Norsk Dor Pty Limited v Tuxfend Pty Limited [2020] NSWCATAP 183

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Norsk Dor Pty Limited v Tuxfend Pty Limited [2020] NSWCATAP 183 Hearing dates: 4 June 2020 Date of orders: 3 September 2020 Decision date: 03 September 2020 Jurisdiction: Appeal Panel Before: A Bell SC, Senior Member G Sarginson, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) Norsk Dor Pty Limited is to pay Tuxfend Pty Limited the costs of the proceedings in Matter AP 20/14266 as agreed or assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW)). (4) If either party seeks to vary the costs order set out in order 3 above, the party is to write to the Tribunal and the other party by 14 days from the date of this decision to set out the alternative order(s) sought, and the Appeal Panel will make further directions and orders as appropriate. (5) The stay order of the Appeal Panel made on 9 April 2020 which stayed money orders of the Tribunal is lifted immediately. Catchwords: APPEALS---Retail lease---Unconscionable conduct---Outgoings under the lease---After hours air-conditioning charges---Non-disclosure prior to execution of lease---Whether conduct of lessor unconscionable Legislation Cited: Australian Consumer Law 2010 (NSW) Australian Securities and Investment Commission Act 2001 (C'th) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Retail Leases Act 1994 (NSW) Retail Leases Amendment (Review) Act 2017 (NSW) Cases Cited: Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (No 2) [2020] FCA 802 Australian Securities and Investment Commission v Kobelt [2019] HCA 18; (2019) 368 ALR 1 Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 Collins v Urban [2014] NSWCATAP 17 Forbes v Wan [2020] NSWCATAP 129 Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 O'Brien v Repatriation Commission [1984] FCA 95; (1984) 1 FCR 472 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Norsk Dor Pty Limited (Appellant) Tuxfend Pty Limited (Respondent) Representation: Counsel: N Obrart (Appellant) S Phillips (Respondent)