Arthur Perlidis v Barclay MIS Protect and Collect Pty Ltd [2014] NSWCATCD 127

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Arthur Perlidis v Barclay MIS Protect and Collect Pty Ltd [2014] NSWCATCD 127 Hearing dates: 28 November 2013 Decision date: 30 January 2014 Before: M Mulock, General Member Decision: The application is dismissed Category: Principal judgment Parties: Arthur Perlidis (Applicant) File Number(s): GEN 13/48757

reasons for decision 1This matter came before the Tribunal for hearing on 28 November, 2013. Both parties appeared by telephone and Mr Wilson, solicitor, also by telephone, appeared on behalf of the applicant, Mr Perlidis. Mr Lauchland appeared for the respondent in his capacity as an officer of the Company, although, with apparent legal qualifications. 2Both parties, pursuant to directions of the Tribunal, had provided a significant quantity of documents and submissions. 3The applicant's documents (Exhibit A) which were contained in a yellow folder with an index numbered 1 - 159. The respondent's documents (Exhibit 1) were also contained in a yellow folder with an index and page numbered 1 - 80. Both Exhibits were tendered and received into evidence without objection. 4At the commencement of the proceedings, an oath was administered to both Mr Perlidis and Mr Lauchland. Both witnesses attested to their belief that their respective exhibited material was true and correct. Both witnesses were cross-examined by the other party. After cross-examination, each maintained their position as presented in Exhibit A and Exhibit 1 respectively.

BACKGROUND 5The applicant is and was at all material times the owner of premises known as 189 George Street, Bathurst. At all relevant times, those premises were tenanted by way of commercial lease to Emma Mason, (Tenant) a solicitor, who operated her legal practice from the ground floor of the premises and her family lived on the upper storeys of the premises. 6The lease between the applicant and the tenant commenced on 15 January 2010, and terminated on 14 January 2012. 7The property was a multi storey terrace in central Bathurst, built it appears in approximately 1880. During the period of the tenancy there was an ongoing dispute between the applicant and the tenant regarding significant issues in which the applicant claimed the tenant breached the lease and the tenant maintained that she had not breached the lease but that the applicant had breached his obligations under the lease. 8The involvement of the respondent arose in about 2007 when the Applicant stated that he saw an advertisement for the respondent's services in a real estate office. That brochure appears at page 120 of Exhibit A ("The Brochure"). 9The respondent, through the Brochure, offered its services to landlords to take recovery action for monies due or owing by a tenant in respect of commercial premises. 10The applicant says that he accepted the offer of the respondent and paid an annual fee of $165.00 for the respondent's services. The annual fee was renewed for the four subsequent years. 11When the relationship between the applicant and the tenant deteriorated, the applicant called upon the respondent to assist him in advice as to how to deal with those matters which he believed constituted a breach of the lease by the tenant. The advice of the respondent included drafting letters for the applicant to send to the tenant, general advice as to whether the alleged breaches of the lease by the Tenant which included, repairs to the premises, wear and tear on carpets within the premises and structural repairs. As part of Exhibit A, there is correspondence between the applicant and solicitors for the tenant, who on behalf of the tenant, clearly reject any breach of the lease by the tenant as alleged by the applicant. 12Nearing the conclusion of the lease in late 2011, the applicant and the tenant attempted to negotiate a new lease but agreement could not be reached in respect of rent and the tenant subsequently vacated on or about 14 January 2012. 13In the course of the hearing, it was also alleged that apart from the tenant being responsible for significant repairs to the property, she had also refused to allow the applicant's agent to advertise the premise and show potential alternate tenants the premises prior to her vacating the premises. 14The tenant in her statement (pages 10 - 19 of Exhibit 1) specifically denies either removing the re-leasing signs or failing to allow access to the premises for the purpose of re-leasing. 15After the tenant vacated, the applicant called upon the respondent to issue legal proceedings for the alleged breach of lease by the tenant including the filing of a claim in the appropriate jurisdiction. The applicant maintained that the Contract between the parties required the respondent in the circumstances in which the applicant found himself to issue those proceedings at its own cost and continue with the proceedings to their natural conclusion. The respondent refused to do so and as a result the applicant issued proceedings in this Tribunal for breach of the agreement between the parties. 16The applicant has subsequently not issued any proceedings against the tenant for the alleged breaches of the lease but seeks damages from the respondent for breach of the agreement. 17The matters for determination by the Tribunal can be considered pursuant to the following questions: (1)What were the expressed terms of the agreement between the parties? (2)Were there any implied terms of the agreement? (3)What were the obligations of the respondent under the agreement? (4)Did the refusal of the respondent to take proceedings against the tenant amount to a breach of the agreement? (5)If so, what damages is the applicant entitled for the breach of the agreement?