Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mrs Top at Neutral Bay Pty Ltd v Tripodina & Tripodina ; Tripodina & Tripodina v Mrs Top at Neutral Bay Pty Ltd and others [2014] NSWCATCD 245 Hearing dates: 18 August 2014 Decision date: 19 December 2014 Jurisdiction: Consumer and Commercial Division Before: D Patten, Principal Member Decision: Application by Mrs Top dismissed. On application by Mr & Mrs Tripodina order that Mrs Top pay the sum of $18,821.67 to Mr & Mrs Tripodina forthwith Subject to paragraph 44 order Mrs Top to pay the costs of Mr & Mrs Tripodina as agreed upon or as assessed Liberty to apply in accordance with paragraph 44 Legislation Cited: Retail Leases Act 1994 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Mrs Top at Neutral Bay (applicant in COM 14/00683, respondent in COM 14/00741) Sylvana Tripodina & Christoforo Tripodina (respondents in COM 14/00683, applicants in COM 14/00741) Representation: Counsel:Mr D Ziman (Mrs Top) Mr FF Salama (Mr & Mrs Tripodina) Solicitors:Ziman and Ziman, Jemmeson and Fisher File Number(s): COM 14/00683 and COM 14/00741 Publication restriction: Unrestricted reasons for decision INTRODUCTION 1. There are two matters before the Tribunal: 14/00683, in which Mrs Top at Neutral Bay Pty Ltd (hereafter Mrs Top) is applicant and Sylvana Tripodina and Christoforo Tripodina (Mr & Mrs Tripodina) are respondents and 14/00741, in which Mr & Mrs Tripodina are applicants and Mrs Top together with Christian Stadler and Anthony Maynard are respondents. 2. Mrs Top's application rather unhelpfully stated the claim in these terms: ORDERS SOUGHT 1. Delay rent payment until after judgement from Supreme Court proceedings No 2012/321148 29 January 2013. 2. Fixing storm-water pipes at landlord's cost inc flooring. 3. 1/3 rent reduction from 25 August 2011 – present (To date $22,728.27) until pipes are fixed. 4. 1/3 of operating costs from 25 August 2011 until now $91,303.00. 5. Claim for voluntary administration costs $35,000.00. 6. 15% loss of business profit from 25 August 2011 $20,913.76 (T/O 1/3) x 15% profit margin. 7. Reinstatement of rental agreement as of 1 September 2011. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) Ground 1 Rent Payment Delay – Supreme Court Proceedings No 2012/321148 Commonwealth Bank is seeking repossession of property. Instruction for writ of possession is given. Bank's lawyer advised us no lease will be granted bond money $10,430-00 has not been secured with GOVT. Scheme and has been unlawfully used during administration proceedings 13/06/2012 – 10/07/2012. We request to delay any rent payments until after 29/01/20 to avoid further monetary losses in the event the landlords lose the property and are declared insolvent. Ground 2 All other claims will derive from the Supreme Court Judgement. Should the landlords remain in possession of the property, we would pay the outstanding rent and seek judgement on grounds II to VII. Stormwater damage as result of broken pipes has resulted in severe flooding in rear of restaurant, trading there has not been possible thereafter. We seek 1/3 claim in accordance with capacity of T/O 40 seats front 20 in rear. 1. At the hearing Mr Ziman who appeared for Mrs Top indicated that the issue for determination is whether a broken drainage pipe for which Mr & Mrs Tripodina were responsible caused water to flow into the courtyard of the subject premises with the result that the courtyard became unusable for Mrs Top's restaurant business with consequential financial loss. 2. The only witness called in Mrs Top's case was Mr Christian Stadler one of its directors. He is a chef by occupation. 3. The subject premises are located at 242 Military Rd Neutral Bay. They comprise a shop of about 50m2 fronting Military Rd Neutral Bay, a rear courtyard of about 40m2 and a further area containing toilets. The premises prior to Mrs Top's involvement were used and occupied as a restaurant with seating for patrons both within the shop portion and in the outside courtyard. 4. It seems common ground that Mrs Top commenced to negotiate for the purchase of the restaurant business about June 2005. The business was then owned by Mr & Mrs Slabaspyckyj. At that time the courtyard was enclosed within a timber structure which included a pitched roof. 5. Mr & Mrs Slabaspyckyj held possession of the premises under a lease for a term of 3 years from 23 July 2004 with 2 options for renewal. The lease undoubtedly a Retail Lease within the Retail Leases Act specified as the permitted use of the premises "Restaurant, Deli (eat in and take away)". The lessors under the lease were Mr & Mrs Tripodina and it was registered as AB179931V. It appears that at some point the balance of the term of the lease was assigned to Mrs Top. 6. The evidence is unclear as to when Mrs Top entered into a formal agreement for purchase of the restaurant business. Mr Stadler claimed in his statement Exhibit A that completion took place in October 2005 apparently after a trial 3 month period but other evidence which I accept indicates that the purchase price was not paid until some time in early 2006. 