Nicoll v Barnett

[2013] NSWADT 104

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Nicoll v Barnett [2013] NSWADT 104
Hearing dates:	21 March 2013
Decision date:	21 March 2013
Jurisdiction:	Retail Leases Division
Before:	D Bluth, Judicial Member
Decision:	1.The Respondent is to pay the Applicant the sum of $13,626.62 from 5 March 2013.
Catchwords:	Interest on the outstanding rent, make good obligations, compensation for default, reimbursement of expenses
Legislation Cited:	Retail Leases Act, 1994
Cases Cited:	Cronulla Newsagency Pty Ltd v Pizzata & Ors [2002] NSWADT121 Diagne v Payman [2011] NSWADT 206 Ragi Pty Ltd v Kiwi Munchies Pty Ltd [2007] NSWADT 108 Subway Realty Pty Ltd v The Investment Pty Ltd [2010] NSWADT123 Wanice Pty Ltd v Bocove Pty Ltd [2003] NSWADTAP 24
Category:	Principal judgment
Parties:	John Alan Nicoll and Lidwina Wilhelmina Seysenser (Applicant) Murray John Barnett (Respondent
Representation:	J Nicoll (Applicant in person) M Barnett (Respondent in person)
File Number(s):	125147

reasons for decision

Background

1. The applicants, John Alan Nicoll and Lidwina Seysener (Mr Nicoll), leased to Murray John Barnett, the respondent (Mr Barnett) premises being Shop 8, 331-335 Barrenjoey Road, Newport for two years from 30 June 2007 (the Lease).

1. The permitted use under the lease was restaurant, take-away and home delivery of meals, fruit shop, greengrocer, delicatessen, licensed premises and café. Whether all of these uses were taken up by Mr Barnett is unclear from the evidence but, in any event, the property was used for part of the permitted use and the Tribunal are satisfied that the premises fall within the jurisdiction of the Tribunal under the Retail Leases Act 1994 (the Act).

1. Pursuant to the terms of the terms of the Lease Mr Barnett paid the security deposit of $19,167.51 which was lodged by Mr Nicoll in accordance with the Act pursuant to the Retail Bond Scheme with the Retail Tenancy Unit.

1. Mr Barnett vacated the shop on 1 July 2009 being the end of the two year period. The disputation between the parties relates to unpaid rent and the obligations of Mr Barnett to make good under the Lease.

1. Mr Nicoll commenced proceedings in the Local Court against Mr Barnett for the balance of the unpaid rent, outgoings, interest and damages for breaches of the lease. These proceedings were transferred to this Tribunal and an Application for Original Decision was lodged by Mr Nicoll seeking the sum of $32,725.00 (the claim).

1. The claim is made up of a number of discreet items as particularised in the Application as follows.

• Particular 1
• Unpaid rent calculated as follows:

Rent due	$156,636.84
Rent paid	$142,864.59
Unpaid rent	$13,772.25

• Particular 2

Interest on unpaid rent and trade waste from 29 May 2008 to 24 November 2009. $1,099.68

• Particular 3

Unpaid strata water usage, grease waste pit and agreement fee for the period of the Lease $2,781.44

• Particular 4

Unpaid water, sewer, trade waste and trade waste agreement $1,370.20

• Particular 5

Cleaning of premises at end of Lease $440.00

• Particular 6

Painting of premises at end of Lease $6,710.00

• Particular 7

Tiling work to remove tiles, replace tiles and restore floor of premises $1,941.50

• Particular 8

Electrical work to restore premises $550.00

• Particular 9

Replace store room removed by Mr Barnett $3,190.00

• Particular 10

Replace light transformers, globes, cables and tap $165.95

• Particular 11

Mediation and filing fees $704.00

1. Mr Nicoll filed three Affidavits dated 15 November, 16 November and 10 December 2012 together with contemporaneous photos of the state of the premises at the time of lease termination. Mr Barnett filed a Defence in the Local Court proceedings and an Affidavit dated 4 December 2012. Both parties were self-represented.

1. Mr Barnett in his response to the claim stated that he "acknowledged we owe the sum of $12,847.26 in rent which was to be taken out of the bond and that was to resolve all disputation between the parties". Two attempts at mediation failed and the dispute was heard on 21 March 2013.

