Tsoukalas v Nguyen (International) Trading Co Pty Ltd; Dung Viet Nguyen and Nguyen (International) Trading Co Pty Ltd v Tsoukalas [2021] NSWCATCD 30

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tsoukalas v Nguyen (International) Trading Co Pty Ltd; Dung Viet Nguyen and Nguyen (International) Trading Co Pty Ltd v Tsoukalas [2021] NSWCATCD 30 Hearing dates: 15 March 2021 Date of orders: 18 May 2021 Decision date: 18 May 2021 Jurisdiction: Consumer and Commercial Division Before: G Ulman, Senior Member Decision: (1) In application COM 20/44332 Nguyen International Trading Co Pty Ltd pay Alexander Tsoukalas the sum of $23,938.64 within 28 days. (2) Application COM 20/46994 is dismissed. Catchwords: LEASES AND TENANCIES — Retail leases — Claim for unpaid rent, outgoings and make good costs — Claim for return of bank guarantee proceeds — Whether COVID-19 Regulation precluded the landlord from presenting the bank guarantee — Whether the proceeds of the bank guarantee should be repaid to the tenant Legislation Cited: Retail Leases Act 1994 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 (NSW) Category: Principal judgment Parties: In COM 20/44332 Alexander Tsoukalas (Applicant) Nguyen (International) Trading Co Pty Ltd (Respondent)

In COM 20/46994 Dung Viet Nguyen and Nguyen (International) Trading Co Pty Ltd (Applicants) Alexander Tsoukalas (Respondent) File Number(s): COM 20/44332 and COM 20/46994 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. These proceedings involve two applications arising out of the lease of shop premises at Newtown (premises). The lease was for a term of three years commencing on 22 July 2017 and terminating on 21 July 2020 . 2. COM 20/44332 is an application by Mr Alexander Tsoukalas, the owner of the premises. From now on I will refer to Mr Tsoukalas as "the landlord". The respondent to the application is Nguyen (International) Trading Co Pty Ltd to whom I will from now on refer to as "the tenant". The landlord claims the balance of outstanding rent, outgoings and make good costs. 3. COM 20/46994 is an application by Mr Dung Viet Nguyen (Mr Nguyen) and the tenant. The landlord is the respondent to the application. Mr Nguyen, who is a director of the landlord and a guarantor under the lease, was the original applicant. At the hearing (conducted by AVL), I pointed out to Mr Nguyen and to his Aunt, Ms Sue Tree, who was appearing for him with leave, that in view of the relief being sought, the tenant should also be an applicant to the claim. Mr Nguyen and Ms Tree agreed as did Mr Sanhueza who was given leave to appear for the landlord. Accordingly an order was made under section 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) joining the tenant as a co-applicant to COM 20/46994. In the application, the tenant seeks the return of $19,067 being the amount of the bank guarantee bank guarantee provided as security for its obligations under the lease. The guarantee has been presented by the landlord and the proceeds paid to him. It also seeks to have amounts owed to the landlord repaid over 12 months. 4. A mediation of the dispute was unsuccessful with the Deputy Registrar, Retail Tenancy Disputes issuing a certificate under section 68 of the Retail Leases Act on 9 October 2020.