7. At some point in the latter half of 2005 North Sydney Council seems to have become concerned with the timber structure erected in the courtyard of the premises. It required its demolition and this was effected about February 2006 by Mr & Mrs Tripodina to whom the demolition notice was directed. 8. Mr Stadler referred to the demolition notice in his statement as follows: "During the trial period and prior to the takeover of the lease being finalised there was no indication given to us that the rear of the Premises has been unlawfully improved with an unauthorised structure. We were not told that a demolition order has been issued to the Tripodinas". 1. The history of the demolition order referred to above is contained in a document annexed to Mr Stadler's statement being a Report by the Council's Senior Assessment Officer Ms Lara Huckstepp. Relevantly the report states: "On 29 September 2005 Council forwarded correspondence to the owners of No. 242 Military Road advising them that the rear timber awnings located to the rear/northern boundary of the premises was unauthorised and requested the structure's removal. On 4 October 2005 Council issued a Notice of Intention to serve an order requiring the removal the (sic) rear timber awning to the rear/north boundary. On 3 November 2005 Council issued the applicant with an order requesting the removal of the rear timber deck to the rear/north boundary. On 12 February 2006 Council advised the applicant had satisfactorily complied with the above Order and that the deck had been demolished." 1. I will need to return to whether the structure referred to in the Council's order of November 2005 has any significance in this case. 2. Mrs Top sought to overcome the effect of the demolition of the wooden structure in the courtyard in February 2006 as Mr Stadler relates: "(Mrs Tops) then bought two small movable free-standing marquees from Bunnings to enable us to continue trading and using the courtyard area. Whenever there was any substantial rain, the marquees could not keep the rain off much of the courtyard area, and diners got wet. At the beginning of August 2006, (Mrs Tops) engaged Absolutely Covered to erect two VZ520 conservatory awnings which they advised did not need any DA approval. They used the existing steel posts that were left from the wooden structure that was there when we originally took over. The awnings were mounted with a timber frame on three existing posts and sloping down and resting on the toilet roof. At this point it should be noted that there is a building along the eastern courtyard boundary that has a sloping roof and houses the toilets. This roof allows rainwater to run off it into a drain. The rainwater from the awning would run onto the roof of the toilet block and into the drain. The conservatory awnings seemed to Tony (Mr Maynard) and me the perfect solution because it kept the rain out and the diners dry when it was raining and could be completely retracted when it was dry and the customers could dine under the stars. Furthermore installation was simple and required only a timber structure to support the sail fabric from the existing poles on the western side to the toilet roof. The conservatory awnings were installed at a cost of $18,702.00. In addition I had flashings installed to stop water entry from the northern and western sides at a cost of $1,515.00." 1. On 20 March 2007 Mrs Top exercised its option for renewal of the lease for a term of 3 years commencing 23 July 2007. Apparently the renewed lease was never executed but on 2 December 2008 a fresh lease was executed from Mr & Mrs Tripodina to Mrs Top of the premises for a term of 3 years from 22 February 2008 with two successive options for renewal each of 3 years. The obligations of the lessee under that lease were guaranteed by Mr Stadler and by Anthony Maynard. 2. The fresh lease contained a special condition: CLAUSE 19 REAR EXTENSIONS 1. The Landlord consents to the tenant erecting an extension to the rear of the premises ("the Improvements"). It is hereby agreed that the Tenant will obtain all relevant approvals from all authorities to erect the Improvements and the Tenant will pay all expenses associated with obtaining all approvals and all expenses associated with building the Improvements. 2. Upon vacating the premises, the Tenant agrees to surrender possession of the Improvements to the Landlord and the Improvements will then become the property of the Landlord at no cost to the Landlord. 