Goldberg Enterprises Pty Ltd v Online It Services Pty Ltd (RLD)

[2011] NSWADTAP 21

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Goldberg Enterprises Pty Ltd v Online IT Services Pty Ltd (RLD) [2011] NSWADTAP 21

Hearing dates:

8 March 2011

Decision date:

04 May 2011

Jurisdiction:

Appeal Panel - Internal

Before:

M Chesterman, Deputy President
D Bluth, Judicial Member
T Tyler, Non-judicial Member

Decision:

1. The appeal is allowed in part.

2. (a) The Tribunal's decision to make the awards of damages outlined in paragraphs [70] to [74] of its reasons is set aside.

(b) This part of the case is remitted to be heard and decided again by the Tribunal as similarly constituted.

3. No order as to the costs of the appeal.

4. The remitted part of the case is set down for directions on 12 May 2011 at 11.00 a.m.

Catchwords:

Retail lease - distinction between error of law and error of fact - unconscionable conduct - adequacy of evidence of damage

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

Cases Cited:

ACCC v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51
Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
D & D Ventures Pty Ltd v Evans & Anor [2004] NSWADT 130
Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17
Mallik v McGeown [2008] NSWCA 230
Online IT Services v Goldberg Enterprises Pty Ltd [2010] NSWADT 213
Symonds v Vass [2009] NSWCA 139

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Goldberg Enterprises Pty Ltd (Appellant)
Online IT Services Pty Ltd (Respondent)

Representation:

W Washington (Appellant)
Shana Radna & Co (Appellant)
W Ephron (Respondent - agent)

File Number(s):

109052

Publication restriction:

Nil

 Decision under appeal 

Citation:

[2010] NSWADT 213

Date of Decision:

2010-08-26 00:00:00

Before:

Retail Leases Division

File Number(s):

085135

REASONS FOR DECISION

The decision under appeal

1. This is an appeal against a decision of the Tribunal ( Online IT Services v Goldberg Enterprises Pty Ltd [2010] NSWADT 213) delivered on 26 August 2010, in which the Tribunal found in favour of the Applicant, Online Services IT Pty Ltd (hereafter 'Online'). The appeal is brought by the Respondent in the proceedings at first instance, Goldberg Enterprises Pty Ltd ('Goldberg').

1. Online occupied a shop in Rose Bay under a lease granted by its owner, Goldberg, for a period of one year expiring on 30 October 2003. The lease provided that after its expiry Online could continue in possession under a month-to-month tenancy that was terminable by either party on one month's notice.

1. The lease was a retail shop lease governed by the provisions of the Retail Leases Act 1994 ('the RL Act'). Online's business was the provision of sales and service for computers and related technology.

1. Between a date in April 2008 and 30 June 2008, correspondence occurred between Goldberg (of which the director was Mr Bruce Goldberg) or its estate agent (Mr Carrabs, of Ray White Real Estate Bondi Junction) and Online relating to a number of matters in dispute between the parties. These included the location of an air conditioning unit (with associated pipes and electrical cords) which projected from an external wall of the premises, and the presence of a satellite dish on an awning at the front.

1. On 28 May 2008, Mr Ephron, who was the director of Online, received from Mr Carrabs a Notice of Termination of the tenancy, requiring that vacant possession be granted to Goldberg on or before 28 June 2008.

1. According to the Tribunal's findings, however, Goldberg indicated in subsequent correspondence with Online during the period from 29 May to 27 June 2008 that if Online complied with certain stipulations regarding the air conditioning unit and the satellite dish, Goldberg would not enforce the Notice of Termination and would consider granting a new lease to Online. Online took a number of steps and incurred expenses with a view to complying with these stipulations.

1. In its decision at [66], the Tribunal stated: 'The negotiations which ensued after 28 May were plainly made on the basis that the termination of the lease was open to negotiation'.

1. On 1 July 2008, however, Goldberg re-entered the premises and changed the locks, compelling Online to seek a new location for its business at very short notice.

1. In an Application filed initially on 8 July 2008 and in amended form on 1 October 2008, Online sought (a) a declaration that Goldberg's re-entry of the premises was unlawful, (b) an award of damages for various expenses and losses sustained as a result of the re-entry and (c) orders for Goldberg to repay to it the rent for the period from 1 to 4 July 2008, the cost of relocating the air-conditioning unit and the amount of a security bond that it had provided under the lease.

