Sinanovic v Bone (No 2)

Case •

[2025] NSWSC 652

•

24 June 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Sinanovic v Bone (No 2) [2025] NSWSC 652
Hearing dates: 12 June 2025, 19 June 2025 (written submissions)
Decision date: 24 June 2025
Jurisdiction:Common Law
Before: Leeming JA
Decision:

1. To the extent necessary, grant leave to appeal.

2. Appeal dismissed.

3. Mr Sinanovic to pay Ms Bone’s costs in this Court.

Catchwords:

APPEAL – appeal from Local Court – dispute between landlord and tenant – whether Magistrate was biased – whether hearing was procedurally unfair – whether any other irregularity in hearing – whether Magistrate erred in upholding landlord’s claim for unpaid rent and damages – appeal dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 60

Evidence Act 1995 (NSW), s 39

Local Court Act 2007 (NSW), ss 39, 40

Residential Tenancies Act 2010 (NSW), ss 17, 19

Supreme Court Act 1970 (NSW), s 31

Cases Cited:

Chalik v Chalik [2025] NSWCA 136

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230

de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299

Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126

IIB Australia Pty Ltd v Owners Strata Plan 76024 [2014] NSWSC 1835

Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Muriniti v Kalil [2022] NSWCA 109

Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2009] NSWCA 300

O’Meara v Adams (No 2) [2021] NSWSC 1167

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Sinanovic v Bone [2022] NSWSC 1474

Sinanovic v Bone [2025] NSWSC 144

Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105

Wollongong City Council v Papadopoulos [2019] NSWCA 178

Wood v Firth [2013] NSWSC 845

Category:Principal judgment
Parties: Hakija Sinanovic (Plaintiff)
Ludan Bone (Defendant)
Representation:

Counsel:
M Sinanaj (by leave)
B Haines (Defendant)

Solicitors:
ClarkeKann Laywers (Defendant)
File Number(s): 2024/00289538
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Local Court of New South Wales
Jurisdiction:
General
Date of Decision:
11 July 2024
Before:
Brender LCM
File Number(s):
2020/00315194

JUDGMENT

  1. LEEMING JA: Mr Hakija Sinanovic appeals from a judgment of the Local Court in favour of his former landlord, Ms Ludan Bone, in the amount of $65,246.85. That amount represents substantial success on her claim under a residential tenancy agreement in 2018 in respect of unpaid rent, liability to pay an occupation fee, and damages for cleaning and repairs to the property. The judgment is the result of a rehearing, following Mr Sinanovic’s earlier success in an appeal to this Court setting aside an earlier judgment of the Local Court, on the basis of a denial of procedural fairness. That background may explain the attention directed in Mr Sinanovic’s written submissions to issues of bias and procedural fairness. That background is also relevant to a threshold issue of representation, bearing in mind that this relatively small claim remains unresolved after more than four years, the landlord’s costs are said (not implausibly) to exceed the amount of her claim, and that throughout that period Mr Sinanovic, who is illiterate in English and unwell, has been represented by his former wife Ms Maria Sinanaj.

  2. Mr Sinanovic has a right of appeal from the Local Court to the Supreme Court but only insofar as he is dissatisfied with a judgment “only on a question of law”: Local Court Act 2007 (NSW), s 39(1). The scope of that appeal may be expanded, by leave, pursuant to s 40. The hearing took place before me, sitting in the Common Law Division and exercising the powers of a Judge of the Court pursuant to s 31(3) of the Supreme Court Act 1970 (NSW).

  3. Mr Sinanovic’s grounds and proposed grounds of appeal are as follows, and reflect the fact that Mr Sinanovic appears not to have had the benefit of legal assistance:

1   Bias: The Magistrate’s conduct was of apprehended bias later confirmed in his Decision.

2   Unfair procedure: The Defendant’s special needs were not addressed due to his disability having Parkinson’s Disease, not been provided with a hearing loop and is illiterate in the English language.

3   Denial of a Fair Hearing: The Magistrate erred by failing to be impartial with his conduct benefitting the Plaintiff’s legal representatives at the cost of not allowing procedural fairness to the Defendant.

4   Abuse of Process: The Magistrate erred by not dealing with matters of concern raised by the Defendant.

5   Matters of law and facts: His Honour erred when he failed to consider relevant facts pertaining to evidence by the Defendant before making a finding the disputed lease of 21/3/2018 was valid under s17 of the RTA. Those facts do not support s17. The facts do not support the findings of awarding costs of repairs to the premises. Further relevant facts found were not considered by His Honour.

6   Denied the right to be heard and determined: The Magistrate erred in not allowing the defendant to be heard in open court, open legal argument and determination incurring unnecessary delay and costs. No notice received yet as to the decision on Costs which was set down for decision on 26/7/24.

  1. There is to my mind some awkwardness in regarding the claimed deficiencies of process (notably, apprehended bias and denial of procedural fairness) as falling within the scope of an appeal limited to questions of law, especially given the availability of judicial review. Nonetheless, it has been held that a failure to accord procedural fairness falls within the scope of an appeal limited to questions of law: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [39] but see [45]; Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 at [74]-[79]. A claim that a decision is affected by apprehended bias falls into the same category, because the legislation establishing the court or tribunal requires (albeit ordinarily only by implication) that the decision be one that is unaffected by an apprehension of bias, and thus there will be error of the same nature as the error when procedural fairness has not been accorded, when a decision does not comply with that requirement. Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2009] NSWCA 300 would seem to stand for at least that proposition, although as noted in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [159] (Basten JA) and Wood v Firth [2013] NSWSC 845 at [43] (Beech-Jones J) the issue may be quite nuanced. In any event, no submission to the contrary was made by Ms Bone, and judges at first instance have regularly proceeded on that basis: see IIB Australia Pty Ltd v Owners Strata Plan 76024 [2014] NSWSC 1835 at [17], [20] and [30]; O’Meara v Adams (No 2) [2021] NSWSC 1167 at [29], not to mention the earlier litigation between the same parties leading to the quashing of the first judgment of the Local Court. If that be wrong, nothing turns on it on the view I take of the merits of the application. Moreover, leave is unquestionably required to advance some of the proposed grounds, including proposed ground 5. A highly significant consideration in a case such as this where the amount at stake exceeds $50,000 will be the strength of the ground. The most convenient course will be to adhere to the approach taken by the parties at the hearing and focus on the merits of each ground, before returning to the question of leave.