1. In the meantime from May 2007 onwards Mrs Top was in dispute with the Council regarding the conservatory awnings referred to above. Mrs Huckstepp's Report already referred to goes on to outline this dispute: "On 4 June 2007 Council advised the applicant that a site inspection revealed further unauthorised works being that the northern and western walls of the rear toilet addition had been extended and that a retractable awning had been erected within the rear courtyard. On 5 October 2007 the applicant was advised that their Building Certificate application C67/07 seeking consent for these unauthorized structures was unable to be supported. A Notice of Intention to Issue an Order was also issued on 5 October 2007 requiring the applicant to remove these above-mentioned structures. On 3 April 2008 the applicant lodged the subject development application. The application originally sought consent to provide a vergola structure over the rear/north courtyard and to provide solid walls around the north, east and west elevations of the courtyard. Following a preliminary assessment of the proposed development, Council advised the applicant on 2 May 2008 of the following non-compliances: * Dining component should be set back 3m from the rear/north boundary. * The proposed louvred roof was not supported due to likely acoustical impacts on adjoining properties. * Height of the rear addition should be reduced as far as possible. * Additional information regarding stormwater and any mechanical ventilation was requested. * Further details were requested of the rear boundary fence. * Adequate provision for garbage storage needs to be provided within the premises. On 19 May 2008 the applicant submitted additional information and amended plans. The amended plans proposed to construct a solid roof over the area in lieu of the proposed vergola, propose to locate amenities at rear of the site, thus providing a 3m separation from the boundary to the dining area and provide further information in accordance with Council's request. Following a further assessment of the application, Council's Assessment Officer raised concerns with regards to disabled access to the premises. On 10 July 2008 the applicant submitted additional information which details an investigation into the viability of providing level access." 1. Seemingly this dispute with the Council was the reason for the delay by Mrs Top in executing a lease following the exercise of its option for renewal of the 2004 lease. A development approval in respect of the rear courtyard was granted by the Council on 22 July 2008. However it was not acted upon as Mr Stadler explained: "No construction certificate was ever sought nor issued for the courtyard nor any construction or alterations to the existing conditions carried out since the inspection of Greg Evans on 16 May 2007 because North Sydney Council agreed to let us keep the conservatory awning in place until the DA was executed. When the Global Financial Crisis of 2008 took hold, we delayed implementation of the DA (which was then estimated to cost us in excess of $100,000) for as long as possible because the DA was valid for three years i.e. until 22 July 2011. We were not obliged to do anything about the DA until 22 July 2011. Nothing was ever done about the implementation of the DA because of the lack of a mutually acceptable written lease as I refer to below. 1. The option for renewal of the lease executed in December 2008 was not exercised and negotiations for a fresh lease broke down. Mrs Top continued to hold over as a monthly tenant when the lease expired in February 2011. 2. In August 2011 accordingly to Mr Stadler a problem with storm water affected Mrs Top's occupation of the rear courtyard. His statement recounted it as follows: "During August 2011 Sydney experienced some heavy rains and we experienced some flooding areas of the courtyard which we attributed to the heavy rains. However on 25 August 2011 water started bubbling up through the brick paving at the rear courtyard and flooded the entire courtyard section of the Premises making them unusable. I tried to contract Gary Bixley and Colin Croll from Croll Real estate by phone to ascertain how to proceed but we received no responses. We then contacted Omega Plumbing for emergency repairs and at least to stop the flooding. Marcel from Omega Plumbing spent about two hours in the morning of 25 August 2011 to find the cause of the flooding. He reported there was damage to the ceramic pipes under the toilets due to roots growing into them. He needed to dig a hole to access the pipes and suggested he would come back the following week to conduct a full and proper inspection. Their invoice to do this work was $1,570 all inclusive. I continued trying to contact somebody at Croll real estate to discuss the problem but could not contact Colin or Gary. On the same day I followed up with an e-mail to ask how we were to proceed. Gary acknowledged receipt of the e-mail and said he was seeking advice from the landlord. I called their real estate office and left the quote with their receptionist as requested by Gary. This was the first physical contact I had with the real estate agent. I was told they would be in contact with me the same day but they did not contact me that day. The courtyard was closed for trading as it could not be used. At 8 am Monday on morning (sic) the hole was dug by staff of Omega Plumbing. We still had no reply from the agents. Because of the mess and the workmen we had to close the restaurant and we did not trade until that Wednesday. On Tuesday 30 August, 2011 the plumber from Omega inspected the pipes and said words to the effect of: "I have found pipes are completely broken in three areas. These pipes are more than a hundred years old. They should be replaced with PVC pipes." I