Gardener v Bright; Bright v Gardener; Bright v Gardener

[2025] NSWCATCD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gardener v Bright; Bright v Gardener; Bright v Gardener [2025] NSWCATCD 23

Hearing dates:

8 April 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Jurisdiction:

Consumer and Commercial Division

Before:

Graham Ellis SC, Senior Member

Decision:

In 2024/00305756:

(1)   The interim orders made in November 2024 and February 2025 are discontinued.

(2)   As against Lindsay Munro, the application is dismissed.

(3)   The Tribunal declares that the applicant is entitled to re-enter the premises which are the subject of these proceedings.

(4)   The Tribunal orders the respondent to surrender possession of those premises by 5pm on Wednesday 23 April 2025.

(5)   If the respondent fails to surrender possession by that time, the applicant will be entitled to have a writ of possession issued in respect of those premises immediately, in the form set out in Appendix A.

(6)   The respondent is to pay the applicant $1,400 within 14 days of the date of these orders.

(7)  Any application for costs by the applicant is to be provided, to the Tribunal and the respondent, supported by submissions (not exceeding five pages in length) and any relevant evidence, within 14 days of the date of these orders.

(8)   Any submissions (not exceeding five pages in length) and evidence in response from the respondent are to be provided, to the Tribunal and the applicant, within the following 14 days.

In 2024/00381213 and 2024/00390283:

(1)   The application is dismissed.

Catchwords:

RETAIL LEASE – Whether there was a retail lease between the parties – what are the terms of that lease – whether applicant entitled to a writ of possession – claims for arrears of rent and damages assessed

LEASES AND TENANCIES – Whether Residential Tenancies Act 2010 (NSW) applies

Legislation Cited:

Agricultural Tenancies Act 1990 (NSW)

Residential Tenancies Act 2010 (NSW)

Retail Leases Act 1994 (NSW)

Sheriff Act 2005 (NSW)

Cases Cited:

Ashby v Slipper [2014] FCAFC 15

Blatch v Archer [1774] Eng R 2; 1 Cowper 63

Briginshaw v Briginshaw [2938] HCA 34

Carsal and Associates Pty Ltd t/a Triggerpoint Natural Health Centre v Crozier [2024] NSWSC 26

Commonwealth v Amann Aviation Pty Ltd

[1991] HCA 54

Commonwealth v Verwayen [1990] HCA 39

Empirnall Holdings Pty Limited v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

Gallagher v Masters Installation Pty Ltd

[2017] NSWCATAP 117

Gerrard v Slamar [2004] WASC 253

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95

Fox v Percy [2003 HCA 22

Franklins Pty Limited v Metcash Trading Ltd

[2009] NSWCA 407

John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

JP Morgan Australia Ltd v Consolidated Minerals Ltd [2010] NSWSC 100

Legione v Hateley [1983] HCA 11

McCrohan v Harith [2010] NSWCA 87

McMahon’s (Transport) Pty Ltd v Ebbage

[1995] 1 Qd R 185

Mirvac Homes (NSW) Pty Limited v Noakes

[2022] NSWCATCD 49

Mirvac Homes (NSW) Pty Limited v Noakes

[2022] NSWSC 596

Pacorp Holdings Pty Ltd v Waller

[2017] NSWCATAP 167

Precision Plastics Pty Ltd v Demir [1975] HCA 27,

132 CLR 372

Sabouni v Develop Building and Developments Pty Ltd [2021] NSWSC 31

Troulis v Vanvoukakis [1998] NSWCA 237

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

None cited

Category:

Principal judgment

Parties:

In 2024/00305756:
Applicant – Rachel Gardener
Respondents – Rose Bright, Lindsay Munro
In 2024/00381213:
Applicant – Rose Marie Bright
Respondent – Rachel Ann Gardener t/as Gardener Enterprise
In 2024/00390283:
Applicant – Rose Bright
Respondent – Rachel Gardener

Representation:

J Zeitoun, CMC Lawyers Pty Ltd (Rachel Gardener)
R Bright (Self-represented)
L Munro (Self-represented)

File Number(s):

2024/00305756; 2024/00381213; 2024/00390283

Publication restriction:

Nil

REASONS

Overview

1. These applications relate to premises in Baradine in which a café has been operated. Ms Gardener (the landlord) commenced proceedings against Ms Bright (the tenant) and Mr Munro, seeking “an order for re-entry”, damages, and costs. The tenant lodged a cross-application, which primarily sought to have the water reconnected, and then lodged another application which sought the same relief, but on the basis that there was a residential tenancy rather than a retail lease.

2. After considering the evidence and submissions, the Tribunal determined that (1) the landlord was entitled to a writ possession in relation to the premises if the tenant does not surrender possession within seven days, (2) the tenant should be ordered to pay the landlord $1,400 by the tenant within 14 days, (3) the claim against Mr Munro should be dismissed, and (4) the applications lodged by the tenant should also be dismissed.

Hearing

3. Mr Zeitoun, solicitor, spoke on behalf of the landlord, the tenant was self-represented, and Mr Munro was present but did not participate in the hearing.

4. At the outset of the hearing, the parties were advised that there would be three stages to the hearing: (1) identifying the documents upon which the parties wished to rely, (2) any questioning of the other party’s witnesses, ie cross-examination, and (3) submissions as to what should be the outcome of the proceedings, and why.

5. It was necessary to first identify all the documents upon which the parties wished to rely. Some of those documents had to be emailed by the landlord’s solicitor to the Tribunal and the tenant. The hearing was adjourned so that those documents could be emailed and then considered before resuming the hearing.

6. Documents either admitted as evidence of marked for identification were:

Exhibit A      Affidavit of Rachel Gardener dated 19 June 2024

Exhibit B      Affidavit of Rachel Gardener dated 21 October 2024

Exhibit C      Affidavit of Rahcel Gardener dated 9 December 2024

Exhibit D      Affidavit of Rachel Gardener dated 3 April 2025

Exhibit E      Affidavit of Gisela Froehlich dated 9 December 2024

Exhibit F      Affidavit of Meredith Starke dated 9 December 2024

Exhibit G      Affidavit of Genavieve Gardener   dated 27 March 2025

Exhibit H      Affidavit of Jacob Zeitoun dated 4 April 2025

Exhibit J      3 December 2025 letter to Tribunal from CMC Lawyers

Exhibit 1      Affidavit of Rose Marie Bright, neither signed nor dated

Exhibit 2      Affidavit of Rose Marie Bright, signed but not dated

Exhibit 3      Affidavit of Lindsay Munro,   neither signed nor dated

Exhibit 4      Affidavit of Basil Kaadi dated 13 March 2025

Exhibit 5      Affidavit of Geoffrey Hotchkiss dated 13 March 2025

MFI 1         Landlord’s Points of Claim

MFI 2         Tenant’s Points of Claim

MFI 3         Landlord’s Points of Defence

7. There were objections to paragraphs in the evidence upon which the tenant relied. Since the Tribunal is not bound by the rules of evidence in these proceedings, those paragraphs were admitted but it was noted that there would be a question of what weight should be given to any of those paragraphs which contained evidence relevant to the issues in these proceedings.

8. There was cross-examination of the tenant (Ms Bright), and two of the landlord’s witnesses (Gisela Froehlich and Meredith Starke). After the conclusion of cross-examination, the Tribunal adjourned to provide time for the parties to consider the submissions they wished to make.

