VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP39/2017	
CATCHWORDS	
Retail Leases Act 2003: Further hearing following making of orders on 1 October 2020; application of respondent by recover arrears in rent and mesne profits; arrears of rent agreed; figure for mesne profits determined; Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274 considered.	

APPLICANT	Mark Ward Trading Pty Ltd	
first RESPONDENT
SECOND RESPONDENT	Ms Ainsley Roma Ball
Clancey Blue Pty Ltd (ACN: 112 841 988)	
WHERE HELD	Melbourne	
BEFORE	Member C Edquist	
HEARING TYPE	Hearing	
DATE OF HEARING	16 December 2020	
DATE OF ORDER	10 February 2021	
CITATION	Mark Ward Trading Pty Ltd v Ball (Building and Property) [2021] VCAT 84	
Order
1	In these Orders:
(a)	words and phrases have the meanings given to them in the Orders made 1 October 2020;
(b)	the “Premises” refers to the Premises in item 4(a) of the schedule to the lease initially made between the applicant as tenant and Ian Barry Ballis on 26 October 2012;
(c)	the Premises are described as “9367B Western Highway, Warrenheip (Ballarat), Victoria, being all the land including the building;” and the building in this definition is referred to by the parties as “the Outback Room” and that mode of referring to the building is adopted by the Tribunal in these orders and in the reasons which appear below;
(d)	the “Area of Encroachment” means that portion of the Outback Room that encroaches upon Lot 1.
2	By 4.00 p.m. on 26 February 2021 each party must file and serve their calculation of the amount of outstanding rent due from the applicant to the first respondent, having regard to the Orders made on 20 October 2020 and the orders made on 16 December 2020.
3	The Tribunal declares:
(a)	Clause 7 of the Terms of Settlement does not bar the respondent from claiming mesne profits;
(b)	the respondent’s claim for mesne profits can only be made from 10 September 2017;
(c)	the respondent’s entitlement to mesne profits ceased on the date in October 2019 that the applicant vacated the Area of Encroachment by reason of an order of the local council.
(c) 	the Area of Encroachment is 234 m²;
(d) 	the mesne profits to which the first respondent is entitled are to be assessed on the usual basis of the market rent for the premises in their state during the period of the trespass; 
(e) 	for the year October 2017-September 2018, the monthly rental for the Outback Room is $2.21 per m²; and
(f) 	for the year October 2018 to September 2019, the monthly rental for the Outback Room is $2.27 per m². 
4	By 4.00 p.m. on 26 February 2021 each party is also to file and serve submissions regarding the mesne profits due from the applicant to the first respondent between 10 September 2017 to 10 October 2019, having regard to the declarations set out above. 
5	The parties are at liberty to provide submission regarding the precise date that the council order which had the effect of excluding the applicant from using the Outback Room came into effect.

C Edquist 
Member			

APPEARANCES:		
For Applicant	Mr T Greenwood of Counsel	
For Respondents	Mr P Cate, solicitor	

Reasons
Background
1	On 1 October 2020, the Tribunal published orders with reasons. As a result of those orders, it was necessary for the Tribunal to conduct a further hearing in order to determine some unresolved disputes between the parties. This decision is concerned with the determination a number of issues relevant to the determination of the quantum of mesne profits to be paid by the applicant Mark Ward Trading to the first respondent Ms Ainsley Roma Ball. In order to give context to the decision, it is desirable to set out the background to the initial dispute taken from the reasons of 1 October 2020.
1 	Mark Ward and his company Mark Ward Trading Pty Ltd (Mark Ward Trading) have been dispute with Ainsley Roma Ball for a number of years over a range of matters. Mr Ward and Ms Ball were in a personal relationship, but this came to an end in or about August 2014. One of the disputes between them centres on a lease of retail premises situated at 9367B Western Highway, Warrenheip (Ballarat). Mark Ward Trading had signed the lease as tenant with a landlord, Ian Barry Ballis, on 26 October 2012. In 2013 Mr Ballis sold the land of which the premises constituted a part to Ms Ball and Clancey Blue Pty Ltd (Clancey Blue), which was a company which at this time Mr Ward controlled. As a result of this transfer, Ms Ball and Clancey Blue became the landlords under the lease. 
