunity to lease the property between 1 August 2020 and 11 November 2021. Therefore the decision relating to the period 1 August 2020 to 11 November 2021 was not fair and equitable. 3. The appellant also says the decision was against the weight of evidence. He referred to the evidence of the tenant concerning her intentions to rent the property which, the appellant said, was corroborated by his evidence. Consequently, the appellant says the Tribunal should have found that the tenant would have stayed in the property for the whole of the Vacancy Period. 4. Finally, the appellant says the evidence "was sufficient to prove the loss is suffered by him, and submits that the Tribunal should have given more weight to the evidence given by him and [the tenant]". 5. The Appeal Panel drew to the appellant's attention that his submissions did not deal with the discretionary factors in Collins as to why leave should be granted. The appellant said it was implicit in the conclusion of the Tribunal that there was some intention of the appellant to lease out the property to the tenant and evidence of a clear intention of the tenant to continue to lease the property. The requirement for evidence which was imposed by the Tribunal went beyond the requirements to establish the loss of an opportunity. 6. Consequently, the appellant said the error was plain and the injustice reasonably clear, reference being made to Collins at [84]. Respondent's submissions 1. In reply, the respondent focused on the nature of the case brought by the appellant, which was confined to loss of rent, not a claim for money said to have been paid by the appellant for alternative accommodation for the appellant and his family. 2. Once the claim for alternative accommodation was abandoned, the respondent contended that the evidence of the appellant to move back into the premises, for example the evidence recorded at [79] of the reasons, meant there could be no error in the Tribunal finding the premises would not have been rented, at least on an after 31 August 2020. Similarly, reference was made to the appellant's evidence recorded at [105] of the reasons, that the premises were his "principal place of residence". 3. This coupled with the failure to lead evidence of historical rental behaviour meant it was open to the Tribunal to find there was zero probability that the appellant would continue renting the property and that the evidence made improbable the counter finding that a long-term rental would have been entered into. 4. The respondent says there is no issue of principle, no question of public importance nor any injustice which is reasonably clear that would justify the grant of leave. 5. In this regard, the respondent referred to its closing submissions in the proceedings at first instance, noting there was no challenge to the principles set out in Minchin v Public Curator of Queensland [1965] ALR 91 at 93. Reliance was also placed on the decision of the High Court in Placer (Granny Smith) Pty Ltd v Theiss Contractors Pty Ltd [2003] HCA 10; 77 ALJR 768; 196 ALR 257. Here, the respondent said there was not sufficient evidence that the appellant would have put the property on the market to lease. Rather, the Tribunal concluded that the relationship with the tenant would have come to an end after one month. Applicable principles in assessing damages 1. Section 106(5) of the SSMA provides: An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. 1. It seems uncontroversial that if there had been a residential tenancy agreement on terms that operated through the whole of the Vacancy Period or for some other period that could be determined on the evidence, that loss of rental income would have been a reasonably foreseeable loss in the events that occurred and that an award for damages could have been made against the respondent for the period of the residential tenancy agreement. 2. In such circumstances, the award of damages would have been for actual loss suffered, rather than a loss of opportunity. The suffering of such loss needs to be proved on the balance of probabilities. 3. Where there is a claim for damages for loss of opportunity, necessarily there is some uncertainty which may relate to both the likelihood of damage and the amount of damage. The decision of the High Court in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 sets out the principles applicable to the assessment of damages for loss of opportunity. 4. In the recent decision of Boyded Industries Pty Ltd v Bluth & Ors [2023] NSWSC 915 (Boyded Industries), at [95]-[97], Chen J summarised the principles as follows: 95 In order for the plaintiff to succeed in a case that it had lost the opportunity to exercise its option rights under the deed, the plaintiff is required to demonstrate, on the balance of probabilities, that it has, in fact, lost an opportunity of some value, which is not negligible; and, upon demonstration of that fact, it becomes necessary to quantify the value of that opportunity. These principles (and requirements) were established in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 by Mason CJ, Dawson, Toohey and Gaudron JJ (at 355): On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable. 96 Brennan J explained the requirement of a plaintiff to demonstrate the loss in these terms (at 367-368): … Unless it can be predicated of