1. Among the matters that Online alleged against Goldberg was that its conduct in re-entering the premises was unconscionable within the meaning of section 62B of the RL Act.

1. As already stated, the Tribunal found in favour of Online. It held (at [66]) that Goldberg had engaged in unconscionable conduct. It ordered that Goldberg should pay to Online damages in the sum of $15,227.24 plus interest from 1 October 2008 and should also release the security bond of $1,906.66 to Online. Details of how the amount of damages awarded to Online was calculated are given below.

The grounds of appeal

1. Goldberg's Notice of Appeal was filed on 22 September 2010. At the hearing of the appeal, which took place before us on 8 March 2011, it was represented by Mr Washington of counsel. The case for Online was initially put by Mr A Korakis of counsel in written submissions filed before the hearing, then by Mr Ephron appearing as agent at the hearing.

1. In the Notice of Appeal, in written submissions filed before the hearing and at the hearing itself, Goldberg raised arguments under three principal heads.

1. The first was that the Tribunal's decision was vitiated by what Mr Washington called 'errors of process', going well beyond mere errors of fact, and for that reason should be wholly set aside.

1. Secondly, Goldberg claimed that there was no evidence, or no sufficient evidence, to support the Tribunal's conclusion that it had engaged in unconscionable conduct.

1. The third ground raised by Goldberg was that the Tribunal's assessment of the damages to be awarded to Online was flawed for a number of reasons.

1. We will now review the submissions and state our conclusions on each of these three matters in turn.

Alleged 'errors of process'

1. In addressing us at the hearing, Mr Washington explained that by the phrase 'errors of process', he meant a consistent failure by the Tribunal in its reasons for decision to make findings of fact on which its conclusions regarding the merits of Online's claims might be based, with the consequence that 'no reasoning process' supporting these conclusions was 'exposed' in the decision.

1. Mr Washington argued that an 'error of process', so understood, was properly characterised as an error of law, not merely an error of fact. He based this argument principally on the judgment of Ipp JA in Symonds v Vass [2009] NSWCA 139. In this judgment, the following passages, at paragraphs [135], [137] and [138], are of primary importance:-

135 [The trial judge] made these findings as to breaches of duty after recounting in detail transcripts of the evidence that described what had occurred prior to and during the trial before Dowd J. It is to be inferred that he based his findings on that material. The difficulty is, however, that his Honour did not make express findings of primary fact that exposed the specific chain of reasoning that led him to come to the conclusions that he did. His Honour's reasons are 112 pages in length. Nearly eighty of these pages are extracts from the evidence and the transcript. The remainder is largely a recital of facts that are common ground. The reasoning is sparse as are the primary facts that his Honour found. The critical findings are, to a substantial extent, conclusory. It was common ground between the parties on appeal that his Honour's reasons as to the findings of breaches of duty were inadequate.

137... His Honour's reasons did not enable the parties to see the extent to which their arguments were understood and accepted, and to understand the basis of the judge's decision... The inadequacy of the reasons should be regarded as an error in the process of fact finding... and as a failure to provide a trial in which, in a significant respect, the assessment of the evidence was not flawed...

138 A retrial will not be ordered merely because the reasons for judgment are inadequate. The inadequacies must be such that a miscarriage of justice occurred... As McColl JA in Mallik v McGeown observed ([2008] NSWCA 230 at [64]):

"Even where the Court finds a substantial wrong or miscarriage of justice has been occasioned, it has a discretion as to whether a new trial should be ordered."

1. In claiming that the Tribunal's decision was vitiated by 'errors of process', Mr Washington cited also the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. But the passages that he quoted (at pp 355-356 and 359) stand for significantly different propositions than those stated in Symonds v Vass . In the terms used in his written submissions, these are (a) that 'the question whether there is any evidence of a particular fact is a question of law' and (b) that 'a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts'.

1. As Mr Korakis emphasised in the submissions filed by Online before the hearing, to show in appeal proceedings such as these that the Tribunal at first instance has made errors of fact is not enough of itself to justify intervention by the Appeal Panel. This follows from section 113(2) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), which Mr Korakis cited. This subsection states:-

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

1. Referring to a line of Appeal Panel decisions (for example, Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17 at [85]) and indeed to the above-quoted judgment in Symonds v Vass at [138], Mr Korakis argued that leave under section 113(2)(b) should not be granted unless a refusal of leave would result in 'substantial injustice' or 'a substantial wrong or miscarriage of justice'.

