Fai Properties Pty Ltd v Apostolopoulos [2002] ACTSC 58 (14 June 2002)

Last Updated: 17 June 2002

FAI Properties Pty Limited v John & Evangelia Apostolopoulos

[2002] ACTSC 58 (14 June 2002)

CATCHWORDS

PRACTICE AND PROCEDURE - jurisdiction - appeal from Tenancy Tribunal - nature of appeal - whether an appeal lies to the Supreme Court from the Tenancy Tribunal on questions of fact and questions of mixed law and fact - whether the decision of the Full Federal Court in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101 is applicable on the facts - rights of appeal can only be conferred by statute - extent of rights of appeal is to be determined by the terms of the enactment conferring the rights of appeal - where a right of appeal is not granted in respect of questions of fact or questions of mixed fact and law, an appeal does not lie in respect of those matters - where there has been a specific grant of power in a particular area, that grant governs the position even where there is a more general provision - whether Tribunal erred on any question of law

Tenancy Tribunal Act 1994, s 58

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A

Supreme Court Act 1933, s 20

Magistrates Court Act 1930, ss 244, 218(2), 219B

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101, distinguished

Rose v Snape (2000) ACTSC 115 (7 December 2000), considered

Spurr v Fishpool (1972) 20 FLR 174, cited

FAI Properties Pty Limited v Nationwide Travel Canberra Pty Limited (2000) ACTSC 82 (6 October 2000), approved

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7, cited

Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 24 ALR 513, cited

Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278, cited

Pearce D C and Geddes R S Statutory Interpretation in Australia, 3^rd ed, Butterworths, Sydney, 1988 at 4.24.

FAI PROPERTIES PTY LIMITED v JOHN and EVANGELIA APOSTOLOPOULOS

No. SCA 79 of 2000

Judge: Spender J

Supreme Court of the ACT

Date: 14 June 2002

IN THE SUPREME COURT OF THE )

) No. SCA 79 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: FAI PROPERTIES PTY LIMITED

Appellant

AND: JOHN APOSTOLOPOULOS and

EVANGELIA APOSTOLOPOULOS

Respondents

ORDER

Judge: Justice J.E.J. Spender

Date: 14 June 2002

Place: Brisbane (heard in Canberra)

THE COURT ORDERS THAT:

1. The decision of the Tribunal is affirmed, pursuant to s 58(3)(a) of the Tenancy Tribunal Act 1994.

2. The appellant pay the costs of the respondents on the appeal, to be taxed if not agreed.1. This is an appeal from a determination by the Tenancy Tribunal that a landlord, FAI Properties Pty Limited ("the appellant"), in respect of a lease entered into on 18 November 1996 with respect to Shop 10 and 10A Boulevard Arcade, Akuna Street, Canberra City, pay to the tenants under that lease ("the respondents") a judgment sum of $193,558.15 by way of compensation under the lease.

2. The premises in issue were on the ground floor of an arcade which had access to a street via each end of the arcade. The respondents entered into possession of the premises and commenced the business of a delicatessen on 1 August 1996. They paid a total of $125,500 in respect of the acquisition of the business, of which $109,419 was attributable to goodwill. From the time of the respondents' purchase until early 1997, the business experienced an increase in average weekly takings.

3. However, there was a marked downturn in the patronage of the business from July 1997. The occupancy of the building, the Wales Centre, which was used for commercial office accommodation, fell dramatically, as the landlord undertook building works associated with the conversion of the premises to apartments. Access to one end of the arcade was blocked off in May 1998, and the respondents were advised in November 1998 by the appellant that the premises were required for refurbishment and associated building works as part of the refurbishment. Consequently, in late 1998 or early 1999, the respondents' premises were closed.

4. Subsequent to this, disputes arose between the parties as to the nature of the refurbishment work undertaken by the appellant and the appellant's alleged failure to pay compensation to the respondents for loss occasioned by such refurbishment. There was continuing correspondence between solicitors for the parties concerning these matters and eventually, on 29 September 1999, the solicitors for the respondents sent a letter to the appellant claiming that the conduct of the appellant had amounted to a repudiation of the lease, which repudiation was accepted by the appellant.