an hypothesis in favour of causation of a loss that it is more probable than competing hypotheses denying causation, it cannot be said that the plaintiff has satisfied the court that the conduct of the defendant caused the loss. Where a loss is alleged to be a lost opportunity to acquire a benefit, a plaintiff who bears the onus of proving that a loss was caused by the conduct of the defendant discharges that onus by establishing a chain of causation that continues up to the point when there is a substantial prospect of acquiring the benefit sought by the plaintiff. Up to that point, the plaintiff must establish both the historical facts and any necessary hypothesis on the balance of probabilities. A constant standard of proof applies to the finding that a loss has been suffered and to the finding that that loss was caused by the defendant's conduct, whether those findings depend on evidence of historical facts or on evidence giving rise to competing hypotheses. In any event, the standard is proof on the balance of probabilities. 97 In Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 ('Mal Owen') the relevant principles from Sellars were concisely explained by Barrett AJA at [100]-[101] as involving a two-staged enquiry: [100] … the joint judgment in Sellars v Adelaide Petroleum NL identifies as two distinct stages relevant to the resolution of a case such as the present. At that first stage, causation must be proved on the balance of probabilities: the question of causation is, after all, "entirely factual, turning on proof of relevant facts and on the balance of probabilities in accordance with s 5E" of the Civil Liability Act 2002 (NSW). The second stage becomes relevant only if causation is established at the first. The issue at the second stage is the assessment of damages; and the focus then is upon the actual value of the lost opportunity which, to that point, has been appraised only as not merely theoretical or negligible. Value must be ascertained at the second stage by reference to "the degree of probabilities, or possibilities, inherent in the plaintiff's succeeding had the plaintiff been given the chance" of which the plaintiff has been deprived. These are again words used in the joint judgment in Sellars v Adelaide Petroleum NL. (footnotes omitted) [101] At each of the two stages, therefore, attention must be given to a question relevant to the value of the lost opportunity. At the first stage concerned with causation, the task is no more than to confirm that the value is not in the realms of the merely theoretical or negligible - in other words, to establish, according to the balance of probabilities, that there is some colour of value to the lost opportunity. It is only if the second stage is reached (after causation is established at the first) that anything approaching particular quantification is required. An assessment made at the second stage by reference to the degree of probabilities and possibilities of factual hypotheses may require a process of estimation extending even to a degree of guesswork and may lie at any point within a broad range. (footnote omitted) 1. We would add to Chen J's summary the following additional paragraphs from Sellars which further illuminates the summary of Barrett AJA in Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 . At 349-350 ([22]-[24]) , in passages prior to those referred to by Chen J in Boyded Industries, the plurality of the High Court in Sellars said: 22. Damages in tort have also been assessed by reference to the probabilities or possibilities of what will happen or what would have happened. That approach has been frequently adopted in the assessment of damages for personal injuries where a court has been called upon to assess future possibilities and past hypothetical situations. In Malec v. J.C. Hutton Pty. Ltd. ((20) [1990] HCA 20; (1990) 169 CLR 638.), this Court drew a distinction between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages ((21) ibid at 639-640 per Brennan and Dawson JJ., 642-643 per Deane, Gaudron and McHugh JJ.). 23. In Malec, Deane, Gaudron and McHugh JJ. explained the way in which the matter is to be approached in these terms ((22) ibid at 643.): "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. ... But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." The same approach has been adopted in England ((23) Mallett v. McMonagle (1970) AC 166 at 174; Davies v. Taylor (1974) AC 207 at 212, 219.) and Canada ((24) Janiak v. Ippolito (1985) 16 DLR (4th) 1.). 24. Neither in logic nor in the nature of things is there any reason for confining the approach taken in Malec concerning the proof of future possibilities and past hypothetical situations to the assessment of damages for personal injuries. The reasons which commended the adoption of that approach in assessments of that kind apply with equal force to the assessment of damages for loss of a commercial opportunity, as the judgments in Amann acknowledge. 