1. The upshot of these competing submissions is, in our judgment, that Mr Washington's claim that the Tribunal's decision is marked by 'errors of process' and should be set aside on this ground alone is dependent on his demonstrating that the key conclusions in it were not based, and not shown in the decision to have been based, on clearly expressed findings of fact and that to allow these conclusions to stand would produce a miscarriage of justice.

1. Mr Washington pointed to a number of aspects of the Tribunal's decision in seeking to demonstrate that it contained 'errors of process', not merely errors of fact. The first three sections of the decision (paragraphs [1] to [58]), headed respectively 'Background', 'Parties' evidence' and 'Issues', were, he said, chiefly devoted to summarising evidence given in the case and contained no findings of fact. Then under the heading 'Decision', after making a few observations regarding the parties' entitlements under the month-to-month tenancy (paragraphs [59] and [60]) and recording some findings of fact (paragraphs [61] and [62]), the Tribunal proceeded, as he put it, 'without exposing any reasoning process' to reach conclusions of prime importance for the case. These were that Goldberg's conduct had been unconscionable and that its repossession of the premises was unlawful.

1. An accompanying submission made by Mr Washington was that in this part of the decision (paragraphs [63] to [67]), the Tribunal had used 'weasel' words that rendered its conclusions uncertain to an impermissible degree. He supplied these examples: (a) a statement at [63] that Goldberg was not entitled to require Online to do work (of an unspecified nature) that 'probably' went further than 'the work which it was obliged to do'; and (b) the Tribunal's use of the phrase 'if that is so' in [66], following a reference to a contention by Goldberg that a letter written by it to Online on 5 June 2008 constituted a fresh offer.

1. The remaining examples of alleged 'errors of process' identified by Mr Washington were in the Tribunal's determination of the quantum of damages to be awarded to Online (paragraphs [68] to [74]). It is convenient for us to describe these at a later stage of our decision, alongside other matters raised by Mr Wahington in connection with the assessment of damages. At present, we will simply indicate that we have taken them into account in reaching our conclusion regarding his claim that the Tribunal's decision should be wholly set aside on the ground of 'errors of process'.

1. Our conclusion is that Mr Washington has failed to make good this claim. As pointed out in the written submissions prepared by Mr Korakis, his arguments did not pay due regard to an important paragraph in the decision, namely paragraph [62]. In contrast to earlier passages in the decision that did - as indicated by headings such as 'Parties' evidence' - concern themselves with the documentary and oral evidence, paragraph [62] commenced with the words 'The Tribunal accepts the correspondence as compelling'. It then set out in ten short subparagraphs a number of factual findings. These findings constituted the basis for the Tribunal's conclusions, in paragraphs [63] to [67], that Goldberg's conduct was unconscionable and that its repossession of the premises was unlawful.

1. We agree with Mr Washington that some of the terminology used by the Tribunal in paragraphs [63] to [67] introduced an undesirable degree of uncertainty into its reasoning. In addition to the examples that he cited, we would mention the use of the phrase 'on one view at least' in paragraph [65]. But in our opinion the crucial reasons underpinning the Tribunal's decision regarding unconscionable conduct and the lawfulness of Goldberg's repossession of the premises were made quite clear in the last two sentences of paragraph [66]. This paragraph, along with the three preceding paragraphs, is quoted in full below (at [30]).

1. We accordingly dismiss this ground of the appeal.

The finding of unconscionable conduct

1. The Tribunal dealt as follows with the question of unconscionability. First, it indicated at [57] that Goldberg's behaviour in 'raising the bar' (i.e., requiring Online to do more work) 'with the implied inducement of the possibility of a new lease' had the effect of 'bringing in' an 'element of unconscionability'. At [58], it reproduced the full text of the section of the RL Act (section 62B) that describes unconscionable conduct for the purposes of the Act. Then at [63 - 66], after setting out at [62] the findings of fact that we have already mentioned, the Tribunal stated:-

63 In short, the view of the Tribunal is that although the Respondent was entitled to terminate the lease on one month's notice, it was not entitled to require the Applicant to do work which probably went further than repair work which it was obliged to do, on the implied or express representation that a new lease would be provided.

