Roach v Braun (RLD)
[2011] NSWADTAP 40
•06 September 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Roach v Braun (RLD) [2011] NSWADTAP 40 Hearing dates: 11 July 2011 Decision date: 06 September 2011 Jurisdiction: Appeal Panel - Internal Before: Appeal Panel comprising
M Chesterman, Deputy President
P H Molony, Judicial Member
G Pinter, Non-judicial MemberDecision: 1. The appeal is allowed in part.
2. Order 3 of the Tribunal, made on 21 February 2011, is set aside and the following substituted:-
3) The Respondent is to pay to the Applicant the following:
a) outstanding rent of $14,400.00;
b) interest on the outstanding rent at 10% per annum;
c) survey fees of $825.00.
3. Order 4 of the Tribunal, made on 21 February 2011, is set aside and the following substituted:-
4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the total amount payable under order 3 and from the principal sum on which interest is payable under order 3(b)).
4. No order as to costs.
Catchwords: Retail shop lease - whether binding even though not executed by both parties or registered - alleged misstatement in lessor's disclosure statement Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994Cases Cited: Braun v Roach [2011] NSWADT 31
Dong v West Services Pty Ltd [2010] NSW ADT 150
Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544
Masters v Cameron (1954) 91 CLR 353Category: Principal judgment Parties: Una Janeen Roach (Appellant)
Peter Braun (Respondent)Representation: Counsel
C Lawrence (Respondent)
In person (Appellant)
File Number(s): 119007 Decision under appeal
- Citation:
- Braun v Roach [2011] NSWADT 31
- Date of Decision:
- 2011-02-21 00:00:00
- Before:
- Retail Leases Division
- File Number(s):
- 095175
decision
Introduction
APPEAL PANEL (M CHESTERMAN (DEPUTY PRESIDENT), P H MOLONY (JUDICIAL MEMBER), G PINTER (NON-JUDICIAL MEMBER)): This is an appeal against a decision of the Retail Leases Division ( Braun v Roach [2011] NSWADT 31), in which the Appellant, Ms Una Roach, was ordered to pay to the Respondent, Mr Peter Braun, an amount of damages ($21,034.91, plus interest) on account of outstanding rent and certain other expenses.
The Tribunal's decision was delivered on 21 February 2011. Ms Roach filed a Notice of Appeal on 21 March 2011. At the hearing of the appeal on 11 July 2011, she represented herself and Mr Lawrence of counsel appeared on behalf of Mr Roach.
Outline of facts
The following outline of the facts that are relevant to this appeal is adapted from various paragraphs (principally paragraph [11]) of the Tribunal's decision.
By a registered memorandum of lease ('the Original Lease'), Ms Roach leased retail premises at 272 Bobbin Head Road, Turramurra ('the Premises') from Ms Mavis Irene Kirkwood. This lease was for a period of five years from 1 May 1998, with an option to renew for a further five years. The permitted use was 'Caf' and the lease was governed by the Retail Leases Act 1994 ('the RL Act'). At the time of entering it, Ms Roach paid a security deposit of $1,800.00.
Ms Kirkwood died on 16 June 2000. The executors of her estate were Mr Peter Braun (hereafter 'Mr Braun') and his brother, Mr Gregory Braun.
During 2003, Ms Roach wrote to Mr Braun seeking to exercise the option under the Original Lease, but no lease document was ever sent for execution. She nonetheless formed the impression that she had a second five-year lease.
During August and September 2007 she tried on several occasions to contact him by phone regarding the renewal of her lease. In a conversation on 20 September 2007, he indicated that he had received her letter, but that he had not acted on it, since she had not provided any funds for registration fees and stamp duty. Consequently, he maintained, her occupation of the Premises had been on a month-to-month tenancy since 2003.
Ms Roach then requested a ten-year lease on the same terms and conditions as the Original Lease. She said that she was going to apply for a bank loan and that the bank required a long-term lease. Mr Braun asked her to put this in writing.
On the same day, 20 September 2007, Ms Roach wrote to Mr Braun in the following terms:-
I would like to renew the lease for the above premises.
If possible the new lease to be one year with options of 3 X 3 X 3 under the same terms and conditions as the present lease.
Last month I tried to contact you to discuss the renewal of the lease. Unfortunately you were not available until today.