Terms of the lease

1. Pursuant to the terms of the Lease, rent was to be paid monthly in advance, a security deposit was to be paid, and a rent increase was to occur on 29 September 2007 based on the CPI. The interest rate for any default by the lessee was set at 12% per annum under item 15 of Annexure A to the Lease and the share of outgoings at item 14A of Annexure A was set at 100%.

1. The outgoings payable by the lessee are defined at item 14B of Annexure A as follows:

Outgoings -

a) all charges in respect of grease trap servicing, the cleaning of air filters and exhaust vents and other trade waste;

b) all charges and licence fees payable arising from the lessee's use and occupation of common property;

c) water usage/consumption;

d) insurance;

e) such other services as the lessee may require such as electricity, gas, telephone, etc..

1. Clause 7 of the Lease deals with conditions and repairs.

7.1The lessor must -

7.1.1.maintain in a state of good condition and serviceable repair the roof, the ceiling, the external walls and external doors and associated door jambs, and the floors of the property and must fix structural defects;

7.1.2maintain the property in a structurally sound condition; and

7.1.3maintain essential services.

7.2The lessee must otherwise maintain the property in its condition at the commencement date and promptly do repairs needed to keep it in that condition but the lessee does not have to -

7.2.1alter or improve the property; or

7.2.2fix structural defects; or

7.2.3repair fair wear and tear.

7.3The lessee must also -

7.3.1...

7.3.2...

7.3.3decorate the inside of the property in the last three months of the lease period (however it ends) - "decorate" here means restoring the surfaces of the property in a style and to a standard of finish originally used, eg. by repainting.

7.5If the lessee fails to do any work that the lessee must do the lessor can give the lessee a notice in writing stating what the lessee has failed to do. After the notice is given the lessee must -

7.5.1do the work immediately if there is an emergency; and

7.5.2do the work promptly and diligently in any other case.

If the lessee does not do the work, the lessor can do it and the lessee must reimburse the lessor for the cost of the work.

1. The obligations of a lessee at the end of the lease is found in clause 12.3 which states:

12.3When this lease ends, unless the lessee becomes the lessee of the property under a new lease the lessee must -

12.3.1return the property to the lessor in the state and condition that this lease requires the lessee to keep it in; and

12.3.2have removed any goods and anything that the lessee fixed to the property and have made good any damage caused by the removal.

Anything not removed becomes the property of the lessor who can keep it or remove and dispose of it and charge to the lessee the costs of removal, making good and disposal.

1. Clause 5 of the lease deals with the section called Money - what money must the lessee pay?

5.1The lessee must pay to the lessor or as the lessor directs -

5.1.1the rent stated in item 13A in the schedule;

5.1.2the share stated in item 14A in the schedule of those outgoings stated in item 14B in the schedule;

5.1.3the reasonable costs to the lessor of remedying a default by the lessee;

5.1.8if the lessee defaults, the lessor's reasonable legal costs relating to the default.

Claims by the lessor

1. In the first particular Mr Nicoll claimed the sum of $13,772.25 for unpaid rent. Mr Barnett always recognised that rent had been unpaid and was due and owing but maintained that in accordance of his accounting records it was only the sum of $12,847.26. There was a dispute between the parties about certain payments that were not accounted for by Mr Nicoll that Mr Barnett maintained had been paid. Mr Barnett produced his accounting records indicating that certain deposits had been made into the bank account of Mr Nicoll. Mr Nicoll produced his bank records from his Westpac account showing all the monies deposited into that account by Mr Barnett, and bank records did not indicate the particular deposits that Mr Barnett alleged had been made. The Tribunal accepts the evidence from Mr Nicoll regarding actual deposits into his account for rent. After a small adjustment the Tribunal determines that the sum of $13,768.45 is owed by Mr Barnett for unpaid rent.

Interest

1. The next particular of the claim by Mr Nicoll related to interest owing from 29 May 2008 to 24 November 2009 on the unpaid rent. At the Hearing Mr Nicoll indicated that he wished to claim the full amount of interest owing for the period relating to the unpaid rent, that is, up to the date of the Hearing. Mr Barnett objected to the alteration to the claim. As the disputation between the parties had not been resolved, the Tribunal saw no prejudice to Mr Barnett in Mr Nicoll seeking to amend his application to claim interest for the full period of the unpaid rent. Mr Barnett could put his submissions to the Tribunal at this Hearing. The Tribunal grants leave to Mr Nicoll to so amend. Therefore particular 2 is a claim now for interest of the unpaid rent up to the date of this Hearing.