2 	Disputes arose between Mark Ward Trading and Ms Ball, and it initiated this proceeding in January 2017 under the Retail Leases Act 2003 (the RLA) against her and Clancey Blue. On 24 May 2017, in a mediation, terms of settlement (the Terms of Settlement) were signed, and the proceeding was struck out with a right of reinstatement. One of the matters agreed was that the lease would be renewed with effect from 28 October 2017. One of the facts underlying the current dispute is that Ms Ball and Mr Ward have been unable to come to an agreement as to the terms of the new lease, and no renewed lease has been executed.
3 	On 28 October 2017 the original lease expired. Mark Ward Trading applied to have the proceeding reinstated and sought an injunction to protect its possession of the premises. On 1 December 2017 the Tribunal reinstated the proceeding, and granted an injunction which had the required effect from the point of view of Mark Ward Trading. The formulation of the injunction, however, has itself become a contentious issue.
4 	Despite the injunction, Ms Ball took steps to take possession of part of the premises occupied by Mark Ward Trading on 1 April 2018. Mark Ward Trading alleged that Ms Ball’s conduct involved a deliberate breach of the orders made on 1 December 2017, and sought to have her dealt with for contempt, pursuant to s137 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). The application came on before Vice President Judge Hampel on 25 July 2018 and on 14 December 2018 the application was dismissed.
5 	The proceeding was subsequently set down for hearing on 4 June 2019. On that day the hearing was stood down to enable settlement discussions to take place, but ultimately the disputes did not settle. However, two issues suitable for preliminary determination were identified. One related to the effect of the Terms of Settlement executed in May 2017. The second related to the identity of the land that is the subject of the lease. 
DETERMINATION OF THE PRELIMINARY QUESTIONS 
6 	Senior Member Davis determined the preliminary questions on 16 December 2019. He found that the Terms of Settlement “are binding and enforceable”. He also made a finding relevant to nature of the land demised under the lease. 
7 	Notwithstanding the determination of the key question of whether the Terms of Settlement were binding, the parties failed to achieve agreement as to the form of the renewed lease. Mr Ward did not instruct his lawyers to prepare a lease for Ms Ball and Clancey Blue to execute, but Ms Ball took the initiative of having her solicitor prepare a lease which she asked Mark Ward Trading to sign. Mr Ward rejected this lease. He says that it contained terms which were inconsistent with the Terms of Settlement. One issue was that the parties could not reach agreement as to whether the rent under the renewed lease was to be inclusive of GST, as had been agreed in the Terms of Settlement, or was to be exclusive of GST as it had been under the original lease. Ms Ball asserts that the reason Mr Ward would not sign was because the lease she proposed did not redefine the land demised in the manner which he required.
Escalation of the dispute
8 	On 17 January 2020 Ms Ball issued a notice of default to Mark Ward Trading, and seven days later purported to terminate the lease based upon that notice. Mark Ward Trading brought on an application for an injunction, which was determined by Senior Member Forde on 20 May 2020. The Tribunal found that the lease remained on foot and had not been terminated because the notice of 17 January 2020 did not give a minimum of 14 days in which the alleged default could be remedied. The Tribunal also found that the injunction made on 1 December 2017, which restrained Ms Ball from re-entering, continued to apply.
9 	Ms Ball then made an attempt to gain possession by applying for an order dissolving the injunction granted on 1 December 2017 on a number of grounds including that the injunction had been obtained on false information and misleading conduct. That application came before me on 10 July 2020. I dismissed the application on the basis of the Tribunal does not have jurisdiction to hear an appeal in respect of its own decisions. With a view to bringing this long running dispute to a head, I listed matter for hearing.