said" "How much would that cost?" He said: "To replace the pipes with PVC pipes, backfill and tidy up would cost $12,116.00. The job can be completed in one day." Finally I spoke to the agent's plumber Gary at Universal Plumbing, who was not aware of the urgency of the matter. He told me that he was at a job in Crows Nest but would drop that and come to our premises at lunch time. He discussed the quote with Omega plumbing and advised Croll Real Estate of the urgency of the matter. At 2.38 in the afternoon I wrote another e-mail to the real estate to ask again for advice on how to proceed. On Friday31 August, 2011 Colin Croll informed us verbally that the landlord was not taking responsibility for the damage and it was up to us to fix it. He said words to the effect of: "The pipes haven't had any problems for 90 years why all of a sudden now." 1. For another 2 years until it terminated its tenancy in August 2013 Mrs Top continued to occupy the premises as a monthly tenant. In that intervening period solicitors were employed to make various claims and counter claims. The claims by Mrs Top are those referred to in its application before me. The reference to Supreme Court proceedings is a reference to proceedings of marginal relevance to this case whereby the Commonwealth Bank as mortgagee sought to obtain possession of the premises from Mr & Mrs Tripodina. 2. Cross examined by Mr Salama counsel for Mr & Mrs Tripodina, Mr Stadler agreed that Omega's tax invoice dated 25 August 2011 made no reference to broken pipes or flooding. He told Mr Salama that Omega returned the following week excavated under the paving in the courtyard and located broken pipes. He agreed that Omega did not fix any broken pipes and he also agreed that in the bundle of photographs tendered there was no reference to a photograph of a broken pipe. 3. Mr Stadler told Mr Salama that the hole dug by Omega was left open for 2 or 3 weeks after which he backfilled it with soil. About a year later he said that he filled the hole with cement. He denied that there had been no further flooding since August 2011 and claimed that he complained about such further flooding on a number of occasions to Mr Croll the agent. He agreed that this was not asserted in his statement. 4. Mr Salama suggested to Mr Stadler that he continued to seat patrons in the rear courtyard after August 2011 but this was denied. When he was reminded by Mr Salama that after February 2011 he could have terminated the lease on a months notice at any time he replied that the costs of removal of a restaurant are very high. 5. The claim by Mr & Mrs Tripodina for outstanding rent and outgoings for the alleged cost of reinstating the premises after Mrs Top's departure and for interest. 6. Witnesses in the case for Mr & Mrs Tripodina were Mr Tripodina and the agent Mr Colin Croll. 7. Mr Tripodina said that he is the joint owner of the premises which are managed by Croll Real Estate. He said that he was told by Mr Croll in about November 2005 that there was an unauthorised structure in the rear courtyard that required removal. He made an inspection in November or December and while there spoke to Mr Stadler. He said to Mr Stadler "the Countil says we have to take this down" and he replied "yes I know". 8. Mr Tripodina said that he arranged for the unauthorised structure to be removed on 5 February 2006 – "There were no remains or remnants of the structure thereafter". 9. Mr Tripodina said that he was not aware of an allegation that water bubbled in to the courtyard until much later. By the time he was aware of this claim and inspected the area he said that the hole dug by Omega had been filled in. 10. Mr Colin Croll a director of Croll Real Estate made a statement admitted into evidence. Paragraphs 4 to 10 read as follows: 1. I have been a licensed real estate agent since 1969. I have over 40 years property sales and management experience. Our office has approximately 800 properties under management. 2. I have day to day carriage of the management of the property. 3. The property was used as a restaurant. 4. From 2004 the tenants of the property were Anatolij Slabaspyckyj and Vanessa Slabaspyckyj. Annexed hereto at pages 1 to 27 is a copy of the lease. 5. In or about July 2005, the tenant of the property informed me that they intended to sell the business. 6. In or about October 2005, I was informed by the tenant that a purchaser had been found to purchase the business and take over the lease. 7. In or about November 2005, the tenant and the respondent received a letter from North Sydney Council advising that the building at the rear of the premises was unapproved and required removal. This letter was obtained by the tenant as a copy of the letter was sent to the property. 1. Annexed to Mr Croll's statement was a letter from Albert Macri Lawyers indicating that the purchase of the business by Mrs Top was completed on 7 February 2006. I accept this to be so. 2. In relation to the flooding of the courtyard Mr Croll's statement reads: 1. I have managed the property for over 10 years and never before had there ever been a complaint about flooding. 