Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Grenade v Nikolvski [2019] NSWCATAP 57 Hearing dates: 27 September 2018 Date of orders: 15 March 2019 Decision date: 15 March 2019 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member D Robertson, Senior Member Decision: (1) Application for leave to appeal refused. (2) Appeal dismissed. (3) The stay granted on 13 July 2018 in regard to the orders made in proceedings file no COM 18/1574 is lifted forthwith. Catchwords: LEASES AND TENANCIES – retail and commercial tenancies legislation – retail shop lease - whether lease had a minimum term of five years or was a month to month lease – claim for compensation brought out of time - whether the appellant suffered a substantial miscarriage of justice through the dismissal of application Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Conveyancing Act 1919 (NSW) Retail Leases Act 1994 (NSW) Retail Leases Amendment (Review) Act 2017 (NSW) Cases Cited: Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Category: Principal judgment Parties: Judex Grenade (Appellant) Sash Nikolvski (Respondent) Representation: Appellant in person B Grant, with leave as agent for the Respondent File Number(s): AP 18/29220 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 04 June 2018 Before: D Goldstein, Senior Member File Number(s): COM 18/05689, COM 18/05700 and COM 18/15716 Reasons for decision Introduction 1. The appellant, a former tenant of retail premises at Yagoona (the shop) owned by the respondent landlord, seeks to appeal against orders of the Tribunal in the Consumer and Commercial Division, made on 1 June 2018. By those orders, the Tribunal dismissed two applications brought by the appellant (file no COM 18/05689 and COM 18/05700) and made the following orders in respect of an application brought by the respondent landlord (file no COM 18/15716): 1. The Secretary of the Department of Industry, Skills and Regional Development must pay Retail Bond 236061211 … of $600.00 to Sash Nikolvski. 2. Judex Grenade must pay the sum of $3,919.85 to Sash Nikolvski. 1. The Tribunal published its reasons for decision three days later. 2. The decision of the Tribunal in respect of each application is an internally appealable decision: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 32 and 80(1) and (2)(b). An appeal lies to the Appeal Panel from the decisions of the Tribunal as of right on a question of law, or with the leave of the Appeal Panel on any other grounds. 3. As this is an appeal from a decision of the Tribunal in the Consumer and Commercial Division, cl 12 of Sch 4 of the NCAT Act applies and the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. For the reasons that follow we have found that the Tribunal erred in its application of the Retail Leases Act 1994 (NSW) (RL Act) as it governed the term of the lease entered into between the parties. That error, as we have explained, was a misapplication of s 6A(4) of the RL Act as it applied at the time the appellant and the respondent executed their lease agreement (i.e. as at 31 March 2014). The Tribunal also erred in failing to apply s 16 of the RL Act as it applied on 31 March 2014. It was that section, which provided for a statutory 5 year term for a retail tenancy agreement of 6 months or longer, unless the lessee provided a certificate from a lawyer or licensed conveyancer certifying that he/she had explained to the lessee the effect of that provision and that the effect of giving a certificate would mean that the statutory 5 year term would not apply. As the Tribunal applied the wrong legislative provision to the facts before it, this was an error of law. Notwithstanding this error we have not allowed the appeal because, on the material before us: 1. the respondent lawfully terminated the lease when he locked the appellant out of the shop on 5 February 2018; and 2. the error in the Tribunal's reasons for decision does not affect the orders made by the Tribunal. 1. For the reasons set out below, we are also not satisfied that the appellant has established any other error by the Tribunal or that he had suffered a substantial miscarriage of justice in so far as the Tribunal dealt with his claim for compensation or the respondent's claim for outstanding rent, 2. Accordingly, we have made orders refusing the appellant's application for leave to appeal and dismissed his appeal. We have also made an order lifting the stay granted by the Appeal Panel on 13 July 2018 in regard to the orders made in the respondent's claim. Background 1. The appellant and the respondent entered into a written pro-forma 'Commercial Lease' for the shop. The term of the lease was for one year, from 31 March 2014 to 30 March 2015. The lease did not provide for an option to renew the lease. However, the lease contained a provision in regard to holding over that was in the following terms: Unless either party gives the other written notice at least one month before the end of the term that vacant possession shall be given on that day, the lease shall continue as a periodic lease from month to month at the same rent or at a rent which both parties agree to. 1. Under the terms of the written lease, the shop was to be used as a coffee and retail shop. 2. Clause 30 of the pro-forma 'Commercial Lease' relevantly provided as follows: 30. (a) Where the lease has become a periodic lease from month to month, either party may terminate it by giving one month written notice. (b) The landlord shall have the right to re-enter the premises peacefully or to continue the lease as a periodic lease from week to week: (i) Where the tenant has failed to pay rent for a period in excess of fourteen days, whether formally demanded or not, … 1. On 6 November 2017, the respondent issued a pro-forma 'Notice of Termination' on the grounds of the appellant's alleged failure to pay rent. The Notice required the appellant to vacate the shop no later than 24 November 2017. The appellant denied receiving that Notice. The respondent did not take any action in reliance upon the Notice and did not rely upon it at the hearing. 