My urgency in renewing the lease at present is that I wish to buy some new equipment and to do so the bank requires a current long term lease.
Recently, I enquired with the Department of Revenue about what format was used to determine stamp duty on a lease and I was informed that as of next year stamp duty will be abolished. This is why I have requested the lease starts (sic) with one year and the rest as options to save on unnecessary costs of stamp duty.
Peter, I would appreciate if you could advise me as soon as possible when a new lease could be signed as I would like to get the ball rolling with the bank.
During October 2007, Mr Braun advised Ms Roach that the beneficiaries of the Estate of the late Ms Kirkwood would only allow a term of five years. Ms Roach agreed to this. Mr Braun asked her to instruct her solicitor to draft a five-year lease with a commencement date of 1 November 2007. The solicitors who were then retained by Ms Roach, Castle Lawyers, drafted a lease for the term of one year, with two two-year options of renewal. The purpose of the change in the term was to save stamp duty. This draft lease was sent to Mr Braun's home address.
As at November 2007, the annual rent payable under the Original Lease was $37,144.80. It was payable in advance in monthly instalments of $3.095.40.
On 27 November 2007, Mr Braun sent to Ms Roach a letter stating that he wished to amend the draft lease by (a) setting the initial rent at $38,383.00 (this gives a monthly rate of $3,198.58) and (b) requiring Ms Roach to pay 50% of the water rates and all of the waste treatment licence fees.
On 4 December 2007, Ms Roach sent an email to Mr Braun, in which she agreed to these changes and asked what amounts had been charged for water rates on the last occasions. According to her, Mr Braun made no reply to this request.
On 10 December 2007, however, she sent an email to Mr Braun stating as follows:-
I agree to the increase for rent on the new lease at $38,383.00 p.a. as well as paying 50% of water rates, on the account due after today's date.
The water rates outgoings and new lease would be based on the current water rates account @ 50%.
My solicitor has advised me that you can amend the new lease sent to you with these changes and need be initialled.
After signing all copies of the new lease could you return them to my solicitor so I can initial and sign it and have it lodged with the appropriate authority.
After lodgement a copy will be forwarded to you.
Ms Roach testified that during December 2007, being desirous of selling her business, she advertised it for sale and 'found a buyer'.
On 13 January 2008, Ms Roach sent a further email to Mr Braun in these terms:-
Dear Peter
I hope you had a pleasant Christmas and New Year.
Could you email me when you think the signed and amended lease may be ready please.
Mr Braun responded as follows on the same day:-
Hi Una
The lease documents were sent to your solicitor before Christmas.
I am in Cambodia at the moment.
Happy New Year!
On 15 January 2008, Ms Roach went to Castle Lawyers to sign the lease. She discovered that Mr Braun's solicitors, Lane & O'Rourke, had drawn up a new form of lease, which contained incorrect figures. She therefore did not sign it. According to her testimony, Castle Lawyers rang Lane & O'Rourke about the errors and were told that they could not be dealt with until after Mr Braun had returned to Australia.
On or about 13 February 2008, Castle Lawyers received another form of lease. This appeared to Ms Roach to contain the correct figures.
On an unspecified date during February 2008, Castle Lawyers also received from Lane & O'Rourke a Lessor's Disclosure Statement. In the Tribunal's decision at subparagraph (j) of paragraph [11], it is suggested that Mr Braun provided this Statement at some time during December 2007. In her affidavit, however, it is expressly said to have been 'sent February 2008'. The Statement itself, a copy of which was annexed to her affidavit, bears no date.
The Lessor's Disclosure Statement included the following items of relevance to the appeal, within a section headed 'Outgoings per Annum'. In clauses 18 and 19, the figure of $200 was given both as an estimate of the amount to be paid by the lessee in respect of 'year one', for 'water, sewerage & drainage rates & charges' and as an estimate of the 'total of all outgoings'. In clause 20 the 'formula for apportionment of outgoings' was stated to be 'Lessee pays 50% of these outgoings'. In clause 21, the following provision was inserted as 'additional outgoings to be borne by lessee':-
Lessee pays 100% of charges for water usage, sewage usage, trade waste charges, grease trap charges and other charges such as telephone and electricity which are referable to the Lessee's use of the premises.
