Appeal Panel - Internal CITATION: Chapman v Cheng and Anor (RLD) [2003] NSWADTAP 23 APPELLANT Michelle Chapman PARTIES: FIRST RESPONDENT Y H Cheng SECOND RESPONDENT Z M Gao FILE NUMBER: 039002 HEARING DATES: 09/05/2003 SUBMISSIONS CLOSED: 05/09/2003 DATE OF DECISION: 07/04/2003 Chapman v Cheng & Anor (2002) NSWADT 275 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Montgomery S - Judicial Member; Weule B - Member CATCHWORDS: leave to extend to the merits - refusal to receive evidence MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 025057 DATE OF DECISION UNDER APPEAL: 12/20/2002 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Conveyancing Act 1919 Retail Leases Act 1994 CASES CITED: Chapman v Cheng & Anor [2002] NSWADT 275 Blackler v Felpure Pty Ltd [1999] NSWSC 958 APPELLANT C Chapman, agent REPRESENTATION: FIRST RESPONDENT In person SECOND RESPONDENT Y H Cheng, agent ORDERS: Appeal dismissed Introduction 1 This is an appeal by the Appellant Lessee against orders made by the Tribunal on her application and on the Respondents' cross application. The Tribunal's judgment, given by Mr B G Donald, Judicial Member, is reported as Chapman v Cheng & Anor [2002] NSWADT 275. The proceedings concerned a retail shop lease of a florist shop at Leumeah given by the Respondent Lessors. 2 The Appellant's claim, as formulated during the hearing at first instance, alleged the following three grounds of recovery:- · breach of covenant of quiet enjoyment arising out of events surrounding attempts by the Respondents to recover rent in arrears and to negotiate a higher rent; · refund of bond money; and · damages under a number of heads, on account of the Respondents having made statements about the Appellant's failure to maintain rent payments, locked her out of the shop and terminated the lease. 3 In the cross application, the Respondents claimed unpaid rent. The Tribunal's findings of fact 4 The lease in this matter was expressed to be for a term of 26 weeks and contained a monthly holding over provision. It commenced on 7 March 1998. The Appellant and her husband, Mr Colin Chapman, took possession at some time thereafter and carried on business as a retail florist. 5 Until the second day of the hearing at first instance, both parties proceeded on the basis that the term of the lease was as just defined, and that from September 1998 onwards the Appellant had been a monthly tenant under a holding over provision. But it was then suggested on behalf of the Appellant that the lease might be subject to s 16 of the Retail Leases Act 1994 ('the Act'). This section provides that, unless a certificate under s 16(3) is executed, the duration of a lease under the Act (including options granted at the outset) must not be less than five years. Under s 7, this provision overrides anything to the contrary in the lease. 6 When this matter was raised, neither party produced a certificate under s 16(3) or could give evidence indicating whether or not one was granted. 7 At this point, Mr Donald indicated to Mr Chapman (who conducted the Appellant's case as her agent) that he was unwilling to permit the Appellant to replead her case on the footing that s 16 applied, extending the term of the lease to one of five years from March 1998. It appeared that Mr Chapman then accepted on the Appellant's behalf that the lease had in fact come to an end during May or June 2002. But he sought to rely on the Respondents' failure to draw the Appellant's attention to s 16 as an ingredient of her claim for damages. 8 The Tribunal stated, in its judgment at [18], that 'it cannot make a positive finding that no s.16(3) certificate was provided. The likelihood is that there was none.' It added that the Respondents appeared not to have given a disclosure statement to the Appellants as required by s 11 of the Act. 9 The lease provided for a rent of $150 per week. From early January 2002 onwards, the Appellants fell into arrears. The Respondents' managing agents issued arrears notices and pressed for payment. 10 As from 14 January 2002, the Respondents, through their agents, also pressed for an increase in the rent. The figure of $200 was initially proposed, but the Appellant indicated that she would not agree to this. On 11 April 2002, an arrears notice issued by the agents stipulated a rent of $175. Again, the Appellant rejected the increase. 11 By a letter dated 3 May 2002, the agents claimed payment of the arrears at $150 per week, repeated a final offer to maintain the lease so long as the Appellant agreed to an increase to $175, and stated that if the arrears were not paid within 48 hours, the Respondents would exercise their rights. 