Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8 Hearing dates: 5 October 2021 Date of orders: 12 January 2022 Decision date: 12 January 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member A Boxall, Senior Member Decision: 1. Appeal upheld. 2. Orders 2.1, 2.2 and 3 made by the Tribunal on 21 June 2021 are set aside. 3. In lieu thereof, order the appellant to pay the respondents the sum of $35,706.54 together with any interest due under Order 2.3. 4. If any party desires to make an application for costs of the appeal: (a) that party is to so inform the other party within 7 days of the date of these reasons; (b) the applicant(s) for costs is to lodge with the Appeal Panel and serve on the respondent(s) to the costs application any written submissions of no more than three pages on or before 14 days from the date of these reasons; (c) the respondent(s) to any costs application is to lodge with the Appeal Panel and serve on the applicant(s) for costs any written submissions of no more than three pages on or before 28 days from the date of these reasons; (d) any reply submissions limited to two pages are to be lodged with the Appeal Panel and served on the other party within 35 days of the date of these reasons; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – jurisdictional error – power to order a party to pay money to a person specified in the order, whether by way of debt, damages or restitution, under the Retail Leases Act – power dependent upon the existence of a cause of action giving rise to a claim for debt, damages or restitution – the absence of a cause of action amounts to the absence of a jurisdictional fact needed to exercise the power Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(2), 38(4) Corporations Act 2001 (Cth), ss 206B, 601AD(1), 601AD(2), 601AH(5) Retail Leases Act 1994 (NSW), s 72 Cases Cited: Allen and Ors v Tricare (Hastings) Pty Ltd and Anor [2015] NSWSC 416 Cominos v Di Rico (No 2) [2016] NSWCATAP 133 Cotogno v Lamb (Court of Appeal (NSW), 9 August 1985, unrep Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 McMillan v Coolah Tourist Park Pty Ltd [2021] NSWCATAP 73 Metwally v University of Wollongong (1985) 59 ALJR 481; [1985] HCA 28 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; [1997] NSWCA 214 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441 Texts Cited: Young, Croft & Smith, On Equity, (2009, Thomson Reuters) Category: Principal judgment Parties: Rokheya Kane Pty Ltd (Appellant) Dickson Lam (First Respondent) Luisa Cheong (Second Respondent) Representation: Counsel: M McMahon (Respondents)