Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Robinson v Mistlake Investments Pty Ltd [2019] NSWCATAP 283 Hearing dates: 18 November 2019 Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Goldstein, Senior Member Decision: 1. The appeal is dismissed. Catchwords: LEASES AND TENENACIES – retail lease – make good provision – assessment of damages – no point of principle Legislation Cited: Nil Cases Cited: Nil Category: Principal judgment Parties: Matthew Robinson (Appellant) Mistlake Investments Pty Ltd (First Respondent) Malachite Holdings Pty Ltd (Second Respondent) Representation: Solicitors: Appellant (Self Represented) CCC Law (First and Second Respondents) File Number(s): AP 19/40402 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 09 August 2019 Before: S Thode, Senior Member File Number(s): COM 19/20663 REASONS FOR DECISION 1. This is an appeal without merit. Background 1. The appellant was the tenant of the respondents in relation to commercial premises at Gosford. 2. The lease contained various provisions obliging the appellant to make good the premises at the conclusion of the tenancy. 3. The tenancy concluded. 4. The respondents commenced proceedings in the Tribunal claiming that the appellant had not returned the premises to the respondents in the condition they were required to be in pursuant to certain terms of the lease, and claimed damages from the appellant for the cost of repairs to return the premises to that condition. 5. The respondents were successful in the Tribunal. 6. The Tribunal assessed damages to be in the sum of $5,910 and ordered that that sum be deducted from the bond, with the balance of the bond to be returned to the appellant. 7. The appellant appealed. The Appeal 1. The appellant's Notice of Appeal listed seven grounds of appeal. Only one ground was argued. No submissions were made in relation to the remaining six grounds of appeal. The appellant, in substance, indicated that the remaining six grounds of appeal were only included by him to antagonise the respondents. 2. We have examined those remaining six grounds to see whether any question of law arises out of them. No question of law is apparent to us. 3. The possibility exists that one or more of those six grounds may contain a ground of appeal not involving a question of law, in which case the question whether leave to appeal on such a ground would need to be considered. 4. However, in order to consider whether those grounds contain some other error, and to consider the question of whether leave to appeal should be granted, we would need to examine all or part of the evidence given below, including the oral evidence. 5. The appellant had been directed to lodge the evidence below (both documentary evidence and the sound recording) upon which his appeal relied. At the same time the appellant had been informed that the issue whether leave to appeal on a ground other than a question of law would be determined at the hearing of the appeal. 6. The appellant did not lodge with the Tribunal the evidence below. In those circumstances it was not possible for us to assess whether a ground of appeal not involving a question of law exists, or whether leave to appeal on such a ground (if it exists) should be granted. 7. Accordingly, leave to appeal on those six grounds is refused and those six grounds need not further be mentioned. 8. The one ground argued by the appellant was that the Tribunal erred in calculating the total amount of the bond the appellant had paid. It was submitted that the appellant had paid a total sum for bond in the amount of $11,249.98, being made up of three separate payments made on different dates, but the Tribunal had only referred to two payments in its reasons for decision which totalled $6,666.64. 9. However, the total amount of the bond paid was irrelevant to the decision below. 10. The issues before the Tribunal was whether the appellant was required to make good, and if so, to what extent. He lost on both issues. The Tribunal's order was that the damages awarded be deducted from the bond, whatever the total amount of the bond deposited was. The total amount of bond paid was not an issue in the hearing below, not was it relevant to the orders made. 11. Put another way, the Tribunal's order would have been no different if the total bond deposited was $11,249.98 or $6,666.64 or any other amount greater than the amount of the damages assessed. Orders 1. The appeal is dismissed. ********** 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: 28 November 2019