2. On 27 November 2017, the respondent issued a further Notice of Termination, which required the appellant to vacate the premises on 31 December 2017. The Notice stated that the grounds on which the lease was being terminated was clause 30 and 30(a) of the lease - namely the termination of a month by month periodic tenancy. 3. On 1 February 2018, the respondent, through his agent, sent an email to the appellant in which he was given notice that the respondent would change the locks to the shop on 2 February 2018. 4. The respondent locked the appellant out of his shop on 5 February 2018. On the same day, the appellant lodged his applications with the Tribunal (file no COM 18/05689 and COM 18/05700). In his first application, the appellant sought an interim order to prevent the respondent locking him out of the shop. In that application, the appellant asserted that the termination notice issued by the respondent was unlawful. 5. In his second application, the appellant made a claim for $130,450, which included a claim for $100,000 compensation for loss and damage. The appellant's compensation claim related to expenses he had incurred at the commencement of the lease (i.e. 'electrical installation, painting, flooring and partitioning'), compensation for the unavailability of hot water for 4 years and equipment damage due to the respondent's failure to repair leaks to the shop. 6. The appellant's claims came before the Tribunal, for directions, in the Consumer and Commercial Division, on 13 February 2018. 7. On 3 April 2018, the respondent lodged his application with the Tribunal seeking an order for the payment of outstanding rent, an occupation fee for storage of the appellant's goods that were left in the shop and reimbursement of the costs of repairs for damage caused by the appellant (file no COM 18/15716). Appellant's Notice of Appeal and Respondent's Reply to Appeal 1. In his Notice of Appeal the appellant contended that his lease had been unlawfully terminated because it was a 5 year lease under the terms of the Retail Leases Act 1994, as it applied at the time the lease was entered into. 2. The appellant also identified the following as additional grounds of appeal: … [I] am seeking leave to appeal against the dismissal of my application and the orders made against me on the grounds of (me) Substantial Miscarriage of Justice. (ii) Tribunal Member direction wrong in law and so I was wrongly and unjustly penalized. (iii) I was not given a fair hearing and my witness was not questioned and cross examined. (iv) The Tribunal has unlawfully associated all my individual claims under one umbrella. (v) He has failed to consider and give weight to my points of facts and statutory declarations and evidence provided. (vi) On the contrary he has given full consideration to the Landlord bare statement of claims though not supported by statutory declaration. … 1. The appellant expanded on these grounds of appeal in his Notice of Appeal and in his written submissions that were filed and served subsequently. 2. In his Reply to Appeal, the respondent said he supported the original orders made by the Tribunal below. Material before the Appeal Panel 1. Neither the appellant, nor the respondent appear to have filed and served in this appeal all the material that was before the Tribunal blow. 2. However, the appellant did file and serve a small bundle of documents that included a copy of the lease signed by the parties on 7 March 2014, a statutory declaration of the appellant and dated 12 April 2018 and a statutory declaration of the appellant's wife, Marie Lilette Grenade, dated 13 April 2018. Also included in the bundle were photographs of the shop and a copy of the respondent's termination notices of 6 November 2017 and 27 November 2017. 3. At the hearing, the parties agreed that this material had been before the Tribunal below. Also included in the appellant's bundle of documents was a further statutory declaration of the appellant dated 26 June 2018 and some additional material that was not before the Tribunal below. With the exception of paragraphs 3, 4 and 6 of the appellant's 26 June 2018 statutory declaration, we did not accept this additional material into evidence as it was not before the Tribunal below, yet it was material reasonably available at the time of the hearing before the Tribunal below. 4. The appellant also filed a CD recording of the hearing below. However, contrary to the directions made on 12 July 2018, he did not provide a typed copy of the relevant parts on which he relied for the purpose of his appeal. 5. The respondent also filed and served an additional statutory declaration dated 17 September 2018. For the same reasons set out above, we did not accept this statutory declaration into evidence. 6. Both parties filed and served written submissions. We have dealt with these submissions and evidence below. The decision of the Tribunal 1. The Tribunal found: 1. the agent of the respondent represented to the appellant and his wife that the lease was renewable on a yearly basis (see reasons for decision at [19]); 2. the representation of the respondent's agent was misleading and deceptive 'as it was likely to lead the lessee into error because it was contrary to the position written on the lease that there was no option to renew the lease' (see reasons for decision at [20]); 3. because the appellant failed to take any action to renew the lease under the terms of cl 33 of the lease: 1. the appellant had failed to establish that he had suffered any damage or detriment because of the representation of the respondent's agent (see reasons for decision at [23]); 2. the lease was a periodic month to month lease capable of being terminated on a months notice under cl 30(a) of the lease (see reasons for decision at [24]); 1. the lease was effectively terminated by the respondent's Notice of Termination issued on 27 November 2017 (see reasons for decision at [24]); 2. section 44 of the RL Act did not apply to the facts of that case because: 1. if, as asserted by the appellant, there was a right to renew the lease by reason of the representation of the agent for the respondent, s 44(5) applied to the effect that that s 44 did not apply; and 2. the respondent took no action under s 44(1) which had the potential to enliven s 44(3) – however as the appellant did not request