1. At 355 ([38]), the plurality continued: 38. Notwithstanding the observations of this Court in Norwest, we consider that acceptance of the principle enunciated in Malec requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s.52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognized in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind. 1. From the above, the following principles can be derived in respect of a claim for loss of opportunity damages: 1. damages for loss of opportunity are available for claims in tort, contract and statutory causes for which damages may be awarded. That includes the present case which is brought under s 106(5) of the SSMA; 2. the claimant must establish, with evidence, on the balance of probabilities: 1. that the actions of the other party caused an opportunity to be lost; and 2. that some loss has been suffered and is more than a mere theoretical or negligible opportunity. In this regard, theoretical or negligible opportunity is to be assessed in the manner explained by Deane, Gaudron and McHugh JJ in Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638; [1990] HCA 20 (Malec), set out above in the reasons of the plurality in Sellars at [23]. 1. If the matters in (2) are established, evidence is not required "to prove future possibilities or past hypothetical situations for the purpose of assessing damages". Assessment of these possibilities on the balance of probabilities has no part to play. Rather, the assessment is to be made in terms of "the degree of probability that an event would have occurred, or might occur" and to adjust any award of damages "to reflect the degree of probability". 2. There must be some rational basis for the assessment, usually based on historical facts. However, by its nature, the task may lead to the possibility that fixing an amount for damages "may lie at any point within a broad range" and may, in some cases, require "a degree of guesswork". 3. This approach does not relieve a party from proving matters of historical fact that might be relevant to establish a loss may have been suffered. 1. Finally, in a case where a financial opportunity is lost, there must be evidence of the reasonable value of the loss or some evidentiary basis detailing how the loss should be calculated. Of course, evidence of value may itself be somewhat variable, and require a process of estimation depending on the type of loss claimed. Resolution of the present dispute 1. In our view, the Tribunal was in error in its approach to assessing damages and in determining what matters the appellant needed to and had proved on the balance of probabilities. In short, having regard to the evidence, Tribunal should have awarded damages for loss of opportunity beyond July 2024. 2. These errors meant that the appellant has suffered a substantial miscarriage of justice. To use the words of Collins at [78], the appellant "[has] been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved" and has therefore "suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence". 3. It follows that the appellant should have leave to appeal the decision and that an allowance should be made for rent lost beyond the period July 2024. 4. Our reasons are as follows. 5. The essential finding of the Tribunal concerning assessment of damages is in [136] of the reasons set out above. In short, the Tribunal was not satisfied that any loss of rent beyond July 2020 had been proved. The Tribunal said that the evidence of the appellant and the tenant did not "establish a sound basis for the claim … beyond July 2020". 6. The evidence of the tenant was contained in a short statement which said: I confirm that I rented the fully furnished property in Melrose Place owned by Mike Horan for a period of four months. During this period, I paid the following in rent: 1. March 2020 - $9,300 2. April 2020 - $9,010 3. May 2020-$9,010 4. June 2020 - $7,510 I was asked to vacate on/around the 24th of June 2020 as a result of the body corporate needing to undertake remedial repair work to bathroom leakages as well as repairing floor boards. I had previously been in discussions with the owner (Mike Horan) regarding extending the property lease. But, as a result of the request for / timing of repair work, I vacated the property earlier than anticipated. Had this request not been made, I intended to remain in the property. I subsequently found alternative rental accommodation. 1. As noted by the appellant, the tenant was not cross examined concerning her statement: reasons at [60]. It was not suggested the respondent could not have requested to do so. 2. The Tribunal analysed the evidence of the tenant and the other evidence which included the statement and cross examination of the appellant and the contemporaneous records provided by the parties. 3. As to the payments made for rent, having noted that the tenant was not actually paying rent (but rather it was being paid by her employer), the Tribunal said at [52]-[54]: 52 This timeline is open to an inference that Ms O'Donoghue, after first occupying the unit on arrival from Perth, found the premises suitable for her needs, and to secure her occupation, shortly after arriving, had her employer pay a further 2 months in advance. That certainly evinces an intention to stay at least 2 months beyond March 2020 and a desire to secure the tenancy for that period. 53 The next payment of $7,510 on 4 June 2020 was only for a further single month. Unlike the previous upfront payment which was for 2 months suggesting in March the tenant's intentions were then to stay another 2 months, in June 2020 her intentions are not consistent with an intention to stay beyond 30 June 2020 and if she were to stay longer, it was on a monthly basis. 