Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gani v Maiolo [2013] NSWCA 107 Hearing dates: 2 May 2013 Decision date: 02 May 2013 Before: Basten JA at [1]; Meagher JA at [2] Decision: 1. Dismiss the application for leave to appeal from the judgment of Hall J of 27 November 2012. 2. Order the applicant to pay the respondents' costs of the proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - application for leave to appeal from decision in Common Law Division dismissing an appeal from decision of Appeal Panel of Administrative Decisions Tribunal - underlying dispute as to commencement date of lease and for payment of first rental instalment - primary judge held no error of law on part of Appeal Panel in upholding Tribunal's decision - no arguable error by primary judge on any question of law - application for leave to appeal dismissed Legislation Cited: Administrative Decisions Tribunal Act 1997, ss 113, 119 Retail Leases Act 1994, s 17 Supreme Court Act 1970, ss 48, 51, 101 Cases Cited: Gani v Maiolo (RLD) [2012] NSWADTAP 10 Gani v Maiolo [2011] NSWADT 219 Gani v Maiolo [2012] NSWSC 1417 Category: Principal judgment Parties: Mohammed Nurul Gani (Applicant) Raffaele Maiolo (First Respondent) Maria Maiolo (Second Respondent) Representation: Counsel: In person (Applicant) M Tibbey (First and Second Respondents) File Number(s): 2012/380651 Decision under appeal Citation: Gani v Maiolo [2012] NSWSC 1417 Date of Decision: 2012-11-27 00:00:00 Before: Hall J File Number(s): 2012/214069 Judgment 1BASTEN JA: On 2 May 2013 the Court dismissed the application for leave to appeal in this matter and ordered the applicant to pay the respondents' costs of the application. The Court reserved its reasons. I join in the reasons of Meagher JA for making those orders. 2MEAGHER JA: The applicant seeks leave to appeal from a judgment of Hall J: Gani v Maiolo [2012] NSWSC 1417. That judgment dismissed the applicant's appeal from a decision of the Appeal Panel of the Administrative Decisions Tribunal of New South Wales: Gani v Maiolo (RLD) [2012] NSWADTAP 10. That appeal was brought under s 119(1) of the Administrative Decisions Tribunal Act 1997 and was limited to questions of law. By reason of s 48 of the Supreme Court Act 1970, that appeal should have been heard by the Court of Appeal. Nevertheless, it was commenced, continued and disposed of in the Common Law Division of the Court as permitted by s 51(1)(d) of the Act. 3Leave is required to appeal from a final judgment or order of the Court in a Division which does not involve a matter in issue amounting to or of the value of $100,000 or more: s 101(2)(r) of the Supreme Court Act. The applicant does not contend that the amount in issue in his appeal to the primary judge was in excess of $100,000. 4The first matter to be considered is whether the applicant has sufficient prospects of successfully challenging the judgment of Hall J to justify a grant of leave. His Honour was determining an appeal, limited to questions of law, from a decision of the Appeal Panel. To address whether there was arguable error on the part of Hall J, it is necessary to understand the applicant's claims as made before the Tribunal and how they were dealt with by the Tribunal and, on appeal, by the Appeal Panel. 5The applicant leased from the respondents restaurant premises at Manly under registered lease AF471368S. There were disputes as to whether the applicant was in arrears in making payments of rent. Notices were given requiring that rent be paid. On 3 August 2010 the respondents purported to terminate the lease and locked the applicant out of the premises. The respondents also sought to retain a bond of $25,000. The applicant commenced proceedings in the Tribunal for recovery of the bond money and certain other payments and compensation. The Tribunal rejected the applicant's claim: Gani v Maiolo [2011] NSWADT 219. The Appeal Panel dismissed the applicant's appeal from that decision. 6There were two issues addressed and resolved by the Tribunal. The first was whether the respondents were entitled to terminate the lease for non-payment of rent. The resolution of that question turned on whether the commencement date of the lease was 13 April 2010, as the respondent lessors contended, or 7 May 2010, as the applicant contended. The applicant argued that because the respondents were still undertaking rectification and other works on the premises which were not completed until 6 May 2010, it was agreed that the lease would commence on 7 May 2010 and that the first monthly rental payment would be due on 7 June 2010. He also maintained that the respondents had retained keys to the premises during this period and that as a result he was not given exclusive possession before 7 May 2010. 7These arguments gave rise to factual issues as to the dealings between the parties, the state of the premises and as to the terms of the lease and whether they had been varied. The Tribunal found that whilst some works were undertaken between 13 April and 7 May 2010, those works were not substantial. It also found that the applicant was given possession of the premises from 13 April which was not interfered with by the minor works being undertaken. Finally, it found that there was no agreement to vary the terms of the written lease in either of the respects alleged by the applicant. 8The second issue was whether the applicant had advanced $4,500 to the respondents by way of loan to enable the replacement of an awning at the premises. The applicant sought repayment of that amount. The respondents' position was that the applicant had ordered the awning and was responsible for paying for it and that the respondents had paid $2,300 towards the cost of the awning. The Tribunal rejected the applicant's claim because it did not accept the applicant's version of events. It held that there was no loan made. 9Accordingly, the Tribunal concluded (at [56]): "The terms of the Lease were unaltered. The Applicant was in breach of the Lease on 3 August 2010 for non-payment of rent. The Lease was validly terminated by the Respondent. The Respondent has accounted for the bond money in lost rent and restoration of the premises. The Bond money is not to be returned to the Applicant but forfeited to the Respondent. There was no loan regarding payment for the awning." 