CCS 251 Elizabeth St Pty Ltd v Hellenic Club Ltd [2021] NSWCATAP 279

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CCS 251 Elizabeth St Pty Ltd v Hellenic Club Ltd [2021] NSWCATAP 279 Hearing dates: 18 March 2021 Date of orders: 16 September 2021 Decision date: 16 September 2021 Jurisdiction: Appeal Panel Before: M. Harrowell, Deputy President A.Bell SC, Senior Member Decision: 1. The appeal is dismissed 2. Subject to order 3, the appellants are to pay the respondent's costs as agreed or assessed on an ordinary basis 3. Either party may apply for a different costs order to that in order 2 in which case order 2 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 (costs 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: LANDLORD AND TENANT – Retail Lease – tenant's failure to pay rent – breach of essential term – entitlement of landlord to re-enter premises – construction of lease term regulating right to effect re-entry – collateral right to accept repudiation by effecting a re-entry Legislation Cited: Civil and Administrative Tribunal Rules 2014 Conveyancing Act 1919 (NSW) Cases Cited: DCT Projects Pty Ltd v Champion Homes Sales Pty Ltd [2016] NSWCA 117 Foran v Wright (1989) 168 CLR 385 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 272 Koompahtoo Local Aboriginal Land Council v Sandpine Pty Ltd (2007) 233 CLR 115 Macquarie International Health Clinic Pty Ltd v South West Area Health Service [2010] NSWCA 268 Majik Markets Pty Ltd v Motor Repairs Pty Ltd (No.1) (1987) 10 NSWLR 49 NatWest Markets Australia Pty Ltd v Tenth Vandy Pty Ltd (2008) 21 VR 68; [2008] VSCA 207 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Shevill v Builders Licensing Board (1982) 149 CLR 620 The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 World Best Holdings Ltd v Sarker [2010] NSWCA 24 Texts Cited: Cheshire and Fifoot Law of Contract, 10th Australian Edition Category: Principal judgment Parties: First Appellant: CCS 251Elizabeth St Pty Ltd Second Appellant: Jamal Gebara Respondent: Hellenic Club Ltd Representation: First Appellant: H. Soltan (agent) Second Appellant: No appearance Respondent: F.Salama (counsel)