54 The owner asserted in his witness statement at [40] (JB 26) that he had negotiated a further reduced rent of $7,510 with the tenant for the month of June 2020, on the basis that she would be a "long term" tenant. That evidence does not accord with the inferences readily drawn from the evidence discussed above. Even at that further reduced rent, the tenant did not commit beyond another month or pre-pay for any period in advance as she had done so previously. 1. Of the tenant's evidence, the Tribunal said at [61]-[65]: 61 Ms O'Donoghue said that had she "had previously been in discussions with the owner (Mike Horan) regarding extending the property lease:" JB 264. The vagueness of this evidence might be a reference to the "previous discussions" in March to "extend the property lease," which did happen. Further, the reference to a "property lease" is unhelpful. There was no property lease. There was an informal ad hoc arrangement. If there was a Residential Tenancy Agreement, which is required for the leasing of premises for more than 3 months under the Residential Tenancies Act 2010 (NSW) ('RTA'), there would have been some objective evidence that the tenant was proposing to stay beyond 30 June 2020. 62 If the reduced rent of $7,510 paid on 4 June 2020 was to reflect the intention or some agreement to stay longer, the tenant's employer did not pay an upfront amount as it did on 27 March 2020 consistent with any intention to stay for any period beyond 30 June 2020. 63 Ms O'Donoghue had every opportunity in her witness statement to corroborate the reasons for the reduced rent. She did not. It is just as plausible that the employer may have placed a limit on the amount of rent it would pay beyond 3 months in circumstances where Ms O'Donoghue had not yet found a more permanent and formal lease arrangement, that possibly would reflect a price more commensurate to a longer term rental under the RTA than the higher ad hoc rental fees charged by entities such as Airbnb and Stayz. 64 Ms O'Donoghue said in her statement (JB 264) that had she not been requested to vacate the unit, "I intended to remain in the property and subsequently found alternative rental accommodation." If that intention was, as the owner contends, to establish or at least provide an inference that this refers to a 17 month or other long term rental period, it falls well short. It leaves open the question why the person who asked for or prepared the statement did not have the tenant expressly say so if that was her intention. None of this is explained with any degree of reasonable certainty in the evidence of Ms O'Donoghue. 65 Ms O'Donoghue's witness statement does not give her current address. There is only the owner's assertion in cross examination that she is still in Sydney and there is no evidence that she was still employed by the same employer during the entire Vacancy Period. I am prepared to assume that she was but am not prepared to assume that Ms O'Donoghue's relocation package would have continued indefinitely which is inherent in the proposition put in support of the owners claim for damages of $7,510 for 17 months. Rather, the fact that Ms O'Donoghue never paid the rent herself, suggests that Ms O'Donoghue may not have stayed paying for a 2 bedroom unit at $7,510 per month once her relocation package came to an end. 1. Then, at [70] the Tribunal concluded: 70 I do not give any significant weight to the tenant's witness statement to support the owner's contentions. Ms O'Donoghue's statement was full of generalities and she did not assert that her recollection was such that she could not provide better or more pertinent evidence. In the circumstances, it is reasonably open for me to make the inference that Ms O'Donoghue declined to provide specific evidence in her witness statement about matters of which she could have given evidence but that had she done so, it would not have assisted the owner's case. 1. As to contemporaneous records, the Tribunal said at [72]-[80]: 72 The problem for the owner is that his reliance on the contemporary evidence does not operate in his favour. 73 On 25 June 2020 (the day after the tenant vacated for repairs to commence), Ms Gittins (of the strata committee) emailed "Will" who was a lot owner of a one bedroom unit. Will had offered his unit for rent by Ms O'Donoghue's while the OC's repairs were being undertaken. In reference to the contractor's repair quote, Ms Gittins said (JB 86): Include description [in the repair quote] as temporary relocation accommodation for unit 23 resident during bathroom re-pairs and rewaterproofing. Leave out Kathy's name as Mike mentioned it might be him instead." (emphasis added). 74 On 30 June, the owner sent an email to Ms Gittins (JB 86) that said: If it was not for this urgent plumbing work Kathy would have continued to stay at least the month of July as she had already committed to me." (emphasis added) 75 The owner's email does not accord with the reason given by him in his evidence for any discounted rent of $7,510. His contemporaneous email said that the tenant had only "committed" to July 2020. There was no upfront payment for July 2020. The owner falsely claimed that at that time the rent was $9,010: JB 88. He did not disclose (if it was the case) that he had agreed for Ms O'Donoghue to stay indefinitely or long-term at a discounted rent. He only sought, on that basis, the loss of rent for July 2020 (and not if repairs may have continued beyond July 2020). 