The final hearing
10 	The final hearing began before me on 19 August 2020 and continued until 21 August 2020. Mark Ward Trading was represented by Mr T Greenway of Counsel, and Ms Ball was represented by her solicitor, Mr P Cate. Mr Ward gave evidence, on behalf of Mark Ward Trading and called one other witness, Mr Andrew Macneill. Ms Ball gave evidence, but called no other witness.
2	The orders made on 1 October 2020 included the following declarations in Order 2:
(a) 	The applicant is in occupation of the premises under the terms of settlement made 24 May 2017 (the Terms of Settlement).
(b) 	The monthly rent as adjusted to reflect the effect of the Family Court order of 9 June 2017 is $8,738 inclusive of GST.
(c)	The rent referred to in (b) above is subject to a reduction of $1,000 per month on account of Ms Ball’s residency to a date in or about September 2019 (to be determined in default of agreement) and after that date to a reduction of $200 per month.
(d) 	The rent referred to in (b) above is also subject to adjustment under the terms of the lease.
(e)	The preliminary question regarding the interest of the applicant in Lot 1 has been determined by the Tribunal’s order 2 made 16 December 2019, namely the applicant does not have any interest or rights as tenant in Lot 1 of Plan of Subdivision (PS)341182N.
(f) 	The respondent is entitled to mesne profits, to be determined, in respect of the applicant’s occupancy of Lot 1 of PS341182N.
(g)	The notice of increase rent given by the respondent on 29 January 2020 is void.
(h) 	The notice of default issued by the respondent dated 4 April 2020 is void.
(i) 	The respondent unlawfully entered into the premises on 11 May 2020.
(j) 	The injunction granted on 1 December 2017 is dissolved.
3	By order 5 made on 1 October 2020 the proceeding was listed for a further hearing at 10.00 a.m. on 20 October 2020 at which the Tribunal was to determine, as necessary, any disputes about adjustments of rent having regard to the declarations made and the terms of the lease. At the hearing the Tribunal was also to determine the respondent’s entitlement to mesne profits.
4	The hearing scheduled for 20 October 2020 was adjourned to 16 December 2020.
Orders made 16 December 2020
5	Following the further hearing on 16 December 2020, the Tribunal published orders which included in the following:
1	The Tribunal, noting that it had reserved jurisdiction (in order 2 (c) of the October Orders) to determine the date in or about September 2019 at which the reduction of $1,000 per month made on account of the respondent’s residency was to be changed to a reduction $200 per month, determines that date to be 30 September 2019.
2 	For the avoidance of doubt, the Tribunal declares that the effect of the declaration made in Order 2(c) of the October Orders is that the adjusted monthly rent otherwise payable is to be reduced by $200 per month, not $800 per month. Accordingly, if the adjusted monthly rent otherwise payable is, for example, $8,980.36, the deduction on account of the residency will reduce the rent to $8,780.36.
3 	The parties are directed to confer with a view to formulating consent orders regarding payment of outstanding rent having regard to Orders 1 and 2 above, and having regard to the consensus reached regarding the disputed sum of $243.96. If possible, such consent orders should be filed by 22 December 2020.
No CONSENT ORDERS regarding rent received
6	The Tribunal has not received any consent orders regarding outstanding rent. The Tribunal will have to determine the issue. The Tribunal will now require each party to submit a calculation of rent due.
MESNE PROFITS
7 	For the reasons which will become apparent below, the Tribunal is not in a position to finalise its determination regarding the mesne profits due from the applicant to the first respondent to date. However, the Tribunal has been able to determine a number of preliminary issues relevant to that determination.
Applicable principles
8 	Both sides accepted that I should rely on the New South Wales Court of Appeal decision in Sydney Local Health District v Macquarie International Health Clinic Pty Ltd, in which Bell P, Gleeson JA and Payne JA identified a number of general passages concerning damages for the mesne profits at [128-137]. I have reviewed these principles and extract the following quotations:
128.	First, an abiding feature of the case law concerning damages for mesne profits consequent upon a trespass to land, together with authorities in the analogous context of detinue, is that such damages are for the defendant’s actual use or usage of the plaintiff’s real or personal property.
