Ersoy v Bonzalie [2010] NSWADT 2 (4 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Ersoy v Bonzalie [2010] NSWADT 2


DIVISION:
RETAIL LEASES DIVISION

PARTIES:
Applicant in 075149:
Aslihan Ersoy and Neslihan Ersoy

Respondent in 075149:
Eddie Bonzalie

Applicant in 085030:
Eddie Bonzalie

Respondent in 085030:
Aslihan Ersoy and Neslihan Ersoy




FILE NUMBERS:
075149
085030

HEARING DATES:
29 September, 30 September, 1 October, 1 December, 2 December and 3 December 2008, 19 February, 20 February and 17 April 2009

SUBMISSIONS CLOSED:
17 April 2009



DATE OF DECISION:
4 January 2010

BEFORE:
Callaghan P, SC, Deputy PresidentFagg N - Non-Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Evidence Act 1995
Retail Leases Act 1994

CASES CITED:
Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 149
Franklins Pty Ltd v Metcash Trading Pty Ltd [2009] NSWCA 407
Harris v Thallon (1926) 26 SR (NSW) 456

TEXTS CITED:


APPLICATION:
Lease documentation – common intention – credibility - rectification – termination notice

MATTER FOR DECISION:



REPRESENTATION:
Representative for Ersoy:
M. Zammit of Counsel
Representative for Bonzalie:
G. Rich of Counsel – 29 September to 1 October 2008
E. Demir, Solicitor – 1 to 3 December 2008
In person – 19-20 February and 17 April 2009


ORDERS:
1. Declare that subject to Order 2 below, the current lease of the premises 195 Great Western Highway, Wentworth Falls, is constituted by document being stamped Lease bearing date 10/03/06 and marked Exhibit 3A in these proceedings.
2. Order that the said document be rectified by deleting from Item 4 (Option to Renew) on the first page hereof the symbols and figures "+5+5".
3. Declare that the Termination Notice of Lease dated 8 August 2007 from Carters Law Firm to Ms Aslihan Ersoy was of no legal effect as such or otherwise.
4. Discharge as from the date of this Decision the interim order of this Tribunal made on 23 August 2007.
5. Reserve the issue of costs.
6. Dismiss all other claims.


Reasons for Decision:

REASONS FOR DECISION

Background

1 Mr Eddie Bonzalie, owns the freehold premises at 195 Great Western Highway, Wentworth Falls, on which there has been conducted for some years a business known as Mountain Pizza and Kebab or other variations of that name. Ms Aslihan Ersoy ("Aslihan") and Ms Neslihan Ersoy ("Neslihan") , are daughters of Mr Ali Ersoy. The Ersoy family bought the business and took a lease from Mr Bonzalie in respect of the premises in about March 2005 and the Ersoy family is still conducting the business. I will hereafter refer to the business and the premises as "the shop". The subject proceedings relate to the tenancy of the shop. The disputes involved in the proceedings are extensive and intense. Significant issues in respect of the credibility of each of Mr Ersoy and Mr Bonzalie are involved.


Proceedings

2 The relief sought by Aslihan and Neslihan in proceedings 075149, being a combined retail tenancy claim and unconscionable conduct claim, by the Second Further Amended Application for Original Decision is as follows:

"1. A declaration that the Respondent’s termination notice dated 8 August 2007 is void and of no legal effect.

2. Further or alternatively, an order that the Respondent’s termination notice dated 8 August 2007 be set aside.

3. A declaration that the applicant has not forfeited to the respondent her interest in premises at 195 Great Western Highway Wentworth Falls (Folio Identifier 3/559254)(the "relevant premises").

4. A declaration that the respondent has acted unconscionably at law and pursuant to the sections 62A and 62B of the Retail Leases Act 1994.

5. A declaration that the respondent is estopped from asserting a right to forfeit the lease.

6. Alternatively, an order granting the applicant relief against forfeiture of the relevant premises.

7. Further, or alternatively, an order that the respondent refrain from re-entering the relevant premises unless such re-entry shall be by the consent of the applicant.

8. Costs.

9. Any other order that the Tribunal deems fit."

3 The relief sought by Mr Bonzalie in proceedings 085030, being a combined retail tenancy claim and unconscionable conduct claim, is as follows:

"1. Rectification of the lease document dated 10 March 2005, to adhere to the terms agreed between the (Cross) Applicant and the (Cross) Respondents Agent on behalf of the (Cross) Respondents in or around March 2005, as originally executed.

2. In the alternative to Order 1, a declaration that the rights and obligations of the (Cross) Applicant and (Cross) Respondents in relation to the lease of the leased premises are in accordance with the terms agreed between the (Cross) Applicant and the (Cross) Respondents Agent on behalf of the (Cross) Respondents in or around March 2005, as originally executed.

3. A declaration that the (Cross) Respondents have breached the terms of the lease between the (Cross) Applicant and (Cross) Respondents pursuant to the acts alleged in the (Cross) Applicants Notice of Termination dated 8 August 2007.

4. A declaration that the lease between the (Cross) Applicant and (Cross) Respondents was terminated pursuant to the Respondents Notice of Termination dated 8 August 2007.

5. A declaration that the (Cross) Respondents breached section 62B and section 62D of the Retail Leases Act 1994 (‘the Act’), and/or an essential term of the lease by parting with possession of the leased premises to Zekai Mercimek without authority and misled the (Cross) Applicant in relation to such parting of possession.

6. A declaration that the (Cross) Respondents breached section 62B and section 62D of the Retail Leases Act 1994 (‘the Act’), and/or an essential term of the lease by providing a sub-lease of the leased premises without authority to Zekai Mercimek and misled the (Cross) Applicant in relation to such sub-lease.

7. A declaration that the (Cross) Respondents breached section 62B of the Act and/or an essential term of the lease by failing to maintain Public Liability Insurance and Property Damage & Personal Injury Insurance with respect to the leased premises with the (Cross) Respondents as the named insured.

8. A declaration that the (Cross) Respondents breached of an essential term of the lease the lease and thereby repudiated the lease by:

(a) Providing possession of the leased premises to Zekai Mercimek without authority;

(b) Granting a sub-lease of the leased premises to Zekai Mercimek without authority;

(c) Failing to maintain Public Liability Insurance and Property Damage & Personal Injury Insurance with respect to the leased premises with the (Cross) Respondents as the named insured; and/or

(d) Failing to pay rent pursuant to the terms of the lease.

9. In the alternative to Orders 2 and 8, a declaration that the rights and obligations of the (Cross) Applicant and the (Cross) Respondents in relation to the lease of the leased premises are in accordance with terms of the lease agreed between the (Cross) Applicant and the (Cross) Respondents Agent on behalf of the (Cross) Respondents in or around March 2005, as originally executed, and the variation orally agreed by the (Cross) Applicant and the (Cross) Respondents Agent on behalf of the (Cross) Respondents in March 2007.

10. An order that the (Cross) Respondents vacate the leased premises forthwith and provide the (Cross) Applicant with immediate possession of the leased premises.

11. Damages.

12. Interest."

4 On account of the unconscionable conduct aspects of the proceedings, and in accordance with Clause 4 of Division 3 of Part 3B of Schedule 2 to the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), I was assisted in the hearing by two non-judicial members. On account of illness, one of those members became unable to continue sitting beyond the first few days of the hearing and, with the consent of the parties, I deemed it appropriate to conclude the hearing with only one non-judicial member sitting (see Clause 4(4)). The assistance given to me by the non-judicial members has been significant and I am grateful to have had it, but the decision herein is mine alone.

5 Neither Aslihan nor Neslihan attended the hearing at any stage. Their father, Mr Ali Riza Ersoy, was in attendance throughout and instructed their legal representatives. Counsel appeared for the Ersoys on all occasions. Mr Eddie Bonzalie was represented by Counsel for the first three days of the hearing, and by his Solicitor for the next three days of the hearing, and represented himself on the last three days.

Persons Involved

6 The following are among the persons who have been involved in the disputes:

ABBAS, Sam	Solicitor
BONZALIE, Eddie	Lessor, applicant in proceedings 085030
BOSTANCI, Cihan	Employee at shop
ERSOY, Ali Riza	Father of Aslihan and Neslihan
ERSOY, Aslihan	First lessee and first applicant in proceedings 075149
ERSOY, Neslihan	Second lessee and ultimately second applicant in 075149
KARADAG, Metin	Owner of Istanbul barber shop at Auburn
MERCIMEK, Zekai	One-time sub-lessee of shop
NOVOSEL, Ivan	Employee at shop
PERCY, Melissa	Former (family) partner of Eddie Bonzalie
TONTU, Errol	Father of Eddie Bonzalie

Chronology

7 A summary narrative of some of the relevant events will also assist:

February-March 2005 Messrs Ersoy and Bonzalie negotiate for the sale by Mr Bonzalie’s business and a lease of the premises.

February-March 2005 Messrs Ersoy and Bonzalie approached Mr Abbas to prepare a contract for the sale of the business and a lease.

February 2005 Mr Ersoy gave Mr Bonzalie a cheque for $10,000 which was not met on presentation but was replaced by a second cheque or cash in that amount.

16 March 2005 Mr Ersoy paid Mr Bonzalie $189,000.00.

Mid March 2005 Neslihan and with her husband commenced running the business, having received a handover instruction from Mr Bonzalie during the previous week or so.

21 March 2005 Business name registration Mountains Pizza & Kebab transferred from Mr Bonzalie’s name to Neslihan’s name.

April 2005 Mr Ersoy says he collected a copy of the lease from Mr Abbas.

1 April 2005 Mr Ersoy paid Mr Bonzalie $2,800.00 in cash. Mr Ersoy says that was for rent and Mr Bonzalie maintains it was for part of the purchase price of the business.

15 April 2005 Mr Bonzalie went overseas.

June 2005 Mr Bonzalie returned to Australia.

11 September 2005 Aslihan landed at Sydney Airport from overseas

November 2005 Mr Bonzalie went overseas.

December 2005 Neslihan became pregnant and ceased working at the shop.

January 2006 Mr Ersoy and Mr Mercimek entered into an arrangement. Mr Mercimek registered the business name Mountains Pizza Pasta Kebab in his own name, paid $1,800.00 per week to the Ersoys and ran the business on his own account.

February 2006 Mr Abbas on instructions from Mr Ersoy prepared a sub-lease between Aslihan as sub-lessor and Mr Mercimek as sub-lessee for a term of 2 years commencing 19 February 2006.

February 2006 Mr Bonzalie returned from overseas. Mr Bonzalie met Mr Mercimek at the shop.

6 April 2006 Sub-lease stamped.

7 April 2006 Lease stamped.

November 2006 Mr Ersoy went overseas.