12 By a letter dated 8 May 2002, the Appellant referred to previous correspondence, including this letter of 3 May, and to the proposal for a rent increase. It then stated as follows:- Unfortunately, as discussed, I am unable to accept your proposal. Therefore I have no option but to give notice of termination. I expect to be able to vacate the premises within the next calendar month. Please re-calculate my rent arrears based on the existing rate of $150/wk plus GST, and provide statement of same. 13 On 8 May 2002, the Respondents' agents wrote back to the Appellant. The opening paragraph was as follows:- We hereby write to acknowledge receipt of notice to vacate the above premises on 8th June 2002 and we also advise that you are responsible for rental until that date. 14 This letter went on to require that the property was to be left in a good condition and that the keys should be handed into the manager's office by 5 pm on the day of termination. It indicated that rent was paid until 16 March 2002, that the arrears since then totalled $22,14.96 inclusive of GST and that a bond of $602.57 would be returned to the Appellant when the premises were left in a good condition and the rent arrears were paid up. 15 Notwithstanding this letter, the agents telephoned the Appellant on 10 May 2002, a Friday, and demanded immediate payment of the arrears. Later the same day, at about 3 pm, the agents went to the premises and, finding that the Appellant was not there, changed the locks. 16 The agents also left a letter under the door stating that, on the Respondents' instructions, they were exercising the 'rights [of the Respondents] under the Conditions of Lease to re-enter the Unit for the purpose of taking possession of the property and its contents'. The ground alleged was that the Appellant was in arrears of rent for more than 14 days. The letter also said that the Appellant was 'further notified that Notice is given of the Termination of the Lease'. 17 The agents also placed a notice on the shop window, which stated as follows: 'This shop is now the possession of the owners of the property.' In the top right corner it had the annotation 'LEASE-NOTIC-EV'. It said also that anyone entering without the owner's consent would face charges. 18 A representative of the agents testified at the hearing that the letter was posted to the Appellant. The Appellant denied receiving it. The Tribunal was not satisfied that it was posted. 19 On 17 May 2003, the Tribunal heard an urgent application by the Appellant, filed on 14 May, for an order that the Respondents give her immediate access to the premises. This application was granted. The Appellant regained access to the premises, though she contended before the Tribunal that it was impeded in certain ways. 20 The Appellant vacated the premises on or about 8 June 2002. The Tribunal found that she did not continue her business in them after 17 May, as she had quickly taken a lease of alternative premises following the lockout on 10 May. 21 The Appellant adduced evidence intended to show that on account of the lockout and of other behaviour by the Respondents and their agents she and her husband experienced a serious level of hostility and rejection from neighbouring shop-owners and workers. She sought to prove that she and her husband both suffered loss of business, loss of reputation, hurt feelings, severe depression and anxiety. 22 The Appellant led evidence from Ms Louise Smith, who worked in the shopping centre where the premises were located, regarding a statement to her by another person also working there. This person, whom Ms Smith said was called Rhonda Farah, had told her on or about 14 May 2002 that the Appellant had not paid five months' rent. 23 After the Appellant had closed her case, she sought to reopen it to obtain the attendance of Ms Farah as a witness. The Tribunal did not, however, grant leave to her to do this. 24 The Appellant also obtained, after a failed attempt, the attendance as a witness of Ms Diane Stephandellis, who managed a neighbouring function centre called Macarthur Grange. The Appellant had tendered entries from her own business diary indicating that she had been engaged by Macarthur Grange to provide flowers for functions to be held on 9, 10 and 17 May 2002. She alleged that Ms Stephandellis decided to cancel business with her on account of the lockout and the events leading up to it. 25 The evidence of Ms Stephandellis was, however, that she never entered into any firm agreement with the Appellant for the supply of flowers. She merely discussed the possibility that the Appellant might provide flowers for some or all of these functions. Ms Stephandellis also said that she had never had conversations with the Respondents or their agents regarding termination of the lease and she had not seen the notice on the door during the lockout. 