Background

  1. In 2016, Ms Bone and Mr Sinanovic executed an agreement under which Mr Sinanovic would lease a residential unit in Rozelle, New South Wales from Ms Bone. The term was 16 December 2016 to 15 December 2017. The rent payable under this agreement was $1,300 per week.

  2. Mr Sinanovic continued in occupation until 14 August 2020. He maintained that he did so pursuant to the earlier agreement, at $1,300 per week. However, he accepted that he signed an agreement in 2018 in which the rent was stated to be $1,500 per week.

  3. On 4 November 2020, Ms Bone initiated proceedings in the Local Court to seek outstanding rent payment, occupation fees in respect of Mr Sinanovic’s occupancy following the termination of the 2018 residential tenancy agreement, and damages to “make good” the premises. The matter was heard by Hosking LCM on 9 November 2021 and 11 March 2022. Mr Sinanovic did not have legal representation, but Ms Sinanaj was given leave to represent him. On 11 March 2022, judgment was given in favour of Ms Bone.

  4. Mr Sinanovic appealed from that decision to the Supreme Court. Ms Sinanaj again represented Mr Sinanovic. On 26 October 2022, Garling J gave judgment in favour of Mr Sinanovic, finding that the Magistrate had failed to accord procedural fairness: Sinanovic v Bone [2022] NSWSC 1474. The matter was ordered to be reheard by the Local Court.

  5. The rehearing was held across two days on 13 December 2023 and 19 June 2024 by the Local Court constituted by Brender LCM. The matters in issue extended to whether the 2018 agreement had been duly executed, whether Mr Sinanovic was entitled to a rent abatement for water damage to the property, whether Mr Sinanovic was validly evicted from the property, whether Ms Bone was entitled to claim the rental bond, the amount of damages, and the occupation fee to be levied.

  6. It had been anticipated that the matter would complete on the single day on which it had been set down. Ms Bone and her solicitor Mr Nicholas Fasullo were cross-examined by Ms Sinanaj (again appearing by leave for Mr Sinanovic) on affidavits which had been supplied in advance of the hearing and which were read. Mr Sinanovic was then cross-examined by counsel then appearing for Ms Bone on his affidavits. The cross-examination appears to have completed at the end of the day, and the Magistrate directed re-examination to occur by way of affidavit, and directed an exchange of written submissions in January and February, and listed it “For Decision” on 28 March 2024.

  7. However, prior to that occurring, Mr Sinanovic made an application to reopen, which prompted an affidavit from Ms Lesly Cho, a partner of the law firm retained by Ms Bone, who had carriage of the matter together with Mr Fasullo. The details are addressed below, but that affidavit annexed documents which seem not previously to have been provided to Mr Sinanovic, including as to the real estate agent’s trust ledger.

  8. The result was a further hearing on 19 June 2024 at which further evidence was read and tendered, and Ms Sinanaj was permitted to cross-examine Ms Cho. Judgment was reserved and delivered on 11 July 2024.

Reasons of the primary judge

  1. On 11 July 2024, Brender LCM found in favour of Ms Bone in the amount of $65,246.85 inclusive of interest. The Magistrate made findings which may be summarised as follows.

  2. First, the 2018 residential tenancy agreement was binding: at [77] and [85]. In respect of Mr Sinanovic’s claims that he had no memory of signing it, the Magistrate determined that he did not point to any cogent evidence that he lacked capacity to contract, misunderstood the agreement, or was misled, and was thus bound by that agreement: at [77]. In respect of the claim that the agreement was invalid because Ms Bone’s agent was unlicensed, there was nothing in the Residential Tenancies Act 2010 (NSW) preventing an unlicensed agent from binding a landlord, the agent was in any event licenced, and even if she were not s 17 of the Act would operate to save the agreement. His Honour also considered that even if there were such a requirement, there is nothing in the Act that suggested that the intended consequence of a breach of such a requirement is invalidity of the lease: at [79]-[80].

  3. Secondly, in respect of the claim that Ms Bone had contravened the requirement to give 60 days’ notice of a rental increase on renewal under s 41 of the Act, the 2018 residential tenancy agreement was not a renewal but was a new lease, and in any event, a contravention of s 41 could only be challenged by seeking an order from NCAT within 12 months of the increase, which did not occur: at [82]-[84].

  4. Thirdly, the rent should not be abated for water damage: at [96]. Complete abatement of rent for 6 months, as contended for by Mr Sinanovic, made no sense in circumstances where he continued to live in the property, there were no photos and little detail: at [91]. The evidence of any water damage was very limited and there is nothing on which the Magistrate could rely to determine the size or impact of any damage: at [91]. Further, given that the claim was that the water damage occurred and was remediated during the period of the 2016 tenancy, it would not be appropriate to abate the 2018 residential tenancy agreement, in circumstances where it had not been pleaded that an abatement under the 2016 agreement should be granted and credited to the 2018 residential tenancy agreement: at [95]. The Magistrate noted that it had been put that the defence of abatement was raised unmeritoriously with a view to avoiding liability. His Honour fell short of accepting Ms Bone’s submissions based on Mr Sinanovic’s lack of credibility, but instead “considered the arguments on the evidence” and rejected them on the basis that he was not satisfied Mr Sinanovic’s case had been made out.

  5. Fourthly, the Magistrate allowed an occupation fee equivalent to the rent which would have been payable for the period between the termination of the 2018 Lease Agreement and the date when Mr Sinanovic vacated the property: at [103].

  6. Fifthly, part of the damages claimed were payable. The cost of carpet cleaning was not prohibited by s 19 of the Residential Tenancies Act because cl 45 of the agreement permitted a cat to be kept on the property, and s 19(3) provided an exception to the prohibition where an animal is permitted to be kept on the property: at [106]-[109]. General cleaning costs were permitted: at [110], but there was insufficient evidence from Ms Bone as to the responsibility to remove a table and replace toilet roll holder, so these costs were not payable: at [111]. The cost of remediating the damage to the walls from Mr Sinanovic’s hanging of artworks was payable as it had been specifically negotiated and a full repair was required. Mr Sinanovic’s evidence that he had already partially repaired the damage was not accepted, and there is no evidence that it was obviated by the water damage: at [112].

  7. Sixthly, the full quantum of rental arrears was payable: at [115]. Subject to two matters, the rental arrears were made out from the agent’s business records: at [113]. In relation to Mr Sinanovic’s claim that he made an additional payment of $5,648.81 in January or February, no such receipt had been recorded by the agent and Mr Sinanovic could not provide evidence of it being paid: at [116]-[117]. In relation to the additional sum of $5,000 said to have been paid at the commencement of the tenancy, this was already reflected in the accounting: at [120].