an extension of the lease, s 44(3) was not enlivened (see reasons for decision at [28]); 1. by reason of s 6A(4) of the RL Act, the appellant did not obtain a 5 year lease because there was no evidence of the appellant having stated in writing that he had elected to have the benefit of a 5 year term (see reasons for decision at [28]); 2. the appellant's claims related back to the commencement of the lease but were not articulated until 13 April 2018 when his Points of Claim were filed in the Tribunal. This was outside the prescribed 3 year period in s 71B of the RL Act and leave was not granted for the appellant to lodge those claims outside that time (see reasons for decision at [31] to [33]); and 3. the lessors claim for $1,809.85 in unpaid rent, $110.00 for a replacement lock and $2,600.00 for the re-instatement of the shop was accepted (see reasons for decision at [37] to [42]). Retail Leases Act 1. The RL Act regulates retail shop leases within New South Wales. There is no dispute that the shop, the subject of the lease entered into between the appellant and the respondent, was a retail shop in that the shop was used and agreed to be used predominantly for carrying on of a business prescribed in Sch 1 of the RL Act: see RL Act, s 3(1) definition of 'retail shop'. 2. As we have noted, the 'Commercial Lease' between the appellant and the respondent was executed in March 2014. Since that time, in 2017, the RL Act was amended by the Retail Leases Amendment (Review) Act 2017 (RL Review Act). That Act came into force on 1 July 2017. To the extent relevant to this application, set out below are those provision of the RL Act which were repealed. 3. Section 6 of the RL Act sets out those retail lease agreements that are not covered by the provisions of that Act. It is not contended that the lease entered between the parties was a lease falling within that section. Terms of a retail tenancy agreement 1. Section 6A of the RL Act makes provision for short term leases. That section is in the following terms: 6A Application of Act to short-term leases (1) Generally, Act not to apply to short-term leases Subject to subsection (2), this Act does not apply to a lease of a retail shop for a term of less than 6 months without any right for the lessee to extend the lease (whether by means of an option to extend or renew the lease or otherwise). (2) Exception for successive, extended or renewed leases for more than one year If the lessee has been in possession or entitled to be in possession of the retail shop without interruption for more than one year (whether by means of a series of 2 or more leases or by means of an extended or renewed lease or leases, or by any combination of those means), this Act applies to: (a) the lease on and from the day on which the lessee has been in possession or entitled to be in possession of the shop for more than one year, and (b) any succeeding lease or leases of the shop to the lessee, where possession or entitlement to possession is not interrupted. (3) Operation of provisions for disclosure statements Sections 11–12A do not apply to the lease referred to in subsection (2) (a), but apply to any succeeding lease referred to in subsection (2) (b). (4) (Repealed) (5) Operation of other provisions The regulations may provide that, if this Act applies to a lease because of subsection (2), specified provisions of this Act (other than section 11 and Part 2A) do not apply to or in respect of the lease or apply with prescribed modifications. (6) Certain interruptions do not break continuity The regulations may provide that interruptions for a prescribed period or of a prescribed kind are to be disregarded for the purposes of this section. (7) Holding over For the purposes of subsection (1), a provision for holding over by the lessee at the end of the term of the lease does not confer a right on the lessee to extend the lease if it operates at the discretion of each of the lessee and the lessor. (8) Assignment This section has effect in relation to a lease whether or not it is assigned to another person, but if it is assigned the period of possession or entitlement to possession by the assignee is taken to include any period of possession or entitlement to possession by the assignor and any previous assignor. 1. Section 6A(4) was omitted by cl 13 of Sch 1 of the RL Review Act. Prior to its omission, that section provided as follows: (4) Operation of provisions for minimum 5 year term Section 16 (1) and (2) do not apply to the lease referred to in subsection (2) (a) unless the lessee notifies the lessor in writing during the term of the lease that the lessee elects to have the benefit of section 16. However, in that case, any period for which the lessee has already been in possession or entitled to possession of the retail shop without interruption is taken to be included in the term of the lease. 1. Section 7 of the RL Act provides that the provisions of that Act override the provisions of a lease to the extent any provision of the lease is inconsistent with the Act. That section is in the following terms: 7 This Act overrides leases This Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of this Act. A provision of any agreement or arrangement between the parties to a lease is void to the extent that the provision would be void if it were in the lease. 