5. A claim for compensation by the respondent was based on two clauses of the lease: clauses 12.3 and 12.4. Clause 12.3 provided:

"12.3.1 The Landlord may require the Tenant's relocation to other premises for the purpose of carrying out refurbishment, redevelopment or extension to the Building only if:

(a) the Landlord gives to the Tenant, at least 3 months written notice ("Relocation Notice") which includes:

(i) the date of relocation,

(ii) a plan for the proposed refurbishment, redevelopment or extension of the Building, and

(iii) an offer to provide alternative comparable premises, on terms and conditions no less favourable than those applying in relation to the Premises,

(b) the refurbishment, redevelopment or extension is to be carried out within a reasonable time after the relocation of the Tenant, and

(c) the proposed refurbishment, redevelopment or extension of the Building cannot practicably be carried out without vacant possession of the Premises.

12.3.2 If clause 12.3.1 applies, the Landlord will grant, to the Tenant, a new lease for alternative comparable premises, for a period equivalent to the unexpired portion of the Term on terms and conditions no less favourable [than] those applying in respect of the Premises.

12.3.3 The Landlord will pay to the Tenant all reasonable costs of relocation and will pay reasonable compensation to the Tenant for any other loss or damage incurred by the Tenant as a result of the relocation.

12.3.4 In determining what is reasonable compensation under clause 12.3.3, regard must be had to any concessions given to the Tenant, including reduced rent.

12.3.5 The Tenant has the right to terminate this Lease within one month after the receipt of the Relocation Notice, if it provides to the Landlord, in that time, a written notice of its intention to terminate.

12.3.6 The termination of the Lease under clause 12.3.5 will take effect three months after the Relocation Notice was given to the Tenant, unless the Landlord and Tenant otherwise agree."

Clause 12.4 provided:

"12.4.1 The Landlord will not commence to carry out any refurbishment or alterations of the Building which is likely to adversely affect the Tenant unless the Landlord has notified the Tenant in writing at least 2 months prior to the commencement of the refurbishment or alteration (except in the case of an emergency, in which case the Landlord will give the Tenant reasonable notice of any proposed alteration or refurbishment), of:

(a) the proposed refurbishment or alteration, and

(b) the measures (if any) that will be taken by the Landlord to minimise the effect of the refurbishment or alterations on the Premises.

12.4.2 Notwithstanding any other provision of this Lease, other than clause 12.5.3, if the Landlord:

(a) inhibits, in any substantial manner, access of the Tenant to the Premises, or

(b) takes any action that would inhibit or alter, to a substantial extent, the flow of customers to the Premises, or

(c) fails to rectify, as soon as practicable, any breakdown of plant or equipment under the Landlord's care and maintenance, or

(d) in relation to the Premises, neglects to adequately clean, maintain or repair the Building including Common Areas, or

(e) otherwise by its conduct, whether by act or omission and without reasonable cause, adversely affects the trade of the Tenant;

the Landlord will be liable to pay to the Tenant reasonable compensation for any loss or damage (other than nominal loss or damage) suffered by the Tenant as a consequence.

12.4.3 Clause 12.4.2 will not apply to any action taken by the Landlord:

(a) as a reasonable response to an emergency, or

(b) in compliance with statutory requirements or a lawful direction of any Proper Authority."

6. The central issue on the appeal is the nature of the appeal. Section 58 of the Tenancy Tribunal Act 1994 provides:

"(1) A party to a Tribunal hearing may appeal to the Supreme Court on a question of law from a decision of the Tribunal in that hearing.

(2) An appeal by a person under subsection (1) shall be instituted no later than 28 days after the day on which a notice under section 55 is given to the person or within such further time as the Supreme Court (whether on, before or after that day) allows.

(3) The Supreme Court shall hear and determine the appeal and may make any of the following orders:

(a) an order affirming or setting aside the decision of the Tribunal;

(b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court;

(c) such other order as the Court considers appropriate."