22 November 2006 Mr Bonzalie wrote to Mr Ersoy threatening to terminate the lease on account of arrears of rent. Mr Mercimek showed the sub-lease to Mr Bonzalie.

7, 8 December 2006 Further letters from Mr Bonzalie to Aslihan.

11 December 2006 The Ersoys paid $4,375 into Mr Bonzalie’s bank account.

December 2006 -
January 2007 Repairs carried out to floor of the shop.

February 2007 Mr Ersoy returned to Australia.

2 March 2007 Notice claiming possession and termination issued by Mr Bonzalie to Aslihan alleging arrears of rent and sub-letting without consent.

6 March 2007 Mr Ersoy paid Mr Bonzalie $1,000.00 in cash. Mr Ersoy and Mr Bonzalie negotiated about a new lease at $1,000.00 per week.

26 March 2007 Business names registration Mountains Pizza & Kebab transferred from name of Neslihan to Aslihan.

April 2007 Mr Mercimek left the shop and Mr Ersoy recommenced running the business.
11 April 2007 &

16 April 2007 Notices between solicitors concerning the notice of 2 March 2007.

4 May 2007 Mr Bonzalie locked Mr Ersoy out of the shop and Mr Mercimek went into possession at Mr Bonzalie’s request.

7 May 2007 Application for Original Decision in proceedings 075073 filed between Neslihan and Aslihan as Applicants and Mr Bonzalie as Respondent together with Application for Urgent Interim Order.

10 May 2007 Consent Orders made in proceedings 075073 noting that the tenant had been restored to possession of the premises by possession being given up to the tenant’s sub-tenant and that the matter was to be stood over for 3 weeks in order to enter into negotiations to resolve the matter with no further directions or mediation.

11 May 2007 Mr Mercimek left the shop.

June 2007 Proceedings 075073 dismissed.

June 2007 Messrs Ersoy, Bonzalie, Karadag and Mehmet Cihan met and endeavoured to resolve the differences between Messrs Ersoy and Bonzalie.

8 August 2007 Termination Notice given to Aslihan by Mr Bonzalie’s solicitors.

20 August 2007 Mr Ersoy lodged Application for Original Decision in proceedings 075149 between Aslihan as Applicant and Mr Bonzalie as Respondent.

23 August 2007 Interim Order restraining Respondent pending further order from taking any steps to lock out or evict the Applicant from the premises and ordering the Applicant to pay rent $3,539.86 per month with the next payment to be made on 6 September 2007, pending further order.

19 February 2008 Application for Original Decision filed on behalf of Mr Bonzalie in proceedings 085030.

Sale of Business and Lease

8 In about March 2005, following negotiations they had been having at the Istanbul barber shop at Auburn, Mr Ersoy and Mr Bonzalie went together to see Mr Sam Abbas, Solicitor, then of ES Lawyers, Level 1, 6-8 Civic Road, Auburn. Mr Abbas later moved to Allied Lawyers, Level 1, 115 Auburn Road, Auburn. Neither Mr Bonzalie nor Mr Ersoy had had any previous dealings with Mr Abbas. They requested that he draft documentation in respect of the sale by Mr Bonzalie to Neslihan and Aslihan, for a business at 195 Great Western Highway, Wentworth Falls. He prepared a document accordingly in the form of a Contract for the Sale of Business – 2000 edition, specifying among other things the business as "Mountain Pizza and Kebab", a price of $100,000.00 with a deposit of $10,000.00 and with the price being apportioned as to $20,000.00 for goodwill and $80,000.00 for equipment, fixtures and fittings. Mr Abbas says in relation to that transaction:

"I did not agree to represent both parties and advised Ersoy to obtain independent legal advice."

He gave oral evidence that he understood that the sale of the business did not proceed and that he received further instructions which he explained:

"I believed it was from both parties, more particularly Mr Bonzalie indicating that the matter had now become a lease, a matter for a lease only. The parties were not pursuing a sale of business any more. So it never got beyond that."

9 Mr Abbas summarises in his Affidavit the instructions given to him as follows:

"a. Term: 5 years

b. Option: one option of 5 years

c. Insurance: $10 million public liability

d. Bond: equivalent to three months rental

e. Rent review: annual review and the greater of 3% or CPI

f. Outgoings: to be lessees’ responsibility for Council rates, water rates and insurance

g. Commencing rental: $700 per week (query plus GST?)

h. Use: pizza and kebab shop"

10 The sale of the business did in fact proceed but did so without documentation or other formality. On 16 March 2005, Mr Ersoy paid to Mr Bonzalie $189,000.00 by way of bank cheque. He had earlier paid $10,000.00 by way of cheque or cash, after a first such cheque was not met on presentation and he suggests that another $10,000.00 was paid in cash. What the precise terms of the transaction were is not clear on the material before the Tribunal but obviously the sale price was of the order of $200,000.00 plus, rather than the $100,000.00 Messrs Ersoy and Bonzalie specified when they saw Mr Abbas. In opening, Mr Bonzalie’s Counsel said the price was $215,000.00 plus stock. In his oral evidence Mr Bonzalie says it was $210,000.00. Mr Ersoy said in oral evidence it was $210,000. Included in Mr Abbas’ oral evidence are the following comments concerning the sale of the business:

"...the conclusion I reached was the negotiation had been done, they’d simply – it was my task to draft the document that reflected their agreement. It never, as I said, it never simply started with the lease, it started with an agreement to sell a business which in the next two weeks from the day of my instructions it just changed into a lease, so there was some time between...

I’m pretty confident that it came to my attention at some point, that money had exchanged hands, yes...

The conversation that I had I believe was by way of a telephone discussion with I believe it was Mr Ersoy who already indicated that he had given Mr Bonzalie a sum of money, I think, for the business..."

11 Neslihan and her husband commenced running the business on about 16 March 2005, having received a handover instruction from Mr Bonzalie during the previous week or so. Mr Ersoy paid $2,800.00 to Mr Bonzalie in cash on or about 1 April 2005. Mr Ersoy says that payment was for 4 weeks rent in advance. Mr Bonzalie says it was for part of the purchase price of the business. In about June 2007 Messrs Ersoy and Bonzalie met with Mr Martin Karadag, the owner of the Istanbul barber shop at Auburn, and Mr Mehmet Cihan. Mr Karadag says in evidence that this was a meeting "in order to sort out their differences" and that during the meeting Mr Bonzalie acknowledged that this was a rent payment which had been made.

12 Mr Abbas gave evidence to the Tribunal by way of an affidavit and orally on two occasions. A stamped and signed original of the lease had earlier been tendered to the hearing through Mr Ersoy ("the original document") and Mr Abbas had a copy of that in his file. He says he was given that by Mr Ersoy after the lease had been stamped. There is controversy as to the authenticity of parts of the original document. Mr Abbas explains in his evidence that in relation to the lease he took instructions from Mr Bonzalie, he prepared a lease document in duplicate in accordance with those instructions and he gave the lease to Mr Ersoy so that he could get independent legal advice. His oral evidence includes the following statement of what occurred:

"...I got instructions in 2005 to draft, to prepare the lease, which I did. I issued the lease and the disclosure statement shortly after preparing it to Ali Ersoy with strict instructions to him, or advice to him that he obtain independent legal advice. A decision was made early that I wouldn’t represent both parties for obvious reasons. The lease was handed to him on the basis that he was going to see a solicitor and at some point in time I was informed that it was a solicitor at Blacktown of Turkish origin, who I believe I made contact with, because the matter then stretched on for a good six to eight months without any progress whatsoever being made in terms of executing the lease and Mr Bonzalie was getting very anxious about that because I believe he wanted to travel overseas.

I made the enquiries, I contacted the solicitor, a fellow from Turkish origin and I had a discussion with him in respect of the lease. He confirmed that he was a solicitor for the Ersoy family, but not that he’d received any instructions to give advice in respect of a lease document. And then at some point, maybe even after that in a couple of months, perhaps ten to 12 months after I initially issued the lease there was a visit to my office by Ersoy upon which time documents were executed upon which time I deleted with instructions the additional name that had appeared on the now amended front page of the lease."

Mr Ersoy, in oral evidence, named that Turkish Solicitor as Erben Hussain.

13 Mr Abbas spoke in evidence of alterations or perceived alterations to the original document. He says that the first page of the document which tabulates details of the title to the premises, the Lessor, the Lessee, the term of the lease, the commencing date, the terminating date, option to renew and other details, is not a page which he prepared. In particular, it is not written in his hand (and he thinks that he would have downloaded a lease form and typed in details on the first page) and beside the printed reference to an option to renew, the figures and symbols "5 + 5 + 5" there appearing were not there when he gave the document to Mr Ersoy. It should be noted that Clause 6 OPTION in the printed section of the lease relates to "a further term of 5 years from the expiration of this Lease" (and no additional further terms of 5 years or otherwise) and that Mr Abbas recorded in his instructions an option for 5 years (only).


14 That page stipulates the term to be for 5 years with commencing date 1 April 2005 and a terminating date 31 March 2010. It also names the Lessee as Neslihan and Aslihan but has the name Neslihan Ersoy ruled out, and beside that alteration are Mr Abbas’ initials and an Office of State Revenue stamp "Alteration Noted" and a New South Wales Duty stamp endorsed at the top shows an amount of duty of $753.90 and the date of 7 April 2006. Items 5 (option to purchase), 6 (rights) and 8 (Department of Lands document) are ruled out at the bottom of that page. On the second page there are what appear to be the signatures of Neslihan and Aslihan which are witnessed by Mr Abbas with his name and address subscribed. What appears to be Neslihan’s signature is ruled out and initialled by Mr Abbas and Mr Abbas’ explanation given in oral evidence is that Mr Ersoy requested this amendment when he brought the lease back, and that:

"He indicated to me that that was something that was discussed between himself and Eddie Bonzalie and I contacted Mr Bonzalie and he confirmed instructions to remove that name."

After that had been done, Mr Abbas returned the lease to Mr Ersoy and Mr Abbas says that later:

"I gave him instructions on where to go to stamp it and I asked him to get it stamped and return it to me for the purposes of registering the document."

What happened in respect of the stamping of the lease will be covered in some detail later in this Decision. I add at this point that Mr Abbas’ evidence is that he does not speak Turkish and that when he had discussions with Mr Ersoy, Mr Ersoy spoke to him in English; Mr Ersoy gave evidence at the hearing using a Turkish interpreter; he says in an Affidavit "I can communicate in English but I do not speak English fluently"; he says in cross-examination he cannot speak English; he also says he has been in Australia for 34 years; and, Mr Bonzalie says "I have heard Ali speak fluent English and he not appeared to me to have had any difficulty with conversing in English."