1. Section 16 of the RL Act makes provision for certain retail shop leases to be registered. That section is in the following terms: 16 Certain leases must be registered (1) If a retail shop lease is for a term of more than 3 years or if the parties to the lease have agreed that the lease is to be registered, the lessor must lodge the lease for registration in accordance with the Real Property Act 1900 within 3 months after the lease is returned to the lessor or the lessor's lawyer or agent following its execution by the lessee. Maximum penalty: 50 penalty units. (2) The 3-month period within which a lease must be lodged for registration is to be extended for any delay attributable to: (a) the need to obtain any consent from a head lessor or mortgagee (being delay not due to any failure by the lessor to make reasonable efforts to obtain consent), or (b) requirements arising under the Real Property Act 1900 that are beyond the control of the lessor. (3) For the purposes of this section, the term of a retail shop lease includes any term for which the lease may be extended or renewed at the option of the lessee. Note. For example, a retail shop lease is for a term of more than 3 years if it is for a term of 1 year with an option to renew for a further term of greater than 2 years. (4) … 1. This section was inserted into the RL Act by cl 28 of Sch 1 of the RL Review Act. In inserting that section the RL Review Act omitted the section as it applied up until the commencement date of the RL Review Act. The omitted s 16 of the RL Act was in the following terms: 16 Minimum 5 year term (1) The term for which a retail shop lease is entered into, together with any further term or terms provided for by any agreement or option for the acquisition by the lessee of a further term as an extension or renewal of the lease, must not be less than 5 years. An agreement or option is not taken into account if it was entered into or conferred after the lease was entered into. (2) If a lease is entered into in contravention of this section, the validity of the lease is not thereby affected but the term of the lease is extended by such period as may be necessary to prevent the lease contravening this section. Note. For example, if a lease is entered into for a term of 3 years, its term is extended by 2 years to 5 years. If a lease is entered into for a term of 2 years with an option for a further 1 year after that initial 2 years, the term of the lease is extended to 4 years (with the option for a further 1 year after that initial 4 years). (3) This section does not apply to a lease if a lawyer, or a licensed conveyancer, not acting for the lessor certifies (before, or within 6 months after, the lease was entered into) in writing that: (a) the lessee or prospective lessee requested the lawyer or conveyancer to give the certificate, and (b) the lawyer or conveyancer has explained to the lessee or prospective lessee the effect of subsections (1) and (2) and that the giving of the certificate will result in this section not applying to the lease. If the certificate is given within 6 months after the lease was entered into, then, without affecting the validity of the lease, subsection (2) ceases to apply to the lease and the extension of the term of the lease effected by that subsection accordingly ceases to be operative. (3A) The regulations may prescribe matters that must be included in a certificate under subsection (3) and procedures that must be complied with in connection with the giving or handling of such a certificate. … 1. Under the terms of this section, subject to the provision of a certificate in the form required by s 16(3) and (3A), a retail lease expressed to have a term of 6 months or longer was a lease for at least five years. Transitional and Savings provisions on the coming into force of the RL Review Act 1. Clause 91 of Sch 1 of the RL Review Act inserted a new Part 7 into Sch 3 of the RL Act containing the transitional and savings provisions on the coming into force of the Review Act. 2. Included in this Part was section 44, which preserved the operation of ss 6A(4) and 16 of the RL Act, as they applied prior to its amendment, for retail shop leases that were in force immediately before its substitution with the above section. That section is in the following terms: 44 Minimum 5-year lease term (1) Sections 6A (4), 16, 21A and 48 (3) as in force before their repeal or substitution by the 2017 amending Act continue to apply to a retail shop lease in force immediately before their repeal or substitution. (2) An election under section 6A (4) to have the benefit of section 16 cannot be made after the substitution of section 16 by the 2017 amending Act Termination of a retail shop lease agreement 1. Section 44 of the RL Act makes provision for a Notice to be given by a lessor to a lessee, prior to the expiry of the lease, of their intentions as to whether the lease is to be extended or renewed. At [26] of its reasons for decision, the Tribunal found that this section had no application to the matters before it. For the reasons set out below, in our view, the conclusion reached by the Tribunal below was correct. Hence we have not dealt with this section any further. 2. The grounds on which a retail lease can be terminated by a lessor or lessee are not prescribed under the provisions of the RL Act. Hence, the grounds for termination continue to be governed by the terms of the lease entered into between the parties and the common law. Dispute resolution and determination by the Tribunal 1. Part 8 of the RL Act contains provisions about dispute resolution and Division 3 sets out what disputes (i.e. a 'retail tenancy claim') can be brought to the Tribunal for determination, the time within which those disputes are to be brought and what orders the Tribunal has power to make. 2. Section 70 in Division 3 defines what is meant by the term a 'retail tenancy claim'. That section relatively provides: 70 Definitions In this Division: retail tenancy claim means any of the following: (a) a claim in connection with a liability or obligation with which a retail tenancy dispute is concerned, being: (i) a claim for payment of money (whether or not stated to be by way of debt, damages, restitution or refund), … (iv) a claim for the surrender of possession of specified premises, … (vi) a claim for relief against forfeiture, … (x) without limiting the generality of subparagraph (i), a claim for compensation under section 10, 34, 35 or 62E, (xi) without limiting the generality of any other subparagraph, a claim with respect to the entitlement of a party or former party under a lease to receive payment of the whole or a part of a security bond 1. Section 10 of the RL Act gives a party (the injured party) to a retail shop lease the right to seek compensation 'for damage suffered by the injured party that is attributable to the injured party's entering into the lease as a result of a false or misleading statement or representation' made by the other party to the lease. 