Braun v Roach [2011] NSWADT 31 (21 February 2011)

Last Updated: 20 June 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Braun v Roach
Medium Neutral Citation:	[2011] NSWADT 31
Hearing Date(s):	19 August 2010
Decision Date:	21 February 2011
Jurisdiction:
Before:	D Bluth, Judicial Member
Decision:	The Tribunal orders 1)The Applicant and the Respondent entered into a lease for twelve months from 1 November 2007 terminating on 31 October 2008. 2)The Respondent repudiated the Lease, the Applicant accepted the repudiation and terminated the Lease on or about 28 March 2008. 3)The Respondent is to pay to the Applicant the following: a)outstanding rent of $14,400.00; b)interest on the outstanding rent at 10% per annum; c)survey fees of $825.00; d)legal costs of $2,230.91; e)costs of tax invoices of $5,379.00. 4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the amount calculated under order 3). 5)Terms may be filed upon calculation of the amount owed by the Respondent to the Applicant (including interest). 6)No order as to costs, save that should either party file and serve an application for costs accompanied by appropriate submission, within 14 days, then the other party is to file and serve its reply within a further fourteen days and the tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act at 1997, s76, unless persuaded that there should be oral submissions;
Catchwords:	Binding Lease, Mitigation of Damages
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 Dong v West Services Pty Limited (2010) NSW ADT 150 Blandino & Ors v Giardini & Ors (RDL 2008) (NSW ADTAP 55)
Texts Cited:
Category:	Principal judgment
Parties:	Peter Braun (Applicant) Una Jayneen Roach (Respondent)
Representation
- Counsel:
- Solicitors:	Russo & Partners (Applicant) Collins & Thompson (Respondent)
File number(s):	095175
Publication Restriction:

Reasons for Decision

1. This is an application for Original Decision filed by the Applicant, Peter Braun as executor of the estate of the late Mavis Irene Kirkwood (Applicant) against Una Jayneen Roach (Respondent).

Background

2. By Memorandum of Lease registered 3976664 the Respondent leased premises at 272 Bobbin Head Road, Turramurra being a lock up shop) (Premises) from Mavis Irene Kirkwood from 1 May 1998 for a period of five years with an option to renew for a further five years (the Original Lease). The Respondent remained in occupation pursuant to a holding over clause after the term of the lease expired.

3. Mavis Irene Kirkwood died on 16 June 2000. By probate granted 23 August 2000, the Applicant was appointed one of the executors of the estate.

4. A further lease was discussed between the Applicant and the Respondent. The term of that lease was for one year commencing on 1 November 2007 and terminating on 31 October 2008 (the Second Lease). The rent was $38,383.00 per annum payable by monthly instalments of $3,198.58 per month.

5. The Respondent remained in the Premises from 1 November 2007 and paid the rent until 28 February 2008.

6. By letter dated 26 March 2008, from the Respondent's lawyers, the Respondent purported to terminate the Second Lease. The Respondent subsequently vacated the Premises and the Applicant regained possession on or about 30 March 2008.

7. It is alleged that the Respondent caused structural damage to the premises. The Premises were not re-let until after the terminating date of the Second Lease. It was a term and condition that the Respondent would pay interest on any arrears of rent at the rate of 10% per annum.

The Dispute

8. The status of the Second Lease for one year, the damage to the Premises by the Respondent and the loss of rent and costs claimed by the Applicant are the subject of this litigation to be determined by this Tribunal.

9. Produced with the application for Original Decision was a Certificate under Section 68(1) of the Retail Leases Act 1994 (Act) that Mediation had failed.

The story thus far

10. Mr Dean Russo, solicitor, appeared on behalf of the Applicant and Mr David Thompson, solicitor, appeared on behalf of the Respondent. Both the Applicant and Respondent produced affidavits and were cross-examined.

