Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112 Hearing dates: 23 June 2022 Date of orders: 1 July 2022 Decision date: 01 July 2022 Before: White JA; Basten AJA Decision: (1) Dismiss the application for leave to appeal from the judgment in the Common Law Division. (2) Order that the applicant pay the costs of the respondents in this Court. Catchwords: APPEALS – leave to appeal – interlocutory judgment – proposed appeal from refusal of leave to appeal from NCAT Appeal Panel – constrained approach to grant of leave for third level of appeal – primary judge found no error of law more than merely arguable – failure to consider submissions – LEASES AND TENANCIES – enforceability of commercial lease – breach of condition – landlord's obligation to keep building in sound structural condition – breach – alleged inadequacy of water pump and pipes to provide fire protection Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 80, 83; Sch 4, cl 12 Judiciary Act 1903 (Cth), s 78 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Collector of Customs v Afga-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Collector of Customs v Pozzolani Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Collins v The Queen (1975) 133 CLR 120; [1975] HCA 60 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Holus Bolus Pty Ltd v The Wicko Pty Ltd [2012] NSWSC 497 Hope v Bathurst City Council [1980] 144 CLR 1; [1980] HCA 16 In re The Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 Ritson v Commissioner of Police, NSW Police Force [2020] NSWCA 5 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 TianyD Beauty & Hairdressing Australia Pty Ltd v Fasako Pty Ltd [2020] NSWCATAP 184 Category: Principal judgment Parties: Fasako Pty Ltd (Applicant) TianyD Beauty & Hairdressing Australia Pty Ltd (First Respondent) Yao Zhu (Second Respondent) Representation: Counsel: Mr G Sirtes SC / Ms A Avery-Williams (Applicant) Mr A Leopold SC / Ms T Fishburn (First and Second Respondents)