Fasako Pty Limited v TianyD Beauty & Hairdressing Australia Pty Limited and Yao Zhu [2019] NSWCATCD 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fasako Pty Limited v TianyD Beauty & Hairdressing Australia Pty Limited and Yao Zhu [2019] NSWCATCD 77 Hearing dates: 3 and 4 December 2018 Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: Orders 1. The Tribunal finds that the Notice of Termination dated 13 September 2017 was ineffective to terminate the Lease between the parties. 2. The Tribunal finds that there is implied into the Lease that each party will maintain loyalty to the promise and that TianyD breached the implied term. 3. TianyD and Mr Yao Zhu are to pay to Fasako all rent and outgoings pursuant to the Lease and damages. 4. Fasako can apply the bond held in reduction of any amounts owing pursuant to order number 3. Direction for Costs 1. Fasako is to provide to the Tribunal and TianyD either in person or by post, submissions and documents in relation to the application for costs within 42 days of publication of this judgment. 2. TianyD is to provide to the Tribunal and Fasako, either in person or by post, submissions and documents in relation to costs 28 days after receipt of the submissions from the respondent. 3. The Tribunal intends to hear the costs application on the papers and dispense with a hearing under s50(2) of the Civil and Administrative Tribunal Act, 2013 (NSW) and the matter is to be heard on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 14 days after publication of this judgment setting out their reasons why and the Registry will advise of the outcome in due course. Catchwords: Lessor Disclosure Statement, ss11 & 12 of the Retail leases Act, implied term in lease of loyalty to the promise. Legislation Cited: Retail Leases Act 1994 (NSW) Cases Cited: Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) HCA 24 and 347 Commonwealth v Verwayen (1990) 29 CLR 394 Georges Spice Pty ltd v Southern Highlands Rental Pty Ltd [2015] NSWCATAP 191 News v Coles & Laptev [2019] NSWCATAP 110 Pampering Patisseries Pty Ltd v Fanos [2018] NSWCATAP 94 Texts Cited: Cheshire & Fitoot Law of Contract (10th ed) Seddon, Bigwood, Ellinghuas) at 10.4.1 Category: Principal judgment Parties: Fasako Pty Limited (applicant/cross respondent) TianyD Beauty & Hairdressing Australia Pty Limited (respondent/cross applicant) Representation: Hunt & Hunt (applicant) TPS & Co (respondent) Ms A Avery-Williams, Counsel (applicant) Ms T Fishburn, Counsel (respondent) File Number(s): COM 18/21300 and COM 18/40196 Publication restriction: Nil