2. Section 62D of the RL Act provides that: 'a party to a retail shop lease must not, in connection with the lease, engage in conduct that is misleading or deceptive to another party to the lease or that is likely to mislead or deceive another party to the lease'. 3. Section 62E gives a party or former party to a retail shop lease who suffers loss or damage by reason of misleading or deceptive conduct of the other party a right to seek compensation for any loss or damage arising from the misleading or deceptive conduct. 4. Section 62B(1) and (2) prohibit a lessor and a lessee from engaging in conduct, in connection with a retail lease shop lease that is, in all the circumstances unconscionable. Section 62B(3) sets out the matters the tribunal may have regard to in determining whether the lessor or lessee has contravened s 62B(1) or (2). 5. Section 71(1) gives a party or former party to a retail shop lease the right to lodge a retail tenancy claim with the Tribunal for determination of that claim. However, s 71(2) provides that a claim may not be lodged more than 3 years after the liability or obligation that is the subject of the claim arose. 6. Section 71A(1) gives a lessor or lessee, or a former lessor or lessee of a retail shop lease the right to lodge an unconscionable conduct claim with the Tribunal for determination. Section 71A(2) also provides that an unconscionable conduct claim is to be lodged no more than 3 years after the alleged unconscionable conduct. 7. Section 71B makes provision for retail tenancy claims that are lodged with the Tribunal outside the three year time limit. That section provides as follows: 71B Lodging of claims after 3 years (1) A retail tenancy claim may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose, if the Tribunal orders that the claim may be lodged with the Tribunal. (2) An unconscionable conduct claim may be lodged more than 3 years but no later than 6 years after the alleged unconscionable conduct occurred, if the Tribunal orders that the claim may be lodged with the Tribunal. (3) The Tribunal may make an order under this section: (a) on application by the party or former party concerned, and (b) after hearing such of the persons likely to be affected by the application as it sees fit, and (c) if the applicant satisfies the Tribunal that it is just and reasonable to make the order. 1. Section 72 sets out the orders the Tribunal is able to make in determining a retail tenancy claim. Ground of appeal 1 – lease unlawfully terminated because it was a 5 year lease 1. As we have noted, the appellant contended that, notwithstanding the one year term of the written 'Commercial Lease' he and the respondent executed on 31 March 2014, the lease was a lease for a term of 5 years. 2. At [28] of its reasons for decision, the Tribunal rejected this argument and said: 28. The lessee also referred to section 6A of the Retail Leases Act 1994. I find that because of section 6A(4) the lessee did not obtain a 5 year term because there is no evidence of the lessee having stated in writing that he elected to have the benefit of a 5 year term. 1. In our opinion, the Tribunal misapplied s 6A(4) to the written retail shop lease between the appellant and the respondent. 2. Section 6A, as we have noted in paragraph 32 above, applies to short term leases. Other than the deletion s 6A(4), the terms of this section were not amended by the RL Review Act. 3. Section 6A(1) provides that, subject to s 6A(2), the RL Act does not apply to a lease of a retail shop for a term of less than 6 months without any right for the lessee to extend the lease' (italics added). The lease between the appellant and the respondent did not fall within this subsection. 4. Section 6A(2) provides that where 'the lessee' remains in possession or entitled to be in possess without interruption for more than one year then the RL Act does apply to: (a) the lease on or from the day on which the lessee has been in possession or entitled to possession and (b) any succeeding lease or leases of the shop where possession or entitlement to possession is not interrupted. 5. Section 6A(4), as we have noted in paragraph 33 above, provided that s 16(1) and (2) did not apply to the lease referred to in ss 6A(2)(a) unless 'the lessee' notifies the lessor, in writing, during the term of the lease that 'the lessee' elects to have the benefit of s 16. 6. In our view, on its proper construction, s 6A(4) gave a lessee of a short term lease (i.e. a lease for a term of less than 6 months) the opportunity to elect to have the benefit of a five year lease under s 16 where that lessee goes on, uninterrupted, to remain in possession or is entitled to be in possession for more than one year. As the term of the lease agreement between the appellant and the respondent was not a short term lease, s 6A(4) had no application to that lease. 7. The applicable section was s 16 as it applied at the time the lease was executed. As we have noted in paragraph 36 above, s 16(1) provided that the term of a retail shop lease was five years and as that lease was in force as at 1 July 2017, when the RL Review Act came into operation, s 16(1) in its original form continued to apply. Yet the Tribunal appears not to have had regard to it, or alternatively it failed to apply it. 8. Accordingly, we find that the Tribunal erred, on a question of law, in its application of s 6A(4) of the RL Act to the lease executed between the appellant and the respondent. The Tribunal also erred, on a question of law, in failing to apply s 16 of the RL Act as it applied at the time the lease was executed. 9. The appellant did not argue this point before the Tribunal. What the appellant had argued was that the respondent had misrepresented to him and his wife that the one year term of the 'Commercial Lease' they were executing was a renewable lease at the end of every year. The Tribunal accepted the appellant's argument and approached the matters in issue accordingly. 10. The appellant first raised this point in the documents attached to his Notice of Appeal. The respondent did not suggest that there was any additional evidence that he might have sought to lead if this issue had been raised before the Tribunal. In those circumstances, although ordinarily a party will not be permitted to raise on appeal an issue which was not raised at trial, we consider the appellant should be permitted to rely on this issue on appeal. 