7. Notwithstanding this section, it was contended on behalf of the appellant that an appeal lies to the Supreme Court from the Tenancy Tribunal, not only on questions of law, but on questions of fact and questions of mixed law and fact. The appellant relies on s 48A(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) which provides:

"The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory."

8. In my opinion, Section 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) is not a grant of power. The words "is to have" in s 48A are directed at establishing the nature of the Supreme Court, and it is the function of the ACT Legislature to determine what is "necessary for the administration of justice in the Territory".

9. Reference should also be made to s 20(1) of the Supreme Court Act 1933 which provides:

"The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory."

10. The crucial submission for the appellant relies on a decision of the Full Court of the Federal Court in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101. Kelly v Apps was a determination by the Full Court constituted by Gallop, Wilcox and Marshall JJ of an appeal from the Chief Justice of this Court. At first instance it was an application to make absolute an order nisi made on 16 April 1999. Paragraph 1 of the order nisi called upon the respondent to show cause before the Supreme Court why decisions of the Magistrates Court should not be reviewed. In that case, a Magistrate had ordered that certain charges against the respondent be dismissed, and that the appellant pay the respondent's costs, the quantum of which was reserved. Section 244 of the Magistrates Court Act 1930 concerns orders for costs made by Magistrates. It relevantly states:

"Award of Costs

The power of the court to award costs and the award of costs by the court shall be subject to the following provisions:

(a) where the court makes a conviction or order in favour of the informant - it may in its discretion award and order that the defendant shall pay to the informant such costs as it thinks just and reasonable;

(b) where the court dismisses the information, or makes an order in favour of the defendant - it may in its discretion award and order that the informant shall pay to the defendant such costs as it thinks just and reasonable;

(c) the sums so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal;

..."

11. In an ex tempore judgment, Wilcox J held in Kelly v Apps that s 20(1)(a) of the Supreme Court Act conferred jurisdiction on the Supreme Court to entertain an appeal against the making of a costs order by a Magistrate who dismissed an information for an offence. Gallop J agreed and Marshall J agreed generally with the reasons for judgment of Wilcox J.

12. Wilcox J said at [16 - [18]:

"During the course of argument reference was made to s 20 of the Supreme Court Act 1933 (ACT). ...

...

The words of para (a) of subs (1) are extremely broad. They include all appellate jurisdiction that is necessary to administer justice in the Territory.

The intention of the legislature seems to have been to ensure that the Supreme Court had the ability to right any wrong that might occur in the administration of justice by any court within the Australian Capital Territory. It cannot, I think, be disputed that the making of a costs order that ought not to have been made, or the failure to make a costs order that ought to have been made, is a wrong in the administration of justice in the Territory and that it is, therefore, appropriately the subject of the jurisdiction of the Supreme Court under s 20(1)(a)."

13. He went on to say at [21]:

"...there is a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act and the Magistrates Court Act specifically states that nothing in Pt XI is to cut down jurisdiction conferred under other legislation. I see no reason for the Court to construe s 20(1)(a) in a narrow way. It is obviously intended as a salutary provision to enable justice to be done by the Supreme Court."

14. It seems to me to be surprising that s 20 of the Supreme Court Act should be regarded as confirming the width of the power of the Supreme Court in respect of jurisdiction it possesses, but not as an express grant of power to rectify any wrong that might occur in the administration of justice by any court in the Australian Capital Territory.

15. Rights of appeal can only be conferred by statute, and the extent of those rights is to be determined by the terms of the enactment conferring those rights. The Tenancy Tribunal Act confers a right of appeal on questions of law. The orthodox and ordinary construction of that express conferral of power in a particular and defined circumstance involves the conclusion that, in cases where a right of appeal is not granted, as in this case, in respect of questions of fact or questions of mixed fact and law, an appeal does not lie in respect of those matters. Such an approach is a manifestation of the well-known expressio unius principle.

16. Moreover, as a matter of general construction, where there has been a specific grant of power in a particular area, that grant governs the position even where there is a more general provision. Again, this is a manifestation of the principle generalia specialibus non derogant.

17. The difficulties involved in this ex tempore judgment of the Full Court of the Federal Court in Kelly v Apps have been recognised in later cases by judges at first instance.