76 In an email on 3 July 2020 from Ms Gittins to the owner (JB 83), she said: … you will be entitled to temporary accommodation funding … … I'm not so sure how you'll be paid 'loss of rent' from 1 July up until works commence, tbc … from our recollection you mentioned Kathy decided to find something more permanent." (emphasis added) 77 The owner's reply on the same date in the same email trail at JB 83 said: The loss [sic] rent is because the strata asked me to have the place vacant ASAP because of the water issues effecting [sic] other tenants. If not Kathy would have continued to stay at least the whole month. 78 It is open to reasonably infer from the above contemporaneous evidence that the tenant rejected the option of "Will's" smaller (and less expensive) one bedroom unit for what was expected to be a relatively short period of repairs (and not 17 months) and instead took the opportunity to move into "something more permanent." The owner's reference in the email to "9k" was not an oversight or a mistake. In the same email he said "Kathy was paying $300 pn" therefore confirming his false assertion that the monthly rent was (approximately) $9,000 and he repeated his claim for $9,010 later in the email referred to above on 13 July 2020 at JB 88. 79 On 31 August 2020, after the initial plumbing works, the owner said in an email to the strata manager, Ms Freedman, (JB 83) that after inspecting the unit, there was "too much dust to move back in … When will the loss rent for July be paid to me? When will the alternative accommodations [sic] cost be reimbursed?" (emphasis added). 80 The contemporaneous evidence raises serious difficulties in accepting the owner's evidence that his tenant had expressed a firm intention, or a likely commitment, to remain in occupation indefinitely or for the 17 months claimed by the owner. 1. Finally, in dealing with the appellant's assertion that an alternative tenant could be found, that he had a long history of leasing out his unit and the evidence in relation thereto the Tribunal said at [116]-[122]: 116 The owner in AS2 [39] submitted that he leased out his unit for at least 10 years. The context of this submission is important. There is a paucity of evidence to support that broad contention notwithstanding the OC issuing a summons to the owner (JB 329-330) seeking, among other documents for the period of 1 April 2018 to 1 April 2022, records of listings, days the unit was rented, any residential tenancy agreements, rental schedules, and documents relating to the Birchgrove Lease. 117 Whatever documents were produced under the various summonses issued by the OC, production (generally) was described by the OC as "pithy": e.g. RS2 [128]. 118 As the OC submitted RS2 [125]-[129], there was no evidence that was within the capacity of the owner to have adduced relating to: (1) Historical occupancy or vacancy rates; (2) Historical net rental obtained from any short term or other leasing of the unit; 32 (3) Evidence of outgoings to offset any amounts received from gross rental payments (to which I add the cost – if any - of alternative accommodation during these ad hoc rental periods). 119 The OC submitted at RS2 [133] that having leased out his unit over 10 years "there is ample market data about the average rent, average occupancy rate and average vacancy rate for [his] lot. Mr Horan has simply chosen not to lead it." 120 In light of all of the evidence above, the flaw I see in the owner's case is apparent in the submission made at AS3 [18.C] that: It is not possible to speculate on how long Ms O'Donoghue would have remained in the property, however the Applicant would have obtained a replacement long-term tenant in the event she had moved out for some other reason and the property was still inhabitable. (emphasis added). 121 This is not the type of case under consideration, for example in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 ('Amann') Mason CJ and Dawson J held at 83 (citations omitted), for assessing damages where a loss has been proved: The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann (1971) 124 CLR 303, Menzies J went as far as to say that the "assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation": at 308. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages. Toohey J at 134 and Gaudron J at 153 made similar observations. 122 The evidence led by the owner, even putting aside the inconsistencies, does not support his contention that the unit would have been occupied by Ms O'Donoghue or another long-term tenant for the Vacancy Period at $7,510 per month or some other rental rate. The evidence to establish the owner's claim was within his ability to produce it and he did not. The evidence does not support the making of an inference that the owner ever leased the premises to long-term tenants and if the intention was to enter into a long-term tenancy (beyond 3 months), the RTA required the owner and tenant to enter into a residential tenancy agreement, which they did not. 1. In support of the Tribunal's conclusion that the Tribunal was correct to reject any claim that the premises would be rented after July 2020, the respondent referred to the emails sent to Ms Renee Freedman, the strata agent employed by the owners corporation, by the appellant dated 3 September 2020 and 12 September 2020 (appellants bundle (AB) 90-91, attachments 16 and 17). In the first email the appellant said: Renee, Please let me know when the unit is fit to move back in with at least a week's notice. Otherwise I will assume to continue with my alternative accommodation, for which I will be reimbursed by strata. 