15 Various of the printed clauses in Annexure "A" in the original document have been deleted. There are deletions in respect of clause 2.1(a) of the Consumer Price Index as an alternative basis for 3% as the annual rent review; Mr Abbas says that he did not make that amendment. Clause 4.1(b) is deleted to exclude land tax from the outgoings to which the Lessee may be called to contribute; Mr Abbas says that he did not make that amendment but acknowledges that the amendment would have been consistent with the instructions which he had received. Clause 34 providing for the payment of a security bond by the Lessee to the Lessor before the commencement of the lease in the sum of $9,099.99 is deleted in full; Mr Abbas says that he did not make that amendment. The method of deletion used, a "Z" style ruling out, is consistent with his practice, he says, but, he also says that he would have initialled any such deletions.

16 A few other details of the original document are appropriate now to be noted. First, the date at the top of the second page has been completed "10/03/06" and Mr Abbas says "it looks very much like my handwriting". Mr Bonzalie’s signature as Lessor purports to be witnessed by a witness whose signature appears with the subscription of the name and address "Hulki Senel, 14/59 Good Street, Westmead 2145". Clause 1 in Annexure "A" provides for a basic rent of $36,400.00 per annum payable by monthly instalments of $3,033.33 each in advance on the first day of each and every month of the lease, subject to any provision for rent review. The rent details in Clause 1, the permitted use in Clause 14.1 ("Pizza and Kebab Shop/Takeaway") and the Bond amount in Clause 34.1 are typed or printed, in bold, into the form.

17 There are various copies of the lease which have been produced in evidence. First, there is a copy of the first three pages of the lease attached to Mr Ersoy’s principal Affidavit ("the first Ersoy copy"). This corresponds with those parts of the original document except that it is endorsed with a manuscript note "my copy" and is not stamped, is not dated and Neslihan’s name and signature have not been deleted from it. In his Affidavit, Mr Ersoy says he received this from Mr Abbas "in or about March or April 2005" and "at about the same time the lease terms were reduced to writing". Secondly, there is what appears to be a photocopy of the original document, being an annexure to an Affidavit of Neslian of 17 September 2007, ("the second Ersoy copy"). That Affidavit was not read as such in the hearing but a copy of it was an annexure to an Affidavit of Mr Bonzalie which he prepared and tendered late in the hearing. The second Ersoy copy was separately tendered. Thirdly, there is a photocopy document produced to the hearing by Mr Erol Tontu, who is the father of Mr Bonzalie. Mr Tontu says that in about November 2005 his son arrived in Turkey from Australia and he stored some personal belongings in the family home at Ankara. In May 2008, at the request of Mr Bonzalie, Mr Tontu searched through those personal belongings there and found this document. This photocopy document ("the Tontu copy") has a first page which has been completed in a hand different to that on the first page of the original document. This was shown to Mr Abbas who says that he recognised the writing as his. The first page of the Tontu copy does not have the name Neslihan Ersoy deleted, has the commencing and terminating dates blank and provides for an option to renew for a period of "5". On the second page it is not dated and there is no signature, name or address of a witness beside Mr Bonzalie’s signature. Both Lessees’ signatures are present without deletion together with the signature and name and address details for Mr Abbas. There are no deletions from the printed clauses of Annexure "A". A second (corresponding) copy of the Tontu copy was later tendered by Mr Bonzalie’s solicitor.

18 Then, there are two copies of the lease produced by Mr Bonzalie. There is a photocopy attached to an affidavit sworn by him on 24 April 2008 ("the first Bonzalie copy"). This appears basically to be a copy of the original document without the deletion of the name and signature of Neslihan Ersoy and without the stamping details, and with the date at the top of the second page blank (not "10/03/2006"). Indeed, the first 3 pages of this document correspond with the 3 pages which comprise the first Ersoy copy, even the words "my copy" written at the top of the first page. The deletions of Annexure "A" clauses 2.1(a), 4.1(a), and 34 are present. There are some rough manuscript alterations by Mr Bonzalie to clause 2.1(b) purporting to change the review rate from 3% to 5% and to clause 4.1(b) writing the word "active" beside the deletion and including a new sub-paragraph "(d) Council rates". There is no such alteration in respect of the deleted clause 34. Mr Bonzalie says that he collected the first Bonzalie copy from Mr Abbas when he arrived back from Turkey in about June 2005. He says that he had signed the lease at Mr Abbas’ office on 14 March 2005 and that on that occasion, the symbols and figures "+ 5 + 5" were not on the first page, that signature of a witness to his own signature and no name and address of a witness were present, and that the deletions to the clauses in Annexure "A" had not been made. He also says:

"My signature was not witness by Hulki Senel, who is a friend of Ali. He was not present. I signed the Lease in the presence of Mr Abbas and Ali only."

19 At the hearing on 20 February 2009, Mr Bonzalie, appearing on his own, tendered a fourth copy of the lease ("the second Bonzalie copy"). This appears basically to be a copy of the first Bonzalie copy with the date at the top of the second page completed "15/03/2005" and with the manuscript alterations roughed in or foreshadowed on the first Bonzalie copy, completed, and with that date, those alterations and the deletion of the name and signature of Neslihan Ersoy all endorsed with Mr Bonzalie’s initials "E.B.". The deleted clause 34 has a note "NOT CROSSED OUT VALID CAUSE" and the initials "E.B.". Mr Bonzalie says that this is a document which he produced to Mr Ersoy at the Office of State Revenue at Parramatta on 7 April 2006 when the lease was being stamped. He says that it recorded an agreement which he had achieved at a mediation with Mr Ersoy (which he says in oral evidence was a meeting between him and Mr Ersoy), but which Mr Ersoy refused to accept on 7 April 2006.

20 Finally, there is a copy of the lease produced under subpoena by Browne Linkenbagh Legal Services who acted for Mr Bonzalie from about December 2007 ("the first Browne Linkenbagh copy"). The first Browne Linkenbagh copy seems to be a copy of the first Bonzalie copy without the manuscript alterations by Mr Bonzalie. Browne Linkenbagh also produced a copy of the first two pages of the lease which seems to correspond to the first two pages of the first Bonzalie copy without the note "my copy" at the top of the first page and date "15/03/2005" inserted at the top of the second page ("the second Browne Linkenbagh copy").

21 I will express my conclusions concerning the complex history of the negotiation and documentation of the lease later in this Decision. At this stage, however, I note that Mr Bonzalie claims that he gave a copy of the lease to Mr Ersoy, at Mr Ersoy’s request, in about February 2006 and Mr Ersoy returned a copy in altered form four or five weeks later (presumably in the form of the first Bonzalie copy without the manuscript alterations in Annexure "A"). I also note some details of the Disclosure Statements for the lease. This document is not signed. Among other things, the Lessor Disclosure Statement has details printed into it stipulating a term of 5 years and an option period of 5 years, a rent of $36,400.00 per annum and a rent review method of "the greater of 3% or CPI". It also has a printed list of outgoings payable by the lessee:

"Water, sewer and drainage rates $800.00

Insurance N/A

Land Tax $600.00 per annum

Council Rates N/A

Other $

TOTAL $1,400.00"

The amount and words "$600.00 per annum" are crossed out and endorsed with intitials "E.B." (apparently Mr Bonzalie’s). The Lessee’s Disclosure Statement has no alteration or addition to the printed form.


Sub-Lease

22 In about December 2005 Mr Zekai Mercimek was working as a cook at the Anatolia Turkish restaurant in Auburn. Mr Ersoy, he says, was a very good client of the restaurant. Mr Ersoy says that he heard through his friend, Mr Hulki Senel, that Mr Mercimek might be interested in taking over the shop. After negotiations with Mr Mercimek, Mr Ersoy went to Mr Abbas. The arrangement between Messrs Ersoy and Mercimek was that Mr Mercimek would pay Mr Ersoy $1,800 per week and subject to that, Mr Mercimek would keep the net takings of the shop. Mr Abbas prepared a sub-lease from Aslian Ersoy to Mr Mercimek in respect of the shop for a term of 2 years with a commencing date of 19 February 2006, at a weekly rental of $1,800.00. This document was executed and Mr Mercimek went into possession and ran the shop from about January 2006 to about April 2007. Events of April-June 2007 which I will deal with later, overtook the sub-lease situation to the extent that Mr Mercimek ceased to be involved in relation to the shop and the Ersoys resumed operation of the shop. Nevertheless, Mr Bonzalie in proceedings 08503 seeks relief in relation to the situation by way of declarations that it arose without authority of Mr Bonzalie, and constituted one or more or all of unconscionable conduct, misleading or deceptive conduct and repudiation; and apart from declaratory relief Mr Bonzalie seeks an order that the Respondents in those proceedings pay to him "the sum of $63,000 being the money paid to the (Cross) Respondents and/or their agent by Zekai Mercimek by way of rent pursuant to the unauthorised sub-lease between January 2006 and March 2007 in excess of the (Cross) Respondents liability to the (Cross) Applicant under the lease".

23 Mr Bonzalie was overseas between November 2005 and February 2006. Mr Abbas says that when he received instructions from Mr Ersoy to prepare the sub-lease he did not see that he was in a position of conflict of interest. His explanations in evidence included the following:

"I believe that I handed it over to Mr Ersoy on a weekend so that he would attend to the execution of it and then at some stage return it so that I was able to deal with the issue of the landlord’s consent at a later stage...

I was going to, well, my intention was to write to Mr Bonzalie. I wasn’t aware of when he was going to return and then affect a deed which would have reflected his consent to the sublease, but it never got to that stage...

I don’t believe I was concerned, I was quite comfortable with the advice. I believed that Mr Ersoy understood that the document that I drafted could have effect until that consent was issued in writing, I was quite with that at that stage. I believe he understood that, I believe that he did..."

Another part of his evidence is:

"Q. Do you have any reason to believe that Mr Bonzalie would not have consented to the sublease?

A. No, I don’t, otherwise I wouldn’t have even drafted it. If there any matter that was brought to my attention that indicated that he wouldn’t be prepared then I wouldn’t have drafted it.

Q. Did you ever indicate to Mr Ersoy that you couldn’t see a problem with getting consent?

A. No, I never indicated that to him."

24 Mr Ivan Novosel was employed by Mr Bonzalie at the shop from 2002 to 2005. He says that after the sale of the business he was employed by Mr Ersoy and worked for him for 1 year. He also says that in August 2005 Aslihan Ersoy came to the shop and told him that she was the lessee. He says that he had never met her before and she told him that she had been in Turkey for the past year. In an affidavit he says:

"On or around December 2005 Mr Ali Ersoy had difficulties running the business. He offered to me the sub lease of the premises, which I declined. He then found someone else named Zack. A sub lease was prepared and I was witness to the sub lease. Mr Ali Ersoy asked me to sign as a witness which I did. After signing and witnessing the sublease he said ‘Eddie Bonzalie doesn’t know about the sublease don’t tell him or else you will loose your job’."