9. Closing submissions followed the usual sequence of landlord then tenant then landlord in reply so that each party was able to speak in support of their case and to respond to the case of the other party.

Landlord’s evidence

10. The landlord provided four affidavits and was not cross-examined. The first of those affidavits (Exhibit A) referred to events between December 2022 and June 2024 and included an unsigned document headed “Renewal of a Commercial Lease Agreement” that was sent as an attachment to a 23 December 2023 email that was to the tenant but not Mr Munro.

11. In the second affidavit (Exhibit B), it was said that the tenant agreed that to that lease agreement on 24 December 2023, and that there were arrears of rent which was the reason why the landlord attempted to re-enter the premises in February 2024. This affidavit sought “an order for re-entry”, $9,000 for arrears of rent, and costs of the landlord’s application. The annexures to this affidavit included copies of bank statement pages.

12. Exhibit C, being the third affidavit of the landlord, replied to the first affidavit of the tenant (Exhibit 1). This affidavit annexed a copy of a document headed “Commercial lease agreement” but did not provide any evidence of either how that was provided to the tenant or the tenant’s response to that document.

13. Exhibit D, the fourth affidavit of the landlord, replied to the affidavits of Mr Hotchkiss and Mr Kaadi, provided evidence of what was said to have occurred after the order made by the Tribunal on 4 February 2025, and denied that there was ever an employment relationship as alleged by the tenant.

14. Gisela Froehlich swore an affidavit (Exhibit E) in which she said that, early in September of 2023, she was invited by the tenant to operate a retail business from the subject premises on the basis that she would pay weekly rent of $100. That business was said to have operated for four weeks and was said to have ceased on 14 December 2023. This affidavit suggested that stock was left at the premises, at the request of the tenant, that the deponent was not permitted to collect that stock, and that such stock was being sold by the tenant at the Coonabarabran Easter markets in 2024. Four pages of handwritten annexures included details of seven payments of rent, said to be for the period from 26 October to 14 December in 2023.

15. When asked “Did I you ever ask you to come into my place of business?” the witness said she did. Otherwise, there is nothing material arising from the cross-examination of this witness since a proposition put in a question does not become evidence of that proposition if that proposition is denied.

16. Re-examination revealed that the witness operated a business named Cockney Rebel, that the tenant gave her permission to run that business in her shop, that she thought the landlord had consented to that arrangement and later found out that was not the case.

17. Meredith Starke provided an affidavit (Exhibit F) which referred to the changing of the locks of the premises on 20 December 2023 and subsequent events. The events surrounding the changing of those locks was explored by eight questions asked in cross-examination and there was no re-examination.

18. Genavieve Gardener, the landlord’s granddaughter, was not cross-examined in relation to her affidavit (Exhibit G). That affidavit set out what was said to have occurred prior to the tenant running the café at the subject premises.

19. Her evidence may be summarised as follows: (1) after the subject premises became vacant in August 2022, this witness and the tenant’s daughter agreed to start up a café at those premises, (2) the landlord provided a six month rent-free period, with rent to commence in March 2023, (3) it was agreed that only the landlord and her granddaughter would be permitted to charge amounts to Gardener Enterprises Pty Ltd, but the tenant did that, (4) the business commenced on or around 22 September 2022, (5) when the tenant and her daughter returned from a trip to Sydney, this witness decided she did not wish to run the café business, and (6) it was then decided that the tenant would run the café on her own.

20. Jacob Zeitoun, the landlord’s solicitor, provided an affidavit (Exhibit H) in which he set out details of events between 4 February and 26 March in 2025, including an explanation of why mediation had not occurred.

21. Exhibit J, a letter from the landlord’s solicitor to the Tribunal, suggested that the landlord had not complied with the order made on 14 November 2024 for her to reconnect the water to the premises as she could not afford to do so.

Tenant’s evidence

22. The tenant submitted two affidavits and was cross-examined. As the first of those affidavits (Exhibit 1) mirrors the second affidavit (Exhibit 2), but with [2] added, it is only necessary to refer to the first of those affidavits. It was said that the tenant ran the café business from 21 September 2021 until 2023, when the name of that business was said to have been changed from Casey’s Corner Café to Twisted Rose Café Baradine. The affidavit went in to say, in [17]:

From this date I have now given [the landlord] $3,890 a sum of $2200 for bond on the 24/07/2023. I have bank statements from Westpac to show that after I was granted a Grant from NSW Government A sum of $5000.00 in which [the landlord] demanded I pay her, she also gave me the responsibility of paying the Land and water rates which are still in her name. I paid these through a way of lawyers, which [the landlord] had contacted and advised for them to send these through to myself with a change of ownership paperwork. This was done through SRLAW.

23. It was also said that, in December 2023, the tenant refused to sign a renewal lease “because it had all sorts of conditions in it favouring her which I couldn’t do and named Lindsay (Munro) as a tenant which he has never been to her.” Allegations were also made as to the conduct of the landlord.

24. When cross-examined, the tenant confirmed she is still living in the premises and indicated that she is a second-year law student. The tenant contended that she did not take over the cafe business for the landlord but instead ran it for her. Asked if she had seen a copy of the lease document, the tenant said she saw it not long before these proceedings. Her evidence was that she had a verbal agreement with the landlord who gave her permission to “open, run, manage and reside” but she accepted there was no evidence of any such conversations in her affidavit evidence. It was accepted that she purchased gas and supplies from Inland Distributors in the name of the landlord. Although suggesting she had paid what she owed to the landlord, the tenant accepted she had not provided evidence of that. She also conceded that she acknowledged receipt of a lease document by email, being an email sent by her on 24 December 2023.

25. After accepting that she acknowledged having paid outstanding rent, the tenant went on to suggest that she never agreed to pay rent and that she could not pay rent as the business was not making money. After accepting that she had the landlord’s permission to occupy the premises, when the question of that permission being revoked was raised, the suggested “there was nothing formal” and denied that there was any lease agreement in force.

26. Since the tenant was self-represented, after cross-examination concluded, she was asked if there was anything arising during cross-examination that she wished to clarify or explain. She did not take up that opportunity.

27. Lindsay Munro provided a brief affidavit (Exhibit 3) and was not cross-examined. His evidence was that he was the tenant’s partner, had never spoken to the landlord about “leasing or any documents”, and was not involved in running the café, other than sometimes assisting the tenant with the cleaning.

28. Basil Kaadi is the tenant’s brother. His affidavit (Exhibit 4) made a variety of assertions but did not provide evidence relevant to the issues requiring determination in these proceedings. His expressed view that there was never a formal lease agreement between the landlord and the tenant is inadmissible opinion evidence and does not carry evidentiary weight as that is an issue which the Tribunal has to determine, based on what was said and done by the landlord and the tenant. Mr Kaadi was not cross-examined.

29. Geoffrey Hotchkiss provided an affidavit (Exhibit 5) but very little of its contents address the issues in these proceedings, predominantly alleging conduct on the part of the landlord. He annexed a character reference from a nurse, but that evidence does not assist with the resolution of the issues in these proceedings. There was no cross-examination of this witness.

Landlord’s submissions

30. The landlord’s case was said to be a desire to evict the tenant for failing to pay rent. It was said that the last rent paid by the tenant was $600 that was paid after an order was made by the Tribunal on 4 February 2025. Reference was made to the evidence of Ms Froehlich which suggested the tenant sub-leased to her, despite the tenant now saying there never was a lease. It was submitted that if there is no lease then the tenant has no right to remain in the premises.

