Maqableh v Kaklamanis [2021] NSWCATAP 385

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Maqableh v Kaklamanis [2021] NSWCATAP 385 Hearing dates: 11 October 2021 Date of orders: 01 December 2021 Decision date: 01 December 2021 Jurisdiction: Appeal Panel Before: S D Westgarth, Deputy President I R Coleman SC ADCJ, Principal Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. That within 7 days any party seeking an order for costs file and serve written submissions, not exceeding 5 pages in support of such application. 4.That any party opposing an application for costs file and serve within 14 days written submissions, not exceeding 5 pages in opposition to such application Catchwords: APPEAL – whether Tribunal at first instance erred by failing to find that the Appellant was entitled to rely upon the Covid-19 Regulations as an "impacted lessee" pursuant to the Regulations or independently of the definition of "impacted lessee" in the Regulations in reliance upon estoppel- no error in either respect asserted by the Appellant established- consideration of the meaning and effect of the term "qualifies for" in the definition of "impacted lessee" in the Regulations- held that an implied term of any agreement between the parties independently of the Regulations that Appellant provide source documents evidencing his continuing entitlement to rely upon the Regulations- held that Appellant repudiated any agreement by failing to do so, entitling the Respondent to terminate agreement. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) Retail and Other Commercial Leases (COVID-19) Regulation (2020) (NSW) Retail Leases Act 1994 (NSW) Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 13 Bly Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355 Bright v Sampson & Duncan Enterprises Pty Limited (1985) 1 NSWLR 346 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Collins v Urban [2014] NSWCATAP 17 Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Gallagher v R (1986) 160 CLR 392 Hawkins v Clayton (1988) 164 CLR 539 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Mraz v The Queen (1955) 93 CLR 493 New South Wales Land & Housing Corporation v Orr [2019] NSWCA 231 Owners Strata Plan number 13218 v Woollahra Municipal Council [2012] NSWCA 92 Peters American Delicacy Co v Champion (1928) 41 CLR 316 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Secretary, Department of Family and Community Services [2017] NSWCA 206 W v City of Perth (1997) 191 CLR 1 Texts Cited: National Cabinet Mandatory Code of Conduct - SME Commercial Leasing Principles during Covid 19 Category: Principal judgment Parties: Hassan Ali Maqableh - Appellant Ari Kaklamanis - Respondent Representation: Appellant Self-represented Respondent Self-Represented File Number(s): 2021/00207894 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N.A Date of Decision: 29 June 2021 29 June 2021 Before: Senior Member Thode File Number(s): COM 21/10330 COM 21/17070