26 The Appellant sought to rebut this by tendering a statutory declaration by her, summarising alleged discussions with Ms Stephandellis in April 2002, during which agreements were reached for the supply of flowers for the three functions. The declaration then stated that, from 1 May onwards, Ms Stephandellis failed to return telephone calls and in other ways broke off contact with the Appellant. 27 The tender of this declaration was rejected by the Tribunal on the ground that the Appellant had already closed her case. 28 The Tribunal also rejected, for the same reason, other evidence, both written and oral, from the Appellant and from Mr Chapman. This was designed to strengthen her claim that people working near the premises came to think less well of her and her husband because of statements made by the Respondents and because of the lockout. It included an undated medical certificate to the effect that, during some unspecified period within 2002, both the Appellant and her husband were suffering from 'significant depression with anxiety due to their physical illnesses and probably due to other personal factors'. The rulings and final orders made by the Tribunal 29 The Tribunal found (at [46]) that the Appellant, by her letter of 8 May 2002, gave notice of termination of the lease, which notice was accepted by the Respondents in their letter of the same date. The Respondents' letter 'clearly superseded' their letter of 3 May, 'which could not then be relied on as notice of intention to re-enter the premises forthwith' (see the judgment at [25]). 30 The Tribunal considered the implications of the disclosure, during the second day of the hearing, that the lease might have had a term of five years because no certificate under s 16(3) of the Act had been signed. It held (at [19]) that this could not affect the termination of the lease, and that the validity of this termination was also not affected by the fact that both parties may at the time have been mistaken as to the lawful term of the lease. It noted (at [15]) that in any event the Appellant had accepted that the lease came to an end when she vacated the premises in June 2002. 31 The Appellant claimed that the Respondents' conduct, between January and May 2002, in pressing for payment of arrears of rent, requiring an increase in the rent and threatening to terminate the lease if the Appellant did not pay the arrears or consent to the increase, constituted a breach of the covenant of quiet enjoyment. This argument, she claimed, gained force from the contention that under s 16 the lease did not come to an end until March 2003. 32 The Tribunal held, however, at [43 – 45] that conduct of this nature would not be caught by a covenant of quiet enjoyment. This was the case even if the Respondents were mistaken in claiming that they were entitled to seek a higher rent and the Appellant felt intimidated by the demands for the arrears or the increased rent. She would only have a right to damages on account of this conduct by the Respondents if she could show that they acted deceitfully or fraudulently so as intentionally to mislead her. There was, however, no evidence to establish this. 33 The Tribunal held that the Respondents, in effecting the lockout on 17 May 2002, were in breach of s 129 of the Conveyancing Act 1919. Subsection (1) of this section lays down a requirement of notice for an intended re-entry or forfeiture by a lessor. Subsection (2) empowers the court to grant relief to a lessee, including an award of damages or compensation, in the event of breach. The Tribunal held that, in the circumstances outlined above, no due notice had been given by or on behalf of the Respondents. 34 Pursuant to this ruling, the Tribunal held (at [57]) that the Appellant was entitled to damages comprising (a) the amount of rent ($1,650) that she had paid for alternative premises; (b) the cost of replacement stock ($166.37); and (c) the cost of repairing the door and the locks ($170). Under these three heads, it awarded a total of $1,986.37 to the Appellant. 35 The Tribunal also held that the Appellant's claim for $600 for repayment of the bond should succeed. It accordingly ordered the Respondents to release the bond. 36 The Tribunal also held, at [50], that the notice at the premises indicating that the Appellant had been evicted was 'quite wrongly and inappropriately displayed'. 37 It rejected, however, at [51 – 56], the Appellant's claim for damages for her and her husband's loss of business, loss of reputation, hurt feelings, severe depression and anxiety. Its grounds for so doing were, in essence, threefold. 