31. Rent of $200 per week was said to be payable. It was submitted that by 10 December 2024 the tenant owed $13,000 and that the amount now owing was $16,200. There was also a submission that there were “other debts” which the tenant owes the landlord and reference was made to the purchase of items, a phone bill, goods obtained from Inland Distributors, dog food and gas.

32. The landlord’s case was that attempts to enter the premises had been thwarted by the tenant and that the landlord was unable to do anything without the assistance of the Tribunal. It was contended that the Tribunal was not the correct forum for the tenant’s claims that she had an employment relationship with the landlord.

33. It was submitted that the tenant was running the café and that, regardless of whether it was doing well financially, the landlord was still entitled to rent and that, if the tenant failed to pay that rent, she should not be permitted to remain in the premises. In short, the landlord sought an order to provide her with possession of the premises, arrears of rent, and a further amount for water and land rates plus the other amounts claimed and an order for costs.

Tenant’s submissions

34. It was asserted that the landlord had breached the Retail Lease Act 1994 (NSW) and the Residential Tenancies Act 2010 (NSW), which will be abbreviated in these reasons to RLA and RTA respectively. The tenant’s case was that there is no formal lease as no lease was ever executed. There was said to be no evidence to support either the claim for $50,000 or the claim for $20,000. There was a submission that, from September 2022 to September 2023 the tenant managed the landlord’s business, using the landlord’s accounts, but was not paid wages or superannuation. Further, that the tenant paid expenses of the business based on a promise that she would, eventually, become the owner of that business.

35. A submission was made that the landlord caused damage to the operation of the business with consequences said to include embarrassment and humiliation in the community. It was contended that the amounts claimed by the landlord were expenses incurred during the running of her business. The tenant sought a declaration that there is no enforceable lease and reject all claims for rent.

36. There was also a request for an acknowledgment that the RTA applies. Further, the tenant sought “compensation for harm due to the theft of business equipment and utilities” and asked the Tribunal to consider “the emotional distress and reputational damage and public embarrassment caused by the actions of the landlord”. Lastly, the tenant requested the Tribunal to provide any further relief which it considered to be just and appropriate.

Submissions in reply

37. It was submitted that the premises were primarily a retail lease and not a residential tenancy. Further, that if there was no valid retail lease then the tenant did not have any basis for remaining in the premises. The landlord’s case was that, even if the tenant did not sign the lease, she received it, understood it, occupied the premises and paid rent. As to the claim for $20,000, that was said to be a “buffer” as the landlord had not been able to enter and inspect the premises due to the conduct of the tenant. It was reiterated that, if the tenant was merely managing the business for the landlord, the Tribunal was not the correct jurisdiction for any claim the tenant may wish to make.

38. A submission was also made that it did not make sense for the landlord to install the tenant in the business and then sabotage the business. Any issues relating to the water connection were said to have been already dealt with and it was contended that the tenant’s evidence should not be accepted.

Jurisdiction

39. The Tribunal only has the power to make orders when there is a statute which confers on it the power to make such orders. There are provisions in the RLA and RTA which enable the Tribunal to make orders when those statutes apply. However, the Tribunal does not have any jurisdiction to consider the claims of the tenant that were based on her being an employee of the landlord.

40. In the RLA, s 8, headed “When the lease is entered into”. The entire wording of that section is set out below:

(1)   For the purposes of this Act, a retail shop lease is considered to have been entered into when a person enters into possession of the retail shop as lessee under the lease or begins to pay rent as lessee under the lease (whichever happens first).

(2)   However, if both parties execute the lease before the lessee enters into possession under the lease or begins to pay rent under the lease, the lease is considered to have been entered into as soon as both parties have executed the lease.

41. In the RTA, s 7 provides as follows, so far as is relevant to these applications:

This Act does not apply in respect of the following premises-

…

(h)   premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture.

Relevant law

42. The orders which the Tribunal can make when the RLA applies are set out in s 72 of that statute:

(1)   In proceedings for a retail tenancy claim lodged with the Tribunal under this Part, the Tribunal is empowered to make any one or more of the following orders that it considers appropriate—

(a)   an order that a party to the proceedings pay money to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,

(b)   an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings,

(c)   an order that a party to the proceedings—

(i)   do any specified work or perform any specified service or any obligation arising under this Act or the terms of a lease, or

(ii)   surrender possession of specified premises to another person, or

(iii)   assign his or her or its rights under a lease to a specified person, or

(iv)   do or perform, or refrain from doing or performing, any specified act, matter or thing,

(d)   an order granting a party to the proceedings relief against forfeiture,

(e) an order (as permitted by section 72AB) requiring the rectification of the lease or the lessor’s disclosure statement,

(e1) an order (as permitted by section 72AB) deeming a disclosure statement given by the lessor after the lease is entered into (with or without amendments specified by the Tribunal) to have been given in compliance with section 11 before the lease was entered into,

(f)   an order-

(i)   declaring any provision made by a lease to be void for being inconsistent with this Act or the regulations, or

(ii)   declaring that a lessor is not entitled to withhold consent to an assignment of the rights of a lessee, or

(iii)   declaring the rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not, or

(iv)   declaring that a party is or is not entitled to receive payment of the whole or a part of a security bond,

(g)   such other order, in the nature of an interlocutory order of a kind referred to in paragraphs (a)–(f), as the Tribunal considers proper to be made in order to resolve or assist resolution of the dispute between the parties.

(2)   The Tribunal may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect.

(3)   The Tribunal may impose such conditions as it considers appropriate when making an order under this section.

(4)   The Tribunal may make an interim order under this section pending final determination of a claim, if it appears to the Tribunal desirable to do so.

43. The question of whether the Tribunal has the power to issue a writ of possession was considered in Mirvac Homes (NSW) Pty Limited v Noakes [2022] NSWCATCD 49 (Noakes). Although that decision related to an application based on the Agricultural Tenancies Act 1990 (NSW), what was said in that case, and in the Supreme Court judgement in Mirvac Homes (NSW) Pty Limited v Noakes [2022] NSWSC 596 (which was referred to in Noakes), is equally applicable to premises when the RLA applies. Being satisfied that the Tribunal has the power to issue a writ of possession, it remains to consider whether that power should be exercised in the circumstances of this case.

Consideration

44. It is necessary to first assess of the evidence before making findings of fact which will then enable a determination of the issues raised by each of the three applications under consideration.

Assessment of evidence

45. It is well recognised that human memory of what was said in a conversation is fallible for a variety of reasons and may be expected to decrease with time: Watson v Foxman (1995) 49 NSWLR 315 at 319. Also, that the evidence of a party, with an interest in the outcome of the proceedings, needs to be carefully considered.

46. In Fox v Percy [2003 HCA 22 at [30-31], Mc Hugh J cautioned against deciding a case based on the appearance of a witness, sometimes referred to as the demeanour of the witness, suggesting it was preferable to base conclusions on contemporary materials, objectively established facts, and the apparent logic of events. The position now appears to be that deciding a case based on demeanour should be the last resort and can only be justified in clear cases. It is also clear that contemporaneous documents (ie documents prepared at the time of the events in question) carry greater weight than a document prepared for the purpose of the litigation.

47. In Ashby v Slipper [2014] FCAFC 15 at [77] it was said that:

as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 372 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.