11. As the Court of Appeal held in Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58: 76 There are recognised exceptions to the principle that a party is bound by the conduct of his or her case. Thus, there are cases which recognise that when a question of law is raised for the first time in an ultimate court of appeal (as well as an intermediate court of appeal), as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 (at 319) per Mason J; Coulton v Holcombe (at 8). This exception will not apply where, if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 ("Multicon Engineering") (at 645) per Mason P (Gleeson CJ and Priestley JA agreeing). 77 The particular circumstances of each case must be considered, "with due recognition that mistakes occur, that second thoughts are sometimes good thoughts, and that the appellant is entitled to justice; but extending justice to an appellant who has failed to take a point at the trial may work an unacceptable injustice on the respondent": Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (at [18]) per Giles JA (Mason P and Priestley JA agreeing). 1. If it is accepted that the retail shop lease between the parties was for a term of five years, that lease was due to expire by 30 March 2019, this year, unless lawfully terminated prior to that date. 2. On the material before us, we find that the five year lease between the parties did come to an end (i.e. was terminated), on 5 February 2018, when, under the terms of the lease agreement, the respondent lawfully took possession of the premises. 3. Under cl 9 of the written lease, the appellant agreed 'to pay rent promptly and in advance'. As we have noted, the appellant also agreed, under the terms of cl 30(b)(i) of the written lease, as follows: 30(b) The landlord shall have the right to re-enter the premises peacefully or to continue the lease as a periodic lease from week to week:- (i) Where the tenant has failed to pay rent for a period in excess of fourteen days, whether formally demanded or not, … 1. Under the terms of the lease agreement, the rent was specified to be $150.00 per week. At [37] of its reasons for decision, the Tribunal accepted the evidence of the respondent that, as at 5 February 2018, there was an amount of $1,809.85 in rent owing by the appellant. This represented 12 weeks of outstanding rent. 2. Clause 30(b)(i) of the written agreement gave the respondent the right to re-enter (i.e. take possession) of the shop where the appellant had failed to pay rent for two weeks. Under the terms of the lease, the lessor's right was not subject to any requirement to first make a demand for the payment of the outstanding rent or to give notice of the proposed action. 3. While s 129 of the Conveyancing Act 1919 (NSW), requires a lessor to give the lessee notice of the intention to re-enter leased premises (including a leased retail shop) on grounds of a breach of the lease by the lessee, s 129(8) expressly provides that this section does not 'affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent'. 4. Accordingly, the respondent's actions in locking out the appellant on 5 February 2018 were lawful under the terms of cl 9 and 30(b)(i) of the written 'Commercial Lease'. In light of this finding, it is unnecessary to decide whether the respondent's Notice of 27 November 2017, terminating the lease on the grounds that it was a periodic tenancy, was lawful is unnecessary to decide. 5. Having been locked out, the appellant, as he was entitled to do, lodged his claim in the Tribunal seeking a stay, or what is commonly understood as relief against forfeiture. It would appear that this application was not finally determined until 1 June 2018 when the Tribunal dealt with both of the appellant's applications. We understand the appellant did not, in any event, seek to have the lease agreement re-instated at that time. 6. The lease having been terminated by the respondent, on the basis of the appellant's breach (repudiation) of the lease (i.e. by a failure to pay rent as agreed and at the time of the lock out being 14 days in arrears, or a failure to give up possession as specified in the 27 November Notice), the respondent was entitled to bring a claim for the outstanding rent and any loss or damage suffered by him as a result of the appellant's breach of the lease. 7. Accordingly, while the Tribunal did err on a question of law, in our opinion, on the material before us, the error did not alter the ultimate finding of the Tribunal that the lease having been validly terminated the respondent was entitled to make a claim for outstanding rent to 5 February 2018, the cost of replacing the locks and the costs of repairs to the shop caused by the appellant. Ground of appeal 2 – wrong directions 1. The appellant contends that, at the directions hearing on 13 February 2018, the Tribunal asked the respondent whether he sought to file and serve a cross-application. He asserts that it was as a result of this remark that the respondent filed and served his application, and that that, was not fair and equitable and prejudiced his applications which had been brought first. 2. The respondent has not disputed the contention of the appellant that he filed and served his application following the 13 February 2018 directions hearing. We have not been provided with a copy of a transcript of what was said during the course of the directions hearing that day. Nor do we have a copy of the directions that were made. In any event, in our opinion, a direction to the effect that the respondent file and serve any application by way of cross claim was entirely appropriate in light of the appellant having been locked out of the shop some eight days earlier and it was entirely appropriate for the Tribunal to raise that issue at the first directions hearing in the appellant's matters. It was a matter for the respondent whether he did or did not file and serve an application by way of cross claim. 