1. The second aspect of the claim by Mr Nicoll for interest on the unpaid amount of rent is that the rate be 12% as stated in the Lease. Mr Barnett disputed the amount of interest at 12% and directed the Tribunal to section 72A of the Act. That section states:

Section 72A - Power of Tribunal to award interest

(1)When the Tribunal orders on a retail tenancy claim or an unconscionable conduct claim that a person pay money to another person, the Tribunal may order that there is to be included, in the amount ordered to be paid interest at a specified rate on the whole or any part of that amount for the whole or any part of the period between when the cause of action arose and when the order takes effect.

(2)...

(3)The rate of interest specified by the Tribunal under this section must not exceed the rate at which interest is payable on a judgment debt of the District Court.

(4) This section does not:

(a)authorise the giving of interest on interest, or

(b)apply in relation to any debt which interest is payable as a right whether by virtue of any agreement or otherwise, or

(c)affect the damages recoverable for the dishonour of a bill of exchange.

1. Mr Barnett submitted that the interest rate should be in accordance with section 72A(3) of the Act, namely at the rate at which interest is payable on a judgment debt of the District Court. This rate over the period of the claim is somewhat less than the 12% as nominated in the Lease. A similar problem was considered by Judicial Member Fox in Subway Realty Pty Limited v The Investment #1 Pty Limited [2010] NSWADT 123.. There Judicial Member Fox considered the very same Law Society Lease and Clause 5.1.1 wherein that lease the interest rate had been also set by the parties at 12%. Judicial member Fox said at paragraph 39:

"The limit imposed by section 72A(3) is evident in the present matter by section 72A(4)(b); the payment as interest sought to be enforced is one which arises not by the exercise of my discretion but by virtue of an agreement being clause 5.1.5 of Annexure B of the Lease".

1. The Tribunal agrees with the analysis of Judicial Member Fox. Section 72(A)(4)(b) states clearly that the section does not apply in relation to any debt on which interest is payable as a right pursuant to any agreement. It is quite clear that the Lease is an agreement between the parties and that pursuant to clause 5.1.5 the parties agreed that interest payable on the monies payable under the lease is at 12%. The Tribunal rejects the submission of Mr Barnett and allows interest on the unpaid rent at 12% in accordance with the terms of the Lease up to the date of the Hearing, namely 21 March 2012. This amount calculated by Mr Nicoll is $6,083.78 and the calculation was not challenged by Mr Barrett.

Unpaid water usage rates and grease waste

1. The next particular of the claim is for unpaid strata, water usage, grease waste pit and agreement fee. Mr Barnett in his Defence filed at the Local Court stated that Mr Nicoll had not provided the relevant documentary evidence, or any statements as required under the Act. The Tribunal takes this to mean that Mr Barnett was referring to a lack of compliance by Mr Nicoll to sections 27, 28 and 28A of the Act.

Outgoings under the Act

1. Section 27 relating to outgoings states:

A retail shop lease is taken to include provision to the following effect:

(a)the lessor must give the lessee a written estimate of the outgoings to which the lessee contributes under the lease itemising those outgoings under the item descriptions used in the list of outgoings in the form of lessor's disclosure statement prescribed for the purpose of section 11,

(b)the estimate of outgoings must be given to the lessee in respect of each accounting period of the lessor during the term of the lease and must be given before the lease is entered into and thereafter during the term of the lease at least 1 month before the commencement of the accounting period concerned.

1. The relevant parts of Section 28 Outgoings statements are:

(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; and

(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, 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).

1. Section 28A - Non-provision of outgoings estimate or statement:

(1).A lessee is entitled to withhold payment of contributions for outgoings if:

(a)the lessor has failed to give the lessee a written estimate of outgoings required under section 27 or an outgoings statement required under section 28, and

(b)the lessee has, at or after the expiry of the time when the estimate or statement was required to be given to the lessee, requested the lessor in writing to furnish the estimate or statement to the lessee, and

(c)the lessor's failure has continued for 10 business days after the request was made.