48. The basic principle in civil litigation is that the party making an allegation bears to onus to prove that allegation on the balance of probabilities. Simply stated: he who alleges must prove. Using the analogy of the scales of justice, the party bearing the onus of proof needs to tip the scales in their favour to succeed. Where the evidence of one party is preferred to that of another party, that may indicate what should be the decision. However, when there is insufficient evidence to satisfy the onus of proof in relation to a claim, that claim must be rejected. Hence, a claim may be rejected by the Tribunal either if evidence is not accepted or if there is insufficient evidence to support that claim.

49. In determining whether there is sufficient evidence to support a claim, it is well-established that matters such as (1) the seriousness of the allegation, (2) the unlikelihood of occurrence, and (3) the gravity of the consequences of a finding affect whether that allegation has been proved on the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34. Those matters do not change the standard of proof but affect the strength of the evidence required to meet that standard.

50. Set out below is the Tribunal’s assessment of each of the witnesses who provided evidence in these proceedings:

1. The landlord was not cross-examined. In view of the nature and extent of the matters in dispute, the conflicting evidence as to rent payments (Exhibit A at [19] cf Exhibit B at [7]), and the landlord’s obvious interest in the outcome, her evidence is considered with caution, unless supported by a contemporaneous document.

2. Gisela Froehlich was questioned but her evidence was not damaged and is accepted.

3. Meredith Starke was questioned but the focus of the evidence of this witness was changing the locks, an issue not requiring consideration.

4. Genavieve Gardener was not cross-examined, and the Tribunal is unable to see any reason why her evidence should not be accepted.

5. The tenant suggested, during cross-examination, that she had not seen a lease document until “not long before these proceedings”. That evidence is contradicted by a contemporaneous document, namely her 24 December 2023 email (Exhibit A, annexure C). The unchallenged evidence of Ms Froehlich in relation to the use of her stock by the tenant is also noted. Having reviewed all her evidence, both written and oral, the Tribunal does not consider the tenant’s evidence should be accepted unless it is reliably corroborated.

6. Lindsay Munro, the tenant’s partner, gave very little evidence that was relevant to the issues requiring determination. He was not cross-examined and there does not appear to be any reason why his evidence relevant to the issues should not be accepted.

7. Basil Kaadi, the tenant’s brother, was not cross-examined. Apart from his admissible opinion evidence as to whether there was a formal lease, much of his evidence sought to denigrate the landlord and very little of his evidence assists with a determination of the issues.

8. Geoffrey Hotchkiss was not cross-examined in relation to his affidavit which also sought to criticise the landlord and provide character evidence in support of the tenant. It is difficult to see how his evidence has any impact on the issues these three applications raise.

Findings of fact

51. The Tribunal makes the following findings of fact, based on documentary evidence (unless otherwise indicated):

1. The landlord is the owner of premises in [XXXXX XXXXX XXXXX XXXXX ] which are the subject of these proceedings (the premises).

2. In about August 2022 the landlord’s granddaughter and the tenant’s daughter commenced operating a café at the premises and they agreed that the tenant would be part of that business. The landlord provided an initial rent-free period of six months and, since that business commenced on 22 September 2022, rent was to be payable from 22 March 2023. (Exhibit G).

3. When the landlord’s granddaughter and the tenant’s daughter ceased their involvement in that business, late in 2022, it was continued by the tenant (Exhibit G) and her predominant use of those premises since that date has been as a café, noting clause 4 of the lease (quoted below).

4. At some time during 2023, the tenant changed the name of the business from Casey’s Corner Café to Twisted Rose Café (Exhibit 1, at [17]).

5. On 26 August 2023 the tenant sent an email to the landlord, the body of which said:

Please let me know if I owe anything else.

I’ve made a payment of $600.00 to Rachel Gardener, BSB ***692 Account ****0801.

6. Early in September 2023 Gisela Froehlich agreed to pay the tenant $100 per week to operate a retail business from the café she was operating at the premises, Ms Froehlich did so from 26 October 2023 to 14 December 2023, a period of seven weeks, and paid rent totalling $700 (Exhibit E).

7. Ms Froehlich initially thought the landlord was aware of that arrangement but later learned that was not the case (Exhibit E).

8. On 20 December 2023 the landlord, in the company of Greg and Meredith Starke, changed a lock on the premises (Exhibit F).

9. On 23 December 2023 the landlord emailed the tenant, which said: “Back rent from 14^th September to 22.12.23 is 14 weeks, $2800” and attached an unsigned lease.

10. That lease included, in clause 4, the words:

The Premises will be used for only the following permitted use (the Permitted Use): Fast food outlet and café, the selling of some groceries and green groceries and some gifts. The back rooms may be used for storage and/or residential purposes if necessary.

11. On 24 December 2023 the tenant’s emailed a reply which said:

Received and understood.

12. On 29 January 2024 the tenant sent a message to the landlord which said:

I’m going to see lawyers this week in Coonabarabran with regards to purchasing this business … I’m aware that rent is owing and I will catch up and backdate as much as I can! This month has been slow and it’s no excuse …

13. On 18 February 2024 the locks on the premises were changed by Greg and Merdeith Starke (Exhibit F) with the result that the landlord re-entered the premises on that occasion.

14. On 23 February 2024 the tenant’s solicitor wrote to the landlord, alleging that the RLA applied, that the proposed lease was “illegal”, and that the RTA applied.

15. On 12 March 2024 the landlord’s solicitor wrote to the tenant, foreshadowing claims for “possession of the premises, arrears of rent due, all debts owed and costs covering all legal fees in this matter and in the re-entry processes”.

16. Both those letters included allegations based on what those solicitors had been told by their respective clients.

17. An 18 March 2024 letter from the tenant’s solicitor to the landlord’s solicitor sought additional time to respond.

18. The 16 April 2024 letter from the landlord’s solicitor to the tenant’s solicitor made a demand that the tenant vacate the premises by 19 April 2024.

19. The 17 April 2024 letter from the landlord’s solicitor to the tenant’s solicitor gave notice “access to the premises on Friday 19 April 2024 at 9.30am for the purposes of taking photographs and inspecting the property prior to the tenant vacating”.

20. On 4 February 2025 the Tribunal made orders which included the following orders:

4.   The [tenant] pay the [landlord] $400 per fortnight, the first payment to be made by 11 February 2025.

5.   In the event of the [tenants] defaulting on any one rental payment, they are to surrender possession of the premises known as [XXXXX XXXXX XXXXX XXXXX XXX] (“premises”) to the [landlord] within 48 hours of the rent payment having fallen due.

6.   The [landlord] to provide the [tenants] with details of the amount required to be paid and where it is to be paid in order for the water supply to be reconnected to the premises.

7.   The [tenants] to pay the cost of restoring water to the premises.

8.   The parties to participate in a mediation by AVL on or before 31 March 2025.

21. There has not been compliance with any of those five orders.

22. Since 4 February 2025, the tenant has paid $400 on 11 February 2025 and $200 on 25 February 2025 (Exhibit D, at [31]).

Landlord’s application (2024/00305756)

52. The landlord’s application sought an order that would provide the landlord with possession of the premises, arrears or rent and damages, plus an order for costs. Costs is an issue better considered after each of the applications has been considered and the parties have been able to lodge written submissions.

53. Before assessing the claims of the landlord, it is first necessary to determine (1) whether there was a retail lease between the landlord and the tenant, (2) if so, who were the parties to that lease, and (3) what were the terms of that lease.