18. In Rose v Snape [2000] ACTSC 115, Higgins J decided that an application to cancel a periodic detention order made by the Supreme Court in substitution of a sentence imposed by the Magistrates Court should be dismissed. His Honour said at [47]:

"It now seems that, if Kelly v Apps is to be given full sway, the ACT legislature will be powerless to limit appeals to this Court if this Court is persuaded that an appeal is necessary to do justice.

Is leave no longer necessary for Small Claims Appeals? May appeals from the Administrative Appeals Tribunal be brought on the merits? Should this Court now regard itself as having jurisdiction to try summary offences? If so, by Judge alone or by jury?

As Crispin J noted in Westbrook v R (unreported, ACTSC, 18 July 2000, No. SCA 23 of 2000) the decision in Kelly v Apps appears to render any such limitation on appeals irrelevant. Presumably, the same follows for the conferral of original jurisdiction.

Nevertheless, even if, arguably, there is now jurisdiction in this Court to deal with matters expressly included only within the jurisdiction of the Magistrates Court, this Court would ordinarily decline, pursuant to s 20(2), to arrogate to itself that jurisdiction.

This application, for reasons already expressed, falls within the jurisdiction of the Magistrates Court. There is, in my view, no compelling reason for this Court to entertain this application, even if it has concurrent jurisdiction."

19. In Rose v Snape, Higgins J referred to a decision of a Full Court of the Supreme Court of the ACT in Spurr v Fishpool (1972) 20 FLR 174, where Fox, Blackburn and Connor JJ unanimously held that a prosecution appeal against a costs order made by a Magistrate in dismissing a criminal information was incompetent. Higgins J said at [46]:

"If there is a difference between Spurr v Fishpool and Kelly v Apps other than the mere semantics of the legislative provision in question, I do not perceive it. It may be that their Honours in Spurr v Fishpool took the old-fashioned view that appellate jurisdiction needs to be expressly conferred."

20. I note that counsel for the successful respondent in Spurr v Fishpool was T.J. Higgins, now Higgins J.

21. His Honour concluded that the terms of s 218(2) of the Magistrates Court Act were "quite clear" and that an "order made by this Court on appeal from the Magistrates Court takes effect as if it was an order of that Court. If it needs to be enforced, it is that Court's processes which must be invoked." His Honour held that the present application fell within the jurisdiction of the Magistrates Court and hence there was no compelling reason for the Supreme Court to entertain the application, even if it had a concurrent jurisdiction. Kelly v Apps was thus able to be distinguished.

22. It is the same broad jurisdictional argument referred to in Kelly v Apps that is raised in this case.

23. Even if one accepts, as a first instance Judge in the Supreme Court of the Australian Capital Territory must, that Kelly v Apps was rightly decided on the facts of that case, the decision is clearly distinguishable from the present circumstance.

24. I find myself in respectful agreement with the observations of Crispin J in FAI Properties Pty Limited v Nationwide Travel Canberra Pty Limited [2000] ACTSC 82, an unreported judgment of 6 October 2000. That case was similar to the matter I am presently concerned with, in that it involved an appeal from the Tenancy Tribunal. I agree with the following observations of Crispin J at [14] - [18] which I will, for that reason, set out at length:

"The Tenancy Tribunal Act 1994 imposes significant limitations on appeals from decisions of the Tribunal. Section 58 provides that a party to a Tribunal hearing may appeal to the Supreme Court on a `question of law from a decision of the Tribunal in that hearing'.

It is true that the questions of fact are not explicitly referred to in the section and the expressio unius est exclusio alterius rule of statutory construction must be applied with caution, (see, for example the remarks of Aickin J in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 14 ALR 519 at 539) but there can be little doubt that the express reference to a right to appeal on a question of law impliedly excludes an appeal on any other ground.