In oral evidence Mr Novosel says that he believes that he finished working at the shop in April 2006. He says that Mr Bonzalie contacted him on his return to Australia in February 2006 because he had been using Mr Bonzalie’s car. Mr Novosel thereafter saw Mr Bonzalie from time to time as Mr Bonzalie was residing locally following his return to Australia and used to come to the shop from time to time. He says that he introduced them to each other, referring to Mr Bonzalie as the landlord and Mr Mercimek as the person operating the business. The sub-lease bears date 19 February 2006 and Mr Novosel was the witness to the signatures of Aslihan and Mr Mercimek. He also says that when he signed the sub lease as a witness Aslihan was not in attendance but he signed as a witness to her signature because he was requested to do so. Mr Mercimek says that after the sub-lease was signed, he told Mr Bonzalie that he was the sub-lessee but that Mr Bonzalie did not appear to take him seriously until later.

25 On 6 April 2006 the sub-lease was stamped. Mr Ersoy went overseas in about October 2006 and did not return until some time in the New Year. Before he left, he had discussions with Mr Bonzalie concerning money, with Mr Bonzalie asserting that there had been arrears in rent payments, and in relation to the purchase by Mr Ersoy of materials for the repairs to the floor of the shop which were scheduled to take place between Christmas 2006 and early January 2007. Mr Bonzalie left at the shop a letter dated 22 November 2006 addressed to Mr Ersoy in the following terms:

"Due to your lease agreement Mr Ali Ersoy you are behind your rent this is a breach of 14 days and over. My major concern is that this is not the first time we have faced this problem. You were due on the 06-11-2006 the total amount of $3124.33 which was not received. Your next rental is due on the 06-12-2006 if all out standing money is not paid by that time in full I will terminate the lease agreement which we have. Please don’t make it complicated and have your rent paid on time."

Mr Mercimek read that letter when it came in and he rang Mr Bonzalie and said that he had a signed and stamped sub-lease. Mr Ersoy had given Mr Mercimek a copy previously. Mr Bonzalie came around to the shop and Mr Mercimek gave him a copy. Mr Bonzalie said to Mr Mercimek that he had not agreed to it and it was ridiculous. The letter of 22 November 2006 was followed up by two letters to Aslihan Ersoy on 7 and 8 December 2006 but those letters did not mention the sub-lease. Mr Ersoy arranged for $4,375.00 to be paid into Mr Bonzalie’s bank account on 11 December 2006.

26 Mr Cihan Bostanci commenced working at the shop in January 2007 for Mr Mercimek. After Mr Mercimek left the shop in about April 2007, he stayed on working for Mr Ersoy. He says in an affidavit:

"Whilst working at the Shop with Mr Mercimek between January 2007 and March 2007, Mr Bonzalie would attend the Shop approximately two times per week. Mr Bonzalie, during his visits to the Shop during this period, would sit around, talk and drink coffee with Mr Mercimek.

From my observations it was clear that Mr Bonzalie and Mr Mercimek were well acquainted and were good friends."

27 I find some of the evidence from Mr Ersoy concerning the sub-lease bewildering, if not bizarre. In oral evidence he seems to persist with a denial of the sub-lease. In his principal Affidavit in these proceedings Mr Ersoy annexed a signed and stamped copy of the sub lease. In that affidavit he says that he went to see Mr Abbas in or about February 2006 and asked him to draft him a written agreement with Mr Mercimek. He says:

"Sam does not speak Turkish, so we spoke in English and I told him that my daughters could not travel 60 kms every day and I had to get someone to operate the business and I wanted Zekai and ask Sam to prepare an agreement".

The affidavit includes the following paragraph:

"My recollection is that Aslihan signed the sub-lease document and I took it to Zekai on the same day that Sam gave it to me. I went together with my friend Hulki Senel to where Zekai was working in Auburn and gave him the sub-lease agreement and he gave me $10,000 in cash. In Turkish I said: ‘Our solicitor gave it to us to take to your solicitor because you’re not there’. He said : ‘He’s not there, I’ll take it to him later’. When I left the sub-lease agreement with Zekai the second page was not dated and the only signature that was on page 2 was Aslihan’s signature. I did not see Zekai sign the sub-lease agreement on that occasion and I never saw that document again until Eddie produced it in proceedings in the ADT in 2007. I recognise the name Ivan Novosel that appears on page 2 as the name and signature of a witness to Aslihan’s signature. I have met that person at the shop. I think he may have worked for my daughter and Zekai at different times. I believe he has also worked for Eddie. Ivan Novosel was not present, and I was present, when Aslihan signed the sub-lease agreement".

In an Affidavit filed in proceedings 075073 in this Tribunal, a copy of which was tendered on behalf of Mr Bonzalie in these proceedings, Mr Ersoy swore to the following:

"2. The shop at 195 Great Western Highway is a takeaway food business which mainly sells pizza and does home deliveries, it employs 5 people other than myself on a part time basis.

3. I have the day to day control of the shop. I had the responsibility for dealing with the landlord.

4. In relation to the subletting of the shop, it was originally sublet in February 2006 and at that time the landlord was overseas. I spoke to the landlords solicitor Mr Sam Abbas:

I said Sam ‘we want to have Zekai Mercimek’

Sam said ‘OK I’ll prepare the documents’

5. Sam prepared the documents which are the ‘Sub Lease’ documents annexed to the notice to terminate. I arranged for Mr Mercimek to sign the Sublease, which he did.

6. In March 2006 the landlord Mr Eddy Bonzalie came to the shop, while I was present. I said ‘Mr Mercimek is running the shop and I have sublet the business to him’. Eddie said: ‘I don’t care who runs the business as long as I get my rent paid’.

7. I did not hear any more about the lease, the rent or the supposed lease until there was an allegation the rent was unpaid. I received a number of letter dated 22 November 2006 then 7 December 2006 and on 8 December 2006 about the rent being behind I believed the rent was not behind.

8. I agreeded to pay $1000 per week rent but I was unhappy with this and only paid one month at that rent in February 2007.

9. I also thought a new lease was to be entered into. By this time the Sub tenant Mr Mercimek had left the business and from 1 March 2007 I was operating the business again. As I have continued to do till we were locked out of the shop on 4 May 2007."

His cross examination in these proceedings (some of which was the subject of a certificate under s128 of the Evidence Act 1995) included the following:

"Q. In May 2007 you had a signed sublease didn’t you?

A. INTERPRETER: I don’t think so, I don’t think so, that was because I was not given a copy of that. If I had the copy of it then I would have kept it in the file, put it in the file.

Q. Well, you say that you spoke to the landlord’s solicitor, Mr Abbas, but you knew when you swore this that he wasn’t at that time Mr Bonzalie’s solicitor.

A. INTERPRETER: What I’m saying even on this date when I made this affidavit, I say Abbas is his solicitor, referring him as solicitor..."

...

"Q. When you wrote this you knew he wasn’t acting for Mr Bonzalie.

A. INTERPRETER: I cannot say yes or no, the solicitor should have said yes or no he was or he wasn’t.

Q. It’s the solicitor’s fault?

A. INTERPRETER: Somebody has to be responsible for it, even he was doing it probably that, that’s the reason.

Q. What responsibility do you say you had in this arrangement?

A. INTERPRETER: Our role was to check with the solicitor who say yes or no. When he said yes and that’s what we did.

Q. The yes or no was whether he would prepare a sublease for you and he said yes.

A. INTEPRETER: No, not the sublease itself. We went there and ask him how we can organise somebody to run the shop without causing us any problem at all, that’s what we asked."

...

"Q. Mr Ersoy, is it true that you agreed to pay $1,000 a week rent?

A. WITNESS: I will agree that I made a mistake.

A. INTERPRETER: What I did before, what I said before I didn’t accept it.

Q. Do you agree that in paragraph 8 of your affidavit where say, ‘and paid only one month at the rent in February 2007’ was correct?

A. INTERPRETER: That’s not correct.

Q. When you say in the next paragraph you ‘thought that a new lease was to be entered into’, is that correct or not correct?

A. INTERPRETER: I have misinterpreted or said wrongly what I wanted to say at the time this was being prepared, this would have been prevented if there was an interpreter present at that time.

Q. Is it true or correct that you thought a new lease was to be entered into?

A. INTERPRETER: What I tried to explain here -

Q. No, no, is it true or correct?

A. INTERPRETER: False.

Q. Did you know it was false when you swore the affidavit?

A. INTERPRETER: As I said before, I was in -

Q. Yesterday -

A. INTERPRETER: What do you mean by thought?

Q. Is it true, did you know when you swore this affidavit that it was false? Yes or no.

A. INTERPRETER: Yes.

Q. Yes you know it was false?

A. INTERPRETER: Yes, but I did not know it was false."

...

"Q. You believe that the premises have now been sub-let?

A. INTERPRETER: You’re talking about today?

Q. As you stand here today did you sub-let the premises or not?

A. INTERPRETER: That was my intention to sub-let this business but that actually had not taken place.

Q. Has it taken place and did not sub-let the premises?

A. INTERPRETER: How I can accept whether it’s yes or no that I have not seen evidence of it.

Q. You’ve seen the sublease now it’s been signed?

A. INTERPRETER: There was solicitor he was to sort of take responsibility and take everything with due care, but that has escaped from us for one year.

Q. Do you say you have not sub-let the premises?

A. INTERPRETER: At present I – at this time there is a sort of document which was signed outside of our knowledge and also it was outside of the knowledge of our solicitor.

Q. Do you say the premises have been sub-let or not?

A. INTERPRETER: What I don’t reject, what I don’t accept the thing which was done beyond my knowledge and beyond my solicitor’s control, this is I don’t accept it.

Q. I’m not asking you to accept it, Mr Ersoy. Did you sub-let the premises or not? Yes or no.

A. INTERPRETER: But there was no written evidence, written proof that it was done properly."

28 Before dealing with events of March to June 2007 which involved among other things, the end of the sub-lease situation, I will deal with two matters that occurred in 2006 in relation to the shop. The first of those is the stamping of the lease on 7 April 2006 and the second is repairs which were carried out to the floor of the shop after Christmas in 2006.