54. From the findings of fact set out above, it is clear the tenant (1) entered into possession of a retail shop as lessee, and (2) agreed to pay rent. As to the first of those two matters, the tenant entered into possession with two others and remained in possession when they ceased to be involved in the business. As to the second of those matters, the tenant’s 29 January 2024 message, which included the words “I’m aware that rent is owing …”, is a clear admission by the tenant that she agreed to pay rent.

55. Either of those two matters is sufficient to satisfy s 8(1) of the RLA (quoted above). As a result, is satisfied that the RLA applies, there is a retail lease between the landlord and the tenant, and the Tribunal can hear and determine the landlord’s application.

56. The RLA requires, in s 11, the provision of a disclosure statement. While the landlord’s failure to provide such a statement gave the tenant rights under that section, there is nothing to suggest the tenant has ever exercised those rights.

57. It is necessary to outline the legal principle known as estoppel by conduct. Decisions of the High Court of Australia, such as Legione v Hateley [1983] HCA 11 and Commonwealth v Verwayen [1990] HCA 39, make is clear that estoppel by conduct applies when one party’s actions or conduct leads another party to reasonably believe in a certain state of affairs and the other party then relies on that belief to their detriment. In such circumstances, the party who induced or caused that belief is prevented from later acting inconsistently with it.

58. In this case, that principle provides the landlord with a valid defence to the tenant’s claim that there was and is no retail lease because the tenant’s conduct in (1) occupying the premises, (2) agreeing that rent was payable, and (3) entering into a sub-lease with Ms Froehlich led the landlord to believe there was a retail lease relationship and the landlord acted to her detriment by permitting the tenant to remain in the premises rather than leasing them to someone else.

59. However, the Tribunal is not satisfied that Lindsay Munro is a party to that retail lease for the following reasons. First, there is no evidence to suggest he ever entered into possession of the premises. Secondly, there is no evidence he ever paid rent to the landlord. Thirdly, although two lease documents named him as a tenant, there is no evidence they were never sent to him. Fourthly, he never signed or otherwise acknowledged either of those documents. Fifthly, his evidence that (1) he never spoke with the landlord about the lease, (2) had no involvement in running the subject business, and (3) only assisted the tenant with cleaning “sometimes”, was not challenged by the legally represented landlord, despite Mr Munro being in virtual attendance.

60. Further, the bare suggestion of the landlord that she sent the second lease document, on 23 December 2023, at the request of the tenant and Mr Munro (Exhibit A at [8]), is not considered sufficient to warrant a finding that he was a party to the lease, noting that (1) there is nothing to indicate when, where or how that request was made by Mr Munro, (2) the landlord’s own evidence (eg Exhibit B at [5]-[7]) referred to that lease as a lease between her and the tenant, without any reference to Mr Munro, and (3) the affidavit which annexed the first lease agreement (Exhibit C), did not include any evidence beyond the fact that Mr Munro was named in that document.

61. In those circumstances, the landlord’s claims against Mr Munro must be dismissed.

62. The terms which currently govern the lease between the landlord and the tenant are those which were sent to her email on 23 December 2023 to which she responded the next day: “Received and understood”. That is because a contract can be accepted by conduct, even it is not signed. Empirnall Holdings Pty Limited v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 is an example of that, being a case where a party refused to sign a contract but was found to be bound by that contract.

63. If an offer is made, then that offer can be considered to have been accepted if (1) there was unqualified assent and (2) that assent was communicated to the party making the offer.

64. In this instance, both those requirements were satisfied: (1) the tenant’s 24 December 2024 email did not take any issue with either the contents of the landlord’s email, sent the previous day, or the lease that was attached to that email and (2) that email was plainly sent by the tenant and received by the landlord.

65. The position was summarised as follows in JP Morgan Australia Ltd v Consolidated Minerals Ltd [2010] NSWSC 100 (JP Morgan) at [138]-[147]:

Whether an agreement has been entered into is to be objectively assessed: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105 [25]; Franklins Pty Limited v Metcash Trading Ltd [2009] NSWCA 407 at [4]; McMahon’s (Transport) Pty Ltd v Ebbage [1995] 1 Qd R 185 at 195. The objective theory of contract requires an external manifestation of assent to an offer. Whether there has been such an assent turns on whether a reasonable bystander would regard the conduct of the offeree as signalling to the offeror that his offer has been accepted: Empirnall Holdings Pty Limited v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 534-5.

66. A reasonable bystander would consider the tenant to have accepted the terms contained in the landlord’s 23 December 2023 offer by reason of the tenant’s conduct in (1) sending the 24 December 2024 email, (2) continuing in occupation, and (3) by sending a message just over a month later, on 29 January 2024, acknowledging that rent was owing.

67. It is sufficient to note that clause 10 of the lease required the tenant to pay $200 per week in rent, that there were arrears of rent, as the tenant acknowledged on 29 January 2024, that those arrears were sufficient to warrant re-entry by the landlord, and that the landlord re-entered the premises when the locks were changed on 18 February 2024. The result is that clause 20 of the lease entitles the landlord to possession of the premises.

68. Based on what was said by the Supreme Court and later an Appeal Panel in the litigation between Mirvac Homes (NSW) Pty Limited and Noakes, referred to above, the landlord is entitled to have a writ of possession issued. The form set out in an appendix to the reasons of the Appeal Panel has been used to set out the form of the writ of possession to which the landlord is entitled in this case: see Appendix A to these reasons.

69. In short, the Tribunal is satisfied that it should exercise the power conferred by s 72(1)(f)(iii) of the RLA by declaring that the landlord is entitled to possession of the premises and make an order under s 72(1)(c)(ii) that the tenant is to surrender possession. If the tenant fails to do so within seven days of the date of order then, based on s 72(2) and what was said in Noakes, the Tribunal considers an ancillary order should be made for the landlord to apply to have a writ of possession issued but it is noted that such a step will not be necessary if the tenant surrenders possession of the premises voluntarily.

70. Next, it is necessary to consider each of the financial claims of the landlord, being for arrears of rent and damages. In the landlord’s Points of Claim dated 10 December 2024 (MFI 1) the amounts claimed were set out (at [55]) as quoted below:

Rent owed:	$13,000.00
Bond:	$800.00
Funds towards Loan to be repaid:	$50,000.000
Unpaid Land and Water Rates:	$5,000.00
Funds towards revival of the Premises:	$20,000.00
Miscellaneous Damages:	$3,272.14

71. Rent. The claim for $13,000 in the Points of Claim was updated to $16,200 during closing submissions.

72. To prove a claim for arrears of rent, it is necessary to establish (1) what amount was payable, and (2) what amount was paid. While the amount payable can be readily calculated, the amount paid is often indicated by the provision of bank statement pages. Commonly, the Tribunal is provided with a rent ledger or spreadsheet which, as a business record, is considered reliable.

73. In this instance, the evidence that was provided in support of the claim for arrears of rent may be summarised as follows:

1. On 26 August 2023 the tenant sent an email which suggested she had paid $600 to the landlord’s bank account ending with the numbers 0801 (Exhibit A, annexure A) but did not indicate what that payment was for.

2. On 23 December 2023 the landlord sent an email (Exhibit A, annexure B) which suggested that there were arrears of rent of 14 weeks, from 14 September 2023, and that the rental bod of $800 had not been paid.

