R and K Developments Pty Ltd v French Villa Pty Ltd

[2017] NSWCATCD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

R & K Developments Pty Ltd v French Villa Pty Ltd [2017] NSWCATCD 3

Hearing dates:

18 August 2016 and 24 October 2016

Decision date:

05 January 2017

Jurisdiction:

Consumer and Commercial Division

Before:

S. Thode, Senior Member

Decision:

1 In COM 15/56600 the respondent shall pay to the applicant the sum of $59,828.86 on or before 30 March 2017.

2 Application COM 15/60238 is otherwise dismissed.

Catchwords:

RETAIL SHOP – lease not executed by co-director - s 129 notice

Legislation Cited:

Retail Leases Act 1994; Corporations Act 2001

Cases Cited:

Blandino & Ors v Giardini and Ors (RLD 2008) NSW ADT; Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; Knight Frank Australia Pty Ltd & Anor v Paley Properties Pty Ltd & Ors [2014] SASFC 103

Category:

Principal judgment

Parties:

R & K Developments Pty Ltd (applicant/cross respondent)
French Villa Pty Ltd (respondent/cross applicant)

Representation:

Ms Lane of Counsel, Ms Bird as Director of French Villa Pty Ltd

File Number(s):

COM 15/56600; COM 15/60238

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application and cross-application concerning a retail lease dispute. On 29 September 2015 both proceedings were transferred from the Supreme Court to the NSW Civil and Administrative Tribunal (the Tribunal). R & K Developments Pty Ltd (the landlord) in its Statement of Claim filed 14 July 2015 sought a declaration it had validly terminated a lease. The landlord alleges that it had entered into a retail lease with French Villa Pty Ltd (the tenant) concerning furniture shop premises in Gregory Hills. The landlord pleads that the parties entered into a lease commencing on 1 April 2015 ending on 31 March 2018 with an option to renew for three years. It was a term of the lease that the rent would be paid one month in advance. After the tenant had failed to comply with the terms of the lease, the landlord terminated the lease. It seeks damages for loss of rent, rectification cost for fit out, interest and costs. The tenant filed a cross claim in the Supreme Court essentially seeking damages for misrepresentation. Both matters were transferred to the Tribunal.

Background facts

2. The tenant’s company was incorporated in 29 July 2013 and at all relevant times the tenant company had two directors, Ms Bird and Mr Hitch. Mr Hitch was at times also the company secretary. In or about April 2014 directors of both parties met to view the retail premises at Gregory Hills. It was agreed that the tenant would pay for the fit out of the new premises to suit their business being a French Provincial Furniture Store. Ms Bird met with Mr Lucre, a commercial real estate agent, and Mr Mammone, a director of R & K Developments. The parties agreed on terms in a heads of agreement and on 23 May 2014 the lessee paid the sum of $9,587.41 to Mr Garry Lucre of Dot Commercial to secure the lease. The parties referred to this amount as the bond. This amount was later credited as the first months’ rent.

3. In or about May 2014 French Villa requested that it be permitted to make alterations to the premises including the construction of an opening in the ceiling between the ground floor and the first floor of the premises to build a staircase between the floors. It also requested carpeting of the floors on two levels at its expense to which the landlord agreed.

4. In September 2014 Ms Bird received keys to the premises. In September the landlord arranged and paid for the construction of an opening in the ceiling between the ground floor and the first floor of the premises.

5. In October 2014 carpet was laid at and on 22 December 2014 French Villa moved into the premises and commenced trading on 27 December 2014.

6. On 12 March 2015 the landlord submitted the lease document to Ms Bird for her signature. There was correspondence between Mr Alfaro solicitor for the lessor and Mr Mylott, solicitor for French Villa, concerning the final terms of the lease. There was also an offer that the fit out cost would be charged to tenant at 20% interest and payable pro rata in monthly payments over the term of the lease. The commencement date of the lease was 1 April 2015. The lease document was signed on 7 April 2015.

7. On 28 April 2015 the landlord issued a notice under section 129 of the Conveyancing Act 1919. The notice relevantly stated as follows

With reference to the lease of the above-mentioned premises, dated 8 April 2015 of R & K Developments Pty Ltd to French Villa Pty Ltd and the covenants by the lessee therein contained:

to deliver to the lessor the bank guarantee for the amount of $28,762.23; and

to deliver to the lessor the additional bank guarantee for the amount of not less than $4000; and

to keep current an insurance policy covering liability to the public, in the joint names of the lessor and the lessee in an amount of not less than $20,000,000 and to produce to the lessor the policy or certificate of currency and receipt for the last premium in respect of that policy

and the breach by you of those covenants the lessors hereby gives you notice and requires you to remedy that breach by …. No later than 3pm on 15 May 2015.