(2)The lessee must pay the withheld contributions within 28 days after the lessor furnishes the estimate or statement.

1. Mr Nicoll attached to his first affidavit a copy of his letter of 12 January 2009 to Mr Murray in which he provided to Mr Murray a breakdown of those charges stating "...which we have already paid, and now ask for reimbursement...being the trade waste component of $383.32. We will provide the figures for water usage shortly which is the other component that the tenant is required to pay...".

Mr Nicoll stated at paragraph 19 of his affidavit that he has previously provided copies of these statements of outgoings to Mr Barnett. In any event, all copies of the invoices were annexed to Mr Nicoll's affidavit of 15 November 2012.

1. The entitlement for the lessee to withhold payment of outgoings from the lessor under section 28A is predicated upon the lessee making a request in writing for an estimate or statement of these outgoings. Mr Barnett did not provide the Tribunal with any evidence of such a request. In any event Mr Nicoll has furnished to Mr Barnett all the statements for outgoings when he served his affidavit of 15 November 2012 on Mr Barnett. Section 28A(2) requires a lessee to pay any withheld contributions within 28 days of the Lessor furnishing the estimate or statement.

1. Query whether Mr Nicoll complied with section 27(a) where the lessor is required to provide to the Lessee a written estimate of the outgoings. Within the voluminous amount of material annexed to Mr Nicoll's first affidavit, the Tribunal could see that an estimate of outgoings was provided to Mr Barnett. However, a breach of section 27 by the lessor does not necessarily disentitle the lessor to claim the outgoings under the Lease.

1. For a lessee to avail itself of a breach by a lessor of section 27 it must attempt to quantify any damages that may have resulted from the lessor's non-compliance (see Cronulla Newsagency Pty Limited v Pizzata & Ors [2002] NSWADT121 and Ragi Pty Ltd v Kiwi Munchies [2007] NSWADT 188 following the Appeal Panel's decision in Wanice Pty Ltd v Bocove Pty Ltd [2003] NSWADTAP 24). In Diagne v Payman [2011] NSWADT 206 Judicial Member Rickards considered the ability of a lessor to recover outgoings in very similar circumstances to these. He referred to the decision of the Appeal Panel in Wanice Pty Ltd v Bocove Pty Ltd [2003] NSWADTAP 24 and said "contrary to the Lessee's contentions, where a lessee has not been given an outgoings estimate or statement, that Lessee is not relieved from liability to pay outgoings.".

1. As noted in paragraph 24 of these Reasons Mr Nicoll has provided to Mr Barnett copies of all invoices relating to the outgoings. Consequently, the Tribunal views this as compliance by Mr Nicoll with his obligations under section 27 to provide estimates and actuals of outgoings. Mr Barnett has not provided any evidence to the Tribunal regarding damages that he may have suffered as a result of Mr Nicoll's delay in compliance with section 27. Consequently, the Tribunal allows a claim for $2,781.44 for outgoings under this claim.

1. Under particular 4 of the claim Mr Nicoll seeks reimbursement of unpaid water, sewer, trade waste and trade waste agreement in the sum of $1,370.20. On closer examination of the invoices it became apparent that included in those invoices from Sydney Water were charges for the provision of the services of water and sewerage as well as consumption. Those services charges are not covered within the definition of outgoings in item 14B of the Lease and consequently not recoverable by Mr Nicoll and not payable by Mr Barnett. After deducting those unrecoverable charges from the amount of the invoices, the resultant figure is $536.40 which is payable by Mr Barnett.

Cleaning

1. In relation to the claim for cleaning of $440.00 Mr Barnett in his defence stated that the premises was cleaned and returned to an enhanced condition and there were no details of the cleaning fee claimed. Mr Nicoll produced copies of invoices for cleaning costs incurred at the commencement of the lease on 30 June 2007. After Mr Barnett vacated the premise at lease end Mr Nicoll wrote an email to Mr Barnett on 2 July 2009 stating:

"We cannot really express how disappointed we were in the state you left our premises. It was disgraceful. There has been no attempt to clean the premises and return it to the state that it was when you signed the lease. The premises may be old, however, when you took occupation was more than just clean. In the days leading up to your occupancy, $1,316.25 was spent on cleaning as well as the extra work done after that date - as you are well aware ...