11. I have deduced the history of the leasing of the Premises from the affidavit of the Respondent dated 14 February 2010:

a)Some time in early 2003, the Respondent wrote to the Applicant requesting to take up a five year option under the Original Lease but no lease was ever sent for execution.

b)The Respondent states that she was under the impression she was locked into another five years from May 2003 to April 2008 on the assumption she had exercised her option. From early August 2007 to mid-September 2007 she tried on several occasions to contact the Applicant by phone regarding renewal of her lease.

c)On 20 September 2007 the Respondent spoke to the Applicant who informed her that she had no lease but acknowledged receipt of her letter requesting to take up a five year option. However the Applicant stated that he did not act upon it as no money had been paid for registration fees and stamp duty Consequently, since 2003 the Respondent had been on a month-to-month tenancy.

d)The Respondent then asked for a 10 year lease on the same terms and conditions as the Original Lease. The Respondent advised the Applicant she was going to apply for a bank loan and that the bank required a long term lease. The Applicant asked her to put this in writing.

e)The Respondent wrote to the Applicant on 20 September 2007 asking the following:

Dear Peter

I would like to renew the lease for the above premises.

If possible the new lease to be one year with options of 3 X 3 X 3 under the same terms and conditions as the present lease.

Last month I tried to contact you to discuss the renewal of the lease. Unfortunately you were not available until today.

My urgency in renewing the lease at present is that I wish to buy some new equipment and to do so the bank requires a current long term lease.

Recently, I enquired with the Department of Revenue about what format was used to determine stamp duty on a lease and I was informed that as of next year stamp duty will be abolished. This is why I have requested the lease starts (sic) with one year and the rest as options to save on unnecessary costs of stamp duty.

Peter, I would appreciate if you could advise me as soon as possible when a new lease could be signed as I would like to get the ball rolling with the bank.

f)The Respondent then says that she was informed in October 2007 by the Applicant that the beneficiaries of the Estate of the late Mavis Irene Kirkwood would only allow a lease term of five years.

g)The Respondent says she agreed to this and was advised by the Applicant to instruct her solicitor to draw up the lease to commence from 1 November 2007.

h)In October 2007 the Respondent's then solicitors Castle Lawyers drew up a lease for the term of one year with two options of two years each [the change was to save stamp duty]. The lease was sent to the Applicant's home address.

i)On 27 November 2007 the Applicant sent to the Respondent a letter increasing the rental amount, requiring the Respondent to pay 50% of water rates and agreeing to the term of one year plus options.

j)On 4 December 2007 the Respondent emailed the Applicant agreeing to the terms and asked for an estimate of 50% of the rates. The Respondent says she received no reply. In the meantime, the Applicant provided a Disclosure Statement.

k)Nearly four months had passed since discussion regarding the renewal of the lease and .the Respondent was desirous of selling the business. In December 2007 the Respondent advertised her business for sale and subsequently found a buyer.

g)

l)On 10 December 2007 the Respondent sent an email to the Applicant stating as follows:

I agree to the increase for rent on the new lease at $38,383 pa as well as paying 50% of water rates, on the account due after today's date.

The water rates outgoings and new lease would be based on the current water rates account @ 50%.

My solicitor has advised me that you can amend the new lease sent to you with these changes and need be initialled. After signing all copies of the new lease could you return them to my solicitor so I can initial and sign it and have it lodged with the appropriate authority.

After lodgement a copy will be forwarded to you.

m)On 10 December 2007 the Respondent's solicitors' Castle Lawyers sent to the Applicant's lawyers, Lane & O'Rourke executed leases signed by the Respondent together with a cheque for registration fees. Castle Lawyers then wrote:

We are instructed to request that you urgently please forward us a copy of the executed lease by your client prior to registration.

n)On 13 January the Respondent sent a further email to the Applicant regarding the return of the lease.

Could you email me when you think the signed and amended lease may be ready please.

o)The Applicant responded by saying

Hi Una

The lease documents were sent to your solicitor before Christmas. I am in Cambodia at the moment.

Happy New Year!

Peter

p)On 15 January 2008 the Respondent states that she went to sign the lease. It was a new lease made up by the Applicant's solicitor. The lease drawn up by the Applicant's solicitor was incorrect. It did not have the right figures which had been discussed between the parties. The Respondent says she could not sign the lease.

q)Then, one month later on 13 February 2008, the Respondent's solicitor received another lease which appeared correct. On 15 February 2008 the Respondent signed the lease attaching a cheque for registration fees. The Respondent's solicitor then rang the Applicant's solicitor advising that the lease was being sent back that day and indicated that the Respondent was getting anxious because of the all delays.

r)On 19 February 2008 the Respondent sent a further email to the Applicant asking when will the lease be signed. The Applicant responded by return email as follows:

Dear Una

It does not matter really.