On 15 February 2008, Ms Roach signed the latest version of the lease. On the same day, Castle Lawyers sent it to Lane & O'Rourke, together with a cheque for registration fees. In their covering letter, they wrote:
We refer to your letter of 7 February 2008 and enclose executed lease by our client including amended Annexure "A"...
We are instructed to request that you urgently please forward us a copy of the executed lease by your client prior to registration.
In the Tribunal's decision at subparagraph (m) of paragraph [11], the date of this letter is said to be 10 December 2007. Its first sentence indicates, however, that this cannot be correct. A copy annexed to Ms Roach's affidavit shows its date to be 15 February 2008.
Also on 15 February 2008, Castle Lawyers advised Lane & O'Rourke by telephone that the lease was being sent to them that day. Castle Lawyers indicated that Ms Roach was getting anxious because of all the delays.
The term of the lease executed in these circumstances by Ms Roach ('the Second Lease') was one year, commencing on 1 November 2007 and terminating on 31 October 2008. The lessors were Mr Braun and his brother Mr Gregory Braun. The rent was $38,383.00 per annum, payable in advance by monthly instalments of $3,198.58. Interest on overdue rent was chargeable at 10%. The outgoings to be paid by the lessee were 100% of 'trade waste and grease waste charges' and 50% of 'water sewerage and drainage charges'.
On the morning of 19 February 2008 Ms Roach sent a further email to Mr Braun, referring to the sending of the Second Lease to his solicitors and asking 'when you may be signing the lease or if you have already done so'.
Shortly afterwards, Mr Braun responded by email as follows:
It does not matter really.
The lease is effective from the November date. I am having dinner with my solicitor next week so he will probably wait till then.
Ms Roach sent a further email during the evening of 19 February 2008, stating as follows:
Sorry to bother you again, as I explained to you last year I want to get a bank loan to replace some of the equipment and update the furniture. The bank will not loan me the money without a current lease. I had hoped that everything had been in place by mid-December 2007; it would be nice if I had the lease before the end of this month if possible.
On 25 February 2008, the offer to purchase Ms Roach's business that hade been made during December 2007 was withdrawn. During this period, neither the making of this offer nor its withdrawal was disclosed to Mr Braun.
On 11 March 2008, Castle Lawyers rang Lane & O'Rourke to find out why the Second Lease had not been executed by the lessors and returned for stamping. Lane & O'Rourke indicated that they were waiting for the lease to be signed by Mr Gregory Braun, who (they stated) lived 'up the coast'.
With regard to the situation then obtaining, Ms Roach stated as follows in her affidavit:-
With all of the delays and the uncertainty of when I would receive the lease being now seven months from when I first wanted to renew it, I did not have enough money to meet the March 08 rent. I had no option but to terminate my offer of tenancy and vacate the premises.
Ms Roach then instructed new solicitors, Collins & Thompson, to write to Lane & O'Rourke withdrawing the offer of lease. They did so on 26 March 2008, stating as follows:
We advise that we have received instructions on behalf of Mrs Una Roach who has been the tenant of the abovementioned property.
We are now instructed to advise that our client withdraws the offer of the tenancy and gives notice that she terminates the lease and has vacated the premises.
Would you please make arrangement to refund the bond paid in the matter to our client care of our office.
We confirm that no further action should be taken on the lease.
Lane & O'Rourke replied on 28 March 2008, as follows:
We fail to see how your client can "withdraw the offer of tenancy" having regard to the fact that she has executed the lease and her then solicitors have returned the lease to us.
It has now been signed by the Lessors and will shortly be lodged for registration.
It seems to us that in those circumstances your client is liable under the lease and if she has in fact abandoned the premises then our client will take steps to re-let the premises and will claim from your client damages for any loss sustained as a result of your client's breach.
Mr Gregory Braun signed the Second Lease on 28 March 2008, two days after Ms Roach purported to withdraw her offer of a tenancy.
On or soon after 26 March 2008, Ms Roach vacated the Premises. Mr Braun regained possession on or about 30 March 2008.
According to the Tribunal's award of damages, the last rent payment by Ms Roach was the payment due in advance for February 2008. The amount of this and a number of the preceding payments was in each case $3,095.40 (i.e., the amount payable under the Original Lease).