3. Consistent with the guiding principle for the NCAT Act and its procedural rules, an order to this effect at the first directions hearing was appropriate so that all matters in issue between the parties could be determined at the same time. The guiding principle is set out in s 36(1) of the NCAT Act which provides that for the NCAT Act and the procedural rules, in their application to proceedings before the tribunal, the guiding principle is to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings'. 4. Accordingly, we are not satisfied that the appellant suffered any prejudice or injustice in the Tribunal having raised with the respondent, on 13 February 2018, the question whether he sought to bring a cross-application. In this regard, we note that the appellant was given ample opportunity to respond to the claim that was made by the respondent. 5. Accordingly, the appellant has failed to establish this ground of appeal. Ground of appeal 3 – not given a fair hearing 1. In his written submissions the appellant raised concerns about the Tribunal having reached a number of conclusions without having questioned his wife. He also asserted that the Tribunal made findings adverse to him in the absence of the respondent having put on any evidence in this regard. 2. Section 38 of the NCAT Act contains provisions concerning the Tribunal generally. Subsection 38(2) provides that: 'the Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice'. 3. Section 38(4) of the NCAT Act provides that: 'the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.' 4. In the absence of a transcript of that portion of the sound recording which the appellant asserts would evidence the Tribunal not giving him a fair hearing, we are unable to make any findings in this regard. We note from the Tribunal's reasons for decision, that both parties filed evidence and were each given an opportunity to address the Tribunal. 5. We can understand that the appellant may not be satisfied by the findings of the Tribunal. However, this does not mean the Tribunal erred in the manner in which it conducted the proceedings. It is clear from the Tribunal's reasons for decision that it had regard to the statutory declaration of the appellant's wife in the context of all the evidence that was before it. This did not mean that there was a requirement for the Tribunal to ask the appellant's wife any questions 6. Accordingly, we are not satisfied that the appellant has established this ground of appeal. Ground of appeal 4 – the appellant's claims were all considered under one umbrella 1. The Tribunal dealt with the appellant's alleged misrepresentation claim in the context of the term of the lease agreement. While the alleged representation was made in March 2014, a liability or obligation in respect of misleading or deceptive conduct does not arise until loss or damage is caused by the misleading or deceptive conduct: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514. If the appellant did suffer detriment by reason of the misrepresentation, that did not occur until November 2017 at the earliest when the respondent for the first time sought to give notice of termination of the lease. Hence, this aspect of the appellant's claim arose at that time and not in March 2014 when the representation was made. Accordingly, this claim of the appellant was lodged within the three year time period prescribed in s 71(2) of the RL Act. 2. It is unclear whether the appellant's claim before the Tribunal below included a claim for compensation in regard to the alleged misrepresentation. As we have noted, at [23], the Tribunal below found that he had suffered no damage or detriment because of the representation. 3. At [29] of its reasons for decision, the Tribunal below described the appellant's other claims as follows: 29 In his Points of Claim the lessee makes a number of claims which date back to the commencement of the lease March 2014. At the hearing the lessee stated that his claim was $29,000.00. 1. We have not been provided with a copy of the appellant's Points of Claim to which the Tribunal referred. However, in his statutory declaration, which was before the Tribunal below, the appellant said that when he entered into occupation of the premises he noticed: No lighting at all, Hot Water supply not working, Water leaks from valve and tap, many holes green roll plugs left by the previous tenant. An old ceramic sink was loose and presented a safety hazard for users. 1. The appellant went on to say that on 10 March 2014, he complained to the agent of the respondent, who said he would inform the respondent 'to get the clearance to do the needful'. He said, however, nothing was done. The appellant said that he raised these issues again in April 2014 and still nothing was done. Over time, the appellant said he made some repairs for which he was not compensated and in support of this a few invoices were provided. 2. In her statutory declaration, the appellant's wife made similar statements. 3. We can see no error in the Tribunal dealing with the appellant's compensation claim together. On the material before us, the essence of the appellant's compensation claim related to the state of the shop when he entered into possession. His evidence was that on entering into possession he raised his concerns with the respondent through his agent. However, the evidence is that he did not pursue these concerns with the respondent and appears to have taken some remedial action himself not long after taking possession. It was not until almost four years later that the appellant lodged his retail tenancy claim with the Tribunal in regard to those concerns. 4. In our view, that claim was appropriately dealt with by the Tribunal. The basis of the claim was the state of the premises on the commencement of the lease. 5. This claim of the appellant was clearly brought outside the time prescribed in s 71(2) of the RL Act. Section 71B(3) of the RL Act vested the Tribunal with a discretion to permit the commencement of proceedings after that time if the appellant had satisfied it that it was just and reasonable to do so. In our view, the appellant has failed to demonstrate any error in the Tribunal's reasoning in refusing to permit the commencement of such a claim after the expiry of three years from the date the claim arose. 