  8. Finally, Mr Sinanovic (through the submissions advanced by Ms Sinanaj), made a number of other claims in apparent defence of the proceedings. These were directed to the conduct of Ms Bone’s lawyers and counsel and alleged miscarriage of justice owing to Mr Sinanovic’s health conditions. The Magistrate considered that none of these had any basis: at [121]-[127].

  9. On 26 July 2024, Brender LCM ordered Mr Sinanovic to pay Ms Bone’s costs of the proceeding, but the order did not extend to costs referable to the first hearing.

Leave granted to Ms Sinanaj to appear for Mr Sinanovic

  1. Mr Sinanovic appealed to this Court. Shortly after that appeal was filed, and well in advance of the hearing, Ms Sinanaj formally applied for leave to appear for Mr Sinanovic, as she had done in his previous appeal, as well as at both trials in the Local Court. Ms Sinanaj had also prepared and signed the written submissions in advance of the appeal. Her application was unopposed. It was accepted that Mr Sinanovic suffered from Parkinson’s Disease as well as being illiterate in English. Nonetheless, it was dismissed with costs by this Court, differently constituted, on 21 February 2025: Sinanovic v Bone [2025] NSWSC 144.

  2. In refusing Ms Sinanaj leave to appear, it was said that “The issue is whether there is anything in this case to demonstrate the exceptional circumstances which warrant the Court departing from the usual position that the representative must be a lawyer”: at [37]. His Honour appears to have treated as dispositive the absence of any evidence that Mr Sinanovic was unable to pay for a lawyer, coupled with the fact that he was making serious allegations against Ms Bone’s solicitors concerning the production of documents. The critical reasoning is at [38]-[42]:

The evidence, as explained by Ms Sinanaj’s oral submissions, makes clear that there is nothing to prevent Mr Sinanovic from retaining a lawyer to conduct the proceedings in a way which conforms not only with the public interest in the proper administration of justice but, in all likelihood, with his own interests. There is nothing to prevent him from retaining a lawyer other than his own difficulty with lawyers.

As Ipp AJA pointed out in Teese v State Bank of New South Wales, there are tens of thousands of solicitors in New South Wales and thousands of barristers who, it might generally be assumed, would be more or less able to assist.

If it be the case that the refusal of leave means that the case has to be conducted without any representation for Mr Sinanovic, the Court will have to do the best it can, as will the Defendant. If it means that Mr Sinanovic has to give up the case altogether, so be it. In each instance, there may be prejudice to Mr Sinanovic, although in the second instance that would depend upon the merits of the case having regard to the usual risk as to costs. Any such prejudice is properly understood as the price Mr Sinanovic will have to pay to, in the words of Ipp AJA, indulge his prejudice against lawyers generally. Alternatively, Mr Sinanovic is able entirely to insulate himself from any such prejudice by hiring a lawyer.

Nothing submitted by Ms Sinanaj demonstrates exceptional circumstances which warrant a grant of leave in the face of the matters which I have set out above.

The application today is different to the application before Garling J previously heard in this Court in [2022] NSWSC 1474. Whilst the evidence before Garling J is unknown, his Honour’s reasons for judgment make clear that the case his Honour had to consider involved a relatively simple issue about the first Local Court trial being conducted without the principal witness being permitted to give evidence. There is no suggestion that any of the serious allegations or allegations of the nature Mr Sinanovic now seeks to bring forward were an issue before Garling J.

  1. With respect, I found myself unable to agree with this, notwithstanding the ordinary respect and obligation of comity to be accorded to a decision of this Court constituted by a single judge, even if given ex tempore and in the absence of a contradictor. Whether or not there are “exceptional” circumstances, within the meaning of Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230 upon which his Honour relied, must now fall to be assessed by reference to the provisions of the Civil Procedure Act 2005 (NSW), which post-date that decision and to which no reference was made. It was clear on the evidence adduced in support of the application, and confirmed by Mr Sinanovic’s testimonial evidence when he was briefly cross-examined before me, that he was substantially if not entirely incapable of representing himself. It was clear to me from reading the materials that the issues were straightforward. It is to be borne in mind that the determination of an appeal is ordinarily more straightforward than a trial: the record is by and large established, the issues are framed by the notice of appeal and any notice of contention, and ordinarily there will be written submissions supplied in advance. There is no question of identifying the evidence to be tendered, or preparing affidavits, or cross-examination. None of this was materially different from the appeal heard and determined by Garling J. What is more, Ms Sinanaj had run the trial in the Local Court, as well as the previous trial and the previous appeal, and Ms Bone and her lawyers who had seen that occur did not oppose Ms Sinanaj’s continuing to act for Mr Sinanovic.

  1. Next, it is necessary to have regard to s 60 of the Civil Procedure Act. This is an appeal from a civil claim in the Local Court. The amount in issue is (necessarily) relatively small compared to the cost of legal representation. It is difficult in such cases to avoid the melancholy position where the costs exceed the amount at stake. And indeed, prominent in Ms Bone’s submissions was the proposition that she had already spent more than the amount she sought to recover. It is important that litigants of modest means are not precluded by the cost of litigation from running and defending relatively small claims, such as a claim in debt for $50,000, and for my part I see no reason why the grant of leave to Ms Sinanaj to appear for Mr Sinanovic in this Court on appeal should be less freely available than in the Local Court at trial.

  2. The issue in my respectful opinion is not whether Mr Sinanovic had demonstrated that he was unable to afford a lawyer, a formulation which does not attend to the Civil Procedure Act. Rather, the issue is whether, having regard to the relatively small amount of the claim, and the command in s 60 of the Civil Procedure Act to implement the practice and procedure of the Court such that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute, and the duty to seek to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings, there should be a grant of leave to a litigant who had enjoyed the benefit of a similar grant of leave in the same litigation at all stages hitherto over the previous four years.