10The applicant's appeal to the Appeal Panel challenged the Tribunal's conclusions in relation to the two matters dealt with above. The applicant also claimed that he was entitled to compensation for equipment which he had brought onto the premises and which was not returned to him when he was locked out on 3 August 2010. 11The appeal to the Appeal Panel was limited to questions of law, unless extended with the leave of the Appeal Panel to a review of the merits: ss 113(1), (2) of the Administrative Decisions Tribunal Act. The applicant argued that the Tribunal's decision that the date for payment of the first rental payment had not been deferred involved error because the Tribunal had failed to take account of s 17 of the Retail Leases Act 1994. The Appeal Panel rejected that argument for a number of reasons. Those reasons included that neither of the conditions in s 17(1) was satisfied. The Appeal Panel concluded that the Tribunal's rejection of the claim that the commencement date of the lease and date for payment of rent had been deferred was correct in law and in accordance with the evidence. In doing so, it also rejected the applicant's argument that he had not had exclusive possession of the premises from 13 April 2010. The Appeal Panel also rejected the applicant's challenge to the Tribunal's conclusion in respect of the awning claim. It held that the Tribunal's finding that no such loan had been made was open to it on the evidence. 12The remaining matter argued before the Appeal Panel had not been dealt with by the Tribunal, although it had been raised in the applicant's affidavit evidence and submissions to the Tribunal. The Appeal Panel held that the Tribunal had erred in not doing so and gave leave for the appeal to it to extend to the merits of that claim. The applicant claimed compensation for "stock and equipment" left on the premises which he maintained was valued at $38,505. The Appeal Panel rejected that claim. The applicant's evidence did not establish the nature or value of any items left on the premises. The Appeal Panel also considered that under cl 11(a) of the lease, any such items had been forfeited to and become the property of the respondents because they had not been removed from the premises within seven days of 3 August 2010. 13In the appeal to the primary judge, the applicant challenged the correctness of the Appeal Panel's conclusions in relation to the three matters with which it had dealt. His Honour considered and rejected the argument that the Appeal Panel had made any error of law in addressing the Tribunal's decision rejecting the claim that the date for payment of the first rental payment had been deferred. 14His Honour also dealt with an argument of the applicant that the lease had not been properly terminated on 3 August 2010 because the notice relied upon had been given on 27 July 2010, which was said to be less than the 14 day period required by cl 11(a) of the lease. His Honour concluded that there was no error of law on the part of the Appeal Panel in not addressing that question because it had not been argued before the Tribunal and, although referred to in the notice of appeal to the Appeal Panel, had not been pressed in argument before the Panel. The primary judge did not err in rejecting this argument on that basis. 15As to the awning claim, the primary judge noted that the Tribunal's conclusion that there was no loan was based on findings of fact. He concluded that there was no error of law on the part of the Appeal Panel in rejecting the applicant's challenge to that decision, which was open on the evidence. 16As to the applicant's claim to compensation for items left on the premises, the primary judge held that there was no error of law demonstrated in any of the Appeal Panel's conclusions with respect to that claim. The findings made were open on the evidence and no other error of law was demonstrated. 17Finally, the primary judge dealt with a further argument which was not identified by the Appeal Panel as one of the three matters pressed in the appeal to it. That argument was that the evidence did not justify the Tribunal's finding that the bond of $25,000 should be forfeited. Having considered the evidence relied upon to justify claims of the respondents which exceeded $25,000, the primary judge concluded that the applicant had not established any material error in respect of this question. 18In his written and oral argument in support of a grant of leave to appeal to this Court, the applicant identified what were described as the four critical or "contentious issues". They were whether the date for payment of the first rental payment had been deferred; whether he was entitled to repayment of $4,500 advanced to the respondents to enable the purchase of the awning; whether the termination of the lease had been ineffective because 14 days' notice to rectify any remedy had not been given; and whether the applicant was entitled to compensation for items left on the premises after 3 August 2010. 19The applicant's arguments in relation to each of these issues as explained in his submissions to this Court are the same as those put and rejected before the Tribunal, the Appeal Panel and the primary judge. None of those arguments identifies a respect in which the Appeal Panel or the primary judge arguably erred on any question of law. 20It must follow that the applicant's summons for leave to appeal to this Court should be dismissed with costs. The applicant has not established that he has any reasonable prospect of successfully challenging the conclusions and orders of the primary judge. His claims, having a value of less than $100,000, have been rejected by decisions of the Tribunal, the Appeal Panel and the primary judge. The interests of justice do not require that they be the subject of a third appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2013