3. On 29 January 2024 the tenant sent a message to the landlord (Exhibit A, annexure D) which referred to arrears of rent but did not indicate any amount.

4. The landlord suggested (Exhibit A at [19]) that the tenant, as at 16 June 2024, owed 28 weeks of rent and that the last payment was $200 on 30 December 2023.

5. The landlord’s evidence was that the tenant had not paid rent since 24 December 2023 and that, as at 21 October 2024, the tenant “is in arrears of at least 45 weeks” (Exhibit B at [7], [9] and [19]). It is to be noted that the claim that no rent was paid after 24 December 2023 is contradicted by the earlier claim that $200 was paid on 30 December 2023.

6. Bank statements for the landlord’s St George bank account ending with the numbers 9781 were provided for the period from 24 November 2023 to 23 August 2024 (Exhibit B, annexure A). However, there was no accompanying evidence as to what entries in those pages, if any, were payments made by the tenant to the landlord. A perusal of those pages suggests amounts of $50, $100 and $90 were paid by the tenant on 28 December 2023, 30 December 2023 and 11 March 2024.

7. The last four pages of that annexure appeared to contain details of bank transactions but did not have anything to indicate either a bank, an account name of an account number.

8. On 9 December 2024 the landlord asserted (Exhibit C, at [40](a)): “I have not been paid $13,000 worth of rent. These arrears date back to 21 September 2023.”

9. On 3 April 2025, the landlord said that, after the Tribunal made an order for the payment of $400 per fortnight (equivalent to $200 per week) on 4 February 2025, the tenant had only paid $400 on 11 February 2025 and $200 on 25 February 2025.

10. The tenant claimed, in an undated affidavit (Exhibit 1):

16   Casey’s Cnr Café is owned by [the landlord]. I ran this business from 21/09/21 the date we opened the café until 2023, when [the landlord] demanded I change the business name now.

17   I did this and changed it to Twisted Rose Café Baradine. From this date I have now given [the landlord] $3890.00 a sum of $2200.00 for bond on the 24/07/2023. I have bank statements from Westpac …

11. However, no bank statements were provided by the tenant, she did not indicate to which bank account the stated amounts were paid, and her evidence did not indicate when the payments said to total $3,890 were paid by her.

12. The landlord’s response to that evidence (Exhibit C, at [27]) was:

… I cannot say with certainty that the exact amount of $3,890 was paid. If it was paid it would not be in a gross sum, but for a collection of smaller items. A bond of $2,200.00 was never paid. The bond was only $800 and that was never paid. …

74. Regardless of what amount was due for rent, the evidence does not enable the Tribunal to determine what amount was paid. It must be observed that the landlord appears to have more than one bank account, since the tenant’s 26 August 2023 email (Exhibit A, annexure A) referred to an account number which ended in 0801 and the landlord only provided identifiable bank statements for an account number which ended in 9781.

75. The landlord’s Points of Claim (MFI 1) suggested that the basis of the claim for $13,000 was that “the last payment of rent was paid on 21 September 2023”. However, that statement does not indicate what amount was owed at that time. Assuming the claim for arrears of rent was based on the period from 21 September 2023 to the 10 December 2024 date of those Points of Claim, that period is 63 weeks and 4 days which is close to 65 weeks which, at $200 per week, that was plainly the basis upon which $13,000 was claimed.

76. Adding the period from 10 December 2024 to the hearing on 8 April 2025, which is 17 weeks, would give 80 weeks plus 4 days and the claim made at the hearing of $16,200 was obviously based on 81 weeks at $200 per week.

77. If the one-week period between the hearing and these reasons is added, then an amount of $16,200 could be said to be due, based on $200 per week from 21 September 2023 to 15 April 2025.

78. Even if the Tribunal were to find that the landlord was entitled to receive $16,200 from the tenant, the amount owing for arrears of rent depends on what was paid by the tenant.

79. That raises the question of what to do when there is a difficulty in assessing what amount should be awarded. Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 (Gallagher) is often cited in support of the proposition that, in circumstances where precision is not possible, the Tribunal must do the best it can, based on the evidence that is available.

80. However, by reference to what was said in that case at [49-51], there is an important distinction between the principle that difficulty of assessment is not a barrier, as indicated in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54, and the situation in Gerrard v Slamar [2004] WASC 253 where there was a lack of evidence and an estimate or guess should not be made to make good that omission.

81. Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 at [58] is but one example of the application of what was said in Gallagher and the position was succinctly stated in that case as being that “provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can.”

82. The courts have taken the same view, in cases such as McCrohan v Harith [2010] NSWCA 87 at [128], Sabouni v Develop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[42], and Carsal and Associates Pty Ltd t/a Triggerpoint Natural Health Centre v Crozier [2024] NSWSC 26, at [85].

83. However, the position has been clear for many years, as can be seen by what Gleeson CJ said in Troulis v Vanvoukakis [1998] NSWCA 237 (Troulis) at [14], namely that where there has been a failure to adduce evidence, “then there is absence of the raw material to which good sense may be applied. Justice does not dictate that, in such a case, a figure should be plucked out of the air”.

84. In short, the Tribunal must do the best it can on the available evidence, bearing in mind that the landlord bears the onus or proof.

85. The evidence of the landlord included that she could not state with any certainty whether $3,890 has been paid by the tenant (Exhibit C, at [27]). Further, the lease agreement offered on 23 December 2023 and accepted on 24 December 2024 could provide the starting point for a calculation of rent but her evidence that no rent was paid after 24 December 2023 (Exhibit B, at [7]) was contradicted by her evidence that $200 was paid on 30 December 2023 (Exhibit A, at [19]).

86. Being unable to determine what amount has been paid by the tenant to the landlord for rent, the Tribunal considers the only reliable assessment it can make in relation to arrears of rent is as follows:

1. The Tribunal made an order for the payment of rent, equivalent to $200 week, on 4 February 2025.

2. The period from that date to the date of these reasons is exactly 10 weeks and, at $200 per week, that gives rent payable of $2,000.

3. Since 4 February 2025, the tenant has only paid $400 on 11 February 2025 and $200 on 25 February 2025, giving a total of $600 that has been paid.

4. As a result, the arrears of rent since 4 February 2025 are $1,400.

87. While it does appear that the arrears of rent exceed that amount, the evidence does not enable the Tribunal to determine what amount is, in fact owing.

88. Being unable to pluck a figure out of the air, doing the best it can based on the available evidence, the Tribunal awards $1,400 for arears of rent, noting that the inability to award any larger amount is the result of the landlord failing to satisfy the onus of proof which she bears. A period of 14 days is considered reasonable to allow for the payment of that amount.

89. Bond. In the December 2023 lease, clause 15 provided as follows:

On execution of this Lease, the Tenant will pay the Landlord a security deposit equal to the amount of $800.00 (the Security Deposit) to be held by the Landlord without interest. The Landlord will return the Security Deposit to the Tenant at the end of the tenancy, less such deductions as provided in this Lease but no deduction will be made for damage due to reasonable wear and tear.

90. Overlooking the fact that the lease was never executed, there is competing evidence as to whether that security deposit was paid.

91. The landlord’s case was that the security deposit was never paid but that amount would be repayable to the tenant, subject to any claims which the landlord may have against the tenant.

