Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd [2022] NSWCATAP 153

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hanave Pty Ltd v Wine Nomad Pty Ltd; Wine Nomad Pty Ltd v Hanave Pty Ltd [2022] NSWCATAP 153 Hearing dates: 1 March 2022 Date of orders: 12 May 2022 Decision date: 12 May 2022 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Burton SC, Senior Member Decision: 1. Orders 2 and 3 made 3 November 2021 in application COM 21/08975 are set aside and in lieu thereof the following order is made: "2. For the purpose of clause 6(b) of the lease between Hanave Pty Ltd and Wine Nomad Pty Ltd dated 14 July 2012, dealing number AK318893, the amount of $252,000 plus GST is declared to be the fair market rent for the period commencing 14 July 2020." 2. Order 4 made on 3 November 2021 in application COM 21/17178 is set aside and in lieu thereof the following order is made: "3. The respondent, Hanave Pty Ltd, is to pay the applicant, Wine Nomad Pty Ltd, the sum of $7,571.17." 3. In respect of costs of the proceedings at first instance and of this appeal the following directions are made: (a) Any application for costs, including evidence and submissions in support of the application, is to be filed and served by the costs applicant within 14 days from the date of these orders; (b) Any evidence and submissions in response are to be filed and served by the costs respondent within 28 days from the date of these orders; (c) Any submissions in reply are to be filed and served by the costs applicant within 35 days from the date of these orders. (d) Submissions are to include submissions about whether a hearing of any costs application can be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: LEASES AND TENANCIES — Retail leases — Rent review – whether agreement was made to fix rent – whether valuation to determine current market rent under s 31of the Retail Lease Act 1994 was valid – requirement to take into account specified matters – circumstances in which the Tribunal may intervene to declare invalid a determination of rent by appointed valuer LEASES AND TENANCIES — Retail leases — Retail shop lease – meaning of retail shop and retail shop lease – whether a licence is a retail shop lease – relevance of uses by third party where licence grants a non-exclusive right of occupation LEASES AND TENANCIES — Rent and outgoings — Abatement of rent — Damage to premises – operation of s 36 of the Retail Leases Act 1994 – whether entitlement to abatement of licence fee where premises the subject of a related lease of a restaurant are unusable because of damage Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act 1994 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Cases Cited: Azriel v NSW Land & Housing Corporation [2006] 67 NSWLR 256; [2006] NSWCA 372 Boland v Yates Property Corp Pty Ltd [1999] HCA 64; 167 ALR 575 Bonnington & Co Pty Ltd v Lynch [1952] HCA 46; (1952) 86 CLR 259 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Conoid Pty Ltd & Anor v International Theme Park Pty Ltd [2019 NSWSC 1138; (1999) 9 BPR 97802 Doula Spirit Pty Ltd v Andrew Argyrou [2014] NSWCATCD 251 Eastpoint Shopping Village v Grayson Pty Ltd [2011] NSWADT 68 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [1988] 14 NSWLR 523 Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455; [1983] HCA 38 Hunt v Casaran Pty Ltd [2012] NSWADT 193 Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259 Manly Council -v- Malouf [2003] NSWADTAP Manly Council v Malouf [2004] NSWCA 299 Moweno v Stratis [2002] NSWSC 1151 Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Police v EMB [2021] NSWCATAP 63 Rathborne v Abel (1964) 38 ALJR 293 Redgum Developments Pty Ltd v G8 Education Limited [2020] VSC 142 Richardson v Lockevo [2010] NSWADT 305 Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205; (2019) 19 BPR 39,621 Wood & Wilson v Bergman [2003] NSWADT 82; [2003] ANZ ConvR 624 Texts Cited: Nil Category: Principal judgment Parties: In 2021/00325262 Hanave Pty Ltd (Appellant) Wine Nomad Pty Ltd (Respondent)