  3. I formed the view that some or many of those considerations had not been pointed out to the judge who dismissed the application earlier this year. His Honour did not have the benefit of argument on the point, because the application was unopposed. In any event, the order is interlocutory and able to be varied in light of changed circumstances. Interlocutory orders may be varied where changed circumstances make it just and proper to do so: Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 at 134. After I expressed a preliminary view, and acceded to Ms Bone’s counsel’s request to obtain instructions, there was no opposition to my doing so. The position was stark, and quite different from that confronting the judge earlier this year when Ms Sinanaj’s application was heard. The position before me was that if Ms Sinanaj were not permitted to appear, either there would be an adjournment and costs unnecessarily increased in litigation where costs already exceeded the amount at stake, or there would be a less than satisfactory hearing, which might or might not finish in a day. Accordingly, at the outset of the hearing, I formally, to the extent necessary, varied the order made by the Supreme Court to permit Ms Sinanaj to appear for Mr Sinanovic in the appeal, advising that I would give reasons for doing so in due course.

Grounds of appeal directed to procedural fairness and apprehended bias

  1. I shall address the grounds of appeal in a slightly different order from the notice of appeal. I do so because if any of the grounds directed to bias or procedural fairness are made out, Mr Sinanovic will not have enjoyed a trial heard and determined in accordance with law, and prima facie a new trial would need to be ordered: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3] and [117]; de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 at [64]. Accordingly, I shall address the matters raised in support of grounds 1, 2, 3 and 6 first.

  2. Rather than summarising the events of the trial in advance of dealing with the parties’ submissions and their resolution, it will be more efficient in light of what has already been said by way of overview to descend into the detail of the evidence and what occurred at the hearing, while at the same time as summarising and resolving the parties’ submissions in support of each ground.

Was the decision affected by apprehended bias?

  1. The written submissions in support of ground 1 focussed upon the point which was the subject of ground 6, namely the Magistrate’s decision to permit Mr Sinanovic to give evidence in re-examination by affidavit rather than in open court. That has been sketched above, and should now be explained in more detail. Towards the end of 13 December 2023, after Ms Bone’s counsel had expressed a preference to finish the case and “go into writing in closing”, the following exchange occurred:

“HIS HONOUR: Yes, that’s what we’re going to do now. You can put on an affidavit in re-examination, effectively in reply. So, you can do an affidavit with him in the next couple of weeks, where you cover all of the things that you say arise out of the cross-examination, instead of asking –

SINANAJ: I would need a transcript.

HIS HONOUR: No, you don’t. You’re about to do it now orally any way. You’re about to do it now, aren’t you? You’ve got it noted.

SINANAJ: I can ask him questions now?

HIS HONOUR: No, no. You have a note of all the things you want to ask him in re-examination now.

SINANAJ: Yes.

HIS HONOUR: If we had an hour, you’d be doing it right now. Correct?

SINANAJ: Yes.

HIS HONOUR: I’m going to give you seven days, and you can do it writing. So, you can ask him the questions and he can tell you the evidence, and you can put it in an affidavit, and that’ll be his evidence in re-examination. That gives you a big advantage because in re-examination, orally, you wouldn’t be able to ask him any leading questions. I’m not going to stop you doing that in writing.

SINANAJ: Your Honour, I understand that. Your Honour, we’re entitled to have a fair hearing. We want to be given the opportunity to –

HIS HONOUR: This is more than fair because if you were going to do re-examination now, you could ask him questions which are non-leading and which are topics that arise out of cross-examination, and he could interrupt you and object to anything that you asked that was leading. What I’m going to let you do – and this has been done in the higher courts, there’s nothing unfair about it – I’m going to let you do the whole of the re-examination by doing a written affidavit, where you can get in a room with him and ask him as many leading questions as you like and write down all the evidence that you want to lead by way of re-examination in writing, so it’s better for you. Otherwise, it’s five to 4. If I adjourn now, I’ll give you another hour in about August next year. You don’t want that; this is much better.”

  1. Mr Sinanovic thereafter filed and served an affidavit sworn 8 January 2024 which contained the matters relevant to re-examination, including annexures. As noted above, contrary to the course contemplated by the Magistrate’s directions, that was not the conclusion of the oral hearing; see further below. But in support of the submission that the decision was affected by apprehended bias, Mr Sinanovic contended that the decision can be explained by the Magistrate’s intention of protecting Ms Bone and her lawyers from public scrutiny in open court. Further, he says that, while his own cross-examination was conducted in open court, during which his credit was impugned, his response to those attacks was not similarly public.

  2. I disagree. There is no reason not to accept the rationale stated by the Magistrate at the time, namely, that this course was a fair, efficient way to conclude the evidence.

  3. Contrary to Mr Sinanovic’s submissions, there was only advantage to him in the course adopted by the Magistrate. As the Magistrate observed at the time, permitting re-examination to be given by way of affidavit, at the end of what evidently was a long day in court, permitted Ms Sinanaj to consult with Mr Sinanovic, so as to ensure that the answers to the questions were accurate and as anticipated. It was potentially prejudicial to Ms Bone, who was denied the opportunity to object to questions then and there, both as to form and as to whether they arose from the cross-examination. Ms Bone was also denied her entitlement that Mr Sinanovic be held to the answers he gave to non-leading questions in re-examination. But Ms Bone makes no complaint, and indeed her counsel had suggested or at the least had acquiesced in the course adopted by the Magistrate.

  4. In short, what occurred was wholly favourable to Mr Sinanovic.

  5. True it is, as was submitted orally, the result was that part of Mr Sinanovic’s evidence was given by way of affidavit rather than orally in open court. That was always going to be the case, having regard to the decision (which was entirely appropriate) for evidence in chief to be given by way of affidavit.

  6. Insofar as Mr Sinanovic complains about an inability in a public forum to vindicate his case, the answer is that there is no unfettered entitlement to a litigant or a witness to give oral evidence in a court. The submission misapprehends the nature of re-examination, which is not an opportunity to reiterate at length denials made in cross-examination, but instead is (broadly speaking) limited to matters arising out of cross-examination in the sense that s 39 of the Evidence Act 1995 (NSW) has long been construed.

  7. Further, insofar as it is submitted that the decision was informed by a concern to protect Ms Bone’s lawyers from public scrutiny, that submission cannot survive the Magistrate’s decision to permit further cross-examination at the resumed hearing of Ms Cho, to which I shall turn shortly.

  8. Finally, I have not overlooked the fact that ground 1 as formulated contends that the conclusion of apprehended bias was “later confirmed in [the Magistrate’s] Decision”. This latter submission is bad in law. Some litigants have to lose in contested litigation, and the fact that a judge decides a case adversely to a litigant cannot of itself support a contention of apprehended bias. The outcome of the case will not demonstrate pre-judgment; it will be the exercise of judgment: Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 at [54]. It is true that there can be circumstances where a link can be drawn between the reasons for judgment and the conduct of a hearing, as was mentioned in Muriniti v Kalil [2022] NSWCA 109 at [3]. But nothing said on behalf of Mr Sinanovic in support of this ground engaged the limited circumstances where that mode of reasoning is available.