92. The tenant suggested that payment was made but suggested an amount of $2,200 rather than the $800 referred to in the lease and, although referring to bank statements, did not provide a copy of any such document. It is noted that the tenant, despite lodging two applications, did not make any claim for a refund of the security deposit which, in these proceedings, was referred to as the bond.

93. In the absence of supporting documents from either party, the Tribunal prefers the evidence of the landlord to that of the tenant and finds that the security deposit of $800 was never paid. However, even if that amount had been paid, it would be applied towards any valid claims of the landlord and otherwise refunded to the tenant. As the landlord’s claims are being assessed in these proceedings, the landlord is not entitled to be awarded an additional amount of $800 for that security deposit.

94. Funds towards loan to be repaid. The landlord’s evidence (Exhibit A at [6]) was that there was a conversation in which the tenant agreed to pay back the landlord an amount of $50,000 said to have been spent by the landlord when starting up the café. However, there was no reference to that amount in either of the lease documents included in the landlord’s evidence (Exhibit A, annexure B and Exhibit C, annexure A). Further, there were no supporting documents provided in relation to this claim. In the landlord’s Points of Claim, it was suggested that “This repayment was, however, payable when the Tenants had the capacity to do so.” It appears that the tenant’s evidence failed to provide any response to this claim.

95. It is necessary for conversations to be proved to the reasonable satisfaction of the Tribunal: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 (John Holland) at [94]. The Tribunal is not satisfied that this conversation occurred for the following reasons.

96. First, the allegation that a person would assume an obligation to pay $50,000 is a serious allegation which Briginshaw suggests needs to be taken into consideration. Secondly, the suggested words present as unlikely in that the landlord is suggesting that, as soon as she referred to having spent $50,000, the tenant said “That’s fine. I will pay it back. I will take responsibility for the debt.” Thirdly, no supporting documents were provided by the landlord. Fourthly, there is no explanation as to why that amount, if so agreed, was not referred to in either of the lease documents included in the landlord’s evidence. Fifthly, the landlord’s Points of Claim, but not her evidence, suggested that amount was only to be paid when the tenant had the capacity to do so.

97. Accordingly, the claim for $50,000 that was headed “Funds towards Loan to be repaid” is rejected.

98. Unpaid Land and Water Rates. Clause 27 of the lease included a requirement for the tenant to pay water rates and Council rates. In the Points of Claim (MFI 1 at [27]) it was said:

The [landlord] claims full payment outstanding Rates, and estimates same at a cost of $5,000.00 accounting for future unpaid rates in between the date that the submissions are filed and the hearing date.

99. The only evidence provided in support of this claim was two pages (Exhibit C, annexure B) which were said to be “examples from my own personal bank account” but did not indicate the bank, the account name or account number. Those pages, which appeared to be from an accounting record due to a heading which read “Posting date”, contained six entries labelled “BPAY: WSC”, said to denote payment to Warrumbungle Shire Council for “land and water rates”. Those entries recorded amounts of $414.00 on 5 May 2024, and five amounts all dated 26 August 2024: $447.06, $435.32, $389.41 $1,299.60 and $685.18. The total of those six amounts is $3,670.57.

100. No copy of any document issued by that council was provided, nor was the absence of such documents explained. Why there were five amounts all dated the same day was also not explained.

101. There is nothing in the two provided pages to indicate to what property those amounts relate. It is noted that (1) the landlord gave her residential address as being in [XXXXX XXXXX XXXX], (2) the subject premises are in XXXXX XXXXX X], and (3) there was evidence the landlord owned other properties in Baradine (Exhibit 1, at [9]).

102. In the RLA, s 28 is headed “Outgoings statements”. That section provides:

(1)   A retail shop lease is taken to include provision to the following effect-

(a)   The lessor must give the lessee a written statement (an outgoings statement) that details all expenditure by the lessor in each accounting period of the lessor during the term of the lease on account of outgoings to which the lessee is required to contribute.

(b)   If the shop is in a retail shopping centre ...

(b1)   If the shop is in a retail shopping centre …

(c)   The outgoings statement is to be prepared in accordance with relevant principles and disclosure requirements of applicable accounting standards made by the Australian Accounting Standards Board, as in force from time to time.

(d)   The outgoings statement is to be given to the lessee within 3 months after the end of the accounting period to which it relates.

(e) The outgoings statement is to be accompanied by a report (an auditor’s report) on the statement prepared by a registered company auditor (within the meaning of the Corporations Act 2001 of the Commonwealth).

(f)   The auditor’s report is to include a statement by the auditor as to whether or not the outgoings statement correctly states the expenditure by the lessor during the accounting period concerned in respect of outgoings to which the lessee is required to contribute, and as to whether or not the total amount of estimated outgoings for that period (as shown in the estimate of outgoings given to the lessee) exceeded the total actual expenditure by the lessor in respect of those outgoings during that period.

(g)   The outgoings statement may be a composite statement (that is, it may relate to more than one lessee) so long as each lessee to which it relates is able to ascertain from the statement the information required by paragraph (a) that is relevant to that lessee.

(h)   The outgoings statement need not be accompanied by an auditor’s report if the statement does not relate to any outgoings other than land tax, water, sewerage and drainage rates and charges, local council rates and charges, insurance and strata levies, and it is accompanied by copies of assessments, invoices, receipts or other proof of payment in respect of all expenditure by the lessor as referred to in paragraph (a).

(2)   An auditor preparing a report under subsection (1) (e) or the lessor must ensure that the lessee is given a reasonable opportunity to make a written submission to the auditor on the accuracy of the lessor’s proposed outgoings statement. The auditor need not contact the lessee for the purposes of this subsection if the lessor advises the auditor that the lessor has informed the lessee of the lessee’s opportunity under this subsection.

(3)   The auditor must consider any written submissions made pursuant to subsection (2).

103. There is no evidence that any outgoings statement (or auditor’s report) was provided by the landlord to the tenant. It is also noted that, while it does not apply to the subject lease, s 39(2) of the RTA says that a tenant is not obliged to pay water rates unless provided with a copy of the relevant bill.

104. It is clear the Tribunal is also entitled to take into consideration not only the evidence that was led but also the evidence that was not led. As Lord Mansfield said, just over 250 years ago, in Blatch v Archer [1774] Eng R 2; 1 Cowper 63 at 65:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.

105. Having regard to (1) the limited evidence that was provided, (2) the absence of a copy of any assessment, invoice or receipt, and (3) to s 28 of the RLA, the Tribunal is not satisfied that the landlord has proved an entitlement to the $3,670.57 total of the six suggested amounts and there is no basis for elevating that amount to the claim for $5,000.

105. Funds towards revival of the premises. An amount of $20,000 was claimed. In the Points of Claim (MFI 1 at [36]) that amount was described as a “buffer to account for any maintenance, cleaning or renovation to the Premises”.

106. The only evidence provided in support of this was in Exhibit B at [20] where the landlord said:

On a brief visitation of the Premises, I noted that it is in a state of disrepair. I therefore submit that the repairs would cost upwards of $20,000.00. However, I have not had an opportunity to review the Premises anew.

108. There are deficiencies in the landlord’s evidence in relation to this claim. First, although there was an opportunity for the landlord to inspect the premises (and take photos) when the locks were changed, there is no evidence that was done. Secondly, the evidence that was led did not indicate when the “brief visitation” occurred. Thirdly, there is an absence of detail as to the condition of the premises. Fourthly, no evidence was provided to support the amount claimed and that amount would appear to be a figure plucked out of the air, which Troulis makes clear is not an appropriate way to assess damages.