Although the store room walls had not been painted for years and were a different colour to the rest of the premises, this area was also clean. The floor had been pressure washed and the walls scrubbed down. I had also repaired the holes in the wall where you had butchered them by removing the shelves with a crowbar. The kitchen floor and other areas are so greasy that you can hear and feel shoes sticking as you walk, but you already know that .... The following is a list of problems that need to be rectified ...."

1. There then followed within the email a list of 18 items upon which Mr Barnett was to attend to in an endeavour to restore the premises to the state those premises were in, according to Mr Nicoll, as at the commencement of the Lease.

Painting of the premises

1. Mr Nicoll claims the sum of $6,710.00 for repainting the premises. He says in his affidavit of 15 November 2012:

"38: Mr Barnett was obliged to repaint the whole of the premises within the 3 months before the end of his lease (clause 7.3.3).

39:Mr Barnett was reminded of this obligation to paint the premises in an email of 25 June 2009 and in a later email of 2 July 2009. In the later email, we offered Mr Barnett access to the premises to carry out the painting and other work needed to bring the premises back to the condition at the start of the lease. There was no response.

43: At the end of the lease, Mr Barnett patched holes drilled in the wall where he had installed shelves. Mr Barnett roughly sanded the holes then spot painted over the plaster left from the rough sanding. This left the new paint not adhering to the previous paint and walls spotted (see photos 29 and 30).

44: Thick pencil lines were across walls Mr Barnett had painted yellow (see photos 29 to 30). Names were on the wall at the entrance to the kitchen (see photo 31). These points were noted in our 2 July 2009 email to Mr Barnett at the end of his lease (see Anexure 13, point 2 and 7).

45: After Mr Barnett vacated we obtained two quotes for painting. Paintwork Plus $7,480.00 (see Annexure 24) and Paint Wise $6,710.00 (see Annexure 25). The least expensive quote of $6,710.00 has been claimed. I painted the premises. The cost of paint, rollers and scraper was $360.81 (see Annexure 26)."

1. Mr Barnett contended that "the obligation is on (Mr Nicoll) to prove that the condition of the condition of the premises fails to meet the requirement of the lease". The photos referred to by Mr Nicoll in his affidavit clearly show the poor state of cleanliness of the premises and the poor painting work undertaken presumably by Mr Barnett at the lease end. Without any evidence from Mr Barnett to counter these photos as to the state of the premises, the Tribunal is satisfied that Mr Nicoll has proven that the condition of the premises fails to meet the requirement of the lease, in particular clause 7.3.3 requiring Mr Barnett to redecorate (by definition within the Lease, meaning to repaint) the premises at the end of the lease.

Compensation as against reimbursement

1. In both the claim for cleaning and the claim for painting, it is noted that Mr Nicoll did not engage third party contractors in particular those from whom he obtained quotations to undertake the work, but instead he did the work himself. In this regard, he cannot claim reimbursement of the cost of the work under clause 7.5 of the Lease because he had not actually expended the monies to have the work done. However, he can claim compensation for the default of Mr Barnett pursuant to clause 5.1.3 which is, "the reasonable cost of the lessor of remedying a default by the lessee". In establishing what a reasonable cost is, the obtaining of quotes is of great assistance to the Tribunal. Mr Barnett produced no quotes to counter the evidence of the quotes obtained by Mr Nicoll to say whether or not they were in fact reasonable and to give further guidance to the Tribunal in assessing the amount of compensation payable. Therefore, in endeavouring to establish what is a reasonable amount of compensation payable to Mr Nicoll to remedy the default of Mr Barnett in failing to clean the premises and failing to repaint the premises (that is failing to leave the premises in the same condition as at the commencement date) and failing to promptly do repairs needed to keep it in the condition required pursuant to clause 7.2 of the Lease, the Tribunal accepts the lower quote in each of the cleaning and painting. The amount in each quote is commensurate with the amount of compensation payable by Mr Barnett in accordance with clause 5.1.3 with respect to his defaults. The Tribunal notes that within each quote is an amount for GST. As the claim can only be for compensation and not for reimbursement of costs actually paid, it is inappropriate for the GST to be part of the compensation. Thus the amount of compensation payable is the amount set out in the quotes less the GST. Accordingly, the Tribunal allows the claim of $400.00 for cleaning and $6,100.00 for painting.