As soon as Ms Roach vacated the premises, Mr Braun engaged the services of a local real estate agent, Julie Rogers of Turramurra North Real Estate, to find a replacement tenant. Ms Rogers told him that certain timber framed walls that Ms Roach had erected within the Premises had apparently not been approved by the local council. Mr Braun obtained the services of Ken Willis & Associates ('Ken Willis'), who were town planning consultants, and took other steps to investigate this matter. Ken Willis commissioned a survey of the Premises. As a result of these measures, there was some delay in negotiating prospective tenancies.
On 8 November 2008, Mr Braun re-leased the Premises for a term of four years and four months to One-O-Nine Pty Ltd ('One-O-Nine'), at a rent of $4,620 per month. This rental exceeds the amount payable under the Second Lease by $1,421.80 per month, or $17,052.20 per annum. During the negotiations for this lease, it was agreed that One-O-Nine would arrange for the timber-framed walls removed, on the basis that it would be permitted to deduct $1,000 from its first payment of rent.
By the time of the Tribunal proceedings, Mr Gregory Braun had renounced his appointment as executor. Mr Braun was therefore the sole executor and the sole lessor under the Second Lease.
The Tribunal proceedings
In his Application to the Tribunal, filed on 29 September 2009, Mr Braun, in the capacity of executor of the estate of the late Mavis Irene Kirkwood, claimed damages from Ms Roach for 'the termination' of the Second Lease ($25,588.64), costs incurred for 'restitution works' to the Premises ($4,055.91) and interest on outstanding rent ($3,488.39).
The hearing in the Retail Leases Division took place on 19 August 2010. Both parties had legal representation.
As stated above, the Tribunal's decision, delivered on 21 February 2011, was in Mr Braun's favour, though for a smaller total amount of damages than he claimed. The specific components of its award were set out in Orders 3 and 4 of its decision, in the following terms:-
3)The Respondent is to pay to the Applicant the following:
a)outstanding rent of $14,400.00;
b)interest on the outstanding rent at 10% per annum;
c)survey fees of $825.00;
d)legal costs of $2,230.91;
e)costs of tax invoices of $5,379.00.
4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the amount calculated under order 3).
In addition to making orders for the payment of damages by Ms Roach, the Tribunal granted declarations as follows:-
1. The Applicant and the Respondent entered into a lease for twelve months from 1 November 2007 terminating on 31 October 2008.
2. The Respondent repudiated the Lease, the Applicant accepted the repudiation and terminated the Lease on or about 28 March 2008.
The rulings on which the Tribunal's orders were based were as follows: (a) contrary to Ms Roach's contentions, at the time when she purported to 'withdraw' her 'offer of a tenancy', the parties had entered into a binding agreement in the terms of the Second Lease, under which she was contractually obliged to pay rent up to 31 October 2008; (b) because Mr Braun asked only one estate agent to advertise the Premises with a view to obtaining a new tenant, he had not acted 'reasonably' in this regard, and only one-half of the amount of $28,787.22 claimed for lost rent (representing rent at $3,198.58 per month for the nine months between 1 February and 31 October 2008) should be awarded to him; (c) he was entitled under the Second Lease to recover interest at 10% on this amount; (d) he was also entitled to recover (i) the fees that he paid for the survey of the Premises, (ii) legal costs paid by him to Lane & O'Rourke and (iii) the amounts of certain invoices submitted to him for repairs and disposal of asbestos and rubbish following Ms Roach's departure; (e) he was not entitled to recover the estate agent's commission on the re-letting of the Premises; and (f) the amount of the security deposit of $1,800.00 paid by Ms Roach on entering into the Original Lease was to be deducted from the amount to which Mr Braun was otherwise entitled.
Further aspects of the Tribunal's reasons will be outlined, and some passages quoted, in the ensuing discussion.
Ms Roach's submissions in the appeal focused on the first and most important of these rulings, but also raised some other discrete questions. We will deal individually with the various subject matters to which her submissions related.
Whether there was a binding agreement between the parties in the terms of the Second Lease
In holding (at [12 - 19]) that the parties had reached such an agreement, the Tribunal relied upon the well-known passage in Masters v Cameron (1954) 91 CLR 353 at 360, in which the High Court distinguished between three situations where, as the Court expressed it, ' parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract'.