In Kelly v Apps [2000] FCA 687 a Full Court of the Federal Court held that s 20 of the Supreme Court Act 1933 (ACT) provided `all appellate jurisdiction that is necessary to administer justice in the Territory': per Wilcox J at [17]. Indeed, their Honours said that the intention of the legislature seems to have been to `ensure that the Supreme Court had the ability to right any wrong that might have occurred in the administration of justice by any court within the Territory': per Wilcox J at [18]. Whilst s 207 of the Magistrates Court Act 1930 purported to stipulate the appellate jurisdiction of the Supreme Court in relation to decisions under that Act subs 207(2) provided that nothing in the relevant part of the Act limited the operation of any other Act that made provision with respect to the appellate jurisdiction of the Supreme Court. The Full Court said that the important point was that there was a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act 1933 and that the Magistrates Court Act 1930 specifically stated that nothing in the relevant provisions was to cut down jurisdiction conferred under other legislation.

Section 58 of the Tenancy Tribunal Act 1994 contains no provision comparable to that contained in subsection 207(2) of the Magistrates Court Act. Accordingly, it is necessary to resolve the apparent conflict between the provisions of s 58 of the Tenancy Tribunal Act and the provisions of s 20 of the Supreme Court Act by reference to the usual principles of statutory construction."

25. One such principle is expressed in the Latin phrase generalia specialibus non derogant: where there is conflict between general and specific provisions, the specific provisions prevail: see, for example Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7; Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 24 ALR 513. It has been suggested that the generalia specialibus rule should be observed more strictly when the apparently inconsistent provisions are found within a single Act than in separate enactments: see Pearce D C and Geddes R S Statutory Interpretation in Australia, 3^rd ed, Butterworths, Sydney, 1988 at 4.24.

26. I turn now to the grounds of this present appeal. It was submitted on behalf of the appellant that the President of the Tribunal committed errors of law, and that what might be thought to be characterised as errors of fact were in fact errors of law because the Tribunal, in making the errors, failed to exercise its jurisdiction and took into account irrelevant considerations. Mr Sidney Tilmouth QC, counsel for the respondents, submitted that there had been no errors of law in the judgment of the President. Even what were said to be errors of fact, it was submitted, revealed no appealable error, and the review was restricted to questions of law.

27. An order was made by President Burns on 3 November 2000 for judgment for the applicants in the sum of $193,558.15. The reasons of the learned President for his order were extremely detailed and comprehensive, containing 176 paragraphs over 109 pages. The notice of appeal filed 1 December 2000 contained a total of fifty-four separate grounds with some of those including sub-grounds. Instances of such grounds are grounds 18, 29, 39, 40, 41, 43 and 52.

28. In Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278 the High Court held that questions of law do not include a question of mixed law and fact or the exercise of a discretion to reject or admit evidence. Gibbs CJ said at 287:

"In Reg v Jenkins [1970] Tas SR 13 at 15, Crisp J correctly pointed out that a `question of law alone' does not include a question of mixed fact and law and went on to say that `there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case'."

29. See also Mason and Brennan JJ, as their Honours then were, at 301-2 and Wilson and Dawson JJ at 314, agreeing with the view expressed by Gibbs CJ.

30. It follows that those grounds which seek to appeal against findings of primary fact or as to credit would, in the ordinary course, have suffered the significant restrictions concerning appeals involving such questions according to the orthodox principles of appellate review. The central basis of the Tribunal's conclusion flowed from its poor view of the credibility of Mr Avi Rubenstein. The Tribunal indicated it would not accept or consider his evidence unless supported by contemporaneous documents and, where such documents were produced by Mr Rubenstein, only when the contents of those documents were supported by other independent material. The question of credit is a question of fact, and the finding of the Tribunal was clearly open to it. Similarly, those grounds which are based on the decision-making process of the appellant in relation to the de-tenanting of the Wales Centre seek to impeach the finding by the Tribunal at [57]:

"... the [appellant] had determined by at least early 1996, probably earlier, that a major refurbishment or conversion of the building was the most likely option, and in order not to jeopardise those plans had determined not to seek any medium to long-term tenants."

