Mark Mittag v Lauren Elizabeth Beggs and Alexander John Fawns [2014] NSWCATCD 101

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mark Mittag v Lauren Elizabeth Beggs and Alexander John Fawns [2014] NSWCATCD 101 Decision date: 23 January 2014 Before: K Rickards, Senior Member Decision: 1 The respondents are to pay the applicant the sum of $2,835.67 within 28 days from the date of this order. 2 There is no order as to costs. Catchwords: Lease Disclosure Statements; Estoppel Legislation Cited: Civil and Administrative Tribunal Act 2013 Retail Leases Act 1994 Category: Principal judgment Parties: Mark Mittag (Applicant) Lauren Elizabeth Beggs and Alexander John Fawns (Respondent) File Number(s): COM 14/02029

reasons for decision

APPLICATION 1These proceedings were commenced in the Administrative Decisions Tribunal of New South Wales ("ADT") by the applicant lessor, claiming payment by the respondent lessees of outstanding rent and outgoings pursuant to a retail lease. 2Initial orders were made for the filing and serving of evidence by the parties. Further orders were then made by me on 30 September 2013 for the filing and service by the parties of any further affidavits or submissions, following which the proceedings were to be determined "on the papers" after 18 November 2013. 3The Civil and Administrative Tribunal of New South Wales ("NCAT") was established by legislation to commence operation on 1 January 2014, and subsumed the ADT as well as a number of other tribunals. Pursuant to the provisions of section 7 of Schedule 1 to the Civil and Administrative Tribunal Act 2013 these proceedings are now deemed to have been commenced in NCAT. 4The premises which are the subject of these proceedings are described within the registered lease as "Ground floor shop premises at 12 Shelly Beach Road, East Ballina". The content of the lease which has been supplied to the Tribunal as part of the applicant's evidence is somewhat sparse; it merely comprises a standard form front page followed by an execution page, a "Lessor's disclosure statement" and a "Lessee's disclosure statement". There are no other contents or components of the lease. 5In addition to the lease, a number of other documents were simply attached to the filed application. These documents comprised: the required mediation certificate; an email from the applicant's present agent Mr Elks to the applicant dated 15 July 2013; a document entitled "Tenancy Ledger" prepared by Mr Elks; a letter from Mr Elks to the applicant dated 14 February 2013; a letter from the applicant's previous agents Wal Murray & Co to the applicant dated 23 January 2013, and; a letter from Mr Elks to the respondents dated 15 February 2013 advising of termination of lease. 6The balance of the documentary evidence provided by the applicant comprised of his affidavit sworn 23 August 2013 and affidavits from Mr Elks sworn 13 August 2013, 26 August 2013 and 14 October 2013. Attached to this last affidavit of Mr Elks by paper clip and without any particular identifying marks were other documents: a copy of a letter from Somerville Laundry Lomax Solicitors to the respondents dated 22 June 2011 advising of sale of the premises to the applicant; a copy of the Certificate of Title for the subject premises which shows the applicant as owner and registration of two leases to the respondents for the shop premises which are the subject of these proceedings and for adjoining residential premises, and; printouts of ledger reports issued by the previous agents Wal Murray & Co and from Mr Elks. 7The respondents have filed two affidavits, both sworn by each of them on 12 November 2013. Attached to one of these affidavits is a list of what is said to be payments of rent effected by the respondents pursuant to the subject retail lease.