The Tribunal held that the present case fell within either the first or the second of the three categories identified by the High Court. According to the Tribunal, the case was, to quote again from Masters v Cameron , either (a) 'one in which the parties have reached finality and arrange all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time proposed to have the terms re-stated in a form which will be fuller or more precise but not different in effect' or (b) 'a case in which the parties have completely agreed upon all the terms of their bargain and attend no departure from or addition to that which their agreed terms express or implied, but nevertheless have made performance of one or more of the terms conditional upon execution of a formal document'. It did not belong to the third category, which covers cases where 'the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract'.
At [16 - 17], the Tribunal referred to Dong v West Services Pty Ltd [2010] NSW ADT 150, indicating that it exemplified numerous proceedings within the Retail Leases Division in which negotiations and correspondence have taken place between the parties to a prospective lease, but no formal lease document has been created. The Tribunal held that this decision was distinguishable because of the following factors outlined in the reasons in Dong at [32]:-
The letter sent by Lo [the Applicant's solicitor] to the Respondents' solicitors on 10 December 2009 certainly expressed acceptance of the terms contained within the above letter, but did not respond to the matters set out by the Respondent as being required to be attended to by the Applicant before any lease document would be prepared; instead, Lo's letter ignored the stated requirement and simply asked for provision of a lease agreement "as soon as possible". In the absence of evidence to the contrary, this request tends to indicate agreement that there would be no concluded bargain between the parties until a formal lease had been executed, therefore bringing this matter within the third category of cases described in Masters v Cameron (1954) 91 CLR 253.
The aspects of the evidence on which the Tribunal in the present case relied in concluding that the parties had reached a binding agreement were set out in its decision at [17] and [19]:-
17 ... a lease document had in fact been produced and executed by the Lessee and one of the Lessors, the correspondence between the Applicant and the Respondent confirmed all the terms of the lease and the parties were ready to proceed. Email correspondence between the parties confirms this. The only missing element was the execution by one of the Lessors who in fact was a co-executor. Mere execution of the Second Lease was executory only.
19 ... the Respondent was asserting the need for a lease because she wished to formalise arrangements with her bank without really disclosing the real reason, which was the prospective sale of the business, and naturally to sell a business the vendor really should offer a long term lease. This was never disclosed to the Applicant and certainly whilst in the mind of the Respondent one could say that her entry into the Second Lease might have been conditional upon a sale proceeding, she never made entry conditional and certainly the Applicant was not aware of any such conditionality.
In the appeal, Ms Roach challenged this ruling on three grounds.
The first and most significant of them was based on the following aspects of the evidence. Even though Mr Braun had insisted, as from 27 November 2007, that she should pay a higher rent and a proportion of the outgoings under the proposed new lease of the Premises, he raised no objection to the fact that (a) she continued to pay the amount due under the Original Lease and (b) she paid no outgoings. Up to and including her final instalment on or about 31 January 2008, she paid monthly instalments of $3.095.40, whereas according to the terms of the Second Lease, which he claimed to have commenced on 1 November 2007, the monthly rent was $3,198.58.
Ms Roach argued that by accepting the lower amount for rent and not objecting to her failure to make any payments for outgoings, Mr Braun implicitly conceded that the Second Lease was not operative and that she was in occupation of the Premises under the holding over provisions of the Original Lease. She also argued that by not paying the increased rent and by pressing on several occasions for both lessors to execute the lease, she was indicating that she did not consider herself to be bound until they had attended to this. She claimed at the hearing of the appeal to have paid her last instalment of rent on 25 February 2008, but as indicated above the Tribunal found that the monthly instalment due in advance for February 2008 was the last payment that she made.
In this context, Ms Roach referred to the following proposition contained in the Tribunal's decision in Dong v West Services Pty Ltd [2010] NSW ADT 150 at [30]: 'It is an error to suppose that merely because something has been done there is a contract in existence which has thereby been partly performed.'
In response, Mr Lawrence argued that this evidence of payment and acceptance of rent at the lower rate due under the Original Lease was insufficient to contradict the clear inference that arose from the correspondence between the parties. This was that by 19 February 2008, if not on the earlier date of 15 February, the parties to the lease had reached agreement according to the terms of the Second Lease and regarded themselves as bound by those terms. The only step required to complete the formalities associated with the creation of a lease was the execution of the document setting out the agreed terms by one of the two lessors.