Tiling work

1. The next claim related to tiling work to remove tiles, replace tiles and restore the floor of the premises. Mr Nicoll alleged that Mr Barnett tiled part of the premises without obtaining consent. Mr Barnett did the tiling himself in what has been described in a quote obtained by Mr Nicoll at the end of the lease to obtain an estimate for restoration as "poorly laid not to standard" and "the cement is a weak mix and unsuitable as a floor base". The waterproof sealant to cover the cement has started to lift. But Mr Nicoll states in paragraph 55 of his affidavit of 15 November 2012:

"It was Mr Barnett's responsibility to remove the poorly laid tiled floor, repair the damage caused by this removal, remove the weak cement floor and replace the skirting tile. And also replace the floor tile in which he had drilled two holes."

1. Clause 12.3.2 of the Lease requires at the lease end, that the lessee must remove any goods and anything the lessee affixed to the premises and have made good any damage caused by the removal. Mr Barnett, as previously indicated in his defence to every claim, makes the same assertion that it is the responsibility of Mr Nicoll to prove that the condition of the premises fails to meet the requirement of the lease presumably at lease end. As noted, Mr Nicoll has produced photos in relation to the uplifting of tiles and the floor tiling work as well as the quote from Best Tiling. Best Tiling quoted $1,941.50 to restore the premises and rectify the poor tiling. Mr Nicoll has not undertaken the tiling and the question is whether he is entitled to be compensated for the breach of lease by Mr Barnett as he cannot of course seek reimbursement as the expense of re-tiling has not been incurred.

1. The photos annexed to Mr Nicoll's affidavit clearly show the floor and floor tiles uplifting at particular spots and the poor tiling work undertaken. The Tribunal is satisfied that Mr Nicoll has demonstrated that the premises have been damaged and that Mr Barnett has committed a default under the terms of the Lease in first installing the tiling in a poor manner and then not removing the tiling. Further, the Tribunal is of the view that the presence of the defective tiling, if not repaired, would detract from the potential asking rental. The Tribunal notes that the premises were let for a further two years approximately one year after Lease end at a lower rental with the floor tiling still in place. The lower rent may be due to market conditions but there is no doubt that the tiling and the floor present poorly. In these circumstances, the Tribunal is of the view that Mr Nicoll is entitled to compensation under clause 5.1.3 being the reasonable costs of remedying for the default by Mr Barnett with respect to the tiling. Mr Barnett produced no evidence regarding the tiling as to whether it was appropriate, adequate or did not require removal. No quotation was presented by Mr Barnett to counter the quote presented by Mr Nicoll to enable the Tribunal to judge whether the quote represented a reasonable amount for compensation. Consequently, the quote obtained from Best Tiling forms an adequate basis upon which to assess what is the reasonable amount of compensation. The Tribunal allows the amount of the quote less the GST, (as previously discussed as the tiling has not as yet been done by Mr Nicoll), in the sum of $1,765.00.

Electrical work

1. Mr Barnett, without seeking permission from Mr Nicoll, appears to have relocated several of the power points within the premises and, upon leaving, did not restore these power points to the original spots. Two of the power points were not removed but were relocated to such an impractical area, being a few centimetres from the ceiling cornices. Whilst Mr Barnett had mentioned in his earlier response to the claim by Mr Nicoll that the premises were poorly wired when he first occupied them and he had expended money on electrical problems, this should not, and in fact does not, form the basis of any counter-claim nor set off by Mr Barnett against any amounts owed by Mr Barnett to Mr Nicoll. Clause 12.3.1 quite clearly states that when the lease ends, the lessee must return the premises to the lessor in the state and condition that this lease requires, namely that at the commencement of the lease and consequently the power points should have been restored to their original position. The Tribunal notes that Mr Nicoll has not in fact restored these power points. He has obtained a quote from an electrician for the cost to do so of $550.00. The Tribunal allows an amount of $500.00 as compensation being the amount of the quote less GST.