8. The landlord also demanded that outstanding rent be paid. On 12 May 2015 the tenant paid $5000 to the landlord.

9. On 18 May 2015 the tenant paid $5,551.75 to the landlord.

10. On 15 June 2015 the tenant paid $5,000 to the landlord.

11. On 16 June 2014 the landlord changed the locks at the premises and re-entered and took possession of the premises for non compliance with the s 129 notice.

12. On 17 June 2015 the tenant changed the locks and re-entered the premises.

13. On 18 June 2015 the landlord changed locks again.

14. On 19 June 2015 the landlord commenced Supreme Court proceedings seeking possession of the premises and damages and other orders.

15. On 29 June 2015 by order of the Supreme Court the tenant was permitted to enter the premises and the remaining stock owned by French Villa was removed from the premises.

16. At all relevant times the tenant had legal advice.

The landlord’s case

17. The landlord claims damages, losses, interest and costs in the sum of about $111,000 it alleges it suffered by reason of the tenant’s breaches of its obligations under the lease.

18. The lease was signed on 7 April 2015 by Ms Bird as the tenant’s director. The relevant written terms of the lease were:

1. The lessee would make monthly payment of $876.67 in respect of money expended for a fit out for 60 months from the Commencing Day of the lease and if the option to renew was not exercised would make the monthly payments to the terminating date of the lease and an additional amount of $4383 on termination (Annexure A item 28(c) Additional payments as per the lease document) ;

2. The lessee would pay the rent of $104,589.93 plus GST in monthly instalments of $8715.83 plus GST per month (Annexure B clause 5.1.1) in advance (annexure B clause 5.2) ;

3. French Villa would keep the premises insured and provide evidence of that insurance (the policy and receipt for the premium) on request.

19. It is contended that in breach of the lease the tenant failed to pay rent in accordance with the lease, failed to provide the bank guarantees and failed to provide the requisite insurance certificate.

20. The landlord seeks an award of damages flowing from the breach, in the sum of $111,991 for outstanding rent, unpaid rent, loss of rent , interest and loss of “additional payments” for the fit out, including losses suffered by reasons of a staircase and carpet that required removal once the tenant exited the premises.

The tenant’s case

21. The respondent/tenant was not legally represented. The tenant’s director, Ms Bird, filed a cross claim in the Supreme Court proceedings, those proceedings were transferred from the Supreme Court to the Tribunal (COM 15/60238.)

22. The tenant seeks damages for breach of contract and “declarations” that the landlord falsely advertised the commencement date of the lease of unit 1 and unit 3 Rodeo Drive as being 1 August 2014 when the premises were in fact not completed until 4 March 2015, causing loss and damage for lost trade in particular over the Christmas period 2014.

23. In its Statement of Cross Claim signed for and on behalf of the company who was not legally represented, the tenant seeks a declaration that the lease is “invalid” as it does not contain the signature of all directors of the respondent. The tenant had two directors, Mr Hitch and Ms Bird, and only Ms Bird executed the lease document.

24. By way of defence, it is alleged that because the lease was not binding on the parties, the tenants were “tenants at will” and are not liable for damages for breach of the lease.

25. By way of claim for misrepresentation, the tenant seeks damages in the sum of $25,139 “being paid for an invalid lease”; the sum of $6,662 being the cost to remove stock from the premises; $8,812 for legal costs incurred for the preparation of the lease apportioned to time spent in the premises of 10 weeks in lieu of the anticipated 156 weeks; unparticularised damages for loss of trade and opportunity from 1 August 2014 to 4 March 2015 and 16 June 2015 until the opening of a new store, “particulars of those costs to be provided”; the lessee also seeks an award of interest and legal costs, including filing fees and court costs.

The Hearing

26. The hearing of both applications spanned two days. The hearing commenced on 18 August 2016 and was adjourned part heard to 24 October 2016.

27. The landlord tendered a series of documents: Affidavits of Roy Mammone dated 18 June 2015; 27 June 2016 and 12 July 2016 (x2) and 19 October 2016; Frank Alvaro Solicitor, dated 27 June 2016; Mr Gary Lucre, Real Estate Agent; dated 12 July 2016, two leases executed in respect of the premises (Exhibit F1 and F2 respectively). Amended points of claim, Outline of Submissions.