Stamping of Lease

29 The sub-lease was stamped on 6 April 2006. When he first gave evidence, Mr Abbas said that this recollection was that he did not stamp the sub-lease. He was later recalled to give further evidence and shown an Office of State Revenue (OSR") declaration for the stamping of the sub-lease. This is a declaration which he wrote out and made on 5 April 2006 at Auburn in the presence of another solicitor. There is a page attached which is a poor quality copy but it appears to specify under lodging details Allied Lawyers as the Applicant.

30 The lease was stamped on 7 April 2006. When he first gave evidence Mr Abbas said that he had refused to stamp the lease and gave it back to Mr Ersoy for the purposes of stamping. He says that:

"I gave him instructions on where to go to stamp it and I asked him to get it stamped and return it to me for the purposes of registering the document".

He was not asked any questions concerning stamping of the lease when he gave evidence on the second occasion.

31 On 3 December 2008 when evidence had concluded and oral addresses had commenced, Mr Bonzalie was recalled for further cross examination in respect of a OSR declaration made in Mr Bonzalie’s name in respect of the stamping of the lease. He was shown the original (lease) document and asked whether he had stamped it. His response was "I can’t recall I stamped it". He said later "I don’t recall stamping anything". He also said "Yes, I can see the instrument, I can see the signature and the writing, they’re not mine" and "No. I don’t believe I signed it". In re-examination, he, among other things, answered in the negative a question "Did you attend to the stamping of the lease?" In response to a question from me he said he had not been to the OSR at Parramatta.

32 The proceedings were then adjourned for a period to permit closing submissions to be made. In the intervening period, Mr Bonzalie evidently dispensed with the services of his Solicitor and prepared and filed three affidavits by himself. One of these affidavits related to, among other things, the stamping of the lease:

"7. On the seventh day of April 2006 Ali Ersoy rang me and said ‘let’s get the lease registered’. I said ‘I would not accept the terms that have been changed and crossed out’. He insisted in registering the lease. I proposed to correct the lease he said ‘ok’ then I said ‘that’s ok’ he also promised to pay outstanding monies owing to me.

8. I was in Parramatta with my partner on that day to register a business name at the fair trading (annexed hereto marked "B" copy of registration of business dated 7^th April 2006 also attached a photo of the business). Mr Ali Ersoy asked me were I was, I said ‘in Parramatta’ he said ‘lets meet up’ I said ‘ok’. We meet up with Ali Ersoy in Parramatta, I cannot recall wereabouts. With the assistance of Mr Ali Ersoy we went to the registry office to register the lease and my partner Melissa Percy also attended to the registry office with us. (Annexed hereto and marked "C" is a affidavit of Melissa Percy) Mr Ali Ersoy had the lease with him and a copy of the lease.

9. I now recall filling out the form with the assistance of Mr Ali Ersoy. We also made changes to the copy of lease before submitting the lease to the registry office (Annexed hereto and marked "D" is the copy of lease and changes that were made at the registry). We also advised the registry that changes were going to be made to the lease,

- Rent review to change from 3% to 5%

- Council Rates to be paid by tenant

- Any crossing outs on the lease was not crossed out valid clauses

- On the front page were it had 5+5+5 was to be changed to +5 only

10. Mr Ersoy did not mention to me about a sublease, He also did not mention about he authorise Mr Sam Abbas to pay any duty on a sublease one day prior our attendance to the OSR. My attendance to the OSR on that day was to resolve our ongoing problems with Mr Ali Ersoy,.

11. When we were in the line we had another argument at the registry office for who to pay for the registration of the lease. Then I got angry and said ‘I am not registering any lease with you’. As I was leaving I also said ‘if you want it you could pay for it’. I Eddie Bonzalie and Melissa Percy had left the registration office. Mr Ali Ersoy had the lease and a copy of the lease in possession, also the form that I have filled out.

...

14. I always thought that we had attended to the registry office not the stamping office. When I was shown the document containing my signature and hand writing I couldn’t recall of such document been submitted by me. In any event I feel ashamed and embarrassed for not recalling the event that had happened and said ‘no’ before the Tribunal to a submission that had my signature on it. I was confused and wasn’t quite sure how such document had taken in effect when Mr Ali Ersoy clearly stated that he didn’t want to register the lease, under the terms that we had agreed upon. With confidence but with a slight doubt my answer to the question was ‘I don’t recall’, and eventually turned out to the ‘No’."

In lengthy and somewhat discursive oral evidence (but most of which was given in cross examination) Mr Bonzalie suggested that some of the figures and symbols on the declaration may not be in his hand writing; he said that the date "10-03-06" appearing in the declaration as the date of the document came from consultation with Mr Ersoy; and accepted that the annual increases of rent declared in the form were based on 3% increases and outgoings of $500 per year.

33 Ms Melissa Percy was at one stage the family partner of Mr Bonzalie. They had a child together. They are now separated. She was his business partner in 2006. After Mr Bonzalie sold the shop business to Mr Ersoy she worked for Mr Ersoy for a few months in 2005. She says in an affidavit:

"...

3. We meet up with Ali Ersoy in Parramatta and was taken to a office in Parramatta I did not know Parramatta that well at the time so I cannot recall were it is. Ali Ersoy had two leases with him, I could recall this because changes to one of leases was made with my presence by Eddie Bonzalie. They were quite loud at the office I couldn’t understand what they were saying they were talking in Turkish most of the time.

4. We were at the registry for some time I was asked by Eddie to fill in an application because he said your hand writing is neater which I recall writing. But then I think we filled the application out wrong then Eddie asked me to sit down he would write it out quickly and get it over and done with so we could go.

5. I was sitting down on a chair in the office they were still talking loud I could here them from the other side of the room were I was sitting. They were at the counter I could recall that because we spent such a time there I was getting bored next minute I seen Eddie approach me and said ‘I told you there is no point of being nice to this guy he is trying to rip me off’ he was very angry and we left the office and returned back to Mosman. We were very busy with our own business."

In cross examination she said that Mr Ersoy was at the Stamp Duties Office on that occasion and she was 100% sure about that. She said that:

"It was Eddie and Ali that did the stamp duty on the lease together that day...they were both up at the counter together, yes."

34 Another affidavit by Mr Ersoy was tendered, answering Mr Bonzalie’s affidavit concerning the stamping of the lease. In that affidavit he says:

"I deny ever attending at the Office of State Revenue with Eddie Bonzalie and his partner, Melissa Percy, on 7 April 2006 as alleged.

I deny stamping the lease.

I further deny assisting Eddie Bonzalie complete the Lease Duties Instruments Form concerning the stamp duty liability arising from the lease."

In further cross examination by Mr Bonzalie, Mr Ersoy said:

"Q. How did you get the original stamped version of the lease if you haven’t attended to the OSR?

A. INTERPRETER: I would have gotten it from the solicitor.

...

Q. How did the solicitor give it to me to get the original lease stamped?

A. INTERPRETER: I think you should ask that question to the solicitor, not to me.

Q. But when my barrister asked you who got the lease stamped, you said that you went to OSR a couple of times and you stamped it yourself.

A. INTERPETER: I did not say I did that, but I said I remember on one occasion I could have gone there, but it must be for the purpose of getting a form. Abbas was asking for it. Abbas sent me there."

In cross examination early in the hearing, Mr Ersoy gave this evidence:

"Q. Mr Ersoy, this lease was stamped on the 7 April 2006.

A. INTERPETER: Yes.

Q. And the name of Neslahan Ersoy has been removed and noted as having been removed.

A. INTERPRETER: Okay.

Q. Did you arrange for it to be stamped, with the Stamp Duties Office or for you solicitor to do that?

A. INTERPRETER: The stamping we discussed with Abbas, Abbas said he can take it to and sent it to but then I remember I made a cheque – I wrote a cheque for it I could’ve taken myself to the office.

Q. You took it to be stamped?

A. INTERPRETER: I remember clearly I was there last month I went there I remembered that I was there – there previously before. That’s long time ago but I just remember about a month ago."

Other Events 2006-2007

35 Before he left for Turkey in November 2006, following, he says, notices to repair from the Council concerning the floor tiling in the shop, Mr Ersoy arranged for Mr Habab Kopuz to carry out the repairs in the Christmas/New Year period. Mr Kopuz rang Mr Ersoy when he was in Turkey and told him that the beams supporting the floor required to be replaced also. Mr Bonzalie was involved, and Mr Mercimek says that Mr Bonzalie rang him while he was on holidays in Queensland and asked him to come back and assist with the work. Mr Mercimek says that the work was extensive and took about 24 days to complete. Mr Ersoy complains that of the total cost of about $12,000 for the job, Mr Bonzalie paid (in cash) only $3,000. Mr Ersoy has produced invoices for a total of about $10,500 which he says relate to the work and Mr Bonzalie has produced an invoice for $2,400 which he says relates to the work.


36 In early February 2006, Mr Bonzalie and Ms Percy opened a business "Pizza Pizza" at 584 Military Road, Mosman. That business name was registered in their names on 7 April 2006, the day of the stamping of the lease. The premises of that business were destroyed, evidently by fire, following a break in at the end of 2006 and Mr Bonzalie and Ms Percy were paid out by an insurance company. The business was not resumed.

37 The floor of the Wentworth Falls shop was reinstated by January 2007. Mr Ersoy returned from Turkey in about February 2007. It appears that about that time Mr Bonzalie consulted Browne Linkenbagh Legal Services at Katoomba. A notice from Mr Bonzalie to Aslihan dated 2 March 2007 was served, evidently having been drafted by those Solicitors. By the notice the Lessor demanded immediate possession of the property and thereby terminated the lease. The allegations of default were specified as follows:

"Rent

The lease requires the Lessee to pay to the Lessor during the lease a rental of $36,400.00 per annum by monthly instalments of $3,033.33 in advance on the first of each month subject to the provision for rent review.

The lease provides that the annual rent will be increased on each anniversary of the commencement date of the lease by 3%.

The annual rent payable from 1 April 2006 was therefore $37,492.00 payable by monthly instalments of $3,124.33.

Sub-Lease

The lease states that the Lessee must not sub-let or part with possession of the whole or any part of the property without the prior written consent of the Lessor.

Non-Payment

The Lessee paid $1,915.00 on 6 December 2006 but has not since then paid any rental to the Lessor. The rent payable by the Lessee is therefore unpaid for at least 14 days after the rent was due. The Lessee has failed to observe a term of the lease (requiring the payment of rent) for at least 14 days.

Sub-letting

By sub-lease dated 19 February 2006 between the lessee as sub-lessor and Zekai Mercimek as sub-lessee the Lessee sub-let and/or parted with possession of the whole of the property. The sub-lease was made without the prior written consent of the Lessor. The Lessee has therefore failed to observe a term of the lease (prohibiting sub-letting or parting with possession of the property without the lessor’s prior written consent) for at least 14 days."