31. This finding was a finding of fact. There was material to support it and, in particular, the position was that the occupancy rate of the Wales Centre of about forty per cent at the end of 1996 had fallen to three per cent by the beginning of 1998. As to the ground of appeal based on the re-configuration of the premises, the finding by the Tribunal was that the changes actually made were made without the consent of the respondents. The Tribunal said:

"I accept the evidence of Mr Apostolopoulos that the modification undertaken by the [appellant] resulted in the layout or configuration of the shop being altered to the extent that the applicants could not effectively and economically conduct their business from those premises."

32. The President had concluded at [86]:

"I am satisfied that these modifications were made without the consent of the [respondents] and without contractual right on the part of the [appellant]."

33. The findings by the Tribunal on the failure of the appellant to pay compensation followed a detailed examination of the correspondence between the parties from April 1998 until September 1999. The lease itself contained no mechanism for determining the amount of compensation. Having examined the correspondence and the events that had in fact occurred and the fact that no compensation was ever paid, the finding which appears at [142] of the reasons that the appellant "never intended to pay compensation under clause 12.4.2 ..." was a finding of fact and a finding which was open to it. The Tribunal examined what the appellant did as opposed to what it said, and the Tribunal concluded that the appellant had "sufficient information to determine ... the losses suffered ..." by mid-July 1999, as the Tribunal found, at [141] of the reasons.

34. Damages were awarded on grounds which involved findings based on credit. The Tribunal preferred the expert witnesses for the respondents and, in particular, Mr Comensoli as opposed to those for the appellant, in particular Mr Levy. The fact that the findings were based on credit is, in my opinion, sufficient, but the Tribunal gave specific reasons for its preference. The finding concerning the alleged operation of an additional coffee shop referred to in Ground 23 of the appeal was the subject of a finding that no evidence was ever adduced upon which such a contention could rationally be based.

35. Counsel for the respondents on the appeal accepted that some of the grounds appeared to agitate questions of law. I propose to deal with those grounds which seem to merit detailed consideration. The first involves the proper interpretation of cl 12.4.2 of the lease earlier set out. The contentions of the appellant concerning the interpretation of this clause were set out by the President at [33] of his reasons:

"(a) Are the terms of clause 12.4.2 broad enough to encompass a claim of alleged de-tenanting?

(b) At what time is any compensation under clause 12.4.2 payable?

(c) What are the respective rights and obligations of the applicants and the respondent vis-à-vis each other created by 12.4.2, especially with respect to any duty to cooperate?

(d) Is clause 12.4.2 an essential term of the lease such as would give rise to a right to terminate for breach?"

36. The interpretation accorded to the clause by the Tribunal involves, in my view, no error. The Tribunal said at [36]:

"The clause does not provide a guarantee of any particular level of tenancy in the building, but it does require that any adverse effect on the trade of the lessee caused by actions of the lessor must be with reasonable cause on the part of the lessor otherwise the lessor is obliged to compensate the lessee. Viewed in this way I see nothing onerous upon the [appellant] in the interpretation urged by the [respondents]. The question remains, of course, whether the [appellant] has, in fact, by its conduct adversely affected the trade of the [respondents] and, if so, whether that effect was without reasonable cause."

37. The President expressed the view:

"I can see no reason why [the clause] could not extend to conduct by a lessor calculated to empty the building of tenants."

38. I am also of the view that there is no error in the conclusion by the Tribunal that the promise to pay compensation was an essential term.

39. Concerning the claim that there was an error of law concerning the onus of proof on the respondents to prove de-tenanting, it has to be recognised that evidence is to be weighed according to the proof which was in the power of one side to produce and in the power of the other to have contradicted.

40. In the view I take of the matter, while the Tribunal had regard to the usual business records to refute the inference of de-tenanting, the Tribunal did not reverse the onus that lay on the respondents. The Tribunal had regard to a significant body of evidence which pointed to the conclusion that the search for long-term residents was abandoned in early 1996.

41. In considering those grounds directed at the obligation to relocate due to refurbishment contained in cl 12.3 of the lease, there was an express finding by the Tribunal that the appellant chose not to relocate "in order to save itself the cost". Similarly, it seems to me, the Tribunal was correct to have regard to the relocation option as relevant to the question of "without reasonable cause" under cl 12.4.2(e) of the lease. The option to relocate was an express avenue in the lease to deal with the contingency of relocation due to refurbishment. Here it makes it plain that the appellant never considered relocation. The consequence was, as the Tribunal found, that it was the appellant's affirmative decision to de-tenant the Wales Centre which invoked the operation of cl 12.4.2.