38 The first ground was that even before the lockout occurred, the Appellant had decided to relocate her business elsewhere. This was shown by the fact that, after regaining possession pursuant to the Tribunal's order of 17 May 2002, she made no attempt to re-establish the business and she vacated the premises, as previously agreed, on or about 8 June. 39 Secondly, there was no evidence that any customer or potential customer terminated an existing commercial relationship with the Appellant, or decided not to enter such a relationship, as a result of hearing about the lockout or of any statement made by the Respondents. The evidence of Ms Stephandellis, in particular, did not suffice for this purpose. 40 Thirdly, while the lockout plainly caused hurt to the feelings of the Appellant and her husband, hurt feelings were 'not the basis for a claim that commercial loss has been caused by the wrongful conduct of a lessor' (see the judgment at [55]). 41 The Tribunal upheld the Respondents' cross application for payment of arrears of rent, calculated at $150 per week until 10 May 2002, the date of the lockout. The amount claimed and awarded was $1,091.42. The Tribunal stated that this could be set off against the amount of $1,986.37 owing by the Respondents to the Appellant. The grounds of appeal 42 The Notice of Appeal filed by Mr Chapman, as agent for the Appellant, was accompanied by a long and detailed submission. This contained a number of repeated and overlapping criticisms of the Tribunal's findings and orders. He enlarged upon them at the appeal hearing. 43 These criticisms can be distilled into three propositions. Together with the relevant paragraph numbers in the notice of appeal, these are as follows:- · The Tribunal did not take proper account of (a) the impact of s 16 of the Act on the lease and (b) the Respondents' failure to draw this matter to the Appellant's attention (paras 2, 3(a)-(c), 4, 10, 11). · The Tribunal's refusal to award damages to the Appellant and her husband for loss of business, loss of reputation, hurt feelings, severe depression and anxiety was unjustifiable (paras 3(d)-(e), 5-10, 12, 13-17). · The Tribunal's refusal to permit the tender of certain evidence by the Appellant after her case was closed constituted a denial of natural justice to her (para 1). 44 The Respondents filed a short Notice of Reply to Appeal. Relevant aspects of this and of the submissions made at the hearing are noted below. 45 The Appeal Panel's conclusions regarding each of these three propositions will now be set out. The issues addressed are not confined to questions of law. The Panel is prepared, in the circumstances, to go beyond questions of law even though it did not formally grant leave under s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 for the appeal to extend to the merits of the Tribunal's decision. The impact of s 16 of the Act 46 Some of the submissions for the Appellant on this issue were at variance with her having accepted during the hearing (and at one point during the appeal hearing) that the lease did not continue beyond June 2002. Mr Chapman argued that the parties did not terminate the lease by their letters of 8 May 2002 because, in the absence of any evidence that a s 16 certificate was prepared and signed, s 16, together with s 7 of the Act, put it out of their power to do so. The effect of s 16, he said, was that the lease, in the absence of a certificate, had a term of five years. The effect of s 7 was to render void any provision in the lease that was inconsistent with s 16. In support of this line of argument, he cited Blackler v Felpure Pty Ltd [1999] NSWSC 958. 47 In Mr Chapman's submission, the lease only came to an end when the Tribunal declared it to have been terminated by consent. But because the statutory five-year term would not otherwise come to an end until March 2003, the Tribunal should not have done so without giving full weight to the Respondents' denial of the 'fundamental statutory right' conferred by s 16 on the Appellant. 48 Mr Chapman argued that the Respondents and their agents, as professionals within the real estate industry, were obliged to be familiar with, and act within, the relevant laws. They should have realised that they had no right to press for extra rent and to threaten eviction on one month's notice because the Appellant was legally entitled to a five-year lease at the initially agreed rent of $150. There was no comparable lawful obligation on the Appellant to be aware of this. 49 It followed, he said, that the Appellant's decision to vacate the premises, which was forced on her because she could not afford to pay the extra rent being demanded, was due to reckless disregard of her rights by the Respondents, amounting to deceit on their part and resulting in intimidation and harassment of her. The appropriate remedy for this improper conduct on their part was an award of damages. 