Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nikolakopoulos v Kaya [2025] NSWCATAP 37 Hearing dates: 22 August 2024 Date of orders: 19 February 2025 Decision date: 19 February 2025 Jurisdiction: Appeal Panel Before: G Burton SC, Senior Member J Ledda, Senior Member Decision: (1) The appeal is allowed, including grant of leave to appeal to the extent (if any) that it is required. (2) Vary the order of the Tribunal made 16 May 2024 to read: "Order that Maria Nikolakopoulos pay Seren Kaya $205 immediately". (3) Make no order as to the costs of the appeal. (4) If any party wishes to apply to vary order 3 then that party should by email file and serve the application (which may or may not also include applying for a hearing on costs), with any supporting evidence and any brief submissions (the latter not exceeding two typed pages in font not less than Arial 12, spacing not less than 1.5 and customary margin width) within seven days after date of these orders. Catchwords: REAL PROPERTY – RETAIL LEASES – exercise of option to renew and lease then terminated by lessor - alleged breaches of covenant by lessor and lessee – security deposit Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 Al-Daouk v Mr Pine t/as Furnco Bankstown [2015] NSWCATAP 111 Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578; [2000] FCA 1343 Collins v Urban [2014] NSWCATAP 14 Craig v South Australia (1995) 184 CLR 163 Eadie v Harvey [2017] NSWCATAP 201 House v The King (1936) 55 CLR 499 Hunter v Transport Accident Commission (2006) 43 MVR 130; [2005] VSCA 1 Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [2013] HCA 18 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Owen v Kim [2017] NSWCATAP 26 Pholi v Wearne [2014] NSWCATAP 78 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 Texts Cited: None cited Category: Principal judgment Parties: Maria Nikolakopoulos (Appellant) Seren Kaya (Respondent) Representation: C Vassiliadis (Agent) (Appellant) Respondent (Self-Represented) File Number(s): 2024/00192881 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 16 May 2024 Before: D Bluth, Senior Member File Number(s): 2023/00392147 (formerly COM 23/25206); 2023/00391340 (formerly COM 23/27166) REASONS FOR decision Outcome of appeal 1. We have decided that the appeal should be allowed, leave to appeal granted to the extent (if any) that it is necessary and that we should not remit the matter but, rather, re-hear it on the existing evidence and vary the payment order previously made. 2. Neither party was legally represented at the appeal hearing. The lessee at the appeal hearing sought reimbursement for legal expenses totalling $2,136.61. This appeared to relate to two invoices for expenses that pre-dated the primary hearing plus a $109 filing fee. The primary decision made no order as to such costs. The lessee did not appeal that order (or any other aspect of the primary orders). There were no expenses of the appeal to which our attention was clearly drawn. If there were any such expenses, then there was no indication that there were special circumstances, which would require to be established under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) since rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) do not apply to bring into play the ordinary costs rules. We make no order as to costs of the appeal. If any party wishes to apply to vary this costs order (which may or may not also include applying for a hearing on costs) then that party should by email file and serve the application, with any supporting evidence and any brief submissions (the latter not exceeding two typed pages in font not less than Arial 12, spacing not less than 1.5 and customary margin width) within seven days after date of these orders. If we consider that such costs application requires further consideration than summary rejection then we shall make directions for written submissions and evidence in response and in reply (with the same restrictions on submissions). Background, primary decision, issues, procedure 1. The appellant as lessor and the respondent as lessee entered into a retail shop lease of a beauty parlour in Earlwood, an inner southwestern suburb in Sydney, NSW, for a term commencing 1 September 2020 and ending 31 August 2023 with an option to renew for three years. The lease provided for fixed amounts of rent increasing annually together with a market review if the renewal option was exercised with fixed increases on each renewal anniversary. A security deposit called a "bond" of $6,050 was required, with annual top-up deposits of specified amounts. 2. The lessor granted Covid-related rent relief of 50% of the rent for July and August 2021 and September 2021 to January 2022. Further rent relief sought was rejected by the lessor's managing agent on the basis that the lessee did not qualify as an impacted lessee. The lessor requested that the security deposit be topped up after the lessor applied part of the deposit against outstanding rent. 3. In an email dated 15 December 2022 the lessee said "Please not[e] I authorise my partner George Bechara to speak on my behalf" at a time when there was an issue between the lessee and other occupiers as to the use of rubbish bins and continuing eligibility for Covid-related rent relief and alleged arrears. Mr Bechara had already communicated by email on 2 December 2022 with the managing agent about the bins and further Covid rent relief. There were further emails between them from 31 January 2023 to 11 May 2023 on these topics, possible mediation instigated by the lessee, alleged breach by non-payment of rent and exercise of the option to renew including negotiating a