2. On or about 25th August 2011, my office engaged a plumber who arrived at the premises two hours after being advised by the applicant that flooding had occurred. 3. In fact, although no works have been carried out on the piping there has been no flooding ever since August 2011, but I recall there have been huge rain spells within this time. 1. Annexed to Mr Croll's statement was a letter from Jones Partners Insolvency and Business Recovery dated 12 July 2012. Mr Andrew Croll 179 Military Rd Neutral Bay NSW 2089 Dear Sir, Re: Mrs Top At Neutral Bay Pty Limited (Administrator Appointed) ACN: 116 121 227 I refer to your letter dated 25 June 2012 and to your letter dated 10 July 2012. I confirm that on 10 July 2012 a Deed of Company Arrangement was executed with control of the company returning to the company's director. I reiterate that pursuant to section 443B(2) I am not liable for rent except for the period that commences after the 5 business days after the administration period commenced. Accordingly, I am liable for rent for the period 21 June 2012 to 9 July 2012. This amounts to 19 days of a calendar month or an amount of $2,698.98. Accordingly, please find attached a cheque for an amount of $2,698.98. Should you have any queries, please contact Ms Belinda Cang or Mr Josh Taylor of this office on (02) 9251 5222. Yours faithfully Mrs Top At Neutral Bay Pty Limited (Administrator Appointed) 1. There was also annexed a statement by Mr & Mrs Slabaspyckj which forms part of the evidence in the case and was not challenged. Re: Mrs Top at Neutral Bay 242 Military Road Dear Mr Croll Further to your telephone conversation of Thursday last we confirm that Christian Stadler was actively in the above restaurant from September 2005 to February 2006 when he completed the purchase from ourselves and had the lease assigned to him through our solicitors. We also confirm that at the time he was aware of the councils order to remove the timber structure at the rear having opened a letter from the council confirming the order addressed to the owners of the premises at 242 Military Road. As a result of the above we reduced the sale price of the business from $115,000 to $80,000 and ultimately to $20,000 principally to 19.000 A. compensate for the loss of customer space attached to the restaurant. Yours sincerely 1. Mr Croll said that after September 2011 he received no complaint whatever from Mrs Top concerning water in the back courtyard or broken water pipes until after its tenancy terminated. He denied Mr Stadler's allegation that there had been frequent complaints. 2. Mr Croll itemised Mr & Mrs Tripodina's claim against Mrs Top at $18,821.67. This was made up in accordance with the letter from his firm to the Registrar of the Administrative Decisions Tribunal dated 18 October 2013: Particulars of claim by the lessors pursuant to Tribunal Application 135079 Tripodina v Mrs Tops at Neutral Bay Pty Ltd 1. Shortfall in monthly rent paid on 31/08/2011 $1,570 such shortfall represents cost of a visit by lessees plumber following flooding of an illegal structure erected by lessee at the rear of the restaurant. Lessors plumber arrived 3 hours later. Neither plumber was able to solve the problem. Lessee expects both plumbers to be paid by the lessor. 2. Shortfall in monthly rent of $4261.55 paid by administrator for Mrs Tops of Neutral Bay Pty Ltd on 20/07/2012 claimed to be only money available for distribution. Payment of rent is guaranteed under the lease by both director C. Stadler and shareholder A Maynard of the subject company. Shortfall $1562.57. 3. Rent unpaid from22/06/13 to 22/08/13 at $4,261.55 per calendar month plus eighteen days at $140.10 per day to the 09/09/2013 all including GST. Total rent owing 22/06/13 to 09/09/13 = $11045.00. 4. Water usage and grease waste charges outstanding $322.82. 5. Interest on above items 1 and 2 up to 09/09/13 as per attached schedule $636.28. 6. Cost of reinstatement in accordance with Clause 18 of Annexure A of tenant's lease agreement as per attached schedule $3685.00. Total amount claimed by lessor up to 09/09/13 amounts to $18,821.67. 1. I was impressed with Mr Croll as a very experienced and capable Real Estate Agent. In my assessment he was a truthful witness doing his best to assist the Tribunal. I prefer his evidence to the extent that it conflicts with that of Mr Stadler. Indeed his evidence on one important aspect namely the state of Mr Stadler's knowledge as at November 2005 of the unauthorised works which the council required to be removed is corroborated by Mr and Mrs Slabaspyckj. I accept the evidence that such was the state of Mr Stadler's knowledge that he used it as a bargaining weapon in having the price of the business dramatically reduced. I also accept Mr Croll's evidence that after August 2011 he was never made aware of a repeat flooding of the back area of the premises nor was any complaint made to him by Mr Stadler. In my opinion Mr Stadler was less than frank in his presentation of Mrs Top's case to the Tribunal it being significant that there is no documentary support and that MrsTop continued in occupation as a monthly tenant for a period of two years after the alleged problem arose. 