Denial of procedural fairness?

  1. Mr Sinanovic raises two further matters which were said to amount to, or contribute to, a failure of the Magistrate to accord procedural fairness. One is the failure to ensure that a subpoena was complied with. The other is the Magistrate’s refusal to allow Ms Sinanaj to call Ms Bone’s solicitor to give evidence about the existence of documents. The two points are related.

  2. On 15 December 2021, during the first Local Court trial, Ms Bone sought and obtained a subpoena requiring the principal of LJ Hooker Balmain, the former property manager of the premises, to produce documents. On the second day of the first Local Court hearing, 11 March 2022, counsel for Ms Bone said to the Magistrate “I think there were some additional documents that needed to be produced”.

  3. Mr Sinanovic maintained that the apparent partial compliance issue had not been addressed by the time of rehearing. He says that the Local Court should have, as a matter of procedural fairness, dealt with the matter to ensure that all relevant materials were available to the parties. He says that at least one document which was not produced under the subpoena, being Ms Bone’s tax invoice from LJ Hooker for the period ending 31 January 2018, would have assisted him in proving that the water damage had occurred as it showed line item expenses for water leak scans/tests and carpet drying.

  4. This document only came to Mr Sinanovic’s attention, so it was said, when it was annexed to Ms Cho’s affidavit sworn 3 April 2024. Mr Sinanovic submits that this prejudiced him because it was not disclosed until after Ms Bone had given evidence, and he could not cross-examine her on the new information.

  5. The second matter arises from the first Local Court hearing, where the Magistrate did not allow Ms Sinanaj to call Mr Fasullo, Ms Bone’s solicitor, to give evidence about the existence of documents that might assist Mr Sinanovic’s case. Mr Sinanovic says that this decision infected the rehearing because counsel for Ms Bone remained silent on the issue and put matters to Mr Sinanovic in cross examination which, based on the material in the documents, he knew to be false.

  6. These submissions are not well founded, and for a variety of reasons. First, only failures to accord procedural fairness which contributed to the judgment of the Local Court from which this appeal has been brought can be material. What occurred in the first trial is irrelevant, if it was cured by the second trial. It is to be borne in mind that this Court’s decision in 2022 upholding Mr Sinanovic’s first appeal was based on procedural fairness.

  7. Secondly, I was taken to no evidence, and so far as I can see there was no evidence, of much of the factual basis of these complaints. There was nothing beyond Ms Sinanaj’s submission that documents had or had not been produced in answer to subpoenas, or that she had first seen the documents at some later time. However, to be clear about this, I shall proceed on the basis that her complaints about late production were correct.

  8. Thirdly, it is not the role of a Court to supervise production under a subpoena. The subpoena amounts to a Court order, which should be obeyed. But it is in the first instance for the issuing party and the recipient of the subpoena to identify whether there is a dispute about production. If so, it may be raised with the Court, and further orders sought. I was not taken to any evidence to suggest that this had occurred.

  9. Fourthly, the only particular document of which complaint is made is an internal document from Ms Bone’s real estate agent’s internal records. That document was annexed to an affidavit of Ms Cho made on 3 April 2024, and Mr Sinanovic was given an opportunity to cross-examine her at the resumed hearing some 10 weeks later on 19 June 2024. However, she was asked no questions about the matters. But it cannot fairly be suggested that Mr Sinanovic did not have an opportunity to investigate the document and test the real estate agent over it.

  10. In response, Mr Sinanovic points out that by then it was too late for him to cross-examine Ms Bone on the document. It does not appear from the transcript that he made any application to do so. It is far from clear that had any application been made, it would have succeeded. That is because it is not Ms Bone’s document. There is in fact nothing to suggest that Ms Bone ever saw the document, still less is there anything to suggest that the matters on it upon which Mr Sinanovic relies (as to which see below) reflect instructions emanating from Ms Bone.

  11. A further aspect of this complaint concerned Mr Fasullo. This was not sought to be developed orally. I think Ms Sinanaj may be under the impression that she can as of right cross-examine a witness called by her; that is not the case. But in any event, both Mr Fasullo and his partner Ms Cho made affidavits and Ms Sinanaj did cross-examine both Mr Fasullo and Ms Cho. I am unable to see how there could be any substance to this ground.

  12. A separate point arose at the hearing before me. In submissions supplied in connection with the resumed hearing in June 2024, Mr Sinanovic mentioned that the judge had said that he had already heard and determined the matter: “On 30 April 2024 at the listed Mention, His Honour said he has made his decision in these present proceedings”. That same point was reiterated in a further affidavit served in advance of the hearing in this Court. If that was in fact said and it conveyed its ordinary meaning, that would be much closer to establishing that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11].

  13. However, I rejected that portion of the affidavit, on the basis that nowhere in the written submissions supplied in support of the ground of apprehended bias had it been suggested that by something said, the Magistrate had indicated a predisposed disposition. No transcript for 30 April 2024 was provided, and if it was to be contended that the Magistrate’s comments on that occasion gave rise to an apprehension of bias, then Ms Bone had been denied the opportunity to review and perhaps tender the transcript on that occasion.

  14. Some light is shed on the Magistrate’s statements because at the commencement of the hearing on 19 June 2024 – a resumed hearing which is inconsistent with his Honour having already determined the case – his Honour said “Because this case has been heard and determined, submissions were all exchanged, but one issue came up. Anyway, everyone knows why we’re here, but I just don’t want this to start up again; I want to finish it”. At this stage the Magistrate was evidently juggling matters in his list and asking for an estimate of time. The transcript of 19 June 2024 makes it clear that the Magistrate was speaking loosely when recorded as saying “heard and determined”. Of course that was not literally true, and no one hearing it could have thought that the Magistrate had in fact determined the case while he was making directions for the reception of further evidence from both sides. It was true that the Magistrate’s directions the previous December had proceeded on the basis that testimonial evidence and submissions would, by this time, have been complete, and that is what his Honour must be understood to have meant. The matter had not been “determined” because that would only occur once his judgment was delivered. It seems likely that something similar was said on 30 April 2024.

  15. No point was taken by Mr Sinanovic either on 30 April, or on 19 June 2024, based on this, for the good reason that those words did not indicate any propensity to determine the case. Were I to be wrong about that, the failure by Mr Sinanovic to apply for the Magistrate to disqualify himself thereafter, has the consequence that any entitlement to do so has been waived: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [76].