129.	That feature may be seen both in the historical emphasis on a trespassing defendant being required to give up “profits” derived from the trespasser’s use of the property, and also in the views of those judges and academics who have detected at least a restitutionary “flavour” to the action for damages for or by way of mesne profits.
130.	It may also be seen in the fact that damages for or by way of mesne profits have only been awarded or have been limited by reference to the actual usage of the property…. (citations omitted) 
132.	Secondly, in every case in which damages for or by way of mesne profits have been awarded, they are for the defendant’s use of the property in its existing state at the time of the commencement of the trespass.…
133.	Thirdly, whilst it is open to a plaintiff to claim damages for trespass by reference to any contractual rights associated with the property in question or indeed business opportunities which may have allowed the development of the property, such damages are only available for actual loss shown, on the balance of probabilities, to have been suffered.
134.	Fourthly, the usual measure of damages for or by way of mesne profits will be the market rent for the premises or for the hire of the goods in their state during the period of the trespass. The calculation of that market rent must have regard to the particular context of the case and characteristics of the property or goods in question….
135.	Fifth, whilst the usual measure of damages for or by way of mesne profits will be the market rent for the premises in their state during the period of the trespass, there may be special circumstances associated with the defendant which warrant a departure from this yardstick. Any departure from this yardstick is not, however, at large, but again is tied or limited by the defendant’s actual usage of the property in question.
136.	Sixthly, and in a similar vein, the market rent may be conceptualised or influenced by reference to the particular characteristics of the trespasser… or the plaintiff… (example omitted) 
137.	Seventhly, the particular circumstances of the parties and the property in question may be especially relevant in a case where there is no usual or standard market for the rental or hire of the property in question: (examples omitted). 
The contentions of the parties in overview
9	Mark Ward Trading contends that the usual measure of damages for mesne profits, namely the market rent for the Premises in their state during the period of the trespass, should be applied. Ms Ball argues that in the present case there are special circumstances that warrant the calculation of damages based on the amount which Mark Ward Trading has received during the relevant period as rent and commission from subtenants.
Ms Ball’s claims
10	In her amended submissions regarding mesne profits dated 16 November 2020, Ms Ball claims $184,799.45 inclusive of GST calculated under a number of headings. The calculations are based on the proposition that the Area of Encroachment is 234 m². It is clear from an affidavit sworn by Ms Ball on 8 December 2020 that this figure was established by Steele Surveying Pty Ltd, land surveyors. A letter from that company dated 7 December 2020 indicates that the area was based on a title re-establishment survey dated 29 January 2018. 
11	The claim is also premised on the calculations of rent per m² for the respective years from April 2013 to April 2020 and thereafter for the months April 2020 until November 2020, prepared by McGrath Ballarat, estate agents. A letter from McGrath dated 12 November 2020 was exhibited to Ms Ball’s affidavit of December 2020. This makes it clear that McGrath worked backwards from an assessment of the current rate for rent of $40 per m² assuming a 2.5% CPI decrease each year. The rate of $40 per m² was applied for the 7 months between April 2020 - November 2020 to the entire Outback Room and total rent of $9,514.56 was calculated. For the 12 months April 2019-April 2020, the adjusted rent was $39 per m², which yielded a figure of $15,912 for the entire Outback Room for the year. McGrath set out successive calculations for the entire Outback Room back to the year April 2013-April 2014 using rates respectively of $38.03, $37.07, $36.15, $35.24, $34.36 and $33.50 and on this basis calculated total rent for the period to be $112,879.73.
12	In her calculation of mesne profits Ms Ball evidently adjusts the rental figure for the entire Outback Room on a pro rata basis to establish the rent she contends is payable for the Area of Encroachment. As noted, she asserts this area is of 234 m². Setting aside the rent that should have gone to Clancey Blue in the years in the period February 2013 to September 2018, the adjusted figure is calculated to be $35,566.89.