1. Of this email, the respondent submitted it was evidence that the premises would not in fact be rented, contrary to the assertion of the appellant. The respondent also noted that no claim was pursued for alternative accommodation costs. 2. We note in passing that at this time, namely September 2020, the evidence discloses that the tenant had already left the premises. 3. The respondent also points to the reasons at [90] where the Tribunal said: I have also had regard to the evidence that the owner and his partner were expecting their first child at about this time. It would seem somewhat implausible that the owner would not have intended to return to the family home as soon as the repairs had been completed in light of the fact that his and his partner's first child was due in December 2020. 1. This evidence, the respondent submitted, "plainly [contradicted the appellant's] hypothesis that [the tenant] expressed an intention to stay for the whole of the Vacancy Period or that he would have leased out Unit 23 for the whole of the Vacancy Period": respondent's written submissions at [37]. 2. Finally, the respondent focused upon the credit findings concerning the evidence of the appellant and the absence of evidence concerning occupancy rates and outgoings "which would have been relevant to assessing profitability". 3. In our view, following matters are established by this evidence: 1. The tenant in fact rented the premises for 4 months. 2. There was no residential tenancy agreement in place. Rather rent was paid monthly or two monthly in advance during this time. 3. The payment of rent for 2 months related to the period April and May 2020, the rent payable in this period being fixed at $9,010 per month. 4. Over the four month period the rent had been reduced. 5. The appellant was, during the 4 month period in (1), living in alternative accommodation. 6. His premises were not fit for occupation during the Vacancy Period. 7. The tenant vacated the premises on request in June 2020. There is no dispute in this appeal she would have stayed for the period to July 2020. There is no challenge by the respondent to the award for the loss suffered in this period. 1. As to what might happen after July 2020: 1. There was evidence from the tenant that she intended to stay. This was in circumstances where she had relocated from Western Australia for work and her employer was paying for her accommodation. She was not cross examined on this evidence. The fact she intended to stay but for the requirement to vacate the premises, is corroborated by various of the emails identified by the Tribunal sent by the appellant. 2. The fact the tenant had occupied the premises for 4 months and her expressed intention to stay is evidence to support a conclusion that, at the time she was required to vacate, she was intending to stay more than one month while at the same time retaining some flexibility. In this regard, as she was a periodic tenant, she may well have had existing rights to continue to occupy the premises even if the appellant, as landlord, had sought to return to the premises: see s 85 Residential Tenancies Act 2010 (NSW). This section would have required the landlord to give the tenant at least 90 days notice. 3. The matters identified at [73]-[74] of the reasons, regarding the possibility of alternative accommodation for the tenant and the appellant's response, do not lead to the conclusion that the tenant would not have stayed longer but for the need for repairs. This is because the tenant had already vacated the property and no doubt found alternative accommodation. Therefore, the possibility of alternative accommodation from "Bill" provides little or no insight as to what the tenant might have done. 4. The fact the appellant may have been prepared to be considered for the alternative accommodation offered by "Bill" does not mean the possibility of the tenant remaining for a longer period of time was displaced. As with the emails in September (to which we referred above), the appellant was considering his position having regard to the circumstances that had then occurred, namely his tenant had left in June, he was living in alternative accommodation and receiving no income from his premises due to the need for repairs. This fact may go to the assessment of the opportunity that was lost, but it is not a basis for rejecting the claim outright. 5. Similarly, the evidence concerning the events of December 2020, again when the appellant was considering moving back into the premises due to the pregnancy of his wife, is not a reason to reject his claim outright. Again it is a matter to be taken into account when assessing any opportunity that has been lost concerning rental to the tenant. 