Other unfair procedures?

  1. Turning to what was said in support of ground 2, I permitted Mr Sinanovic to give evidence, over Ms Bone’s objection, that he had asked for a hearing loop for the hearing on 13 December 2023. There was brief cross-examination as to his ability to understand questions either with hearing aids or with a hearing loop. The cross-examination was suggestive of a witness who was not disadvantaged. His evidence included that he wore a hearing aid and could understand the questions asked (Tcpt 12 June 2025, 62.14-31). He added that “I asked all the time, like I’m asking you now when I don’t understand”. The witness’ recollection falls to be considered in light of the transcript, which indeed records many occasions when Mr Sinanovic asked for the question to be repeated.

  2. No differently from many witnesses, Mr Sinanovic is recorded as saying in answer to many questions “sorry” or asking to repeat the question and sometimes to simplify the question. It is not apparent that there was any ultimate difficulty in his comprehending the cross-examiner’s questions. Further, aside from the bare statement that he had “requested a hearing loop”, the evidence in support of this ground falls well short of actual evidence of prejudice sustained by him not having a hearing loop (this Court’s file established that he asked for a hearing loop at a directions hearing in April before the Registrar, and in the hearing in this Court before me he did indeed have a hearing loop).

  1. Further, there was evidence that Mr Sinanovic and Ms Sinanaj obtained the audio recording of the hearing and compared the transcript to what was said, correcting numerous minor details. The corrected transcript was admitted into evidence without objection, and on the basis that it reflected a fair attempt to transcribe what could be discerned from the audio file. There was ample opportunity, if indeed there had been any material misunderstanding by Mr Sinanovic, for that to be put forward by way of admissible evidence in this Court. That did not occur.

  2. It is to be borne steadily in mind that Mr Sinanovic was represented throughout the proceedings in the Local Court by Ms Sinanaj. He had no speaking role, save as a witness. Although he had a role in supplying instructions, it was and is quite plain that Ms Sinanaj is intimately familiar with all aspects of his case. The critical portion of the hearing on 13 December therefore, is Mr Sinanovic’s testimonial evidence.

  3. The result is that I am unpersuaded Mr Sinanovi has made out this aspect of his case. To the contrary, it appears that the Magistrate and all participants in the hearing in the Local Court did their best to take steps that a defendant who lacked a legal practitioner acting for him obtained a fair hearing. This ground is not made out.

  4. While mentioning the transcript, it is as well to deal with another submission based on it, which is the reason that the transcript with annotations was tendered. Mr Sinanovic alleges further procedural fairness and apprehended bias issues relating to errors in the transcript. In particular, he contends that the transcript regularly records him using the word “I” when he was actually saying “they”, thus converting his accusations into apparent admissions. Mr Sinanovic says that he informed the Magistrate of the errors before judgment was handed down, but no order was made to have the errors corrected. He says this affects procedural fairness as he cannot rely on the transcript on appeal.

  5. It is true that sometimes the transcript attributes the word “I” to Mr Sinanovic, in circumstances where the annotated transcript (tendered on the basis mentioned above) records a handwritten “they”. I have reviewed the entire transcript. The errors are unremarkable and utterly immaterial. I agree with the submission by counsel for Ms Bone:

My submission is, as written, is that when the transcript is read as a whole, and there’s no doubt, with all of my submission, there doesn’t appear to me to be any reason to consider that the transcript prejudices Mr Sinanovic in any way.

The corrections that have been made are helpful corrections, because I don’t think that Mr Sinanovic’s arguments have been misunderstood, and I’m not aware of in my friend’s submissions any particular prejudice being caused by that. So, for example, I’m not aware of the judgment that were infected by any of these errors in the transcript. The judgment appears to weigh the evidence, to make conclusions based on that evidence, and, in my submission, I’m not aware of an argument put against me that there is particular place in the judgment where there has been some prejudice or some damage caused to the way in which Mr Sinanovic was able to put his case that would create procedural unfairness.

  1. As much had been flagged in Ms Bone’s written submissions in advance of the hearing, and was reiterated during the hearing (see Tcpt 15.2-7; 25.38-26.10). No submission was made that any of the inaccuracies was material.

  2. I have addressed Mr Sinanovic’s complaints that the hearing was unfair in some detail. It is easy for an unsuccessful litigant to attribute his or her loss to an unfair process, and it is systemically important that those allegations not go unanswered. Nothing in the materials made available to me suggests that what occurred was anything other than the familiar case of a busy Local Court Magistrate doing the best he could to achieve a fair hearing of a civil claim where the defendant, unassisted by legal representation, advanced a multitude of points.

  3. For all of those reasons, I am not satisfied that Mr Sinanovic has established that there was any bias or procedural unfairness or other vitiating defect in the trial in the Local Court. Although if what I outlined above concerning the scope of the appeal is wrong there should to the extent necessary be a grant of leave, nevertheless grounds 1, 2, 3 and 6 should be dismissed.

Grounds 4 and 5 – the residential tenancy agreements

  1. These grounds occupied most of the hearing time in this Court. They were also addressed in a supplementary six page submission supplied to my Associate on 19 June 2025. Ordinarily submissions should not be supplied after judgment has been reserved unless leave has been granted: see Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49] and the authorities there collected. However, it is possible that there was a misunderstanding between Ms Sinanaj and me. I was conscious that Ms Sinanaj was called upon to speak to her submissions on short notice (for the orders dismissing the application for leave for her to appear were only varied at the commencement of the hearing) and on a couple of occasions she mentioned that she did not have all of the materials readily available to her, and I flagged the possibility of her applying for leave to supply a short supplementary submission. Those indications fell short of a grant of leave. On the other hand, bearing in mind the circumstances in which she appeared, had an application been made I would likely have granted leave for her to supply short supplementary submissions, which is what has occurred. I have had regard to the submissions, and address them below.

  2. There was no dispute concerning the residential tenancy agreement entered into in 2016. The position in 2018 was contested. A major issue at trial was whether the landlord was entitled to sue for arrears of rent based on an increased rental of $1,500 per week, compared to the $1,300 a week under the 2016 residential tenancy agreement.