28. The tenant relies on the affidavits of Ms Vrede Bird, Director of the tenant, dated 23 June 2015, 28 July 2015, 6 June 2016; Affidavit of Mr Hitch, Director dated 23 June 2015 and 8 June 2016 and the response to the landlord’s amended points of claim dated 21 September 2016.

The Tribunal's findings and decision

Was the lease binding on the parties?

29. I have come to the view that the lease document was binding on the parties. The lease was executed in the presence and on advice of Ms Bird’s then solicitor Mr Mylott. Ms Bird represented herself as the sole director of the lessee’s company. In addition, the lessee’s director Ms Bird executed a heads of agreement dated 3 June 2015 and at no stage during the negotiations informed Mr Mammone or Mr Mammone’s solicitor that the signature or approval of Mr Hitch was required. I have had regard to Ms Bird in the witness box. She admitted that she had legal advice from her a solicitor at the time that she executed the heads of agreement and that, despite being legally advised, the heads of agreement only named Vrede Bird as the tenant. Nothing in that document could have alerted Mr Mammone, or Mr Mammone’s solicitor to the fact that the lessee had two directors. Indeed there had been a discussion between the parties that the second director, Mr Craig Hitch, had resigned as director of the company.

30. The heads of agreement set out the terms of what was to become the written lease. The parties agreed to a three year lease and a deposit of $9,581 was paid by Ms Bird to the lessor. The parties agreed that a bond in that sum would be payable upon execution of the lease. The parties, importantly agreed that the lease would effectively commence on 1 September 2014 and rent would not be payable for three months from possession. I am satisfied on the oral evidence given by Ms Bird in the witness box that she agreed and had successfully negotiated a three months free rent period for the months which was initially to span the months of October, November and December 2014.

31. Ms Bird agreed in the witness box that she understood the heads of agreement to be legally binding on her. Ms Bird agreed that she could have undertaken a fit out from September 2014. I am satisfied that the premises were ready for occupation as a French Furniture shop from around September 2014, but at the very latest that all pre-requisites to commence trading were met after the stairs were installed in or about November 2014 at Mr Mammone’s costs and that trade could have commenced on or about 22 December 2014 when Ms Bird moved stock into the premises.

32. Ms Bird agreed that she understood that it was a term of the lease that the fit out costs of $26,300 (plus 20% interest) was recoverable by monthly instalments of $876.66 for the term of the lease to be added to the monthly rental payment.

33. I am satisfied that the lease document falls into either the first or the second category as set out in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 and that the parties had reached finality and that the lease document albeit only signed by Ms Bird, intended to bind the parties to the performance of those terms.

Was the Section 129 Certificate validly issued?

34. Section 129 of the Conveyancing Act 1919 states that before a right of re-entry or forfeiture under any provision of a lease (for breach of the lease) is enforceable, the lessor must first serve on the lessee a notice that: specifies the particular breach; if the breach is capable of remedy, requiring the lessee to remedy the breach; and in the event the lessor is claiming compensation, requiring the lessee to pay the compensation. Ms Bird contends that there was no binding lease. Following a finding that the lease was binding on the parties, the Tribunal must consider whether the s 129 notice was valid and, whether non-compliance with the notice effectively terminated the tenancy.

Was there a certificate of insurance?

35. Ms Bird was cross-examined at length on the issue of insurance. It is not in dispute that it was a requirement of the lease that the lessee would obtain public liability insurance. Ms Bird conceded, reluctantly, in the witness box that there was no certificate of currency in existence on the day that the s 129 certificate was issued, or the day on which it expired being 15 March 2015. I am satisfied that at the time of the issue of the certificate the tenant was in breach of the lease, that there was no public liability insurance issued in the name of the lessee and that the lessee was in breach of the lease. The retrospectively issued certificate dated 22 June 2016 tendered in these proceedings was not in existence when the s 129 notice expired and is of no relevance to these proceedings other than to state that Ms Bird sought to give the impression in the witness box that the certificate was current and was in existence at the relevant time, when it was not.

36. I am satisfied that the s 129 notice was valid and that the lessee did not remedy the breach as identified in the s 129 notice and the landlord was entitled to terminate the lease by gaining re-entry. The tenancy was terminated by the lessor taking possession of the site when the locks were changed on 18 June 2016.

Was the lease binding?