The lease is effective from the November date. I am having dinner with my solicitor next week so he will probably wait till then.

Cheers

s)That exchange of emails took place on the morning of 19 February and the Respondent sent a further email in the evening of 19 February stating as follows:

Sorry to bother you again, as I explained to you last year I want to get a bank loan to replace some of the equipment and update the furniture. The bank will not loan me the money without a current lease. I had hoped that everything had been in place by mid-December 2007; it would be nice if I had the lease before the end of this month if possible.

Thanks

Una

t)On 25 February 2008, the buyer that the Respondent thought she had for the business withdrew the offer to buy the business.

u)On 11 March 2008 the Respondent's solicitor rang the Applicant solicitor trying to find out what the hold up was regarding the lease.

v)The solicitor was told by the Applicant's solicitor that he was waiting for the lease to be returned and signed by the Applicant's brother, Gregory Braun who was the other lessor.

The Respondent then says at paragraph 41 of her affidavit:

With all of the delays and the uncertainty of when I would receive the lease being now seven months from when I first wanted to renew it, I did not have enough money to meet the March 08 rent. I had no option but to terminate my offer of tenancy and vacate the premises.

w)The Respondent instructed new solicitors, Collins & Thompson to write to the Applicant's solicitors Lane & O'Rourke withdrawing the offer of lease. That letter was sent on 26 March 2008 stating as follows:

We advise that we have received instructions on behalf of Mrs Una Roach who has been the tenant of the abovementioned property.

We are now instructed to advise that our client withdraws the offer of the tenancy and gives notice that she terminates the lease and has vacated the premises.

Would you please make arrangement to refund the bond paid in the matter to our client care of our office.

We confirm that no further action should be taken on the lease.

x)Lane & O'Rourke on behalf of the Respondent wrote on 28 March 2008 as follows:

Thank you for your letter of 26 March 2008

We fail to see how your client can "withdraw the offer of tenancy" having regard to the fact that she has executed the lease and her then solicitors have returned the lease to us.

It has now been signed by the Lessors and will shortly be lodged for registration.

It seems to us that in those circumstances your client is liable under the lease and if she has in fact abandoned the premises then our client will take steps to re-let the premises and will claim from your client damages for any loss sustained as a result of your client's breach.

y)The Respondent asserts that the lease document was actually signed by Gregory Braun on 28 March 2008 (two days after withdrawal of the offer of tenancy).

12. Thus the first question to be decided by the Tribunal is whether there was a binding lease for 12 months terminating on 1 October 2008 or whether the Respondent was holding over as a monthly tenant .

13. The first observation I make is that in the letter of 26 March 2008, from the Respondent's lawyers where the Respondent is seeking to resile from her position as a lessee it was not asserted on behalf of the Respondent that she was holding over under the Original Lease and was giving one month's notice. There is no mention of the Respondent holding over, but rather the words used are:

Withdraws the offer of the tenancy and gives notice that she terminates the lease and has vacated the premises.

14. The Applicant's lawyers correctly questioned on what basis was the Respondent "withdrawing" from a binding agreement. The assertion now by the Respondent is that in fact no lease was entered into and the Respondent was holding over under the Original Lease. The Respondent asserts that the second lease was not executed by the Lessor (being both Gregory Braun and Peter Braun) before the Respondent withdrew her offer to lease by the letter of 26 March 2008.

15. The leading case as to the formation of contracts, in these circumstances, is the High Court decision in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353. There the High Court classified the concluded negotiations that are subject to preparation of formal contracts into three broad groups as follows (at page 360):

Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality and arrange all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time proposed to have the terms re-stated in a form which will be fuller or more precise but not different in effect or, secondly, there may be a case in which the parties have completely agreed upon all the terms of their bargain and attend no departure from or addition to that which their agreed terms express or implied, but nevertheless have made performance of one or more of the terms conditional upon execution of a formal document. Thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In each of the first two cases, there is a binding contract: in the first case, a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case, a contract binding the parties to join in bringing the formal contract into existence and then carry it into execution .... In cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own.