64 The Respondent was in a much stronger bargaining position than the Applicant: indeed, the Applicant had no bargaining position since the tenancy was determinable at will.

65 The Respondent acted in a manner which put the Applicant under some duress and in a manner which had many hallmarks of bad faith: in essence the Respondent either expressly or impliedly represented to the Applicant that if he (the Applicant) did certain works, he would have a new lease, when on one view at least, the Respondent had no such intention.

66 The Respondent argued that the letter of 5 June constituted a fresh offer to the tenant, which the tenant did not accept. If that is so, it tends to negate the effect of the letter of 28 May which notified the tenant of the termination of the lease. The negotiations which ensued after 28 May were plainly made on the basis that the termination of the lease was open to negotiation. To my mind, it is unconscionable that the Respondent, whilst those negotiations and actions of the tenant were underway, enter the premises purportedly in reliance on the letter of 28 May.

1. The contention put forward by Mr Washington was that if proper account is taken of what constitutes 'unconscionability', it is plain that there was no evidence, or no sufficient evidence, to support this conclusion by the Tribunal that Goldberg acted unconscionably.

1. In making this argument, Mr Washington referred to the concept of unconscionability as defined by the High Court in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, and in particular to the following passage in the judgment of Mason J at 462:-

It is made plain enough... that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis--vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.

1. Mr Washington argued that Mr Ephron, the director of Online, was not an unsophisticated businessman and could not be regarded as occupying a position of 'special disadvantage' vis--vis Goldberg. He therefore did not fall within the class of people defined by Mason J in this passage from Amadio . Mr Washington also argued that there was no evidence to support the Tribunal's finding that Mr Goldberg acted in bad faith or that Online was put under duress.

1. In his submissions at the hearing, Mr Ephron emphasised that Goldberg's conduct during June 2008 led Online to believe that it would obtain a new lease if it fulfilled the conditions stipulated in the correspondence from Goldberg or from Mr Carrabs and that save in one instance (when insufficient time was left for compliance) it did what was required of it even though he believed that the conditions were unreasonable. For these reasons, he said, Goldberg acted unconscionably in evicting Online.

1. In our opinion, Mr Washington's claim that there was no evidence to support the Tribunal's determination on unconscionable conduct must fail. We reach this conclusion for two reasons.

1. First, as the Tribunal stated in D & D Ventures Pty Ltd v Evans & Anor [2004] NSWADT 130 at [86], the concept of 'unconscionable conduct' on which his submissions were founded - i.e., the general or 'unwritten' law version, as explained in Amadio and in subsequent leading cases such as ACCC v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51 - is not the concept on which the statutory remedy established in sections 62A and 62B of the RL Act is based. The nature and scope of the statutory remedy are instead set out in section 62B, as explained in leading authorities such as the judgment of Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557. In its decision, the Tribunal reproduced the text of section 62B in full and, more importantly, referred explicitly in paragraphs [64] and [65] to factors that under section 62B(3) are relevant in determining whether a lessor has acted unconscionably.

1. Secondly, in an authority that Mr Washington himself cited - the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359 - it is stated that a finding of fact is not reviewable on the ground of error of law unless there is 'no probative evidence' to support it. The Tribunal's findings (chiefly in paragraph [62] of its decision) as to how Goldberg gave Online to believe that during June 2008 the operation of the Notice of Termination was open to negotiation constitute probative evidence, on the basis of which it could properly make a finding that Goldberg's repossession of the premises amounted to unconscionable conduct under section 62B.

1. We accordingly dismiss this ground of the appeal.

The Tribunal's assessment of damages

1. In paragraphs [68] to [74] of its decision, the Tribunal assessed the various components of the damages to be paid by Goldberg to Online in the following manner:-

68 The Applicant had paid rent up until 4 July 2008 and is entitled to an order for that amount plus interest. The rent claimed was $271.24.

69 Had the lease been terminated by one month's notice by the Respondent, the Applicant would have incurred some cost in making good the premises. Although the matter is not free of doubt, the Tribunal is prepared to allow that the tenant was responsible for removing the air conditioning unit and repairing the wall; however it should not have had to move the unit twice and thus the Tribunal is prepared to allow to the Applicant the sum of $1,600.00 being the amount of the invoice of John Axe Services Pty Ltd.