37. The lessee, as is stated above was not legally represented. Ms Bird contends that there was no binding lease and therefore the s 129 notice could not have been validly issued. Ms Bird stated in the witness box, “there can be no s 129 notice of a contract that doesn’t exist and in circumstances where the only remaining breach relied upon is non-payment of rent.” The lessee does, however, not seek relief against forfeiture, so it is not clear to the Tribunal why, even if the s 129 notice was not validly issued, what relief would flow from such a finding.

38. Ms Bird is correct insofar she submits that the s 129 requirement does not apply to re-entry or forfeiture in the event of non-payment of rent (see s 129(8). However, breach of non-payment of rent is not a breach relied upon by the landlord in the instant case. The case turns therefore on a finding whether or not the lease was binding on the parties and whether the breaches alleged entitle the lessor to claim the damages alleged.

39. Ms Bird further contends that here was no binding lease as only one director of the company signed the lease.

40. She relies on s 127 of the Corporations Act 2001 and which requires that a company may execute a document without using a common seal if the document is signed by two directors. She further relies on the authority of Knight Frank Australia Pty Ltd & Anor v Paley Properties Pty Ltd & Ors [2014] SASFC 103 where the Court held that a document signed only by one director was “manifestly” incomplete because the execution clause was not countersigned, as was required by the execution clause itself and the partial execution by the company was “incapable of conveying to an objective person … that the company had determined to enter into the contract.”

41. She contends that as the contract was not entered into, no breach of the contract could be established and no damages could flow from the breaches alleged. For the reasons that follow, regardless of whether or not the written lease was binding on the parties, the landlord would still be entitled to seek damages, upon establishing rightful termination of a contractual relationship between the parties at common law; in any event, as was already set out above, I find that the lease is binding on the parties.

42. Section 129(3) of the Corporation’s Act requires that a document may be signed by a sole director. The lessee signed the panel on the lease that states she is a “sole director” and is therefore an officer or agent and has authority to exercise the powers of a sole director. The lessee clearly held herself out to be a sole director and, furthermore, signed the document in the presence and presumably on advice from her own solicitor. In those circumstances I find that the tenant is now estopped from alleging that the contract was not binding upon her. It was Ms Bird’s decision to sign the contract in a manner that gave the objective observer the impression that the company had determined to enter into the contract in circumstances. Ms Bird admitted that Mr Hitch had authorised her to sign the document and was in full agreement with Ms Bird that the written lease should be executed. Mr Hitch gave evidence that he had every intention to enter into the contract. I am therefore satisfied that the failure of one director, who was in full agreement with the document, to sign the document does not prevent the lease from being binding on the parties. French Villa is therefore bound to perform its contractual obligations under the contract and Ms Bird is liable under any guarantee to pay rent, secure insurance and provide a bank guarantee.

43. The landlord was entitled to terminate the lease and re-enter the premises. The lease was effectively terminated on or about 19 June 2015 when the lessor re-entered and took possession of the premises.

Damages

Costs of making good the premises

44. R & K expended money in making good the premises after the tenant vacated the premises and seeks $4,000 making good the hole in the ceiling between unit one and unit 3. The affidavit setting out cost incurred for the removal of the stair case and the carpet was subject of an application to amend the statement of claim and to file additional evidence outside the timetable as directed by the Tribunal. The additional claims were rejected as Ms Bird was unable to meet the evidence in the time for the second hearing. The affidavit of Mr Mammone dated October 2016 attaches an invoice claiming $4,000 in damages for removal of carpets and the stair case from the premises. The application to amend was refused and the affidavit rejected.

45. It is noted that there was no evidence before the Tribunal demonstrating that the units could not have been successfully re-let with the staircase and the carpet in situ. In considering all of these matters the Tribunal is of the view that notwithstanding the alleged difficulties with regard to the staircase and the carpet, these items did not hinder the landlord in securing a new tenant in a relatively short time. I do not find any losses as claimed for this head of damage established and this part of the claim is dismissed.

Loss of bargain damages, loss of rent.