6. We understand the appellant's claim included an unconscionable conduct claim under s 62B of the RL Act. On the material before us we can see no basis for such a claim. As we have noted, s 62B(3) sets out the circumstances that the Tribunal may have regard to in determining such a claim. These are: 63B (3) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a lessor has contravened subsection (1) in connection with a retail shop lease, the Tribunal may have regard to: (a) the relative strengths of the bargaining positions of the lessor and the lessee, and (b) whether, as a result of conduct engaged in by the lessor, the lessee was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the lessor, and (c) whether the lessee was able to understand any documents relating to the lease, and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the lessee or a person acting on behalf of the lessee by the lessor or a person acting on behalf of the lessor in relation to the lease, and (e) the amount for which, and the circumstances under which, the lessee could have acquired an identical or equivalent lease from a person other than the lessor, and (f) the extent to which the lessor's conduct towards the lessee was consistent with the lessor's conduct in similar transactions between the lessor and other like lessees, and (g) the requirements of any applicable industry code, and (h) the requirements of any other industry code, if the lessee acted on the reasonable belief that the lessor would comply with that code, and (i) the extent to which the lessor unreasonably failed to disclose to the lessee: (i) any intended conduct of the lessor that might affect the interests of the lessee, and (ii) any risks to the lessee arising from the lessor's intended conduct (being risks that the lessor should have foreseen would not be apparent to the lessee), and (j) the extent to which the lessor was willing to negotiate the terms and conditions of any lease with the lessee, and (k) the extent to which the lessor and the lessee acted in good faith. 1. Other than to assert that the conduct of the respondent was unconscionable, the appellant has not pointed to any material that was before the Tribunal which might suggest that any one or more of the above circumstances was relevant, or any other circumstance that would give rise to a conclusion that the conduct of the respondent had been in any way unconscionable. 2. Accordingly, the appellant has failed to establish this ground of appeal. Ground of appeal 5 and 6 – failure to give weight to the evidence of the appellant 1. The essence of this ground of appeal is that the Tribunal should have given more weight to the evidence adduced by the appellant, especially his statutory declaration and that of his wife. The appellant asserted that the respondent had lied and that his claim for compensation had been inflated. He said that the inspection report relied on by the respondent had not been co-signed by him, that he was not the only one using the toilet and that the holes in the walls were those of the previous tenant. The appellant submitted that, on this basis he should not be held responsible for 'the astronomical costs on the invoices' presented by the respondent. 2. Again, we understand that the appellant is dissatisfied with the findings and decision of the Tribunal. However, this does not mean that the findings of the Tribunal were against the weight of the evidence or that the Tribunal had erred in its findings. While the Tribunal had before it the evidence of the appellant, it also had before it the evidence of the respondent which included the evidence of condition of the shop, the appellant's rental arrears and costs incurred by the respondent in changing the locks and repairing the shop. It was clearly open to the Tribunal to acceptance of this evidence in preference to that of the appellant. 3. Accordingly, the appellant has failed to establish this ground of appeal. Conclusions and orders 1. For the reasons set out above, we have found that the Tribunal erred, on a question of law, in its application of s 6A(4) of the RL Act as it applied at the time the retail shop lease was executed between the appellant and the respondent. That section was of no application to the retail shop lease between the appellant and the respondent as it was not a short term lease as prescribed in s 6A(1) and (2). 2. We have also found that the Tribunal erred, on a question of law, in failing to apply s 16 of the RL Act as it applied at the time the retail shop lease was executed between the appellant and the respondent. Section 16(1) of the RL Act provided that a retail shop lease agreement, other than short term lease agreement, was for a term of five years subject to a certificate from a licensed conveyance under s 16(3) under of that Act. Hence, in the absence of a certificate from a licensed conveyance, a five year term of the retail shop agreement between the appellant and the respondent would mean that the lease was not due to expire until 30 March 2019, unless terminated prior thereto. 3. For the reasons set out above, we have found that the respondent lawfully terminated the lease on 5 February 2018, when he re-entered into possession of the shop after the appellant had failed to pay rent for a period in excess of fourteen days, that re-entry being lawful under the terms of cl 30(b)(i) of the written lease agreement. 4. Because we find that the lease had been lawfully terminated, the error of law in the Tribunal's reasons for decision does not affect the orders made by the Tribunal. Accordingly that error is not a ground for setting aside those orders or for allowing the appeal. 5. The appellant has otherwise failed to identify any error in the Tribunal's orders, or reasons for decision. The appellant has also failed to establish that he has suffered a substantial miscarriage of justice because the Tribunal's decision was not fair and equitable, or against the weight of evidence. 6. Accordingly, we make the following orders: 1. Application for leave to appeal refused. 2. Appeal dismissed. 3. The stay granted on 13 July 2018 in regard to the orders made in proceedings file no COM 18/1574 is lifted forthwith. ********** ​ 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: 15 March 2019