Cong v Ning [2021] NSWCATAP 292

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cong v Ning [2021] NSWCATAP 292 Hearing dates: 7 June 2021 Date of orders: 28 September 2021 Decision date: 28 September 2021 Jurisdiction: Appeal Panel Before: T Simon, Principal Member D Robertson, Senior Member Decision: (1) The appeal is allowed in part. (2) Order (1) made by the Tribunal in proceedings COM 20/32615 and COM 20/50753 on 25 February 2021 is varied by replacing the words "$7,531.55 on account of rent arrears and other out of pocket expenses" with the words "$1,294.44 on account of rent arrears". (3) Order (2) made by the Tribunal in proceedings COM 20/32615 and COM 20/50753 on 25 February 2021 is varied to read "pursuant to s 72(2) of the Act, the office of the NSW Small Business Commissioner is directed to pay to the lessors the sum of $1,294.44 out of the security bond. The sum of $6,237.11 is to be retained by the Commissioner pending the determination of the balance of the proceedings. The balance of the security bond is to be paid to the lessees, Scott Shiguo Cong and Hong Zhao". (4) The lessors' claims for, rent for the period 1 May 2020 to 31 May 2020 in the amount of $2,929.11, $2,700 in respect of solicitors' costs, and $608 in respect of mediation costs, are remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for determination consistently with these reasons. Catchwords: LEASES AND TENANCIES – Retail leases – Rent and outgoings –- Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) - Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) – Whether tenant an "impacted lessee" – Operation of regulations in relation to "impacted lessees" WORDS AND PHRASES – "impacted lessee" Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) COVID-19 Recovery Act 2021 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 (NSW) Retail and Other Leases (COVID-19) Amendment Regulation 2020 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Scott Shiguo Cong and Hong Zhao (Appellants) Helen Ning and Max Fei (Respondents) Representation: Appellants in person Yan Chen (Solicitor) (Respondent) File Number(s): 2021/00083477 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 February 2021 Before: D Charles, Senior Member File Number(s): COM 20/32615; COM 20/50753