Jamaican Coffee kitchen Pty Ltd trading as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jamaican Coffee kitchen Pty Ltd trading as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 Hearing dates: 22 February 2022 Date of orders: 22 June 2022 Decision date: 22 June 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Burton SC, Senior Member Decision: (1) the appeal is allowed; (2) the orders made on 7 September 2021 are set aside and are replaced with orders (3) to (5) below; (3) the second respondent is to pay the applicant the sum of $14,164.92 immediately; (4) the second respondent is to pay one third of the costs of the applicant as agreed or assessed; (5) the applicant is to pay the costs of the first respondent as agreed or assessed; (6) a hearing to determine the costs of the appeal is dispensed with; (7) subject to the outcome of any costs application pursuant to order (9) below, the first and second respondents are to pay the costs of the appeal of the appellant as agreed or assessed; (8) order (5) above and order (7) above so far as they relate to the first respondent are to be set off against each other; (9) if any party wishes to make an application to vary orders (7) and (8) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to five pages and any evidence in support, within 14 days of the date of the orders in these reasons for decision; (10) any respondent to the costs application is to file and serve any submissions limited to five pages and any evidence in reply within 14 days thereafter; (11) the costs applicant is to file any submissions limited to three pages in reply within 14 days after receipt of the submissions and any evidence of the respondent to the costs application. Catchwords: APPEALS — procedural fairness — failure to give reasons — adequacy of reasons COSTS — party/party — appeals — amount in dispute exceeds $30,000 - general rule that costs follow the event — application of the rule COSTS — party/party — exceptions to general rule that costs follow the event - proceedings at first instance — amount in dispute exceeds $30,000 — separable issues - application of the rule LEASES AND TENANCIES — retail leases — retail shop lease — lessor in breach of obligations — where lessor failed to provide disabled toilet and to clean toilets LEASES AND TENANCIES — retail leases — retail shop lease — where lessee claimed lessor breached covenant of quiet enjoyment by water ingress LEASES AND TENANCIES — retail leases — retail shop lease — where lessee claimed lessor engaged in misleading or deceptive conduct LEASES AND TENANCIES — retail leases — retail shop lease — where lessee claimed lessor engaged in unconscionable conduct LEASES AND TENANCIES — retail leases — retail shop lease — where covid-19 regulatory regime required rent to be renegotiated in good faith by lessor and lessee — where lessor failed to renegotiate in good faith — whether the tribunal has power to vary the lease Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth), s 12CB Civil and Administrative Tribunal Act 2013 (NSW), ss 35, 38, 50, 58, 60, 80, 81 Civil and Administrative Tribunal Rules 2014 (NSW), rr 4, 25, 38, 38A Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (Cth), s 18 Conveyancing (General) Regulation 2018 (NSW) Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) Insurance Act 1902 (NSW), s18 Retail Leases Act 1994 (NSW), ss 10, 11, 62B, 62C, 62D, 62E, 63, 66, 68, 70, 72, 72AB, 75, 76A Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW), cll 3, 4, 6, 7, 8, 9 (repealed) Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (NSW) Retail and Other Commercial Leases (COVID-19 Regulation (No 3) 2020 (NSW) Cases Cited: Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 Ajaimi v Giswick Pty Ltd [2022] VSC 131 Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 Collins v Urban [2014] NSWCATAP 17 Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Darzi Group Pty Ltd v Nolde Pty Ltd (No 2) [2022] NSWSC 643 First Renewable Pty Ltd v Nastevski [2020] NSWSC 1508 G v Armellin (2008) 219 FLR 359; [2008] ACTSC 68 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638; [1984] HCA 55 Manly Council v Malouf (2004) 61 NSWLR 394; [2004] NSWCA 299 Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 Masters in Building Training Pty Ltd v State of New South Wales (No 2) [2022] NSWSC 697 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378; (2020) 19 BPR 40-711 Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 PR v MDM [2020] NSWCATAP 151 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Ryals Hotels Pty Ltd [2020] NSWSC 1906 Robin Raju & Associates Pty Ltd v Kaplan Investments Pty Ltd [2021] NSWCATCD 90 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd [2020] NSWSC 996 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd (No 2) [2020] NSWSC 1141 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 399 ALR 409 The Owners Strata Plan No 60182 v Bornzin [2019] NSWCATCD 30 Vella v Mir (No 3) [2020] NSWCATAP 17 Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12 Watson v Foxman (1995) 49 NSWLR 315 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: National Cabinet Mandatory Code of Conduct—SME Commercial Leasing Principles During COVID-19 Category: Principal judgment Parties: Jamaican Coffee kitchen Pty Ltd trading as Dushan & Shelby Trust (Appellant) M20 Pty Ltd (First Respondent) Praxis Capital Pty Ltd (Second Respondent) Representation: Counsel: M Klooster (Appellant) J Pokoney (First and Second Respondents)