42. As to ground 18 of the notice of appeal, dealing with the effect of the mediated agreement, here the Tribunal preferred the evidence of Mr Apostolopoulos which it was open to the Tribunal, for the reasons which it referred to at [75] to [81] of its reasons, to do.

43. The Tribunal found that there was a breach of the covenant of quiet enjoyment under cl 6.1 of the lease, which finding was supported by the evidence. While the Tribunal qualified this by finding that the closure of the Akuna Street access and eventual complete closure probably constituted "serious breaches of the lease ... guaranteeing ... quiet enjoyment", it truly is non-material because the Tribunal said [at 82]:

"It is unnecessary to decide this issue, however, as it is clear that the [respondents] elected to keep the lease on foot."

44. The appellant challenges the finding by the Tribunal that the respondents were entitled to repudiate the lease. The Tribunal referred to the breaches of "essential terms of the lease", which it found made out and gave reasons for concluding that the respondents were entitled to repudiate the lease. No legal error has been demonstrated in the reasoning process, the evidence on which it was based, or the conclusion.

45. A further complaint is made by the appellant concerning the Tribunal's finding that its conduct was "harsh and oppressive" and there was a "special disability" vis-a-vis the parties. These conclusions properly flowed, in my opinion, from the primary facts the Tribunal found, those facts being open to the Tribunal to conclude.

46. The Tribunal expressly found that there was a "campaign of delay", and that the appellant "never intended to pay compensation". No legal error affects its findings on unconscionable, harsh and oppressive conduct.

47. I now refer to the grounds of appeal directed to damages. The appellant accepted that it was liable to pay compensation for the period between 4 January 1998 and 23 March 1999, when it said the refurbishment was complete. The respondents' case was that the premises were not ready for reoccupation on the stipulated date. The Tribunal held that the respondents were entitled to have damages assessed for the period July 1997 to May 1998, the period during which the Tribunal found that the present appellant allowed the tenant-base of the building to deteriorate and adopted a policy of not seeking out medium to long-term tenants, as well as for the period from May 1998 to 9 July 1999, the period during which the Tribunal said access to the premises was restricted due to building work, and during which the respondents were unable to trade, due to the modifications which the appellant made to the respondents' premises.

48. The Tribunal preferred the calculations of Mr Smith as to the loss of profits sustained by the respondents, as the Tribunal was entitled to do. The Tribunal accepted the loss of profits, totalling $134,720, and the "more conservative" figure for goodwill of $124,228. The Tribunal allowed a deduction from the damages sustained by the respondents of wages otherwise earned of $13,662, rent owing of $15,010, and income tax deductions totalling $51,799.14, making a total of $80,471.14. The Tribunal made an allowance for interest, and concluded that the respondents should have judgment against the appellant, in the sum of $193,558.15.

49. The Tribunal dealt with the contention of the appellant, concerning aspects of mitigation, and concluded:

"For the reasons I have given I am not satisfied that the [appellant] has discharged the onus cast upon it to establish that the [respondents] have failed to take all reasonable steps to mitigate their loss."

50. Again, in my view, no error has been demonstrated in respect of this conclusion.

51. I am satisfied, therefore, that no error of law has been demonstrated in the conclusions of the Tribunal. The decision of the Tribunal is affirmed, pursuant to s 58(3)(a) of the Tenancy Tribunal Act. The appellant should pay the costs of the respondents on the appeal, to be taxed if not agreed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender.

Associate:

Date: 14 June 2002

Counsel for the appellant: Mr A P Donohue, QC, with D J Mossop

Solicitor for the appellant: Minter Ellison Lawyers

Counsel for the respondents: Mr S Tilmouth, QC

Solicitor for the respondents: Vandenberg Reid Lawyers

Date of hearing: 2 - 3 May 2001

Date of judgment: 14 June 2002