  3. Both sides addressed three documents. All recorded a rent of $6,517.86 per month, which equates to $1,500 per week. One was a draft residential tenancy agreement said to have been made on 5 March 2018, for a period of 12 months from 16 March 2018 to 15 March 2019 which was executed on behalf of the landlord, but not signed by the tenant. I shall return to the significance of the dates. Mr Sinanovic said that this corroborated his testimonial evidence that when a rent increase of $200 had been proposed he rejected it. In this Court, Mr Sinanovic complained that in determining the validity of the residential tenancy agreement upon which the landlord sued, no regard was had to this document.

  4. The second and third documents were suggested by Ms Bone to be the same document. It is impossible to be certain because the copy of the third which was in evidence is in such poor condition. These documents were annexures F and G of Mr Sinanovic’s affidavit of 1 October 2021. Both were expressed to be made on 16 March 2018, for a term of 6 months commencing 16 March 2018 and ending 15 September 2018. It was accepted that Mr Sinanovic’s signature appeared on both. It was said without opposition from Ms Bone that the landlord (Ms Anna Dimovski) had signed on behalf of the landlord, and her signature was witnessed by Ms Aidonas. One of those documents had handwritten on it as an inclusion within the residential premises: “x2 Garages”; the other did not. It was suggested that the document had been copied before the words “x2 Garages” had been written on it.

  5. Whether or not the $1,500 per week residential tenancy agreement which Mr Sinanovic signed included two garages is not to the point. Ms Bone said she was entitled to rent under either of those two documents, calculated at $1,500 per week. Mr Sinanovic complained of error by the Magistrate’s finding at [77] that:

The defendant conceded he signed the second lease. He has no memory of doing so. He points to no cogent evidence that he lacked capacity to contract, was under any fundamental misunderstanding about the agreement or was misled in some way that would permit him to escape liability. He is bound by the lease as a matter of contract.

  1. No part of that reasoning was challenged during the hearing before me. It is true that Mr Sinanovic complained that the Magistrate had not had regard to the unexecuted residential tenancy agreement referred to above which, so it was said, corroborated his account which was accurately recorded by the Magistrate as follows at [35]:

(3) It is not in dispute the Defendant went to the Agent’s office on 21/3/18. It is not in dispute his signatures appear on the lease agreement. What is in dispute are the circumstances leading up to how did the Defendant’s signature get on the said lease. The Defendant can remember the Agents giving him coffee, it is from that moment on he has no recollection of what happened next. According to the Defendant’s evidence, he said he did not see a lease before he was given coffee: (Def Affidavit 8/1/24 P2, Par.4, L5-7). The Defendant gave evidence under XX (T61, L3-11) that he doesn’t remember how he got home, he lost one day and asked his friend Robert what day it was. This Court would need to be satisfied on the balance of probabilities that the Defendant was capable enough to fully understand [the lease].

  1. However, in submissions supplied on 19 June 2025, Mr Sinanovic complained that the Magistrate made no mention of evidence of his incapacity and incompetence to enter into the contract. I do not accept the submission. The Magistrate was correct. Parties are prima facie bound by legal documents they sign. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [47] it was said:

Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief.

  1. It was necessary for Mr Sinanovic to do much more than he has so as to establish some vitiating factor to warrant departure from the ordinary significance of a signature on a legal document.

  2. In this Court, although to a much lesser extent below, extensive submissions were made based upon internal financial records maintained by the landlord’s agent. These showed deposits in the amount of $5,648.81 in the fourth week of August, September, October and November 2017, and again in January and February 2018, and regular deductions of $5,648.81 by way of rent in those months. There follow the following entries:

  1. 7 February 2018 “Rent Rent variation: $6430.95/M1 from 16/03/18”;

  2. 7 March 2018 “Rent Rent variation: $6517.86/M1 from 16/03/18”;

  3. 5 April 2018 a deposit of $25,000 for rent, allocated at the rate of $5648.81 for the period from 16 February to 15 May 2018, recorded as “Banking: st george kogarah”;

  4. 10 July 2018 “Termination Date of 25/07/18 entered”;

  5. 9 August 2018 $13,000 was deposited by way of rent allocated at a monthly rent of $6517.86 for the period from 16 May 2018 to 15 July 2018.

  1. Thereafter, there were irregular substantial deposits (in amounts of $19,000, $51,345.32, $5,000, $13,000 and $16,000) all of which were allocated to rent at the rate of $6517.86 per month.

  2. Mr Sinanovic said that the entry on 7 March 2018 was consistent with the unexecuted residential tenancy agreement dated 5 March 2018, and implied that it was suspicious that the rent variation was expressed to have commenced on 16 March 2018.

  3. The only issue in this Court is whether there is reviewable error in the Magistrate’s decision upholding the landlord’s claim for rent based on a $1,500 per week residential tenancy agreement. Although it may be conceded that the unexecuted residential tenancy agreement is peripherally relevant to the determination, that falls well short of establishing any error in the reasoning process at [77]. What precisely occurred in March 2018 – more than 7 years ago – can never be determined with certainty and even now some of the records are difficult to reconcile. In particular, why was no rent paid in December 2017? Why is there a record in the trust ledger report for a rent variation to $6,430.95 on 7 February 2018? Why, if as Mr Sinanovic would contend, he was insisting on a $1,300 per week tenancy, did he make a series of large payments, of $51,345.32 and $13,000 and $19,000 later in 2018 and 2019, including at times after which on his own case he had been provided with the $1,500 tenancy agreement signed by him? The Magistrate was required to make findings, one way or the other, based on the evidence before him and the parties’ submissions.

  4. The complaint is that the Magistrate did not have regard to an unexecuted document. But so far as I can see, he was not asked to have regard to it. It was understandable that the Magistrate would focus attention on the document which Mr Sinanovic accepted he signed, rather than an unexecuted document upon which the landlord did not rely.

  5. The point taken about s 17 of the Residential Tenancies Act was repeatedly flagged, but Ms Sinanaj did not reach it until Tcpt 57-59. Her point, which is correct, is that s 17 has no direct application to a residential tenancy agreement which is in fact signed on behalf of the landlord. But the reason the provision was mentioned by the Magistrate was that if as Mr Sinanovic maintained the agent who signed the residential tenancy agreement on behalf of Ms Bone was not licensed (or, as I suspect is the case, appears in the register under a slightly different name: “Ana” as opposed to “Anna”), that did not detract from the validity of the residential tenancy agreement. I see no error in that reasoning.