109. This is another claim which the landlord has failed to prove and there is insufficient evidence to justify elevating an allegation against the tenant to a finding that would warrant the imposition of a financial obligation.

110. This claim was in the nature of what is commonly referred to as a “make good claim” which is not usually made until after the landlord has obtained possession of premises which are the subject of a retail lease.

111. Miscellaneous damages. An amount of $3,272.14 was claimed and, from the landlord’s Points of Claim (MFI 1 at [44]-[53]) that claim is made up of three items:

1. a claim for $445.00 for items said to have been charged to the landlord’s business account with Elders Real Estate,

2. $1,252.45 for goods said to have been purchased by the tenant from Inland Distributors, and

3. $1,574.69 for arranging for a phone number she used having been set up in the applicant’s name.

112. As to the first of those three items, the twelve pages referred to in support of the claim for $445 (Exhibit C, annexure C) are pages relating to the account of Gardener Enterprises Pty Ltd with the Baradine office of Elders Rural Services Australia Limited. However, Gardener Enterprises Pty Ltd was not a party to the subject lease and is not a party to these proceedings. Further, there was no explanation of how the amount of $445.00 was obtained.

113. Secondly, the five pages of tax invoices from Inland Distributors (Exhibit C, annexure D) were all addressed to “Caseys Corner Baradine” and the evidence of the landlord (Exhibit C, at [23]) is that Casey’s Corner Café is owned by Gardener Enterprises Pty Ltd. Any dispute as to the amount of $1,252.45, and any agreement for the tenant to repay that amount, said to be supported by two pages of emails (Exhibit C, annexure E), is a matter between that the tenant and that company which is not a party to these proceedings.

114. Thirdly, it was alleged that the tenant set up a telephone account in the name of the landlord. A Telstra phone bill for $1,574.69, which did not disclose the phone number to which it related, was provided (Exhibit C, annexure F). However, there is nothing to link that alleged conduct to the retail lease which is the subject of these proceedings. The claim for this amount is rejected.

115. In these circumstances, the claim for miscellaneous damages of $3,272.14 is rejected.

116. Accordingly, the amount which the Tribunal considers the landlord has proved that the tenant is required to pay is $1,400 and, as indicated above, 14 days is considered a reasonable period to allow for that payment to be made.

Tenant’s first application (2024/00381213)

117. The orders sought in this application, received on 15 October 2924, were for the reconnection of the water to the premises, and the landlord “not to come near the premises”. Orders have already been made in relation to the water connection and that was not an issue that was raised during the hearing. The question of the landlord’s entitlement to enter the premises has already been considered above and determined in favour of the landlord.

118. In her Points of Claim (MFI 2), the tenant contended that (1) the landlord had breached the RTA, (2) there were unpaid wages, and (3) that the lease was not binding or enforceable under the RLA.

119. As the Tribunal has found that the predominant use of the premises was for conducting the business of a café, s 7(h) of the RTA applies with the result that the RTA does not apply to the tenant’s occupation of the subject premises.

120. The Tribunal does not have jurisdiction to consider claims by an employee against an employer. Even if it did have jurisdiction to consider what may be termed employment claims, the Tribunal does not consider the relationship between the landlord and tenant to be that of employer and employee.

121. Accordingly, these proceedings must be determined by reference to the provisions of the RLA for the reasons set out above.

122. As the tenant’s evidence is not considered reliable, and having regard to what was said in John Holland, the Tribunal does not consider the conversation the tenant alleged constituted the agreement (Exhibit 1 at [13]) should be accepted.

123. While the tenant’s Points of Claim did include claims for compensation (1) no claim for compensation was made in the application, (2) there does not appear to be any legal basis for any such claims, and (3) there is insufficient evidence to support any of those claims. Accordingly, that application must be dismissed.

Tenant’s second application (2024/00390283)

124. The second application, lodged by the tenant on 21 October 2024, sought the same orders as her earlier application, but on the basis that the relationship between the landlord and the tenant was a residential tenancy.

125. Overlooking the fact that it is an abuse of process to commence second proceedings seeking the same relief while the first proceedings are on foot, that application did not raise any additional issues. For that reason, and since the RTA does not apply, that application must also be dismissed.

Costs

126. While the landlord sought an order for costs, the parties have not yet had an opportunity to make submissions on that aspect of these proceedings. The orders will cater for such submissions, which should indicate whether it is accepted the costs should be determined on the papers, without conducting a further hearing.

Orders

127. Accordingly, the following orders are made:

In 2024/00305756:

1. The interim orders made in November 2024 and February 2025 are discontinued.

2. As against Lindsay Munro, the application is dismissed.

3. The Tribunal declares that the applicant is entitled to re-enter the premises which are the subject of these proceedings.

4. The Tribunal orders the respondent to surrender possession by 5pm on Wednesday 23 April 2025.

5. If the respondent fails to surrender possession by that time, the applicant will be entitled to have a writ of possession issued in respect of those premises immediately, in the form set out in Appendix A.

6. The respondent is to pay the applicant $1,400 within 14 days of the date of these orders.

7. Any application for costs by the applicant is to be provided, to the Tribunal and the respondent, supported by submissions (not exceeding five pages in length) and any relevant evidence, within 14 days of the date of these orders.

8. Any submissions (not exceeding five pages in length) and evidence in response from the respondent are to be provided, to the Tribunal and the applicant, within the following 14 days.

In 2024/00381213 and 2024/00390283:

1. The application is dismissed.

**********

Appendix A

WRIT OF POSSESSION

PROCEEDING DETAILS   

Division	Consumer and Commercial Division
File number	2024/00305756
Applicant	Rachel Ann Gardener
Respondents	Rose Marie Bright and Lindsay Munro

ORDER DETAILS

Person entitled to possession	Rachel Ann Gardener
Persons to be evicted	Rose Marie Bright and Lindsay Munro

TO THE SHERIFF OF NEW SOUTH WALES AND ALL SHERIFF’S OFFICERS

On 15 April 2025 an order was made giving vacant possession of the land at:

Description of land:         [XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXX]

The person entitled to possession has requested that a writ for enforcement of the order be issued on the basis that the order has not been complied with.

The writ authorises any Sheriff’s Officer to enter the land and take all steps that are reasonably necessary to give possession to the person entitled.

A Sheriff’s Officer may request that any Police Officer assist the Sheriff’s Officer to enforce the order for possession.

The Sheriff’s Officer or Police Officer enforcing the order for possession must produce this writ if asked.

Pursuant to section 7A(3) of the Sheriff Act 2005 the Sheriff must give the occupier of land not less than 30 days’ notice unless execution of the writ has previously been stayed.

ISSUING DETAILS

Writ issued on

Tuesday 15 April 2025

Issued at

Level 14, Civic Tower, 66 Goulburn Street

Sydney, NSW, 2000

(GPO Box 4005, Sydney, NSW, 2001)

Registrar signature

Issued by

Date writ received by Sheriff

ADDITIONAL INFORMATION FOR SHERIFF’S OFFICE

Person entitled to possession details	Rachel Ann Gardener
[XXXXX XXXXX XXXXX XXXXX XXXXX ]
Persons to be evicted details	Rose Marie Bright and Lindasy Munro
[XXXXX XXXXX XXXXX XXXXX XXXXX ]

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

Decision last updated: 29 May 2025