Jude Trading Pty Ltd v Mosszan Pty Ltd; Mosszan Pty Ltd v Jude Trading Pty Ltd [2022] NSWCATCD 21

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jude Trading Pty Ltd v Mosszan Pty Ltd; Mosszan Pty Ltd v Jude Trading Pty Ltd [2022] NSWCATCD 21 Hearing dates: 25 and 26 August, 29 October and 4 November 2021 Date of orders: 28 February 2022 Decision date: 28 February 2022 Jurisdiction: Consumer and Commercial Division Before: G Ulman Senior Member Decision: 1 In application COM 20/49850 (a) Pursuant to section 72(1)(f)(iii) of the Retail Leases Act 1994, a declaration that: (i) the respondents waived the applicant's late exercise of the option to renew the lease of the subject premises; (ii) the applicant validly exercised the option to renew the lease of the subject premises; (iii) the respondents repudiated the lease; and (iv) the applicant accepted the respondents' repudiation and validly terminated the lease. (b) Pursuant to section 72(1)(a) of the Retail Leases Act 1994, the respondents are to pay the applicant damages in the sum of $196,392.31 within 14 days. (c) Pursuant to section 72(1)(f)(iii) of the Retail Leases Act 1994, a declaration that the applicant is entitled to the return of the $41,375.10 bank guarantee held by the respondents as security for the applicant's obligations under the lease of the subject premises. (d) Pursuant to section 72(1)(g) of the Retail Leases Act 1994, the respondents forthwith deliver up to the applicant the $41,375.10 bank guarantee held by them as security for the applicant's obligations under the lease of the subject premises. (e) 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. (f) If after 14 days no written submissions are filed, then pursuant to Rule 38(2)(b) of the Civil and Administrative Tribunal Rules 2014,the respondents are to pay the applicant's costs of and incidental to these proceedings as agreed or assessed. 2 In application COM 20/32703 (a) Pursuant to Rule 38(2)(b) of the Civil and Administrative Tribunal Rules 2014, the applicants are ordered to pay the respondent's costs of and incidental to the proceedings as agreed or assessed. Catchwords: LEASES AND TENANCIES — Retail leases —Whether an option has been validly exercised —Whether there was an agreement for lease or statutory lease — Estoppel — Repudiation of lease — Damages for wasted expenditure — Adequacy of the evidence of loss — COVID-19 rent relief — Award of costs where proceedings discontinued without consent Legislation Cited: Retail Leases Act 1994 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Cases Cited: Ausko Cooperation Pty Ltd v Junapa Pty Ltd [2021] NSWSC 615 Arambewela v Castle Projects Pty Ltd [2018] NSWCATAP 14 Helou & ors v Bong Bong Pty Limited & anor trading as Regional Retail Properties [2006] NSWADT 128 Piazza Trevi v Cromwell BT Pty Ltd as custodian for the Cromwell Symantec House Trust [2017] NSWSC 794 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 The Commonwealth of Australia v Amman Aviation Pty Ltd (1991) 174 CLR 64 Walton Stores (Interstate) Ltd v Maher 164 CLR 387 Texts Cited: Prof B Edgeworth, Butt's Land Law (7th ed) Category: Principal judgment Parties: In COM 20/49850: Jude Trading Pty Ltd (Applicant) Mosszan Pty Ltd (First Respondent) Montano Corp Pty Ltd (Second Respondent) Ronald Montano (Third Respondent) Fulvia Montano (Fourth Respondent)