70 After re-entry by the Respondent, the Tribunal accepts that the Applicant had some on-going expenses such as a subcontractor who was entitled to be paid for the week starting 1 July. Mr Ephron's evidence was that that sum was $650.00 and the Tribunal allows it.

71 The cost of re-location on an emergency basis was, the Tribunal accepts, likely to be more expensive than if the re-location had been planned. The Applicant sought the cost of a taxi truck and utility hire, being $156.00 and $550.00 respectively and the Tribunal grants those amounts.

72 The Applicant had lodged a bond pursuant to the lease. Since the Applicant did most if not all of the work of making good the premises and was not otherwise in breach or in arrears of the lease, the bond should be released to the Applicant. The sum of the bond is $1,906.66 (one month's rent).

73 The Applicant also claimed for loss of business revenue and consequent loss of profit. Mr Ephron produced sales figures which revealed that his monthly sales had dipped significantly for the month of July 2008. Had the lease been terminated in the ordinary course, some disruption to sales would have been expected and therefore a drop in sales would also have been expected. However the Tribunal accepts that the lock out from the premises and the notice which accompanied the same is likely to have had some deleterious effect on the business. The average sales for the three months prior to re-entry were in the order of $51,000.00. The actual sales for July were $15,816.00 and for August, $21,235.00.

74 The evidence of loss pertaining to the lock out as distinct from the disruption to business which would be expected by a re-location was unsatisfactory but the Tribunal is required to do the best it can with the evidence available. Taking into account the figures presented by the Applicant, the Tribunal allows the sum of $12,000.00 representing one quarter of one month's sales as compensation for the period of lock out. That figure is, of course, a gross sales figure.

1. Mr Washington made a number of specific criticisms of this section of the Tribunal's decision. As already indicated, some of these criticisms were incorporated into his broader contention that the decision as a whole should be set aside on the ground of errors of process.

1. First, he argued that no evidence was identified to support the award in paragraph [68] of a small sum for repayment of rent. He acknowledged, however, that the inclusion of this amount could not be disputed.

1. His criticism of paragraph [69] was that the Tribunal gave no reasons for holding that Online 'should not have had to remove the [air conditioning] unit twice'. He referred to a statement by the Tribunal at [31] that a demand on 5 June 2008 by Goldberg that 'the cabling and therefore the unit be moved again was, according to the Applicant, both unreasonable and unnecessary', but maintained that this fell short of what was needed. It was argued in Mr Korakis's submissions, however, that because the Tribunal indicated at [49] that it preferred the evidence of Mr Ephron to that of Mr Goldberg, this statement in paragraph [69] had a sufficient evidentiary basis. We endorse this argument and therefore consider that this award should be permitted to stand.

1. With regard to paragraph [70], Mr Washington's submission was that the reference to 'some on-going expenses such as a subcontractor who was entitled to be paid for the week starting 1 July' was too vague to provide an adequate basis for awarding the sum of $650. We agree with this submission. Because, as the Tribunal itself emphasised more than once (for example at [59 - 60]), Online's month-to-month tenancy was terminable at any time on one month's notice, the Tribunal should have asked what additional costs associated with relocation were sustained by Online by virtue of the fact that its eviction was peremptory and unlawful. The Tribunal did not refer at all to this factor in paragraph [70].

1. This was, however, a matter to which it adverted in paragraph [71]. The basis of Mr Washington's challenge to the awards of small sums (totalling $706) granted in that paragraph was that, having made this point, the Tribunal awarded what appeared to be the total cost of a taxi truck and utility hire. It did not seek to limit the awards to the amounts by which the cost of relocation on an emergency basis would exceed the cost of a 'normal' relocation. We consider that this criticism is justified.

1. In paragraph [72], Mr Washington strongly challenged the statement that 'the Applicant did most, if not all, of the work of making good and was not otherwise in breach'. He pointed out that at the hearing before the Tribunal there was evidence that Online had left the premises in a poor physical condition. Under clause 31(h) of the lease between the parties (as the Tribunal noted at [41 - 42]), the cost of making good any damage to the premises following vacation of them by Online was chargeable to Online.

1. Mr Washington argued that the Tribunal erred in law in failing to describe and evaluate this evidence. Mr Ephron's response was to say that at the hearing Online objected to it on the ground that it included only a quotation for the cost of repairs and did not demonstrate that repairs had actually taken place and been paid for.