changed rent. 4. On 29 May 2023 the lessee, using Mr Bechara's computer, terminated the lease since the rent increase sought was said to be too much and disavowed Mr Bechara's authority to bind the lessee on exercise of option to renew. The managing agent issued a breach notice for arrears of rent and denial of fire inspection access with associated cost and pinned to the window of the premises on 1 June 2023 a termination notice. On about 6 June 2023 the lessee paid back rent that had not been taken from the security deposit and the invoice for attempted fire inspection access and topped up the security deposit. Further notices for the breaches described were issued on 7 June 2023, the lessor claimed the bond of $4,735.50 and the bond stakeholder sent notice of the claim to the incorrect address for the lessee (albeit the address held by the stakeholder). 5. It appears that the lessee did not challenge at the time, and does not challenge in these proceedings, the validity of the termination. Rather, the lessee vacated on about the day after the initial term of the lease ended and the managing agent held the bond to the lessee's credit while the litigation proceeded. 6. The managing agent after inspection confirmed a total claim of $24,084.33 by the lessor for making good costs of $11,335.50, $5,672.93 for rent arrears with associated reminder notices and interest and $7,075.90 for re-leasing costs (replacement lease, advertising and marketing, leasing commission). 7. At the primary hearing the lessee said: Mr Bechara's authority was limited to administrative matters such as the rubbish bins; consequently, the option was not exercised; Mr Bechara's email of 4 April 2023 was not in any event an exercise of option as it was subject to agreement on rent; the lease in any event was terminated by the lessor on 31 May 2023; the lessee was entitled to further Covid rent relief under the legislation leading to a rent adjustment of $8,735.61; the lessor's breach of the covenant of quiet enjoyment, from alleged intimidating conduct by the managing agent, gave rise to a claim for $15,000 (the Tribunal's jurisdictional cap for compensation) for loss of income; the lease was terminated before the obligation to paint the premises arose. The primary decision 1. At [56] of his primary reasons (PR), the primary member found that the informal language of Mr Bechara was sufficient to convey intent to proceed with the lease for another three years and the mechanism for determining the market rent on renewal in the current lease provided a mechanism for determining the rent for the renewed lease that was sufficiently certain. The lessee had not communicated any limit on Mr Bechara's authority and was copied into his emails without contemporary protest. Accordingly, Mr Bechara's actions constituted a renewal of lease under apparent authority. 2. However, the primary member in PR at [58]-[60] then found that, before the renewal came into operation, the lessor terminated the existing lease which meant that there was no longer a lease to be the subject of renewal, and no rent arrears since the lessee paid rent up to the date of her actual cessation of occupation which was the end of the original term. There was no basis to claim re-letting costs. 3. The lessee conceded that she was liable for cleaning costs of $550. The lessee was found in PR at [61] not to be required to repaint "after each three years of term" because the lease was terminated before the three years. 4. The primary member in PR at [62]-[63] reduced substantially the make good costs on the basis that they were quotes and not invoices and each quote "seems high". Replacement of missing cupboard doors was reduced from $1,980 to $500, signage removal from $2,000 to $300, and $275 for each default notice to nil "as they are not legal costs and not outgoings". 5. In PR at [65], the lessee was found on the "sparse" evidence not to have established her case for further Covid rent relief. 6. In PR at [66]-[72], the lessor was found to be liable, under the managing agent's apparent authority, for what was found to be "an overzealousness in representing the interests of the landlord to the extent that it has resulted on the evidence before the Tribunal in a breach of the covenant of quiet enjoyment". The relevant conduct was found to border on harassment in the frequency of communications and to be intimidatory in the size of claimed amounts and in affixing a termination notice to the premises' window when the lessee was still in possession and paying rent. The lessee's evidence that she was unable to attend work during July and August 2023 was not cross-examined on. The primary member pointed to the absence of accountancy evidence to justify the lessee's claim for $15,000 in compensation and awarded $6,695 being three months' rent of $2,231.67 per month. 7. In PR at [73]-[79], the primary member criticised the lessor's managing agent's errors in numerous citations and overall presentation of the case as a "clear breach" of the duty of co-operation by a party representative in s 36(3)(b) of the NCAT Act. 8. In PR at [80], the primary member found that on a balance of amounts ($1,350 owed by the lessee and $11,430.50 comprising $6,695 and $4,735.50 balance of bond) the lessor was to pay the lessee $10,080.50. Grounds of appeal and further evidence 1. Only the lessor appealed. There was no challenge to the finding that the termination of the existing lease removed the effect of the exercise of the option to renew, or the finding that the lessee was not entitled to further Covid rent relief, or the finding that the lessee had not breached the repainting clause in the lease (although the last item re-emerged as part of the make-good expenses the subject of appeal). 