38 The parties then got into negotiations and other communications which ultimately produced no concluded outcome but which included:

(a) The payment by Mr Ersoy to Mr Bonzalie of $1,000 on 6 March 2007.

(b) Mr Bonzalie signing on 14 March 2007 a document written out by Mr Ersoy:

"Conditions with the new lease

1) Rent will rise up to $1,000 per week $52,000 per year

2) No rent rise for the next 2 years if the shop is sold. 3% CPI increase will apply to new tenant.

3) Eddie Bonzalie will not refuse us to sell our business any time any one at all or sublet it"

(c) Browne Linkenbagh drafting a form of lease of the shop in favour of Neslihan for a term of 5 years commencing on 6 April 2007, an annual rental of $52,000 per year payable by monthly instalments of $4,333.33.

(d) Notice being given by Neslihan and Aslihan to Mr Bonzalie dated 11 April 2007 and evidently prepared by Hukki Sayan and Associates, Solicitors of Auburn, in the following terms:

"1. The rent is not in arrears as alleged and the rent paid is currently up to date; and

2. We have not subleased the premises as alleged – Zekai Mercimek is the manager of our business; and

3. You as Lessor of the premises has failed to register the lease in accordance with the Real Property Act 1900 and the Retail Leases Act

4. Unless you register the Lease within 14 days from the date of this Notice we will be compelled to institute action in either the Administrative Decisions Tribunal or the Supreme Court for an Order for Specific Performance to compel you to register the Lease with an Order for costs on an indemnity basis."

(e) Mr Bonzalie responding to that notice through Browne Linkenbagh on 16 April 2007 maintaining the validity of the notice by one of 2 March 2007 and asserting that the demand for immediate possession remained outstanding.

39 Mr Karadag has given evidence that he was involved in negotiations about this time between Messrs Ersoy and Mercimek for Mr Mercimek to leave the shop. Mr Ersoy says that he paid Mr Mercimek $6,000 and Mr Karadag paid him a further $2,000 to leave the shop and Mr Karadag says that Mr Ersoy paid Mr Mercimek $7,000 and he, Mr Karadag, paid him $3,000. In any event, Mr Mercimek left the shop and Mr Mercimek says it was at the end of March or the beginning of April 2007.

40 On 4 May 2007 Mr Bonzalie had the locks on the shop changed and shut Mr Ersoy out of the premises. Mr Bonzalie arranged for Mr Mercimek to come back and run the shop. Mr Mercimek did that for 3 days only after which he gave the keys to Mr Ersoy, through one of the persons working in the shop. Mr Ersoy recommenced running the business.

41 On 7 May 2007 proceedings were instituted in this Tribunal, 075073, in the names of Neslihan and Aslihan against Mr Bonzalie seeking, among other things, re-entry to the shop. The only parts of the record of those proceedings that are in evidence in this hearing are copies of the Applications for Original Decision and for Urgent Interim Order and Short Minutes of Order dated 10 May 2007 signed by Counsel for the parties:

"1. NOTE that the tenant has been restored to possession of the premises, by possession being given up to the tenants’ sub-tenant.

2. NOTE the parties wish to adjourn the matter for 3 weeks in order to enter into negotiation to resolve the matter with no further directions or mediation.

3. Stand over to May 2007, for directions."

Apparently in June 2007 those proceedings were dismissed by consent.


42 In about June 2007 there was a meeting between Messrs Ersoy, Bonzalie, Karadag and Mr Mehmet Cihan. Mr Karadag says that this was a meeting in order to sort out their differences. Neither on that occasion, nor on any associated occasion was any agreement was achieved beyond Mr Bonzalie acknowledging that Mr Ersoy had paid $2,800 in cash at the beginning of the lease, which amount in these proceedings Mr Bonzalie maintains was paid as part of the purchase price for the business and not on account of rent.

Termination Notice

43 Carters Law Firm gave to Aslihan a so-called "Termination Notice of Lease" dated 8 August 2007 in the following terms:

"We confirm that we act for Mr Eddie Bonzalie the registered owner and Lessor of the above property.

Please take notice that if the outstanding issues addressed below are not rectified within 14 days from the date of this notice your lease will be terminated pursuant to Clause 26.1 of the lease in question.

Please also take notice that pursuant to Clause 26.2 re-entry under Clause 26.1 may be validly carried out by an unequivocal demand for immediate possession in lieu of physical re-entry or attempted re entry.

Please also note nothing in Clause 26.1 prevents the Lessor from terminating this lease and claiming damages on the general contractual principles of fundamental breach and repudiation, in lieu of or in addition to the rights of the Lessor under Clause 26.1. The exercise by the Lessor of a power of re-entry in order to terminate this Lease is not to be taken as an election by the lessor to keep the lease on foot preventing the lessor from claiming damages for the Lessee’s repudiation of the Lease.

Issue to be rectified

1. Outstanding rental monies

Rental monies outstanding by $814.33. You are in breach of Clause 1 of the lease.

2. Damage to sub floor and sub floor beams

We are advised that the grease trap blew, due to poor maintenance by the lessee, and damaged the sub floor and sub floor beams. The Lessor under no obligation to do so offered to help and gave the lessee $3000.00 towards the purchase of specific materials to fix the sub floor.

However the Lessee did not purchase the correct materials as agreed. The Lessor was forced to spend an addition $5,400 to complete the rectification work. Around this time there was a third party an alleged "sub lessee", in occupation of the premises while you were overseas. A total of $8,400 was spend by the Lessor on rectification works and the lessor demands this money under Clause 10.

3. Drive way

There was previously an arrangement with the neighbouring property access to the leased through the neighbour’s drive way.

However, again due to the actions of the Lessee, this access agreement was terminated by the neighbour. The neighbour complained that the rear of the premises was not keep clean and that rubbish was placed on his property. The complaint also pertained to the nature of driving by the Lessee’s staff on the neighbour’s drive way.

As a consequence the neighbour put up a fence which meant the leased property was without drive way access until such time as a part of the retaining wall at the rear of the property was cleared.

The Lessor has had to spend $3000.00 to build a driveway and to remove part of the retaining wall. The lessor demands this money under Clause 10 of the lease.

4. Unauthorised fixture of shutters

You have put up some shutters without the landlord’s consent and in doing so have damaged tiles on the façade of the shop and floor. The Lessor demands the immediate removal of the shutters and the rectification of the damaged tiles to their original condition. You are in breach of Clause 11.1 of the lease.

5. Damaged window and general maintenance

A glass panel of the front window has been cracked for some six months. The Lessor has given you more than 5 verbal requests to have the window fixed. The Lessor demands that you immediately have the window fixed. There are also tiles that have fallen off from the façade of the shop which need to be fixed immediately. You are in breach of Clauses 8, 8.1, 8.2, 8.3 and 8.4 of the lease.

6. Outstanding Bond

As per the lease, there is to date an outstanding bond in the amount of $9,099.99. The lessor demands immediate payment of the bond. You are in breach of Clause 34 of the lease.

7. Outstanding Insurance

The Lessor requires immediately proof of public liability insurance in the amount of $10 million. He has never been furnished with a certificate of currency as proof of insurance. You are in breach of Clause 12 of the lease.

8. New damage to retaining wall

The retaining wall has been damaged and the landlord requires it to be fixed.

9. Outstanding outgoings

The Lessor requires the Lessee to pay for council rates totalling $3,861.00 for the last three years.

10. Legal Expenses re: new lease

The Lessor at the request of the Lessee had new Lease documents drawn up at a cost of $1,245.00. However you have subsequently refused to sign the new lease you requested and agreed upon. The lessor demands the payment of his reasonable legal expenses relying on Clause 42 of the lease.

11. Legal expense relating to ADT

As a result of your breach in subleasing the premises without the written consent of the Lessor out client has incurred legal fees over $8,000.00 in your action in the ADT. The lessor demands the payment of his reasonable legal expenses relying on Clause 42 of the lease.

The Lessor demands payment, within 14 days of the date of this notice, of his fair and reasonable costs to date, as a consequence of your breach, in the amount of $25,320.32. Please also note that the Lessor is able to charge interest on this amount if he so chooses.

The Lessor also demands that all of the above mentioned breaches be rectified within 14 days from the date of this notice.

Please take notice that if the above demands are not met within 14 days, our client will exercise his rights and lock you out of the premises and re take possession of his property on 22 August 2007.

Please contact the writer if you require any further information or clarification."

44 Proceedings 075149 in the name of Aslihan against Mr Bonzalie were commenced on 20 August 2007 by Application for Original Decision filed by Mr Ersoy. Neslihan’s name was introduced in the proceedings as an Applicant in the Second Further Amended Application for Original Decision.

45 On 23 August 2007 an Interim Order was made restraining the Respondent pending further order from taking any further steps to lock out or evict the Applicant from the premises an ordering the Applicant to pay rent of $3,539.86 per month with the next payment to be made on 6 September 2007, pending further order. That order remains in force.

Some Legal Considerations

46 The conclusions which I have come to and express in this Decision have been formed by me on the balance of probabilities. As to the conclusions as to credibility, I am also comfortably satisfied. In other words, in forming my conclusions as to the credibility of Messrs Ersoy and Bonzalie I have sought to apply the discipline of the Briginshaw standard ((1938) [1938] HCA 34; 60 CLR 336 at 361-362; s140(2) Evidence Act 1995). I should also make it clear that all my conclusions have been reached on a consideration of the whole of the evidence, particularly as canvassed in the preceding sections of this Decision. I will mention below particular aspects of the evidence only if they have not otherwise been mentioned or require some emphasis or explanation.

47 Section 129(1) of the Conveyancing Act 1919 provides:

"A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant, condition, or agreement (express of implied) in the lease, shall not be enforceable by action or otherwise unless and until the lessor serves on the lessee a notice:

(a) specifying the particular breach complained of, and

(b) if the breach if capable of remedy, requiring the lessee to remedy the breach; and

(c) in case the lessor claims compensation in money for the breach, requiring the lessee to pay the same,

and the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and where compensation in money is required to pay reasonable compensation to the satisfaction of the lessor for the breach."

Section 129(9) requires the notice to be in the form set out in the Sixth Schedule to the Act or to a similar effect. The Sixth Schedule stipulates as a note to the form, a statement:

"The Lessor will be entitled to re-enter or forfeit the lease in the event of the lessee failing to comply with this notice within a reasonable time – see section 129 of the Conveyancing Act 1919."