Storeroom

1. Mr Nicoll claims the cost of rebuilding a store room that Mr Barnett, with the original permission of Mr Nicoll, removed at commencement of the Lease, but did not rebuild at lease end. At paragraph 59 of his affidavit, Mr Nicoll states:

"59.A non-structural timber store room was removed by Mr Barnett. The proposed removal was in his business plan which he submitted prior to our approval of the lease. We gave our permission, on the understanding that it would be replaced at the end of the lease as per our understanding of the lease. The position of the store room can be seen at the non-tiled area in photos 25 and 26."

1. Mr Nicoll claims the sum of $5,190.00, being the lowest of three quotes as compensation for removal of the store room. He has not actually had the store room replaced. Clause 12.3.1 of the lease is quite specific and requires the lessee to return the premises to the lessor in the state and condition that is required by the lessee under the lease to keep it in and clause 7.2 required the lessee to maintain the premises in its condition at the commencement date of the lease and promptly do repairs needed to keep it in that condition. The Tribunal, however, could find no specific provision in the Lease requiring Mr Barnett to restore fixtures and fittings that the lessor Mr Nicoll had consented to be removed at the commencement of the Lease. In his first affidavit Mr Nicoll confirmed that he had agreed with Mr Barnett that the storeroom be removed at or prior to the commencement of the Lease. The Lease, however, is silent then on any specific requirement for Mr Barnett to restore the storeroom. For Mr Barnett to be clearly understanding of his obligation to restore the store room, the Tribunal is of the opinion that such an obligation should have been specifically stated as a special term of the lease. The general conditions of the Lease are not specific enough to refer to items removed with the consent of the landlord. There is no such special term and the Tribunal does not allow the claim for restoration of the store room.

Light globes etc

1. Mr Nicoll has claimed the replacing of light globes and the kitchen sink. It is clear that Mr Barnett has an obligation to restore these items to a working order. Mr Nicoll has annexed copies of all receipts for these costs. The Tribunal allows reimbursement of the claim of $165.95.

Mediation and filing fees

1. The last item claimed by Mr Nicoll is the cost of mediation and filing fees in the sum of $704.00. Mr Nicoll says there were two attempts at formal mediation. In Mr Nicoll's affidavit of 15 November, he sets out the history of the disputation between the parties that traverses a number of years without resolution. Notwithstanding that Mr Barnett knew, and always acknowledged that he owed unpaid rent, he unilaterally claimed the full amount of the bond to be paid to him from the Retail Tenancy Unit without consulting the lessor, Mr Nicoll, and especially in light of the fact that a substantial amount of rent was outstanding and he had volunteered that that amount could be paid out of the bond.

1. It is unfortunate that the parties could not have come to a more effective resolution of the dispute by utilising the bond money earlier at the relevant time and any money left over from the bond, still subject to disputation, could have been placed in the costs account or held with the Rental Bond Board for further arbitration or mediation. This may had led to a more reasonable outcome rather than Mr Nicoll having to wait a considerably long period of time for repayment of the rent unpaid and other monies claimed. Further interest at 12% would not accrue on the total amount claimed if the bond would have been released. Nevertheless, Mr Nicoll has incurred costs of filing and mediation and is entitled to be reimbursed these costs as a consequence of Mr Barnett breaching the lease. The Tribunal allows the cost of $704.00.

Bond money

1. Mr Nicoll advised the Tribunal that the sum of $19,178.40 had been paid to him by the Rental Bond Board. Consequently he is to credit against any monies owed to him by Mr Barnett that sum. The total sum of the claim as now allowed by the Tribunal is $32,855.02 which then has deducted from it the monies received by Mr Nicoll from the Bond Board namely $19,178.40. Consequently the Tribunal determines that Mr Barnett owes to Mr Nicoll the resultant sum of $13,626.62 from 5 March 2013 being the date of the first hearing. As noted in these Reasons GST has been excluded from some of the claims. Originally, the Tribunal allowed the claim by Mr Nicoll at $14,502.92 but this amount included GST for painting, cleaning, tiling and electrical works. The amount now allowed is $13,626.62.

Orders

1.The Respondent Murray John Barnett to pay to the Applicant John Alan Nicoll and Lidwina Seyenser the sum of $13,626.62 and if not paid interest is to run on that amount from 5 March 2013.

**********