Bluesfest Services Pty Ltd v The Cajun Kitchen Pty Ltd [2021] NSWCATAP 325

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bluesfest Services Pty Ltd v The Cajun Kitchen Pty Ltd [2021] NSWCATAP 325 Hearing dates: 22 April 2021 Date of orders: 21 October 2021 Decision date: 21 October 2021 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President S Westgarth, Deputy President Decision: (1) Leave to appeal is granted, the appeal is allowed and the orders made by the Tribunal on 5 January 2021 in each application listed in Schedule 1 are varied to the amount recorded in that schedule. (2) In the event either party applies for costs, the following directions apply to that application: (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: CONTRACTS – Unfair terms – force majeure term – ss 23,24 Australian Consumer Law (NSW) – Frustrated Contracts Act – contracts frustrated by COVID-19 pandemic – application of Act to determine refunds and compensation to the parties STATUTORY INTERPRETATION – meaning of "court" for the purpose of the Frustrated Contracts Act 1978 Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Commercial Arbitration Act 2010 (NSW) Fair Trading Act, 1987 (NSW) Frustrated Contracts Act 1978 (NSW) Interpretation Act 1987 (NSW) Law Reform (Law and Equity Act) 1972 (NSW) Cases Cited: Baltic Shipping Company v. Dillon [1993] HCA 4; 176 CLR 344; 67 ALJR 228; 111 ALR 289 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; [1977] UKPC 13. Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 146 CLR 337 Davis Contractors Ltd. v. Fareham Urban District Council [1956] UKHL 3; (1956) AC 696 Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib, Mohammad Chahrouk Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib [2014] NSWCATCD 67 Ferme v Kimberly Discovery Cruises Pty Ltd [2015] FCCA 2384 Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 866 MindShare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 637 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Secured Income Real Estate v St Martin's Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77 Texts Cited: Heydon on Contract - Lawbook Co. 2019 Category: Principal judgment Parties: Bluesfest Services Pty Ltd (Appellant) The Cajun Kitchen Pty Ltd (First Respondent) Cakes by Sweethearts Pty Ltd (Second Respondent ) Sukkupmaida Saragih t/as Balinese Street Food (Third Respondent) Kerry Williams t/as Gatinha Beachwear (Fourth Respondent) Safe House Pty Ltd (Fifth Respondent) Moreton Bay Sea Farms Pty Ltd (Sixth Respondent) Rebecca Stewart and Hay Maclure t/as Voodoo Burgers (Seventh Respondent) Paul Daly t/as The Fish Taco Co (Eighth Respondent) Kristy Papp and Arpi Papp t/as Langos (Ninth Respondent) Wayne Jeffery t/as The Hat Empire (Tenth Respondent) Liza-Lee Campbell t/as 24:7 Sunglasses (Eleventh Respondent) Representation: Counsel: M Southwick (Appellant)