13	In addition to this figure, Ms Ball claims to be entitled to the rent that Mark Ward Trading has charged 15 stallholders using the relevant part of the Outback Room for the periods September 2017-September 2018 and September 2018-September 2019. The rent per stall is asserted to be $270 per month. The total amount claimed is $106,920 inclusive of GST.
14	Further, Ms Ball asserts that Mark Ward Trading had its own display stall in the Outback Room, and that it should be charged rent at the same rate as other stallholders over the 2 year period September 2017-September 2019. She asserts that the area of a double stall was taken up, and that the relevant rate to be charged is accordingly $540 per calendar month. The amount claimed inclusive of GST is put at $14,256.
15	Ms Ball makes a further claim relating to a 5% commission charged by Mark Ward Trading on the sales of its stallholders. The total sales for all 15 stallholders were estimated to be $500 per calendar month, or $33.33 per stall holder. I comment that this is a surprisingly low estimate. Ms Ball asserts that this commission is to be calculated as 5% of ($500 x 24 months x 15 stallholders = $180,000), namely $9,000 exclusive of GST. I consider there is a mathematical error here, as the relevant calculation (assuming for present purposes that the claim is allowable and that Ms Ball has not made an error in asserting that the estimated sales per stall were only $33.33 a month) is 5% of (24 x $500 = 12,000), namely $600 exclusive of GST.
16	In addition to this claim for commission, Ms Ball contends that Mark Ward Trading sold its own items during the 24 month period, and claims 5% of total sales of $800 per month for two stalls for 24 months. The resulting calculation is (5% x $800 x 2 x 24) = $1,920 exclusive of GST.
17	Ms Ball then makes a claim against Mark Ward Trading in respect of its occupation of the Outback Room for the period of September 2019 to April 2020 and then from April 2020 to November 2020. This claim is for $16,044.56. It is the only claim she makes which is calculated in a way which is consistent with the manner in which claims for mesne profits are conventionally made.
18	In summary, Ms Ball claims $35,566.89 + $106,920 + $14,256 +$9,900 + $2,112 + $16,044.56, a total of $184,799.45.
Mark Ward Trading’s contentions
19	Mark Ward Trading contests every proposition advanced by Ms Ball. In particular, it contests that a new figure for the Area of Encroachment cannot now be advanced, and it challenges the evidence of Steele Surveying upon which the new figure has been based. Mark Ward Trading also challenges the ability of Ms Ball to rely on the rental valuations put forward by McGrath. For these reasons it challenges the rental calculation of $35,566.89 in respect of the relevant area of the Outback Room, and says that the relevant figure is $9,553.28. Finally, it dismisses each of Ms Ball’s other claims for mesne profits as misconceived as they have not been calculated in accordance with the usual principle, ie. the market rent for the premises. No other basis of calculation is appropriate, it is contended, because no special circumstances have been established.
20	In addition, Mark Ward Trading raised other matters. These are:
(a)	the claim for mesne profits can commence only from 10 September 2017 and not April 2013, because the counterclaim began relates to the period commencing this 10 September 2017, and no earlier claim is before the Tribunal;
(b)	Clause 7 of the Terms of Settlement provide a release to Mark Ward Trading in respect of any occupation prior to 2017; 
(c)	the claim for mesne profits can run only until October 2019, which is the time at which both parties had to vacate the Outback Room because of an order made by the local authority.
21	I discuss these contentions in turn. It is convenient to deal firstly with the relevance of the Terms of Settlement. 
Relevance of Clause 7 of the Terms of Settlement
22	Mark Ward Trading contends that Ms Ball’s entitlement to mesne profits is barred by Clause 7 of the Terms of Settlement. This reads:
7	Subject to compliance with these Terms, the Applicant, the First Respondent and Ball hereby release each other from all claims, demands, suits or causes of action arising out of the pleadings in this proceeding, and any other matter arising out of the Lease with respect to claims known to the parties as at the date of these Terms of Settlement.