Mr Lawrence relied particularly on the three emails passing between Mr Braun and Ms Roach on 19 February 2008 (see [26 - 28] above). He pointed out that in the third of these emails Ms Roach, having received from Mr Braun an email stating that the question of when the Lease might be signed 'does not matter really' and that 'the lease is effective from the November date', raised no objection to these statements. This silence on her part, Mr Lawrence argued, amounted to acquiescence. He added that if the Second Lease had not been repudiated, the shortfall in the rent due could and would have been claimed in due course from Ms Roach.
In our judgment, these contentions by Mr Lawrence must prevail. Through executing the lease, instructing her solicitors to send it to the lessors' solicitors and raising no objection to Mr Braun's claim that it was 'effective' as from the commencement date stated in it, Ms Roach clearly signalled her consent to be bound by it, even though it had not yet been executed by both lessors. The tenor of the final phrase in her second email to Mr Braun ('it would be nice if I had the lease before the end of this month if possible') further supports this conclusion. The strength of the inference to be drawn from these events clearly outweighs that of any inference arising from her continuing to pay rent at the rate due under the Original Lease.
Secondly, Ms Roach claimed that she should not be held to have been bound by the Second Lease because the estimates given in the Disclosure Statement of the amount that she would have to pay for water rates (as to these, see [21] above) were clearly misleading. She coupled this claim with arguments that (a) Mr Braun should have replied to her request on 4 December 2007 for information on this matter, but failed to do so, and (b) she had understood that she was to be liable for 50% of the 'water rates', not, as subsequently stated, for this proportion of the 'water, sewerage and drainage rates'.
Ms Roach based this claim on the provision, in section 11(2) of the RL Act, that if a lessor's disclosure statement contains information that is 'materially false or misleading', the lessee (subject to an exception contained in section 11(3)) may terminate the lease in writing within a period of six months after it was entered into. She acknowledged, however, that the letter from Castle Lawyers dated 26 March 2008 did not purport to terminate, under section 11(2), a lease that had already come into existence, but instead purported to 'withdraw' an 'offer of a tenancy'.
Mr Lawrence argued that the evidence clearly showed Ms Roach not to have been concerned about the amount of water rates. He pointed out also that Mr Braun had not sought to claim any amount on account of water rates. He relied on section 11(3), which states:-
(3) The lessee cannot terminate the lease under this section on the ground that the disclosure statement is incomplete or contains information that is materially false or misleading if:
(a) the lessor has acted honestly and reasonably and ought reasonably to be excused for the failure concerned, and
(b) the lessee is in substantially as good a position as the lessee would have been if the failure had not occurred.
We agree with Mr Lawrence that section 11(3) is applicable. We would add another reason why Ms Roach's claim under section 11 must fail: namely, that there is no evidence that she took any steps to terminate the lease within the period of six months stipulated in section 11(2).
Thirdly, Ms Roach submitted that the Second Lease was unenforceable because it had not been registered. She relied on the contractual obligation of registration within one month imposed on lessors by section 15(1)(b) of the RL Act.
This argument fails for at least three reasons: (a) the events giving rise to the obligation in section 15(1)(b) never occurred in this case; and (b) as Mr Lawrence submitted, the definition of 'lease' in section 3 of the RL Act and the provisions of section 8 indicate that an enforceable lease may arise under the Act even though it is not registered; and (c) as Mr Lawrence submitted also, authorities such as Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544 (see at 547, 551) establish that an unregistered lease of any kind will still be enforceable as an agreement between the parties to it.
For these reasons, Ms Roach has not demonstrated any error on the part of the Tribunal in concluding that the Second Lease was binding on the parties.
Other grounds of appeal
Ms Roach argued a number of other grounds of appeal, each relating to aspects of the Tribunal's assessment of damages.
Lost rent. Ms Roach claimed that the reason why the rent payable by One-O-Nine under its lease of the Premises exceeded the rent payable under the Second Lease by as much as $1,421.80 per month, was that capital improvements made by her to the Premises made them more attractive to tenants. She contended that the amount awarded to Mr Braun for 'lost rent' should be reduced to take account of this factor. She did not cite any authorities for this contention.
There is, as far as we are aware, no support in case-law or under the RL Act for a claim of this nature. It must be dismissed.
Survey fees. Ms Roach argued that there was no lawful reason why the fees for the survey commissioned by Ken Willis should be charged to her.