50 In reply, the Respondents submitted that the Appellant and the Respondents had made a commercial and wholly effective decision to terminate the lease and that there was no evidence that they intentionally misled or deceived her in relation to her rights under the Act. They argued also that in any event she was 'estopped' from raising any claim under s 16 because she had not invoked this provision initially and she only raised it, without prior notice to the Respondents, on the second day of the hearing. 51 In the opinion of the Appeal Panel, the Tribunal's conclusions on these issues are correct. 52 As to the impact of s 7 and s 16, the judgment of Bryson J in Blackler v Felpure Pty Ltd [1999] NSWSC 958 does indeed emphasise that their combined effect is to override clauses in a lease which provide for termination within less than five years. But it also indicates that earlier termination as contemplated elsewhere in the Act may occur. An example is where the lease provides for termination on the ground of proposed demolition of a building of which the leased shop forms part, and the requirements of s 35 of the Act are satisfied. 53 More importantly, nothing in Bryson J's judgment suggests that s 7 and s 16 operate to prevent the parties terminating a lease before the expiry of five years if both are minded to do so. It is in fact inconceivable that the legislature, in enacting these sections, would wish that a lessor and a lessee should be bound to a five-year lease when neither of them wanted it to continue for as long as that. 54 The Tribunal ruled (at [43 – 45]) that, in the absence of deceit or fraud by the Respondents causing the Appellant to be misled as to her rights under the Act, the Respondents did not breach the covenant for quiet enjoyment. Their conduct in pressing for payment of arrears of rent and for a rent increase, thereby inducing the Appellant to seek termination, did not have this effect. 55 The Appeal Panel agrees with this line of reasoning. It would add that no other cause of action for damages would appear to have been available on these facts to the Appellant. It might have been otherwise if the Appellant could have proved that (a) no s 16 certificate existed; (b) the Respondents knew that, due to s 7 and s 16, the lease had a term of five years; and (c) knowing also that the Appellant was unaware of this, they took no steps to inform her accordingly but instead pressed for a higher rent. In such circumstances, a claim of unconscionable conduct, though not in the tort of deceit, might have been available to her. But evidence of these matters was not forthcoming and a claim of this nature, although raised initially by the Appellant on other grounds, was abandoned following a directions hearing. Rejection of various claims for damages 56 The heads of damage covered by this element of the grounds of appeal were, it will be recalled, loss of business, loss of reputation, hurt feelings, severe depression and anxiety. They were claimed on behalf of both the Appellant and her husband. The relevant conduct alleged against the Respondents was specifically (a) their alleged statements to persons in the neighbourhood that the Appellant was five months in arrears of rent and (b) their effecting the lockout and placing a notice on the shop door indicating that the Appellant had been evicted. 57 In support of the Appellant's argument under this heading, Mr Chapman submitted first that the Tribunal should not have found that before the lockout of 10 May she had decided to relocate her business. The basis of this finding was that she had written the letter of 8 May seeking to terminate the lease. 58 The Panel agrees that the Appellant might well have decided to discontinue her business rather than relocating it. But the important point, for the purposes of her claim, was that before the lockout occurred she had decided not to continue the business at the leased premises. Having regard to this, the Panel cannot see any way in which any misreading of her intention by the Tribunal could have led it into error in considering her claim for damages. 