16. In a recent decision of this Tribunal, Judicial Member Rickards held in a case where the facts are common to a lot of cases before this Tribunal with respect to a series of negotiations and correspondence between the parties but in fact no formal lease document had ever been produced: Dong v West Services Pty Limited (2010) NSW ADT 150 (paragraph 32).

The letter sent by the Applicant's solicitor to the respondents' solicitors on 10 December 2009 certainly expressed acceptance of the terms contained within the above letter, but did not respond to the matters set out by the respondent as being required to be attended to by the applicant before any lease document would be prepared; instead, Lowe's letter ignored the stated requirement and simply asked for provision of a Lease Agreement "as soon as possible". In the absence of evidence to the contrary, this request tends to indicate agreement that there would be no concluded barter between the parties until a formal lease had been executed, therefore bringing this matter within the third category of cases ascribed in Masters v Cameron (1954) 91 CLR 253.

17. In Dong Rickards JM found that where no written document had yet been produced the facts fell within the third category under Masters v Cameron. I note in this case a lease document had in fact been produced and executed by the Lessee and one of the Lessors, the correspondence between the Applicant and the Respondent confirmed all the terms of the lease and the parties were ready to proceed. Email correspondence between the parties confirms this. The only missing element was the execution by one of the Lessors who in fact was a co-executor. Mere execution of the Second Lease was executory only.

18. Therefore this Tribunal is satisfied that the facts fall into either the first or second category as set out in Masters v Cameron, and consequently a binding lease was entered into for one year. Consequently, by the letter from the Respondent's lawyer of 26 March and by her vacation of the Premises, the Respondent repudiated her obligations under the Second Lease and thus damages flow to the Applicant as a result of such repudiation.

19. It is also relevant in the history of this matter that the Respondent was asserting the need for a lease because she wished to formalise arrangements with her bank without really disclosing the real reason which was the prospective sale of the business and naturally to sell a business the vendor really should offer a long term lease. This was never disclosed to the Applicant and certainly whilst in the mind of the Respondent one could say that her entry into the Second Lease might have been conditional upon a sale proceeding, she never made entry conditional and certainly the Applicant was not aware of any, such conditionality.

Illegal works

20. It was a condition of both leases that the Respondent not carry out works which would cause any statutory authority to be entitled to give notice requiring structural repairs.

Clause 8.01 of the Original Lease- reflecting that no alterations are to be made to the demised premises provided as follows:

The Lessee will not without the previous consent in writing of the Lessor make any alteration or addition in or to the demised premises or any part thereof and shall in the course of such alterations or additions made with the consent of the Lessor observe and comply with the requirements of the Lessor and public authorities.

21. During the Respondent's occupation of the Premises under the Original Lease Respondent caused to be erected timber framed walls at the front and sides of a courtyard area in the Premises (Illegal work).

22. The Construction was effected without approval of the relevant statutory authority, namely Ku-ring-gai Municipal Council and the Construction did not meet the relevant Building Code of Australia standards. Consequently the Construction entitled Ku-ring-gai Council to issue a notice requiring structural repairs.

23. Subsequent to the Respondent vacating the premises it became apparent that certain work was done on the premises not to Council's approval. The Applicant obtained a report from Ken Willis & Associates (Consulting Town Planners), a copy of which, dated 17 October 2008 is annexed as Annexure F to the affidavit of the Applicant. In that report Mr Willis states:

In confirmation of our phone conversation after I met with Council's senior building surveyor, on site, he considered that it was better to refuse the Building Certificate Application than to issue one - subject to a condition that the timber framed walls which have been erected at the front and sides of the former outdoor "courtyard" be demolished.

He explained that the walls did not, and could not, meet the Building Code of Australia requirement as they pose a potential fire hazard so close to the boundary. Likewise the flooring in that area was timber with space in between the boards - over which carpet squares have been placed. The timber flooring could be covered with eg cement sheeting to make it comply.