The findings of the Tribunal at [20 - 23], however, are to the effect that the erection of the timber framed walls in the Premises at her instigation occurred without authorisation from the local council. For this reason, the Tribunal ruled correctly that she acted in breach of a clause of the Original Lease. Its decision (at [36]) that she should pay the reasonable costs (amounting to $825.00) of a survey that was required because of this lack of authorisation was entirely justified.
Legal costs. Ms Roach challenged the Tribunal's award of $2,230.91 for legal costs on the ground that they related to Mr Braun's costs incurred in re-letting the Premises to One-O-Nine.
A copy of the relevant invoice was tendered and admitted in the appeal. Mr Lawrence acknowledged that the costs being charged did indeed relate to this transaction. He also acknowledged that Mr Braun did not tender any evidence relating specifically to the costs associated with the Second Lease.
For this reason, our decision is that the Tribunal erred in including these costs in its award of damages. Its error was one of law because its finding on the question was not supported by any probative evidence.
Costs of repairs and removal of asbestos and rubbish. The evidence on which the Tribunal based its award of $5,379.00 under this head comprised three tax invoices, which were tendered and admitted in the appeal. In challenging this award, Ms Roach drew attention to two matters.
The first was that two of the invoices were dated 27 January 2009 and the third was dated 3 March 2009. Since both of these dates are considerably later than the date on which she vacated the Premises, Ms Roach claimed that the Tribunal should not have allowed a claim for damages based on them.
Secondly, she pointed out that some of the items of repair to which they related were clearly repairs to the structure of the Premises (for example, a window sill) and were therefore outside the scope of her obligation as lessee to pay for repairs.
Mr Lawrence submitted that, since One-O-Nine did not take possession of the Premises until a relatively short time before the dates of these invoices, it should be assumed that the repairs to which they referred were required because of the conduct of Ms Roach, the preceding tenant.
In our opinion, the Tribunal erred in deciding (at [37]), without giving reasons, that these invoices, submitted so many months after Ms Roach left the Premises, constituted sufficient evidence to justify its award of damages. Its error was one of law because it failed in its reasons to give any consideration to the question whether the evidence, being clearly subject to doubt, was adequate for this purpose.
Interest on the security deposit. Ms Roach argued that the Tribunal, when determining the amount to be allowed in her favour under Order 4 in its decision, should have taken account of the interest accruing since the commencement of the Original Lease on her security deposit of $1,800. She referred to sections 16D and 16M of the RL Act, which require amongst other things that security deposits must be transferred to the Director-General, and pointed out that Mr Braun had apparently not complied with this requirement.
Mr Lawrence pointed out that at the time when the Original Lease commenced this matter was covered by a now repealed provision (section 47) of the Act. Section 47(1) provided that a lessor must place a security deposit paid by the lessee in an interest-bearing account and must account to the lessee for the interest earned.
Mr Lawrence argued, however, that this claim by Ms Roach should be rejected because she had not advanced it before the Tribunal and because she had adduced no evidence as to what rate of interest should apply.
In our opinion, Ms Roach's claim should indeed be rejected, for the second of the two reasons advanced by Mr Lawrence. There is not, as far as we are aware, a statutory rate of interest, or series of rates, that applies to this situation. A party seeking an award of interest must therefore adduce evidence to prove the appropriate rate(s).
Conclusion
For the foregoing reasons, this appeal is largely unsuccessful. But Ms Roach has succeeded in showing that two components of the Tribunal's award of damages involved errors of law (for the reasons set out above at [72] and [77]), calling for amendment to its assessment of damages.
The amount of the damages awarded by the Tribunal under Order 3 must be reduced by amounts of $2,230.91 (the legal costs) and $5,379.00 (the tax invoices). The total of these two figures is $7,609.91.
The resulting amount to be paid by Ms Roach, taking account of her credit for the security deposit and excluding interest, is $13,425.00.
Our orders on the appeal, set out on the cover page on this decision, therefore have the effect of setting aside Order 3 of the Tribunal's orders and substituting our own order, pursuant to section 114(2)(c) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). We also make a minor amendment to the terms of Order 4, clarifying an ambiguity in it.
The appeal has succeeded up to a point, and there are no grounds for us to believe that any conduct on either side would provide a basis for a finding that it would be 'fair', within the meaning of section 88(1A) of the ADT Act, to make a costs order. There will accordingly be no order as to costs.
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Decision last updated: 06 September 2011