2. In his written submissions Mr Ziman correctly in my view asserted that the rear courtyard was included in the premises and on the face of it was available to be used for the seating of patrons of the restaurant. However although there was a roof structure over the courtyard when Mr Stadler inspected the premises in the latter half of 2005 I am satisfied that before Mrs Top committed itself to the purchase Mr Stadler was aware that the Council regarded the structure as illegal and required it to be removed. Indeed Mr Stadler used his knowledge of that fact in having the price reduced. Mrs Top is accordingly in my opinion not in a position to claim from Mr & Mrs Tripodina any loss alleged to arise from the lack of a roof or other covering over the courtyard. 3. In relation to the claim based on water allegedly bubbling into the courtyard from a broken pipe, as indicated earlier I accept the evidence of Mr Croll in preference to the evidence of Mr Stadler. 4. In my opinion Mr Stadler greatly exaggerated the extent of the problem. I accept Mr Croll's evidence that there was only one complaint about water bubbling into the courtyard and that was made on 25 August 2011 at which time Mrs Top was a monthly tenant only. I am satisfied that Mr Croll promptly attended to the one complaint made to it as revealed in the Email dated 30 August 2011: I have spoken to the owners, to my plumber and to GIO insurance. It seems it is not a straightforward solution. We have asked GIO to take immediate action but it is likely that we will need access to all adjoining properties at one time, which we are trying to arrange. Omega Plumbing's proposal to excavate into the stormwater pit in the laneway is all very well but it does involve digging up other people's property which may not be possible regardless of whether their quote is accepted or not. I will ask the owners if they are happy for Universal Plumbing to fill in the hole for now, to allow you to continue trading in the rear courtyard. As for the lease, I will ask Colin to contact you again. I understand from the lease that the rent is due on the 22nd Aug but has not yet been received and the Tripodina's advise that the water rates should be paid out of this. I will contact you again as soon as I have a further update. Please confirm if you have paid Omega Plumbing's original account in full. Regards Gary Bixley – BA (Hons) Dip Surv (UK) Associate Director Property Management First National Real Estate ׀ Croll 1. I am not persuaded by Mr Stadler's evidence that the water he claims to have seen on 25 August 2011 emanated from a broken pipe which may or may not have been the responsibility of Mr & Mrs Tripodina. The report in evidence of Hydraulic & Fire Services Consultants seems inconclusive. Further I am not persuaded that the presence of water in the courtyard on any subsequent occasion inhibited the conduct by Mrs Top of its restaurant business. 2. Mrs Top has not in my view established any basis for an abatement of rent or any other entitlement to compensation. Its claim should be dismissed. 3. As to the claim by Mr & Mrs Tripodina there seems no challenge to their entitlement to an order in their favour for arrears of rent outgoings and interest totalling $15,136.67 I do not however in the circumstances accept the claim for reinstatement costs in the absence of evidence as to the condition of the premises at the commencement of the lease. Although I propose to order that all three respondents to the claim of Mr & Mrs Tripodina pay $15,136.67 to Mr & Mrs Tripodina I accept that Mrs Top is not liable for $1,562.57 of that claim. Mr Stadler and Mr Maynard both guaranteed the obligations of Mrs Top under the lease. 4. Mr Ziman in his submissions was very critical of the evidence of Mr Tripodina given in the form of a sworn document. The criticism was justified in that it appeared during cross examination that Mr Tripodina can neither read nor write English. However the evidence of Mr Tripodina was of very marginal relevance and in my view should not of itself as Mr Ziman submitted warrant an order for costs being made against him. 5. In relation to costs as this was essentially a commercial dispute between business men and women I think there are special circumstances within s 60(2) of the Civil and Administrative Tribunal Act 2013 and that costs should follow the event. However Mr Ziman in his submissions indicated that his client made offers of compromise. In case he seeks to rely on any offer in the light of the order I propose to make I will give him liberty to apply on 7 days notice to the Registrar and other parties. Orders 1. Application by Mrs Top dismissed. 2. On application by Mr & Mrs Tripodina order that Mrs Top, Mr Stadler and Mr Maynard pay the sum of $15,136.67 to Mr & Mrs Tripodina. 3. Subject to paragraph 44 order Mrs Top to pay the costs of Mr & Mrs Tripodina as agreed upon or as assessed. D Patten Principal Member Civil and Administrative Tribunal of New South Wales 17 December 2014 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: 12 February 2015