23	Mark Ward Trading contends that the use of the Outback Room was an issue by 24 May 2017, which was the date on which the Terms of Settlement were signed. Accordingly, it argues, it was an issue known to the parties and is therefore subject to Clause 7. In my view, it is too late to raise this argument in defence of the claim for mesne profits. The fact that Ms Ball is entitled to mesne profits has been declared in Order 2(f) made 1 October 2020. The issue cannot now be reopened by the Tribunal.
The starting date for the calculation of mesne profits stated in the counterclaim
24	Mark Ward Trading contends that Ms Ball’s claim for mesne profits in the counterclaim must be calculated only from 10 September 2017. It says, with justification, that in the amended points of counterclaim filed by Ms Ball dated 22 June 2020, mesne profits are sought from this date. 
25	Mark Ward Trading submits that this was the case which it met at the hearing and accordingly, as a matter of natural justice, the claim cannot be made from an earlier point.
26	I accept this submission, because it accurately reflects the way the counterclaim was framed. I will declare that the claim can only be made from 10 September 2017.
27	I note in passing that the date from which mesne profits are sought in the counterclaim is consistent with the month in which I was informed the orders of the Family Court came into effect. These orders transferred Mr Ward’s interest in Clancey Blue Pty Ltd to Ms Ball. Up until this point any entitlement that Ms Ball had to mesne profits would have been diluted by 50% in any event.
The end date for the calculation of mesne profits
28	Mark Ward Trading contends that as it has been forced to cease using the Outback Room in its entirety from October 2019 as a result of a building order issued by the local council. It says, accordingly that it is not liable for mesne profits in respect of the Area of Encroachment, from that point.
29	I accept this contention. The purpose of damages for mesne profits, as established by the authorities summarised in Sydney Local Health District v Macquarie International Health Clinic Pty Ltd, is to compensate the claimant, consequent upon a trespass to their land, for the defendant’s actual use of their real property. The relevant point is that Ms Ball was deprived of the use of the Area of the Encroachment by unlawful occupation of that Area by Mark Ward Trading. Mark Ward Trading has by reason of the council order itself been denied use of the Area of the Encroachment. Accordingly it is no longer depriving Ms Ball of use of that Area. 
30	I require the assistance of the parties to identify the date in October 2019 upon which the council building order come into effect. The parties will be given leave to make submissions about that date. If no submissions are received it will be convenient for reasons of ease of calculation of mesne profits, to fix the date as 10 October 2019.
The area in respect of which mesne profits are to be calculated
31	Mark Ward Trading contends that it tendered at the hearing in August 2020 a plan of the Outback Room prepared by Mr Ward. The plan showed the relevant portion of the Outback Room as being of 178.1 m². It contends that this is the area to which the claim for mesne profits must be limited.
32	Mark Ward Trading also contends that Ms Ball has produced no evidence of the dimensions of the Area of Encroachment. It says that the calculation made by McGrath on 12 November 2020 is opinion evidence, and the basis of the opinion has not been established, and is accordingly inadmissible.
33	I acknowledge the force of the submission made by Mark Ward Trading with respect to the evidence of McGrath, but reject the criticism made by Mark Ward Trading of Ms Ball’s evidence concerning the Area of Encroachment, which is in the form of a letter from Steele Surveying dated 7 December 2020.
34	Given that the author of that letter, Richard Steele, licensed surveyor, was not called as a witness either at the hearing in August or at the hearing on 16 December 2020, that might ordinarily have been a basis to object to the admission of his calculation of the Area of Encroachment. However, I consider that special circumstances apply to the issue. Those circumstances are:
(a)	In its written submissions regarding mesne profits Mark Ward Trading seeks to bolster its contention that the area of the encroachment is 178.1 m² by referring to Mr Steele’s evidence contained in a letter from Steele Surveying dated 29 January 2018.
(b)	The Steele Surveying letter of 29 January 2018 was appended to Mr Mark Ward’s witness statement dated 4 November 2019 which was itself put into evidence at the hearing before Senior Member Davies on 16 December 2019. It is therefore before the Tribunal.