  6. In supplementary written submissions, Mr Sinanovic pointed to the ledger and maintained that “on 5 April 2018, when Mr Sinanovic paid $25,000 rent, the landlord accepted his rent of $1300.00 per week under his continuing first lease agreement paid up until 15 May 2018 with a credit balance of $6,315,53”. The submission also contends that “[t]he lease of 21 March 2018 (not acknowledged by Mr Sinanovic) was rescinded at the time the landlord accepted the original agreement of rent of $1300.00 per week from the tenant Mr Sinanovic”.

  7. Essentially, this submission amounts to alleging that internal conduct of Ms Bone’s agent, not shown to have been disclosed to Mr Sinanovic, is sufficient to undermine the $1,500 residential tenancy agreement found to have been executed by Mr Sinanovic. No findings were made in relation to this submission for the good reason that, so far as I can see, it was never made to the Magistrate. But in any event it is bad in law. The document is inconsistent: it records an increased rent from 16 March, but the calculations for notional allocation at the higher rate of the large amount of money provided by Mr Sinanovic in advance only occurred a little later. Mr Sinanovic seizes upon a slight delay in the internal records of the agency in recording the rent increase, but disregards the part of the document which is inconsistent with this. But what matters in terms of the rights and liabilities of Mr Sinanovic vis a vis Ms Bone is not the internal records of Ms Bone’s agent, but the objective dealings between Mr Sinanovic and Ms Bone’s agent, manifested in the signed residential tenancy agreement.

  8. It is pellucidly clear that the foregoing is well removed from any question of law within the meaning of s 39(1) of the Local Court Act 2007 (NSW). Despite the parties having addressed these issues in full, both in writing and orally, nothing has been said to cast any doubt upon the dispositive aspect of the Magistrate’s reasoning at [77]. In light of the analysis set out above, there should to the extent necessary be a grant of leave. However, these grounds must be dismissed.

The rental application

  1. A further matter raised by Mr Sinanovic is the contention that Ms Bone’s copy of Mr Sinanovic’s rental application should not have been admitted because it was improperly altered after he submitted it. In particular, Mr Sinanovic says that the amount of rent payable per the copy annexed to Ms Bone’s affidavit sworn 29 September 2021 had been altered from “$1,200” to “$1,300”. Mr Sinanovic’s own copy does appear to state the amount as “$1,200”, and the value on Ms Bone’s copy shows the “3” in darker writing, appearing to have been written over the top of the original number. Mr Sinanovic says that this was done without his knowledge or consent.

  2. This is outside the scope of any of the grounds of appeal, and was not sought to be developed orally. But in any event I am unpersuaded it has any merit. Even if all of the factual matters be taken at their highest, I fail to see how it is material to the judgment debt from which this appeal is brought. The document of which Mr Sinanovic complains is very difficult to read, but it is clearly enough an application for a 12 month lease commencing in 2016. The judgment is based on rent under the 2018 lease at $1,500 per week, pursuant to a document which he accepts was executed by him.

Water damage

  1. Mr Sinanovic in his supplementary submissions challenges the rejection by the Magistrate of his claim for abatement for water damage. He points to the obligation of the landlord to keep the premises in a reasonable state of repair, to his testimonial evidence, and to the line item recording investigations and carpet drying. None of this detracts from the findings of the Local Court being well open to it. The claim was for abatement of 6 months rent because, so it was said, the entire property was uninhabitable (despite which Mr Sinanovic continued to inhabit it). There was no photographic evidence. It would have been the easiest thing for a tenant with possession to take photographs of the damage, or otherwise to establish by contemporaneous documents that the very substantial damage claimed existed over a six month period. I am unpersuaded that there was error on the part of the Magistrate in failing to be satisfied of this aspect of Mr Sinanovic’s case.

Cost of repairs

  1. Mr Sinanovic also submitted that there was error in the Magistrate’s determination of that component of the judgment debt reflecting the cost of repairs to the property. These submissions were based upon what the Magistrate had said at [104]:

The plaintiff claims carpet cleaning ($385), general cleaning ($750), wall patching ($4,500) and the cost of removing a table and replacing a toilet roll holder ($302.50). There was no direct challenge to the plaintiff’s evidence that she paid the amounts via the agent. She said so, although she did not provide documentary proof.

  1. An elaborate submission was advanced by Ms Sinanaj, starting with the proposition that a Registrar of the Local Court had ordered particulars of this aspect of the claim in paragraph 36 of the Statement of Claim to be provided, what had been provided were four documents not all of which were evidence of payment and the Magistrate in his reasons more than three years later had made no reference to that order. However, as the Magistrate recorded, there was no direct challenge to Ms Bone’s evidence that she had paid those amounts via the agent. It is also plain that the points based upon the Registrar’s orders in 2021 were not made to the Magistrate.

  2. In oral submissions, as well as in his supplementary submissions, Mr Sinanovic returned to the component of this claim for $4,500, which is based on a document which arguably is merely a quote rather than a receipt. It was open to the Magistrate to accept that document, coupled with Ms Bone’s testimonial evidence and the lack of challenge to the document in terms, in order to find that the loss was established.

  1. Finally, in written submissions Mr Sinanovic repeated his complaint that there was a failure by Ms Bone to comply with a “Court Order to produce documentary evidence”. The order was to provide particulars. She did so. The point of the order was to provide Mr Sinanovic with notice of this aspect of Ms Bone’s case. The submission misconceives the nature and purpose of the order, and the way in which facts are found.

Conclusion and orders

  1. I have not overlooked that Mr Sinanovic’s summons also seeks leave to bring a question of law “for the Supreme Court of NSW to determine in the Public Interest”, being whether it is open to a court to intervene where a party not represented by a lawyer is unable to persuade the court on matters of procedure and law because the party or the party’s lay representative is not an officer of the court.

  2. The Court’s role is not to “intervene”. It is to determine issues raised by the parties. In an appeal such as this, that turns on the grounds of appeal. I have done so. All of the grounds and proposed grounds of appeal having been considered and rejected, there is no occasion for anything else to be said. There are separate principles applicable to unrepresented litigants (many are collected in Chalik v Chalik [2025] NSWCA 136 at [65]-[72]) and in cases where a litigant is permitted to be represented by a non-lawyer (as Mr Sinanovic had been). There is no reason for costs not to follow the event.

  3. The Court’s orders will be:

1. To the extent necessary, grant leave to appeal.

2. Appeal dismissed.

3. Mr Sinanovic to pay Ms Bone’s costs in this Court.

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Decision last updated: 24 June 2025

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Chalik v Chalik [2025] NSWCA 136
Charisteas v Charisteas [2021] HCA 29
Charisteas v Charisteas [2021] HCA 29