59 This is enough to dispose of an accompanying submission by Mr Chapman. The Tribunal noted, at [32], a contention that the Respondent did not provide unimpeded access to the premises after being ordered to do so on 17 May 2002. Mr Chapman argued that it did not take proper account of this issue in awarding damages. But in view of the Appellant's apparent wish to discontinue business at the premises within the month following 8 May 2002, there is no basis, in the absence of specific evidence, for inferring that she suffered tangible harm on account of her access being impeded in some unspecified way. 60 Mr Chapman's principal submission regarding damages was that the Tribunal failed to give proper weight to evidence showing that (a) he and the Appellant suffered a loss of business and (b) this loss was attributable to the statements about unpaid rent put about by the Respondents and to the lockout. He referred specifically to the Appellant's statements of account showing a decline in sales, to her diary entries purporting to show that she had firm commitments from Ms Stephandellis to purchase flowers and to the evidence of Ms Smith. In relation to Ms Stephandellis's testimony, he submitted that she had shown herself to be hostile and for that reason unreliable. She had not co-operated when her testimony was first sought, and when giving testimony she had displayed ill-will towards the Appellant. 61 The Respondents replied by contending that it had not been shown that any statements made either by them or by their agents regarding non-payment of rent or the lockout were a cause of the alleged business loss. They maintained also that there was no reason to doubt the evidence of Ms Stephandellis. 62 In the light of Ms Smith's evidence, the Panel would accept Mr Chapman's contention that statements about the Appellant's non-payment of rent were probably made by the Respondents or their agents in such circumstances as to come to the notice of persons working in the neighbourhood. 63 The Panel agrees, however, with the Tribunal that there was no evidence to link this or any other conduct by the Respondents or their agents with what appeared from the business records to be a decline in the Appellant's business. The crucial causal link was not established. Except for Ms Stephandellis, no actual or potential customers were identified who were even claimed, let alone proved, by the Appellant to have been induced by such conduct to withdraw from existing or possible future business with her. 64 As to Ms Stephandellis, the Panel does not accept the argument that she displayed hostility to such an extent that her evidence should not be trusted. It would point out also that, even on the Appellant's own version of events, Ms Stephandellis's decision to withdraw her custom from the Appellant was taken before the lockout occurred. Most significantly, the Appellant had no affirmative evidence suggesting that before the lockout, or indeed after it, Ms Stephandellis had had any direct or even indirect contact with the Respondents or their agents. 65 For these reasons, the Panel upholds the Tribunal's decision that no damages should be awarded to the Appellant or her husband for loss of business. 66 In the opinion of the Panel, the Tribunal was also correct in holding that the Appellant's claim for damages for loss of reputation, hurt feelings, severe depression and anxiety was flawed in similar ways. 67 Mr Chapman sought to overcome difficulties in regard to causation and evidence of loss by submitting that, given the finding by the Tribunal that the notice at the shop had been 'quite inappropriately and wrongly displayed', it was bound to presume that there was damage to the Appellant's reputation. In support, he cited various authorities on defamation, intimidation and conspiracy. 68 It is clear law, however, that such authorities cannot assist the Appellant when she has neither pleaded nor proved that the Respondents have committed any of the torts to which they relate. 69 Without the benefit of a presumption of damage, the Appellant's case in this regard fell well short of establishing the necessary link between alleged conduct of the Respondents and the damage claimed, so far as it concerned loss of reputation, depression and anxiety. The medical report tendered (though not admitted) with reference to the claim under the latter two heads did not in any way connect the symptoms experienced by the Appellant and her husband with any conduct of the Respondents. 70 A further difficulty confronting this aspect of her case related to jurisdiction. The Appeal Panel considers that the Tribunal at first instance was correct in assuming jurisdiction to award damages under s 129(2) of the Conveyancing Act 1919 in respect of the unlawful lockout. But it does not follow that it would also have jurisdiction to hear tort claims – such as defamation or intimidation – arising from events associated with the lockout. The Appellant's claim for damages for loss of reputation effectively assumed that it did have such jurisdiction. 71 The Panel also agrees with the Tribunal's ruling (at [55]) that damages under s 129(2) – which, as just indicated, it did have jurisdiction to award – would not extend to the remaining category of harm alleged by the Appellant and her husband, that of 'hurt feelings'. 