M.W.H Contracting Pty Limited v Quynh; Quynh and v M.W.H Contracting Pty Limited [2021] NSWCATCD 111

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: M.W.H Contracting Pty Limited v Quynh; Quynh and v M.W.H Contracting Pty Limited [2021] NSWCATCD 111 Hearing dates: 24 & 25 June and 1 September 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Consumer and Commercial Division Before: G Ulman, Senior Member Decision: (1) In COM 20/27505 (a) Pursuant section 71B(1) of the Retail Leases Act order that M.W.H. Contracting Pty Ltd's retail tenancy claim and unconscionable conduct claim may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose. (b) Pursuant to section 72(1)(a) of the Retail Leases Act order that Cam Quynh Tu and Karen Loi Tu pay to M.W.H Contracting Pty Limited the sum of $88,262.78 within 28 days. (c) In the event a party wishes to make a costs application it must file and serve written submissions within 14 days, any party opposing the application is to file and serve its written submission within a further 14 days, and the Tribunal will make a decision on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013 unless persuaded that there should be oral submissions. (d) If after 14 days no written submissions are filed, the following costs order is made: (i) Cam Quynh Tu and Karen Loi Tu to pay M.W.H Contracting Pty Limited costs of and incidental to these proceedings as agreed or assessed. (2) In COM 20/49112 (a) Pursuant section 71B(1) of the Retail Leases Act order that Cam Quynh Tu and Karen Loi Tu's retail tenancy claim may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose. (b) The application is dismissed. (c) In the event a party wishes to make a costs application it must file and serve written submissions within 14 days, any party opposing the application is to file and serve its written submission within a further 14 days, and the Tribunal will make a decision on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013 unless persuaded that there should be oral submissions. (d) If after 14 days no written submissions are filed, the following costs orders is made: (i) Cam Quynh Tu and Karen Loi Tu to pay M.W.H Contracting Pty Limited costs of and incidental to these proceedings as agreed or assessed. Catchwords: LEASES AND TENANCIES — Retail leases - Retail Lease Act – Whether fire protection work was structural work – Whether the lessee is entitled to compensation for disturbance – Whether the lessors engaged in unconscionable conduct and misleading or deceptive conduct – Award of interest Legislation Cited: Retail Leases Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Advance Fitness v Bondi Diggers [1999] NSWSC 264 Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224 Armstrong Management Pty Ltd v Sais-Bond & Associates Pty Ltd (RLD) [2007] NSWADT 47 (Grenada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1959] 2 All ER 176) Holus Bolus Pty Ltd v The Wicko Pty Ltd [2012] NSWSC 497 Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA Jones V Dunkel (1959) 101 CLR 298 Polylux Pty Ltd v Corpers(No.5) Pty Ltd [2009] NSWADT 284 Sean Lytton v North Bondi RSL Club Limited [2011] NSWADT 86 Tonto Homes Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Texts Cited: NIl Category: Principal judgment Parties: In COM 20/27505: M.W.H Contracting Pty Limited (Applicant) Cam Quynh Tu Karen Loi Tu (Respondents) In COM 20/49112: Cam Quynh Tu and Karen Loi Tu (Applicants) M.W.H Contracting Pty Limited (Respondent) Representation: Counsel: Mr T Bateman (Applicant) Mr A Smorchevsky (Respondents) Solicitors: Sydney Legal Advisors (Applicant) Frank Low Yeung (Respondents) File Number(s): COM 20/27505; COM 20/49112 Publication restriction: Nil