(c)	The letter from Steele Surveying dated 7 December 2020 confirms that the Area of the Encroachment was to 234 m² “at the date of completion of our title re-establishment survey 29 January 2018.” In other words, the letter refers back to the Steele Surveying survey of 29 January 2018 which Mark Ward Trading has itself put into evidence.
(d)	It is clear that Mr Steele, a licensed surveyor, has calculated the Area of the Encroachment by reference to that title re-establishment survey.
(e)	Accordingly, Mark Ward Trading is not in a position to question the expertise of Mr Steele. 
35	Because of these special circumstances, I am prepared to accept as evidence Mr Richard Steele’s calculation that the Area of Encroachment is 234 m². 
36	I consider that this calculation is to be preferred to the calculation of the Area of Encroachment prepared by Mr Mark Ward on the basis of a diagram prepared by Mr Ward which is itself based on measurements taken by Mr Ward, who is not a licensed surveyor.
37	For these reasons, I will declare that the Area of Encroachment is 234 m².
The market rate for rental is the proper basis for assessment of mesne profits
38	Ms Ball’s claims have been set out in paragraphs [10-18] above. It is not necessary to set them out again. Mark Ward Trading contends that each of the claims is misconceived because it is not a claim calculated using the usual measure of damages, which is the market rent for the land in question during the period of the trespass.
39	Mark Ward Trading submits that Ms Ball has established no special circumstances exist which displace the general rule. I accept this submission. Mark Ward Trading sublet the relevant part of the Outback Room to subtenants. There is nothing special about that course of action. The fact that this was done profitably (if this was in fact the case) even after commissions are taken into account, is not a factor which renders Mark Ward Trading liable to disgorge the rent and commissions it received from sub-tenants to Ms Ball.
40	I accordingly find that Ms Ball has not established any special circumstances which displace the usual rule regarding the calculation of mesne profits. Accordingly, I declare that the mesne profits to which Ms Ball is entitled are to be assessed on the usual basis, namely the market rent for the Premises in their state during the period of the trespass.
What is the market rate for rental?
41	Mark Ward Trading’s submission on this point is that the Area of the Encroachment of the Outback Room on Lot 1 is indistinguishable in character from the area encroaching over Lot 2. Both Lots had the same use. Accordingly, the same market rent should be applied to both areas. I accept this submission.
42	The total monthly rent applicable to Lot 2 under the lease was $7,738 per m² for the year October 2017 - September 2018. The area of the Outback Room under the lease is 3,500 m². This yields a rental per month for the Outback Room of $2.21 per m² for that year, and I will make a declaration to that effect. I apply this rental to the Area of the Encroachment, namely 234 m², and calculate a rental for that year of ($2.21 x 234 m² x 12 months) $6,205.68.
43	Turning to the year October 2018 - September 2019, I note that the rental under the lease for Lot 2 was $7,956.45. I calculate the rent for the Outback Room to be $2.27 per m² per month for that year, and I will also make a declaration accordingly. I apply this figure to the Area of the Encroachment, and calculate rental for that year to be ($2.27 c 234 m² x 12 months) $6,374.16.
44	Adding the mesne profits I have calculated for the two years together, yields a total of $12,579.84. Ms Ball is entitled to an award the mesne profits of at least this amount. 
45	I note that the figure of $12,579.84 compares with the rental for the area of encroachment calculated by Mark Ward Trading of $9,553.28. The difference is explained by my higher assessment of the Area of the Encroachment, namely to 234 m², as opposed to Mark Ward Trading’s assessment of Area is 178.1 m².
Summary
46	Having regard to the declarations I have made, the parties will be given an opportunity to make submissions regarding the calculation of mesne damages from 10 September 2017 up to 10 October 2019.
47	If either party makes a submission pursuant to the leave referred to in [30] regarding the date that the council order referred to in [28] came into effect, the Tribunal may fix a date other than 10 October 2019 as the date on which the entitlement to mesne profits ceased, and determine the quantum of mesne profits accordingly.

C Edquist 
Member