72 For all these reasons, the Panel upholds the Tribunal's rulings in relation to the Appellant's claim for damages for loss of business, loss of reputation, hurt feelings, severe depression and anxiety. Rejection of evidence tendered late in the hearing 73 The Appellant's submission in this regard related to refusals by the Tribunal (a) to accept the tender of written statements prepared by her and by Mr Chapman and of a medical certificate relating to their emotional condition during 2002 and (b) to permit her to call as witnesses Ms Farah and a Mr and Mrs Davis. Copies of the written statements and of the medical certificate were annexed to the submission in support of the appeal. 74 Some of the written evidence of the Appellant was rejected early on the first day of hearing because it had not been filed or served and she was not in attendance at the time. Mr Donald explained to Mr Chapman that if she came to the Tribunal later in the day her evidence could then be admitted because she would be available for cross examination. Mr Chapman indicated that he would try to secure her attendance, but was apparently unsuccessful. 75 The grounds of rejection of the remainder of the written and oral evidence sought to be adduced by the Appellant were twofold. First, this evidence was brought forward after her case was closed. Secondly, Mr Donald had indicated by then that, except for the testimony of Ms Stephandellis, no further evidence from her would be admitted save for 'overwhelming reasons'. He did not make an exception for the testimony of Ms Farah because Mr Chapman had indicated that she was not a customer or potential customer of the Appellant. 76 It was indicated in one of the rejected statements that the Appellant wished to call Mr and Mrs Davis because they, like Ms Farah, worked in the neighbourhood and were aware of allegations that the Appellant was in arrears of rent. This statement did not, however, allege that they were actual or potential customers of the Appellant. 77 The rejected statements also contained allegations supporting the Appellant's claims (a) that her business declined after the lockout; (b) that Ms Stephandellis engaged her custom, then declined it from early May 2002 onwards, and when asked to give evidence was hostile to her and her husband; and (c) that during May 2002 the Respondents' agents demanded payment of the arrears of rent in a rude and aggressive manner. 78 The contents of the rejected medical certificate are outlined above, at [28]. 79 It is clear to the Panel that a factor contributing to the rejection of this evidence was Mr Chapman's failure, as a non-lawyer, to appreciate the necessity to file and serve written statements and to secure the attendance of witnesses who had prepared statements. If this were the only reason, the Panel would have some concern that the Appellant might indeed have been denied procedural fairness. 80 It is however also clear that, even if the rejected evidence were admitted, it would not dictate any different conclusions by the Tribunal. 81 One element of this evidence did no more than support the Appellant's allegation that she was subjected to a level of harassment by the Respondents' agents. For reasons already outlined, at [70 – 71], this could not provide a basis for a claim for damages, either under the covenant for quiet enjoyment or through a separate action in tort. 82 A further element, the medical certificate, also could not provide a basis for awarding damages, for reasons already outlined (at [69]). 83 The remainder of the rejected evidence was directed to substantiating the Appellant's claim that statements made by the Respondents about the rent arrears, coupled with the lockout and the notice on the shop door, caused business loss to her. Except however in relation to Ms Stephandellis's role in the matter, none of it bore on the crucial defect in the Appellant's case on this matter, namely, that there was no evidence of actual or potential customers being turned away. 84 As regards Ms Stephandellis, reasons have already been advanced (at [64] above) for the conclusion that the Tribunal could not reliably attribute any decline in her interest in obtaining flowers from the Appellant to any conduct on the Respondents' part. The allegations about her in the rejected evidence could not, in the Panel's view, disturb this conclusion 85 For these reasons, the Appeal Panel does not consider that the Tribunal's rulings and orders are open to challenge on the ground of its rejection of certain evidence tendered by the Appellant. Conclusions on the appeal 86 For the foregoing reasons, the appeal must be dismissed. 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