2. Given the absence of formal legal representation, we have sought to determine the grounds of appeal in substance in accordance with the approach outlined in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [12], also taking into account oral submissions at final hearing. We have grouped the identified grounds as follows: 1. The primary member erred in law by taking into account irrelevant considerations and not taking into account relevant considerations, including relying on matters that were not supported by evidence such as allegedly double-counting the security deposit of $4,735.50 which had been applied by the lessor against rent arrears. 2. The primary member erred in law by giving inadequate reasons to explain the bases for conclusions reached in his primary decision about the findings on remediation expenses and the amount of damages for breach of the covenant for quiet enjoyment. 3. The primary member erred in fact, justifying a grant of leave, by not giving proper weight to the evidence that would have led to a contrary finding and not coming to a fair and equitable decision on the evidence before him, in respect of the compensation awarded to the lessee for breach of the covenant of quiet enjoyment; if the primary member had so done, he would have found that the lessee had not discharged her onus of proof on either right to compensation or amount of compensation. 1. The lessor did not challenge the finding against recovery of re-letting costs. 2. The lessor sought leave to introduce further evidence, being from ledgers said to show that $4,735.50 of the total bond of $6,050 was applied against rent. 3. The lessor also sought leave to introduce further evidence being the ACCC debt collection guideline which the managing agent said was followed in dealing with the lessee, thereby seeking to refute the finding of breach of the covenant of quiet enjoyment. 4. The lessee sought leave to introduce further evidence on alleged harassment and her alleged financial loss. 5. The lessee also sought additional compensation, including for legal fees. As said earlier, there was no grant of leave for legal representation and no cross-appeal by the lessee. Scope and nature of internal appeals 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds." 1. Clause 12 of Schedule 4 to the NCAT Act states: An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision. 2. In summary, internal appeals may be made as of right on a question of law, and otherwise with leave (that is, with the permission) of the Appeal Panel 3. In Prendergast, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[40], the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons where they are required; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the facts are jurisdictional in nature: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]. 2. Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct); [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. 3. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error in the form of a constructive failure to exercise jurisdiction (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865 at [52]-[56]. 4. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, under s 38(6)(a) of the NCAT Act the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62]. 5. The conclusion that a decision is vitiated for legal unreasonableness can be reached if the Appeal Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li at [76]); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155]. There is an analogy with the principle expressed in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness is a ground of judicial review: Li at [76]. 6. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where: "[76] …there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. … [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]." 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said: "[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: 1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. 2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]." 1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in cl 12(1)(c) to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] – [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'" 1. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal." Consideration and conclusions on appeal 1. As we understood it, the entitlement of the lessor to take the topped-up security deposit - which remains the lessee's money unless the lessor establishes an entitlement to amounts that can be claimed against it – was always a live issue in the proceedings. There was no indication that the records sought to be introduced by the lessor on appeal were not reasonably available, either actually or, alternatively, in the sense that they became relevant to an issue that emerged during the primary hearing or in the decision, took the lessor by surprise and could not readily then be obtained to put into evidence at the primary hearing. The alternative sense we have just described is in any event a controversial meaning to be given to "not reasonably available". 2. Likewise, there was no doubt that the managing agent's methods of enforcing compliance with the provisions of the lease was a live issue in the proceedings. 3. We accordingly reject the two items of evidence just described that the lessor sought to rely upon in the appeal. 4. For similar reasons we reject the further evidence concerning the lessee's alleged financial loss and the lessor's alleged intimidatory conduct, and extra expenses. All were clearly in issue at the primary hearing. We have dealt earlier with the further legal expenses. 