46. The landlord claims loss of bargain damages. It is the landlord’s evidence that unit 1 was let from 17 August 2015 but rent of $4,666.67 was only received from 1 January 2016. Unit 3 was let to Blue Agave Mexican Cantina on 1 October 2015 but rent of $4,666.67 was not received until 1 January 2016. The tenant alleges that the landlord failed to mitigate its losses. The appeal panel of the Administrative Decisions Tribunal examined the question of a landlord’s failure to mitigate losses in a number of cases, among them Blandino & Ors v Giardini and Ors (RLD 2008) NSW ADT and the Tribunal held: “The primary issue to be resolved is whether or not the lessor had acted unreasonably in failing to minimise their loss from the lessees’ wrongful repudiation of the lease. The factors to be taken into account where, among others, where the assessment of damages relates to a commercial operation, the question to be determined is what a person in the landlord’s situation would do in the ordinary course of business.” In the instant proceedings, the landlord led no evidence from a licensed real estate agent that there was any difficulty in re-letting the premises. Nor is there evidence before the Tribunal that the new tenants required the “incentive” of a three months’ rent free period to enter into the lease.

47. On that basis I am not satisfied that the landlord is suffering a loss of rent, or loss of bargain damages after 17 August 2015 and I decline to make an award for a loss of rent after that date.

48. The landlord did however lose rent between the date of termination and the 17 August 2015.

49. As at the date the landlord took possession of the premises, the rent was $4,675.08 in arrears for the month of May 2015. It is submitted that the landlord received payment in full for rent for the month of April in the form of the bond that was paid when the parties entered into the heads of agreement. The tenant claims there was no binding lease, but in the event that a binding lease is found, that she was entitled to three months free rent from the commencement of the lease. For the reasons set out above, I find that the heads of agreement between the parties were clear, and that the parties agreed to three months free rent from the date the tenant took possession and that the free rent period agreed spanned, October, November, December 2014 but was then pushed back and the tenant was given free rent for the months of January, February and March 2015 respectively. I am satisfied that the amount of $9,587.41, being the bond paid to Gary Lucre was intended to be one month’s rent covering the month of April.

50. It is not in dispute that the tenant paid $5000 rent in April which covered a period in May. I find that the rent was outstanding (as set out in paragraph 29 of the points of claim) and award damages of $4,587.41 for the month of May 2015 (see page 3 of 7 for filed for the applicant). For the reasons set out above I decline to make an award for pre-judgment interest.

51. The landlord claims loss of rent for June 2015 in the sum of $4,675.08 as per the statement of claim at paragraph 29 and I make the award accordingly.

52. I also make an award for one month’s rent in July in the sum of $9,587.41, for loss of bargain damages as a new tenant had still not been secured.

53. The landlord claims loss of rent for 16 days in August. I have calculated the rent lost by reason of the tenant’s breach of contract to be $4,948.17 for the month of August. There was no allegation by the tenant that the landlord did not use his best endeavours to secure tenants at the earliest opportunity and I am satisfied that the new tenants were secured in the “ordinary course of business”. I therefore find that the landlord mitigated his losses as best he could and find that the tenant is liable for the amount of rent loss up to the date of termination and for loss of bargain damages following termination to the date the new tenants took possession on 17 August 2015. I am satisfied that the tenant’s failure to comply with the section 129 notice constituted a breach of essential terms of the lease.

The fit out costs

54. The landlord claims damages for the fit out. There was a contractual obligation to repay to the landlord the fit out costs incurred. In respect of the obligation to pay the amount for the works in the periodic payments under the lease the amount claimed is set out in annexure A Item 28(c) for the term of the lease at $876.67 for 36 calendar months plus an additional payment of $4,383.45 due on conclusion of the lease, if the three year option is not exercised.

55. For the reasons set out above, the landlord has established that the lease was binding on the parties. The tenant failed to comply with the terms of the lease as set out in the s 129 notice and the landlord is entitled to recover the damages that flow from the tenant’s breach. The tenant did not oppose the arithmetic calculations as put forward by the landlord and I award $35,943.45 for this head of damage.

56. The landlord claims pre-judgment interest under s 100 of the Civil Procedure Act from 30 June 2015 to date. As was pointed out to the landlord’s counsel at the hearing, the Civil Procedure Act does not apply but pursuant to R 39 of the Civil and Administrative Tribunal Rules, the successful applicant is entitled to post judgment interest. This does not require the Tribunal to make an award of interest or to calculate interest.

Damages for security guards and change of locks.

57. I decline to make an award for the cost of hiring a security guard. The affidavit and amendments supporting this head of damage were filed outside the permissible timetable. I accept and prefer Ms Bird’s evidence that the security guard was not necessary and I also note that the affidavit supporting any costs incurred for lock smith and security guards was rejected. I make no award for this head of damage.