The way I see it, is that a tenant could re-occupy the premises as a restaurant - it's apparently approved usage. A DO could be submitted to Council for the alterations, and, after receiving the approval (in at least two - three months knowing Council), the walls, floor, doorways etc could be constructed with the tenant suffering the inconvenience whilst the work is underway. It is not a big job and should not cause too much disruption and improvements in the premises should be worth the inconvenience.

24. Negotiations were conducted with a prospective tenant One -O -Nine Pty Limited represented by lawyers who wrote on 20 October 2008 inter alia:

We have been instructed that your client has informed the agent that it has a quotation for removal for walls for $800 and that your client is agreeable to allowing the sum of $1,000.00 (which could be deducted from the rent) to cover the removal of the walls by our client.

The Premises were subsequently leased for four years and four months to the that tenant from 8 November 2008.

25. In response to the allegation of illegal work and claim for restitution the Respondent says in her affidavit at paragraph 65:

The applicant was well aware the walls had been constructed in 2006. At the time the applicant came to the premises because the internal toilet was overflowing and needed repairing which he tried to do without success, he called a plumber. At no time did the applicant instruct me to remove the walls nor did he do so in writing.

Restitution works to the said property has not been carried out to date by either the applicant or the new tenant, the tenant has now occupied the premises for more than 15 months.

And at paragraph 72:

Due to my capital improvements to the premises the applicant is reaping the benefits of $17,052.20 per annum. I refer to Ken Willis & Associates' letter of 17 October 2008 ... paragraph 4 ...

"Prime seating area for the restaurant". The area referred to here is a 12MX6M which were built in 1998 as an extension to the premises.

Rent for balance of the term

26. Part of the claim of the Applicant is for outstanding rent from February 2008 through to the end of the term of the Second Lease 31 October 2008. The Applicant states in his affidavit that as soon as the Respondent vacated the premises he engaged the services of a local real estate agent, Julie Rogers of Turramurra North Real Estate to find suitable tenants. It is Ms Rogers who informed the Applicant that additions to the property were made by the Respondent which were not apparently Council approved and consequently the Applicant investigated this issue and there was a delay in negotiating prospective tenancies.

27. The second question for this Tribunal to determine is the amount of damages payable by the Respondent for breach of lease and for the rectification of the illegal works and whether six months is a reasonable time for a landlord to seek a new tenant noting the landlord's obligation to act reasonably to mitigate its losses.

28. The Respondent says in her affidavit that in her view the Applicant did not adequately mitigate the loss. The Respondent says at paragraph 62:

The Applicant was not diligent in trying to find a tenant. The applicant did not advertise in newspapers nationally, state or local or on the internet. The only advertising to the general public were three real estate signs with "for lease" written on them in the shop window.

The premises are located in a small shopping centre that mainly services the local residents. The premises are not eye catching and proper advertising would have been needed.

29. The Appeal Panel of the Administration Decisions Tribunal recently examined this vexed question of the obligation of a landlord to mitigate losses in the case of Blandino & Ors v Giardini & Ors (RLD 2008) (NSW ADTAP 55) where at paragraph 65 the Tribunal held:

... the primary issue to be resolved is whether or not the Lessors had acted unreasonably in failing to minimise their loss arising from the Lessee's wrongful repudiation of the Lease ... (The Tribunal) referred to and quoted from relevant authorities (notably the judgment of Giles JA in Karacominakis v Big Country Development Pty Ltd Anor (2000) NSWCA 313 at [187] and the judgment of Austin J in Young v Lamb (No 2) (2001) NSW SC 1014 at (31), establishing the following propositions:

a)where it is alleged that a plaintiff has acted unreasonably in failing to minimise his or her loss from the defendant's breach of contract, the onus lies on the defendant, who is a wrong doer to establish this;

b)a high standard of conduct is not required;

c)the plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct, so long as it was reasonable for the plaintiff to do what he or she did; and

d)where the assessment of damages relates to a commercial operation, the question to be determined is what a person in the plaintiff's situation would do "in the ordinary course of business".

30. Further it is noted in the Respondent's affidavit regarding the illegal work that certain structures made by the Respondent during her tenancy were of benefit to the Applicant. This assertion was not challenged by the Applicant in cross examination of the Respondent. A higher rent namely $4,620.00 per month being a difference of $1,421.80 per month or $17,052.20 per annum was obtained for the Premises.