5. Without the evidence relating to the topped-up bond allegedly having been absorbed into rental payments to which the lessor could demonstrate entitlement, the lessor's challenge to return of the security deposit of $4,735 to the lessee fails on appeal as it did at primary hearing. 6. The lessor was on stronger ground in respect of the challenge to the primary findings about remediation expenses. The fact that a quotation has not been acted upon does not of itself remove its evidentiary effect that the lessor, if the defect is established as requiring remediation, is required to expend that amount to restore the premises to the condition in which they would have been had the breach of lease covenant to remediate on exit not occurred. Actual expenditure established by an invoice, or a paid invoice, by the time of the proceedings is not required. There was no evidence that the lessee pointed to as contradicting the primary findings that the lessee was liable for such remediation. There was no evidence that the quotations were unreasonably high, which was required to support the primary member's findings. 7. Accordingly, the primary member ought to have found that the lessor was entitled to recover as damages for breach of the make-good obligations the full amount of the quotations in addition to the conceded amount of $550 for cleaning, totalling $4,530. This included the cost of painting on the basis of the remediation obligation, not the obligation to which the primary member referred being the recurrent obligation to repaint while the lease was on foot or being renewed. 8. We do not need to determine the complaint about the primary finding of breach of the covenant for quiet enjoyment, although that the medical certificate put forward was inadequate to establish the effect of the lessor's conduct on the lessee's ability to conduct her business. Even if the covenant was breached as found, there was no adequate basis in the reasoning for the conclusion on the amount of loss awarded. That constitutes an error of law. If necessary, we would have granted leave to appeal as an error of fact was involved (being the arbitrary basis for assessing damages unrelated to any evidence of the actual loss from the breach) that rendered the decision not fair and equitable. There was no complete evidence, for example, that the lessor's pattern of trading enabled her to cover the rent in the period that she did not work, let alone evidence of lost profit. Relief 1. We accordingly shall allow the appeal. 2. Section 81(1) of the NCAT Act gives the Appeal Panel a broad range of relief in determining an internal appeal such as the present. The Appeal Panel "may make such orders as it considers appropriate in light of its decision on the appeal", including but not limited to (under para (d)) substituting another decision for the primary decision. Under s 81(2) the Appeal Panel may exercise all the functions of the Tribunal at first instance when making a decision in substitution for the decision under appeal and may exercise such functions on grounds other than those relied on at first instance. 3. In our view there is sufficient material before us, and we are in as good a position, to re-determine the matter without remitting it for further primary hearing before another member. It would be disproportionate in the use of the parties' and the public's resources to allow the parties in this instance effectively a second go to attempt to fix up their evidence on a small claim when the basis for allowing the appeal is errors by the primary member in the way the existing evidence was reviewed and findings were made on it: cf Pollard v RRR Corporation PL, already cited, at [67] and the authority there referred to, particularly Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 at [37]. We have considered the additional evidence sought to be put forward on the appeal that we have identified above. In our view, if that was tendered for a fresh primary hearing it would not be sufficiently complete to change the financial outcome materially. There is no indication that it would substantially improve. 4. Accordingly, we shall substitute orders for the primary orders to reflect on the existing evidence the revised outcome that has been reached in the preceding reasons where we have found that the lessor is entitled to the whole of the amount of the make-good obligation and the lessee is entitled to return of the bond but has not established an amount for any breach of the quiet enjoyment obligation Accordingly, the lessor owes the lessee $4,735 and the lessee owes the lessor $4,530. The overall outcome is to vary the existing order in favour of the lessee to $205. Orders 1. It follows from the above that the following orders should be made: 1. The appeal is allowed, including grant of leave to appeal to the extent (if any) that it is required. 2. Vary the order of the Tribunal made 16 May 2024 to read: "Order that Maria Nikolakopoulos pay Seren Kaya $205 immediately". 3. Make no order as to the costs of the appeal. 4. If any party wishes to apply to vary order 3 then that party should by email file and serve the application (which may or may not also include applying for a hearing on costs), with any supporting evidence and any brief submissions (the latter not exceeding two typed pages in font not less than Arial 12, spacing not less than 1.5 and customary margin width) within seven days after date of these orders. ********** 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: 19 February 2025