TianyD Beauty & Hairdressing Australia Pty Ltd v Fasako Pty Ltd [2020] NSWCATAP 184

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TianyD Beauty & Hairdressing Australia Pty Ltd v Fasako Pty Ltd [2020] NSWCATAP 184 Hearing dates: 25 February 2020 Date of orders: 7 September 2020 Decision date: 07 September 2020 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President K Ransome, Senior Member Decision: (1) To the extent necessary, leave to appeal is granted, the appeal is allowed and the orders made on 17 October 2019 in applications COM 18/21300 and COM 18/40196 are set aside. (2) In application COM 18/40196 the Appeal Panel declares that on 13 September 2017 TianyD Beauty & Hairdressing Australia Pty Ltd validly terminated the lease dated 24 March 2017 between it and Fasako Pty Ltd. (3) Application COM 18/21300 and application COM 18/40196 are remitted to the Consumer and Commercial Division of the Tribunal to determine: (a) the entitlement of the appellants, if any, to damages or compensation by reason of respondent's breach of the lease dated 24 March 2017; (b) the amounts, if any, due to the respondent under the lease upon termination; and (c) costs of the proceedings, such determination to be in accordance with these reasons of the Appeal Panel and according to law. (4) The Tribunal may be constituted by the Member who made the decision, the subject of this appeal or otherwise as determined on remittal. (5) Subject to any directions of the Tribunal on remittal, the proceedings are to be determined in accordance with the evidence originally filed and the transcript of the original hearing. (6) Subject to order 7, the respondent is to pay the costs of the appellants in respect of this appeal, such costs to be as agreed or assessed on an ordinary basis. (7) Either party may apply for a different costs order to that in order 6 in which case order 6 will cease to have effect and the following directions apply: (a) The applicant for costs (costs applicant) is to file and serve any evidence and submissions on costs within 14 days of the date of publication of these orders; (b) The respondent to the costs application (cost respondent) is to file and serve any evidence and submissions in reply within 14 days of the date of publication of these orders; (c) The costs applicant is to file and serve any submissions in reply within 21 days from the date of publication of these orders; (d) The submissions of the parties are to include submissions about whether an order should be made dispensing with a hearing of the costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. Catchwords: LEASES AND TENANCIES – Retail lease – covenant by landlord to maintain building in a sound structural condition – whether landlord's obligation to maintain building in a sound structural condition includes an obligation to rectify any deficiencies in the fire sprinkler system – whether implied term in lease of non-derogation of grant – whether these terms are conditions or intermediate or innominate terms breach of which might entitle the tenant to terminate the lease – tenant requiring the landlord to rectify deficiencies in fire sprinkler system prior to conducting its fit out – non-compliance of sprinkler system with Australian Standards and Building Code of Australia– landlord refusing to upgrade base building pumps – availability of a fire engineered solution as an alternative to upgrading the building's sprinkler pumps – whether landlord's refusal to carry out work to the building's sprinkler pumps constitutes a repudiation of the lease – validity of termination notice issued by tenant. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act, 1994 (NSW) Cases Cited: Advanced Fitness v Bondi Diggers [1999] NSWSC 264 Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] NSWSC 487 Alamdo Holdings Pty. Limited v. Australian Window Furnishings (NSW) Pty. Ltd. & Anor. [2006] NSWCA 224 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Collins v Urban [2014] NSWCATAP 17 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 HM&O Investments v Ingram [2012] NSWSC 958 Holus Bolus Pty Ltd v The Wicko Pty Ltd [2012] NSWSC 497 J F Hillam Pty Ltd v Mooney (1988) 48 SASR 381 Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd & Anor [2007] HCA 61; [2007] 233 CLR 115 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 Suttor v Gundowda Proprietary Limited [1950] HCA 35; (1950) 81 CLR 418 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Butt's, Land Law, 7th edition 2017 JD Heydon: Heydon on Contract (2019) Category: Principal judgment Parties: TianyD Beauty & Hairdressing Australia Pty Ltd (First Appellant) Yao Zhu (Second Appellant) Fasako Pty Ltd (Respondent) Representation: Counsel: A Leopold SC, T Fishburn (Appellants) A Avery-Williams (Respondent)