Bond

31. There was one final matter that needed to be addressed and that was the bond under the original lease of $1,800.00. No accounting for this bond was made by the Applicant and it was agreed at the hearing that the Respondent is entitled in respect of any moneys that the Respondent owes to have deducted the bond of $1,800.00.

Claim

32. The Applicant during the mediation put forward the following claims:

a)outstanding rent: $28,787.22 (being rent for February 2008 to October 2008) - nine months at $3,198.58 per month;

b)interest on rent $2,638.83 at 10% per annum;

c)survey fees $825.00 (invoice of Ken Willis);

d)legal costs $2,230.91 (tax invoice of Lane & O'Rourke - 4 December 2008);

e)real estate commission $4,260.00 being an invoice of Turramurra North Real Estate dated 3 March 2009;

f)rectification allowance in the new lease of $1,000.00;

Total - $39,741.96.

33. Then there was further damage to the property being represented in payment by the Applicant of three tax invoices for replacement of water damages, external wooden doors, architraves and window frames, rectification of pipe work and floor waste, removal of perished foliage, clearing of rubbish, disposal of asbestos stored behind kitchen exit door amounting in total to $5,379.00.

Decision

34. In considering all of these matters, the Tribunal is of the view that notwithstanding the alleged difficulties with regard to the illegal work that may have hindered finding a new tenant, the Applicant did not, in this Tribunal's view conduct himself with sufficient urgency that one might expect "in the ordinary course of business" (see Blandino & Ors v Giardini & Ors (RLD 2008) (NSW ADTAP 55)) to say that he acted reasonably to mitigate his loss. The Premises were not widely advertised, being listed with only one local agent. Such modest seeking of a tenant should not be on the basis that the total loss will be covered by the Respondent. Was it reasonable to only appoint one local agent and not advertise widely? Would a landlord who had to bear the loss of rent (without any recompense) have acted in such manner? However, the Tribunal is not satisfied that the Respondent has discharged the onus on the Respondent to establish her case completely but nor is the Tribunal satisfied that the Applicant acted reasonably in finding a new tenant. The Tribunal will allow only half the rent claimed.

35. There is no requirement on a landlord to take into account improvements to the Premises made by a lessee which results in the Landlord obtaining a higher rent. Certainly the evidence did not suggest directly that the increased rent was obtained because of these improvements and the Tribunal cannot do anything further on this issue.

36. The Tribunal will allow the claim for the survey fees and the legal costs. However, the real estate commission at the expiry of the lease, is a more difficult matter. Whilst it was necessary to obtain a tenant, however, given that the lease that was entered into was always for one year terminating on 31 October 2008 with options, one could take the view that the withdrawal by the Respondent from the lease pursuant to the letter of 26 March 2008 was an indication that in any event the option would not be exercised and that a new tenant would have had to be found at the expiry of the lease in any event. Consequently, the Tribunal is of the view that the real estate commission is an expense that the Applicant would have necessarily incurred in any event in those circumstances and is not a cost directly as a consequence of the Respondent's breach of lease.

37. The invoices for further damage to the property are allowed. As noted there should be an allowance in favour of the Respondent of $1,800.00 for the bond.

Orders

38. The Tribunal orders

1)The Applicant and the Respondent entered into a lease for twelve months from 1 November 2007 terminating on 31 October 2008.

2)The Respondent repudiated the Lease, the Applicant accepted the repudiation and terminated the Lease on or about 28 March 2008.

3)The Respondent is to pay to the Applicant the following:

a)outstanding rent of $14,400.00;

b)interest on the outstanding rent at 10% per annum;

c)survey fees of $825.00;

d)legal costs of $2,230.91;

e)costs of tax invoices of $5,379.00.

4)The Applicant is to credit the Respondent the amount of $1,800.00 (to be deducted from the amount calculated under order 3).

5)Terms may be filed upon calculation of the amount owed by the Respondent to the Applicant (including interest).

6)No order as to costs, save that should either party file and serve an application for costs accompanied by appropriate submission, within 14 days, then the other party is to file and serve its reply within a further fourteen days and the tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act at 1997, s76, unless persuaded that there should be oral submissions.

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