This is a significant requirement: Duncan, Commercial Leases in Australia 5^th ed. at [13.60] says of it:

"The legislation requires that the service of notice must precede any proceeding to enforce a forfeiture; that the notice give the lessee precise information of what is alleged and demanded by the lessor; and that a reasonable time after notice will be allowed for the lessee to act before enforcement action is taken. The reason is clear. The lessee ought to have the opportunity of considering whether the breach alleged can be admitted; whether it is capable of remedy; whether the lessee ought to offer any compensation, and if so, what; and finally, if the case is one for relief, whether the lessee ought or ought not promptly to apply for such relief. In short, the notice is intended to give the person whose interest it is sought to forfeit the opportunity of considering the position before an action is brought to effect that result..."

Harris v Thallon (1926) 26 SR (NSW) 456, where an action for ejectment failed, highlights the significance of the provision. At 461-962 Street CJ said:

"I think, however, that the notice was insufficient for another reason urged upon us by Mr Mason, and that is that it did not give the defendant notice that she had a reasonable time within which to effect the repairs, and did not inform her what her legal position would be if she did not effect them. The notice contemplated by the Act is a notice (1) calling upon a tenant to remedy a breach complained of; (2) informing him at the same time that he has a reasonable time within which to do it; and (3) also informing him what the legal consequences will be if he fails to do it. It is not necessary, of course, that the exact words of the form of notice given in the schedule should be used, but, if not, words must be used to a similar effect. In this case that was not done. The defendant was given fourteen days to carry out the repairs, and was told that, failing that, proceedings for forfeiture of the lease and recovery of possession would be taken. It is said that the fact that she was given fourteen days within which to do the work, instead of being told that she was entitled to a reasonable time for that purpose, could not prejudice her, as the notice would be a mere empty threat if in fact fourteen days were not enough. It is possible, however, that tenant might be misled to his prejudice by such a notice. His attention, it is true, would be directed by it to s129 of the Act, but all tenants are not lawyers and what was contemplated was not that a tenant should be told where the law bearing upon the situation might be found, but that he should be told in plain terms what the law was, so that he might know exactly how he stood, and what his legal liability would be if he did not comply with the notice. I do not think that it was sufficient to tell the defendant in this case that if she did not repair within fourteen days proceedings would be taken. I do not think that was a notice similar in effect to the statutory notice, and I think therefore that the plaintiff was properly nonsuited, and that the appeal fails.

The defendant has no merits so far as I can see, but the plaintiff has himself to blame for the situation in which he finds himself. The Legislature has prescribed a form of notice for use on such occasions, and all that he had to do was to follow it. Why he should have departed from it I do not know, but, for some reason of his own, he chose to do so, and he must abide by the consequences. We cannot hold that any notice not in the statutory form is sufficient unless it is to a similar effect, and this one is not. I hope that the case will be a warning to other landlords to exercise more care in following the directions of the Legislature."

48 The lease agreement between the parties and its terms have to be determined by reference to its documentation and the surrounding circumstances. This material has to be scrutinised objectively; as McColl JA said in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [149] (omitting case references):

"The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. Whether a contract has been formed, and the terms of contractual arrangements, requires objective determination. Objective determination requires consideration, not only of the text of documents, but also surrounding circumstances known to the participants, and the purpose and object of the transaction, but not the parties’ subjective beliefs."

In Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424, in the context of a question whether the parties had intended certain matters, not entirely or adequately reduced to writing, to be legally binding, Allsop J said at [369]:

"...The essential question in such cases is whether the parties’ conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract..."

As part of the surrounding circumstances later conduct can be looked at for limited purposes, explained by Allsop P in Franklins Pty Ltd v Metcash Trading Pty Ltd [2009] NSWCA 407 at [13] as:

"...(a) ascertaining whether there was a contract formed and when it was formed...;

(b) revealing probative evidence of antecedent surrounding circumstances; and

(c) revealing probative evidence of facts relevant to rectification, estoppel or any other legal, equitable or statutory rights or remedies that may impinge on an otherwise concluded construed and interpreted contract."

49 The original document has to be assessed in this exercise and as part of that assessment it should be questioned "whether or not it truly expresses the intention of the parties" (Young et al. On Equity (2009) at [11.300]. In the context of rectification the concept of "common intention" of the parties is significant and referred to thus in Young et al at [11.360]:

"The common intention to be established is a subjective (or actual) intention; all of the objective and subjective evidence must be considered... Post-contractual words are relevant to the extent they assist the court in determining the original concurrent intention of the parties..."

Clear and strong evidence providing convincing proof of the factual elements required for rectification (Young et al. at [11.370]. In Franklins Pty Ltd v Metcash Trading Pty Ltd at [444] Campbell J explained the principles concerning rectification and he said at [444]:

"In considering whether to grant rectification of a written contract, equity does not use any of its own principles to decide what the terms of the contract are, or how they are construed – those matters are decided solely by the common law. Rather, equity focuses on what it is unconscientious for a party to assert about the contract. The rationale is that it is unconscientious for a party to a contract to seek to apply the contract inconsistently with what he or she knows to be the common intention of the parties at the time that the written contract was entered. In other words, when a plaintiff succeeds in a claim for rectification, the plaintiff is found to have been justified in in effect saying to the defendant ‘you and I both knew, when we entered this contract, what our intention was concerning it, and you cannot in conscience now try to enforce the contract in accordance with its terms in a way that is inconsistent with our common intention."

50 This Tribunal has jurisdiction to order rectification of a lease: Prasad v Fairfield City Council [2000] NSWADT 164 and Trustees of Pious Society of St Charles v Vodap Pty Ltd [2004] NSWADT 71.

Conclusions as to credibility

51 Each of Mr Ersoy and Mr Bonzalie has given false evidence. Mr Ersoy has admitted to making a false affidavit in proceedings 075073 as already quoted in this Decision. Mr Bonzalie has admitted by subsequent affidavit to giving incorrect oral evidence on 3 December 2008 in relation to his involvement in the stamping of the lease on 7 April 2006, particularly in relation to his execution of the OSR declaration on 7 April 2006. Additionally, Mr Ersoy has given evidence by affidavit and orally that he was not present at the OSR office at Parramatta on 7 April 2006 and was not involved in the stamping of the lease; as I will explain below I am satisfied on the evidence before the Tribunal that Mr Ersoy was so present and so involved.

52 Also, Mr Ersoy contrary to clear evidence, even from himself, endeavoured to resurrect denial of the sub-lease. Further, as I indicated earlier in this Decision, Mr Ersoy has adopted the role of instructing the legal representatives for his daughters in these proceedings and neither of the daughters has appeared; Aslihan evidently swore an affidavit in these proceedings on 17 September 2007 which while it has not been tendered as such, a copy has been presented in evidence by Mr Bonzalie; that affidavit contains an allegation that she signed the lease on or about 1 April 2005 and that is incorrect, as she was at that stage in Turkey, not returning to Australia until 11 September 2005; and Mr Ersoy says that it was a mistake which would be corrected, but I see him as having some responsibility in relation to that incorrect affidavit.

53 Each of Mr Ersoy and Mr Bonzalie has throughout the proceedings been excitable and sought to argue for a position and prevaricate rather than give objective factual evidence. Allied to this, each has exhibited a most hostile attitude towards the other.

54 Each of Mr Ersoy and Mr Bonzalie has shown a tendency to complain about, and blame, not just each other but other people. For example, Mr Ersoy was critical of Mr Abbas and perhaps other Solicitors as illustrated by what I have quoted earlier from the transcript of his evidence in relation to the sub-lease and to the following cross examination relating to whether there should have been only one figure 5 and not three figures 5 on the first page of the original document:

"Q. Yes, did it come as a shock to you when you realised that clause 6 of the lease was inconsistent with handwritten version on the first page?

A. INTERPRETER: Yes, I was confused because there were three, 5’s when I saw this one, yes, I was surprised.

Q. Yes, you were surprised that it hadn’t been crossed out as well.

A. INTERPRETER: No, not like that it has to be three 5’s, it has to be three 5’s.

Q. It had to be three 5’s because I suggest you wrote three 5’s on page 1 of the lease.

A. INTERPRETER: Was a mistake with the solicitor that was end result of working with amateur people."

Mr Bonzalie complained about Mr Mercimek:

"Q. You were in court this afternoon when Mr Mercimek gave evidence.

A. Yes.

Q. Where he gave evidence that when he was introduced to you by Ivan Novesel--

A. He was never introduced by Ivan Novesel to me.

Q. So that’s not correct either?

A. That’s correct. That’s not correct.

Q. So Mr Mercimek was mistaken about that?

A. He has mistaken about it.

Q. So that Mr Ivan Novesel never introduced you to Mr Mercimek -

A. No.

Q. --Mercimek as the sublessee?

A. No.

Q. You were in court on the last occasion when Mr Mercimek gave evidence that he had discussions with you on a number of occasions that he was the sublessee.

A. We never had a discussion about him being a sublessee. The discussion, the only discussion that I took was he just managing the place and we did not even know each other, it was via Ali Ersoy being present and what we spoke of Ali Ersoy it is in my affidavit. It clearly states the position.

Q. Mr Mercimek was called by your solicitor, wasn’t he?

A. That’s true.

Q. Are you saying that Mr Mercimek now was not telling the truth?

A. I cannot tell Mr Mercimek what to say, it’s his total opinion what he can say, but that is not true."

...

"Q. ...You heard in evidence this afternoon that Mr Mercimek said that in December 2006 after had had given you a copy of the sublease you had asked him to come down from his holidays in Queensland to supervise works at the shop. Is that correct or not?

A. No.

Q. You never asked him to come back to the shop?

A. No.

Q. So that’s another lie, is it, by Mr Mercimek?

A. I’m not saying he’s lying, but he never – I never asked him. I know what I’m saying.

CALLAGHAN: There’s no objection taken to these questions, Mr Zammit, but I don’t know whether it’s appropriate to put to one witness that another witness is lying. They might say that the evidence is incorrect, but on what basis the evidence is incorrect, I don’t think it’s for another witness to say as a general proposition. I’m not too happy with that sort of question of asking Mr Bonzalie to say that someone is lying. Just bear that in mind, thanks."

55 I have come to the view that I cannot rely on either of Messrs Ersoy or Bonzalie to have given correct evidence on important issues. The conclusions I have come to on important issues have therefore required much attention to evidence other than theirs and reconstruction of a number of situations.

56 I add that I have some sense that the evidence of Mr Ersoy is even more unreliable than that of Mr Bonzalie but analysis at that level, I think, takes consideration of comparative credibility to an irrelevant degree.