6. As to the possibility of alternative tenants and what could have occurred, these are also possibilities, supported by the fact the appellant had let his premises on various bases in the past. 1. The unreliability of the appellant as a witness is not a reason to reject the evidence of the tenant as to her intentions regarding staying in the premises. The tenant was not cross examined and there is no other reason why her evidence should be rejected. 2. Applying the approach of assessing damages for loss of opportunity set out above, in our view the appellant has proved, on the balance of probabilities, that he in fact suffered loss caused by the respondent's breach of its obligations under s 106 of the SSMA. Relevantly, this loss was income from renting his premises to the tenant, which loss was reasonably foreseeable. 3. Further, to use the words of the High Cord in Sellars, the evidence of the tenant, coupled with the historical fact of occupation of the premises on a rolling, month-to-month basis establishes that the possibility the tenant would stay beyond July is "not so low as to be regarded as speculation". 4. On the other hand, the possibility that the tenant would have stayed for the whole of the Vacancy Period "is not so high as to be practically certain". This is because the evidence concerning the events of December 2020, namely the fact the appellant's wife was expecting a child and that the fact the appellant had occupied his premises from time to time, suggests the possibility that he would resume occupation of his premises when the child was born. 5. As to previous short term rentals and/or the possibility of obtaining an alternative tenant, we think the evidence of these matters from the appellant provides limited, if any, assistance in assessing the opportunity which has been lost. In this regard there we were not referred to any evidence concerning general rental opportunities and rates of return that might have been available in the Vacancy Period. 6. Having regard to the above, there is a need for "reasonable estimation" based on the matters to which we have referred. 7. Taking account of these matters, we think that the period from July to December 2020 represents a fair assessment of the period in which the opportunity to rent the premises was lost. This takes account of the tenant's stated intention to stay, the negotiations between the appellant and the tenant concerning this matter and the circumstances of the appellant in December. 8. The rent had been reduced in the 4 months when the tenant was actually in occupation. No submission was made that the monthly rent of $7,510 was not reasonable for the premises. In any event, it was an amount actually paid by the tenant in what was otherwise an arm's length transaction. It is not shown to be an unreasonable amount. 9. Therefore, a monthly amount of $7,510 should be allowed. As the appellant has already been awarded $7,510 for July 2020, a further 5 months or $37,550 should be allowed. Therefore, the total amount of rent which to be awarded should be increase from $7,510 to $45,060. Order 2(b) should be varied accordingly. 10. From this should be deducted the electricity charges originally allowed for this period. This is because there is no evidence the tenant paid these electricity charges, the expense presumably being met from the rental income received. 11. The Tribunal originally allowed a total of $688.19. This was for the period from 24 June 2020 until 11 November 2021. This is a total of 505 days. 12. The period from 24 June 2020 until 31 December 2020 is 190 days. The period 1 January 2021 to 11 November 2021 is 315 days. An allowance should be made for 315 days only. On a pro rata basis, this amount is $429.26 (being 315/505 x $688.19). Order 2 (c) made 21 November 2023 should be varied to this amount. 13. Order 3 made 21 November 2023 should be varied to take account of the above. The total payable should be varied to $46,616.26. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is granted and the appeal is allowed in part. 2. The orders made 21 November 2020 are varied as follows: 1. Order 2(b) is varied to read: the loss of opportunity to rent the unit for the months of July to December 2020 in the amount of $45,060. 1. Order 2 (c) is varied to read: electricity charges incurred by the applicant in the amount of $429.26 for the period that the lot was unoccupied from 1 January 2021 to 11 November 2021. 1. Order 3 is varied to read: The respondent is to pay the applicant an amount of $46,616.26 within 28 days from the date of publication of these orders. 1. In respect of costs, the following directions apply: 1. The applicant for costs (costs applicant) is to file and serve any application for costs, including any application concerning costs of the proceedings at first instance, (costs application) within 14 days from the date of these orders. Such application is to include any evidence and a short submission (not more than 5 pages). 2. The respondent to any costs application is to file and serve any evidence and submissions in reply (not more than 5 pages) within 28 days from the date of these orders. 3. The costs applicant is to file and serve any submissions in reply (not more than 2 pages) within 35 days from the date of these orders. 4. The parties submissions are to include submissions about whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) to dispense with a hearing of the costs application. ********** 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 June 2024