The cross application

58. For the reasons and findings set out above, the cross application of the tenant must fail.

59. I find that a binding lease was executed and that the parties were bound by its terms. I am not satisfied that a misrepresentation has been established. The tenant alleges (as is set out in paragraph 22-25 above) that Mr Mammone did not allow her to trade as the construction fence was not removed, thereby preventing customer flow to the premises, until March 2015. The tenant alleges that the premises were falsely advertised and that Mr Mammone represented to her that the premises would be available for trade from August 2014 when in fact the premises could not be opened for trade until March 2015.

60. However, on the evidence I find that the Ms Bird did not purchase final stock for the premises until September 2014 and requested that a stair case be installed into the premises as late as September 2014. On 14 October 2016 the landlord was still chasing instructions from Ms Bird to paint the stairs, which the tenant had neglected to do, delaying the stair case installation. (see affidavit of Frank Alvaro 15 July 2016). It is further not in contention that Ms Bird moved into the premises and started trading and there is no explanation why trade could not have commenced before 27 December 2014. I am not satisfied that the tenant has established a misrepresentation. I note that the heads of agreement stipulated occupation in September 2014 and “Rent commencement” in December 2014. As it transpired the parties altered these terms apparently by agreement and the rent commencement date was pushed back to April 2015 to compensate the tenant for a later start to trade, in December 2014.

61. Importantly, at no stage did the tenant take steps to terminate the lease by reason of non-compliance by the landlord of its obligations under the heads of agreement. Instead the tenant confirmed the lease and its terms by signing the document in March 2015. There was clearly every intention by the tenant to continue with the lease despite difficulties between the parties.

62. I am satisfied on the facts that the parties agreed and consented to a lengthy establishment period and, that that this was the reason for the rent free period originally being originally October, November, December 2014. The parties then agreed, impliedly, that rent would not be charged until April 2015, three months after the tenant started trading (emphasis added). The landlord denies that the premises were not open for and capable of trading before 27 December 2014. I find that there is no evidence before me to support a finding that the premises were a construction site “with ablutions blocks” until 4 March 2015. I further note that it is not in dispute that trading commenced on 27 December 2014. I also note that, according to the heads of agreement, the tenant had all responsibility to obtain council approval for the occupation of the premises. I am not satisfied that the tenant has discharged its onus of proof and, on balance, and has not established that the landlord’s inactions prevented the tenant from trading because the premises were effectively a building site. I am not satisfied that any evidence has been led that the alleged misrepresentations have caused actual losses. Further, I find that the premises were open for trade and capable of trading from 27 December 2014 onwards and possibly earlier. There is no evidence to suggest trade was lost over the Christmas period other than a one page summary/submission document prepared by the applicant in person, Ms Bird, contained in annexure S of her affidavit 22 June 2015. At best the losses as claimed are unsupported by probative evidence.

63. In the months of October, November and December no rent was payable, quite properly, as landlord and tenant were finalising the fit out.

64. No misrepresentation is established. Nor am I satisfied that Mr Mammone put the tenant under “duress” when he demanded rent. Mr Mammone exercised his rights under the contract and demanded compliance with its terms. Because the obligations were not fulfilled he served a s 129 notice and terminated the contract. I am not satisfied that the tenant has established her case as set out in paragraphs 23 to 24 above. Even if the misrepresentations were established, the damages said to be flowing from the representations were not sufficiently particularised and no evidence to support any actual losses has been tendered. For these reasons and for the findings set out above, the tenant’s cross claim must be dismissed.

Orders

1. In COM 15/56600 the respondent shall pay to the applicant the sum of $59,828.86 on or before 30 March 2017.

2. Application COM 15/60238 is otherwise dismissed.

Costs

65. As R & K Developments Pty Ltd has been successful in its application, and French Villa Pty Ltd has been unsuccessful in its cross application, I order that French Villa Pty Ltd shall pay the R & K Development’s costs of both applications COM 15/56600 and COM 15/60238 on the ordinary basis as agreed or assessed by 30 March 2016.

66. Unless the parties file written submissions concerning the question of costs in each application within 28 days, the Tribunal will enter the orders in respect of costs as set out in paragraph 65 above effective from 28 February 2017.

67. If the parties wish to make submissions on the question of costs, the parties shall file and serve any submissions on costs in each proceeding addressing s 60 of the Civil and Administrative Tribunal Act and Rule 38 of the Civil and Administrative Tribunal Rules by no later than 27 January 2017.

68. Any submission shall then be determined in chambers and on the papers, and the decision on the question of costs will be published to the parties.

S. Thode

Senior Member

Civil and Administrative Tribunal of New South Wales

5 January 2017

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: 15 February 2017