57 Generally, I have not had cause to question significantly the credibility of any other witnesses.

Conclusions as to Lease

58 It is appropriate to start with the Tontu copy as discussed above. Contrary to his recollection that he had produced a typed or written first page of the lease, Mr Abbas says that the first page of the Tontu copy is in his hand writing. This is the document which Mr Bonzalie collected from Mr Abbas.

59 The Tontu copy incorporates the signatures of Neslihan and Aslihan and that of Mr Abbas (with details) as witness. Mr Abbas’ evidence in his affidavit is that "the lease was not signed by the Ersoys until the leased 7-8 months after issuing of the lease." Aslihan did not return from Turkey until 11 September 2005. The execution of a lease by her and her sister occurred some time between that date and when Mr Bonzalie picked up the Tontu copy before his departure for Turkey in November 2005. Mr Bonzalie says that he picked up a copy of the lease from Mr Abbas on his return from his previous trip to Turkey in about June 2005. Mr Bonzalie also says that he was accompanied on that occasion by Ms Percy but unfortunately, there is no evidence from Ms Percy on this point. I am not persuaded by the last mentioned evidence from Mr Bonzalie.

60 Mr Ersoy returned what he had collected from Mr Abbas to Mr Abbas in the form of what became the original document. Mr Ersoy did so at or about the time he gave instructions to Mr Abbas to prepare the sub-lease to Mr Mercimek in or about January 2006. At that time, the deletion of Neslihan’s name and signature from the original document was effected.

61 When Mr Ersoy returned the original document to Mr Abbas it had on it the present first page. On the top of the second page the date was blank. The signature and details of the witness to Mr Bonzalie’s signature had been inserted. The alterations to Annexure "A" in the original document comprising the deletion from the annexure note of the name of Neslihan Ersoy and the deletions of Clauses 2.1(a), 4.1(b), and Clause 34 were in place. The first page and those alterations were of the authorship of Mr Ersoy in consultation with the Solicitor whom he had retained.

62 The new page 1 accords with the common intention of the parties (in the case of Aslihan, through her father) achieved by 7 April 2006 ("the common intention"), with the exception of the figures and symbols "+5+5" in Item 4 Option to Renew. Even Mr Ersoy in oral evidence appears to disclaim reliance on that alteration.

63 The date "10/03/06" was placed there by Mr Ersoy on 7 April 2006 at the OSR (notwithstanding that Mr Abbas said that he thought it looked like his handwriting).

64 On page 2 the signature and details of the witness to Mr Bonzalie’s execution were placed there by that person at the request of Mr Ersoy.

65 The alteration to Clause 2 Rent Review to provide for 3% annual review accords with the common intention. 3% increments were used in the OSR declaration completed by Mr Bonzaile on 7 April 2006 and were the subject of a claim in the Notice of 2 March 2007 in respect of rent payable from 1 April 2006.

66 The deletion from Clause 4 Outgoings of land tax as an item to be the subject of a payment by the lessee accords with the summary of instructions as noted by Mr Abbas; the lessor’s Disclosure Statement has the figure for Land Tax crossed out, with Mr Bonzalie’s initials. The inclusion in that summary of Council rates as a lessee’s responsibility was accepted in oral evidence by Mr Abbas to be an error; Mr Bonzalie himself in an affidavit acknowledged that there was no responsibility on the lessee for Council rates.

67 The deletion of Clause 34 accords with the common intention. There was over a long time an assortment of money payments, some in cash and some disputed, between Messrs Ersoy and Bonzalie and they are the only witnesses to such of the payments which are not recorded. There was no formal demand for the payment of the bond until the Termination Notice of 8 August 2007. Any original idea of a separate payment for a bond had been abandoned, if something in respect of a bond amount had not already been included in what was paid to Mr Bonzalie in 2005.

68 In the result, the original document records the common intention of the parties, with the exception of the symbols and figures "+5+5" on the first page.

69 No agreement was made between Messrs Ersoy and Bonzalie to the effect of the second Bonzalie copy, whether on 7 April 2006 or otherwise.

70 No agreement was concluded between Messrs Ersoy and Bonzalie in March-April 2007 for a new lease whether in the terms drafted by Browne Linkenbagh or otherwise.

Conclusions as to Sub-Lease

71 Aslihan sub-let the shop to Mr Mercimek for 2 years in February 2006. Mr Bonzalie was not asked to consent to the sub-lease.

72 Through Mr Mercimek, Mr Bonzalie was on notice during 2007, of the sub-lease. He did not receive a copy of the sub-lease until it was given to him by Mr Mercimek in about late November 2007.

73 All rights that Mr Bonzalie had consequent upon the sub-lease were relinquished when Mr Ersoy resumed possession and operation of the shop in May 2007 and when proceedings 075073 were dismissed by consent in June 2007.

Conclusions as to Stamping of Lease

74 The lease was stamped on 7 April 2006 when Messrs Ersoy and Bonzalie, with Ms Percy attended at the OSR at Parramatta.

75 The OSR declaration was completed in consultations involving Messrs Ersoy and Bonzalie, Ms Percy and an officer or officers of the OSR. The declaration was made by Mr Bonzalie.

76 Messrs Ersoy and Bonzalie argued about, and did not reach agreement on, the second Bonzalie copy.

77 Mr Ersoy paid the duty.

Conclusions as to other Events 2006-2007

78 My findings on these matters are sufficiently made in, and apparent from, the section "Other Events 2006-2007" above in this Decision.

Conclusions as to Termination Notice

79 The Termination Notice does not comply with s129 of the Conveyancing Act 1919. It does not draw attention to that provision, it does not stipulate that the Lessee had a reasonable time to comply with the notice and fails in respect of a number of the items raised to specify sufficiently the breach complained of. As to matters within the last category, Item 3 Driveway fails to detail the alleged expenditure of $3,000.00, Item 8 Damage to Retaining Wall contains no specification of the damage, the repairs required or the basis of the Lessee’s alleged liability. Items 10 and 11 in respect of legal expenses do not specify the make up of the costs alleged and that is also the situation in respect of the claim of $25,320.32 for "fair and reasonable costs to date", at the end of the notice.

80 Additionally, none of the items complained of in the notice is established on the evidence:

1. Outstanding rental monies

The competing evidence of Messrs Ersoy and Bonzalie concerning rental payments prior to payments since institution of the subject proceedings, does not persuade me that there was outstanding rent of $814.33 as alleged.

2. Damage to sub-floor and sub-floor beams

The evidence does not substantiate the allegation that the grease trap blew due to poor maintenance by the Lessee and in particular, there is evidence of maintenance of the grease trap at relevant times. Apart from the floor tiles, the materials replaced were of a structural nature and as such not the responsibility of the lessee (lease clause 8.4.3.).

3. Driveway

Mr Bonzalie has not substantiated the allegations of fault on the part of the lessee nor the quantification and basis of the claim for $3,000.00. Further, there is evidence from Mr Ersoy that Mr Mercimek had paid $6,000.00 for the driveway and that Mr Ersoy paid Mr Mercimek $2,000.00 in respect of that.

4. Unauthorised fixture of shutters

The shutters were put in place in May 2006. They were obvious and not the subject of any complaint from Mr Bonzalie before the termination notice. While written consent should have been obtained, the lessor’s right belatedly to insist on that was waived. The evidence does not establish the damage to tiles alleged.

5. Damaged window and general maintenance

There is evidence that the window was fixed on 16 August 2007. The tiles fallen from the façade of the shop may constitute "fair wear and tear" under Clause 8 of the lease.

6. Outstanding bond

There is no liability in respect of the bond and clause 34 is appropriately deleted from the lease.

7. Outstanding insurance

Evidence has been produced of past and current insurance sufficiently satisfying Lease clause 12.

8. New damage to retaining wall

The Lessor has not established the liability or extent of this allegation.

9. Outstanding outgoings

There is no liability by the lessee for Council rates.

10. Legal expenses re new lease

No such liability has been established. No new lease was agreed on. No relevant breach by the lessee for the purposes of lease clause 42 has been established.

11. Legal expenses relating to ADT

No such liability has been established. No relevant breach by the Lessee for the purposes of lease clause 42 has been established. This claim conflicts with the costs regime established by Section 88 of the Administrative Decisions Tribunal Act 1997.

81 The Termination Notice was of no legal effect or consequence as such or otherwise.

Orders

82 In the result, I conclude that the Tribunal should do no more than first declare what is the documentary constitution of the lease, and to the limited extent that the original document does not record the common intention of the parties, rectify the original document; and secondly, declare that the termination notice was of no legal effect as such or otherwise. Subject to that, the parties should be left to their respective rights and obligations under the lease. No other claim for relief has been established. The interim order of 23 August 2007 should be discharged as from the date of delivery of this Decision. Submissions as to costs in relation to these proceedings have not been made and that issue should be reserved; nevertheless, I make it clear, as may be apparent from what I have written above, that my present view, subject to such application and supporting material that may be lodged, is that there is nothing in these proceedings or their outcome that, consistently with s88(1) of the Administrative Decisions Tribunal Act 1997, would warrant an award of costs.

83 In relation to costs I direct that any application be made in writing with all evidence and submissions relied on within 21 days of the delivery of this Decision, that any response be made in writing with all evidence and submissions relied on within 21 days thereafter and that any such application be decided on the papers.

84 I add some remarks in relation to the allegations of unconscionable conduct and so forth made by each party against the other. It is to be remembered that in AG (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 at [121] Spigelman CJ said:

"Unconscionability is a concept which requires a high level of moral obloquy. If it were to be applied as if it were equivalent to what was ‘fair’ or ‘just’, it could transform commercial relationships in a manner which the Minister expressly stated was not the intention of the legislation. The principel of ‘unconscionability’ would not be a doctrine of occasional application, when the circumstances are highly unethical, it would be transformed into the first and easiest port of call when any dispute about a retail lease arises."

The behaviour of each of Mr Ersoy and Mr Bonzalie has certainly been poor. However, each has behaved equally poorly towards the other and in those circumstances the conduct of one of them could not be assessed as having a quality such as unconscionability against the other.

85 I make the following Orders in both proceedings:

1. DECLARE that subject to Order 2 below, the current lease of the premises 195 Great Western Highway, Wentworth Falls, is constituted by the document being stamped Lease bearing date 10/03/06 and marked Exhibit 3A in these proceedings.

2. ORDER that the said document be rectified by deleting from Item 4 (Option to Renew) on the first page thereof the symbols and figures "+5+5".

3. DECLARE that the Termination Notice of Lease dated 8 August 2007 from Carters Law Firm to Ms Aslihan Ersoy was of no legal effect as such or otherwise.

4. DISCHARGE as at the date of this Decision the interim order of this Tribunal made on 23 August 2007.

5. RESERVE the issue of costs.

6. DISMISS all other claims.