1. It is apparent to us from the Tribunal's file, and is indeed confirmed by this response from Mr Ephron, that the Tribunal received photographic evidence and heard submissions in support of Goldberg's claims that Online had failed to make good certain damage that it had caused to the premises and that Goldberg was entitled to some reimbursement for the cost of rectification. In stating the proposition within paragraph [72] that Mr Washington challenged, the Tribunal passed over this evidence. It might well have been disposed to reject these claims by Goldberg, but it was bound at least to consider them. Its failure to do so was, in our judgment, an error of law.

1. Finally, Mr Washington challenged the award of $12,000 made to Online in paragraphs [71] and [72] for loss of profits. The principal ground of his challenge was that this figure was determined by reference to the gross sales that had been achieved by Online's business, not its net profits, during the three months before it was evicted from the premises.

1. The Tribunal's reasoning was along the following lines: (a) the evidence regarding the difference between the loss caused by eviction and the loss that would have been caused by relocation was 'unsatisfactory'; (b) it (the Tribunal) nonetheless had to 'do the best it can'; and (c) in these circumstances, it was appropriate to award roughly 25% of the average monthly figure for Online's gross sales during the three months before the eviction.

1. We were advised at the hearing of the appeal that before the hearing at first instance Goldberg had sought to obtain production of profit and loss statements for Online's business through the issue of a summons to produce, but that for reasons that we need not elaborate here both parties had assumed that service of the summons was not permitted.

1. We are of the view, however, that the onus lay on Online, as the Applicant seeking an award of damages for loss of profits, to tender evidence that would allow an adequate assessment of such a loss. If it failed to do so, and indeed resisted efforts made by Goldberg to compel it to produce such evidence, it should bear the consequences.

1. We consider further that the Tribunal, in the absence of any such evidence, was in error in deriving an estimate of lost profits from evidence that went only to the amounts achieved in gross sales. The difference between gross sales and net profits is well recognised, and is too important to be glossed over in this way. The figure of $12,000 awarded to Online for loss of profits should therefore not be permitted to stand.

1. It will be seen that in the foregoing discussion of the awards of damages to Online made by the Tribunal under various different heads, we have ruled that five such awards were not sustainable in law. These are the awards relating to the fees paid by Online to a subcontractor ($650), the hiring fees for a taxi truck ($156) and a utility ($550), the repayment of the bond ($1,906) and Online's estimated loss of profits resulting from the eviction ($12,000). The total of these amounts is $14,862. When interest is added, as ordered by the Tribunal, this total rises to a figure close to $20,000.

Our orders

1. For the foregoing reasons, our decision on the appeal is that it should be allowed in part. Goldberg's claim that the decision under appeal should be wholly set aside is rejected, but its claim that the Tribunal erred in law in the course of assessing the damages to be paid by it to Online is upheld with regard to the five specific awards identified in the preceding paragraph.

1. Since we have concluded that the decision under appeal contains errors in law warranting a reconsideration of certain aspects of it, it would be open to us to grant leave under section 113(2)(b) of the ADT Act for the appeal to extend to the merits and to make the necessary determinations ourselves under section 115. But we consider it preferable to remit this part of the case, pursuant to section 114(2)(b), to be heard and decided again by the Tribunal, as similarly constituted. We leave it to the Tribunal to determine whether or not further evidence on the specific matters in issue should be admitted.

1. Because the case included a claim of unconscionable conduct, it was initially constituted as required by clause 4 of Schedule 2, Part B, of the ADT Act: that is to say, by an appropriately qualified member of the Retail Leases Division assisted by two other members acting in an advisory capacity only. In the remitted proceedings, the Tribunal must again be constituted under this clause.

1. Neither party applied for the costs of the appeal. Having regard to this, to the fact that the appeal succeeded in part and failed in part, and to the comparatively small amount of money that is at stake in these proceedings, we make no order as to costs.

1. The remitted part of the case is set down for directions on 12 May 2011 at 11.00 a.m.

1. Finally, we strongly urge the parties to settle what remains of this long-running dispute without incurring the cost and delay of a further hearing. The issues remaining for determination are very narrow in scope and only a relatively small amount of money - presumptively an amount in the vicinity of $20,000 at most - remains at stake. A further hearing within proceedings that have already occupied a great deal of time is highly unlikely to confer any net benefit on either of the parties.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 04 May 2011