The Hilltop Store Pty Limited v BVL Partnership Pty Ltd [2022] NSWCATCD 113

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Hilltop Store Pty Limited v BVL Partnership Pty Ltd [2022] NSWCATCD 113 Hearing dates: 28 February 2022, final written submissions received 24 March 2022 Date of orders: 15 July 2022 Decision date: 15 July 2022 Jurisdiction: Consumer and Commercial Division Before: G Ulman, Senior Member Decision: (1) Declarations pursuant to section 72(1)(f)(iii) of the Retail Leases Act 1994 that: (a) The term sheet dated 29 January 2020 signed on behalf of the applicant and the respondent is a retail shop lease of the restaurant, adjoining outdoor terrace and grassed area to the north of the terrace within the Bellingen Valley Lodge at Bellingen, New South Wales. (b) The applicant has not repudiated the retail shop lease recorded in the term sheet. (2) Pursuant to section 72(1)(c)(ii) and (iv) of the Retail Leases Act 1994, the respondent within 72 hours of the date of this order give the applicant, its employees, servants and agents, access to the premises to continue operating its business in accordance with the provisions of the term sheet without any interference by the respondent, its employees, servants or agents. (3) Pursuant to section 72(1)(a) of the Retail Leases Act 1994, the respondent within 14 days pay to the applicant the sum of $19,250.29. (4) Pursuant to section 72(1)(c)(iv) of the Retail Leases Act 1994, the respondent within 14 days transfer the $20,000 security bond paid by applicant to the NSW Government's Retail Bond Scheme and within 7 days thereafter provide the applicant with a receipt verifying the transfer. (5) The respondent's Application for Miscellaneous Matters is dismissed. (6) 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. (7) If after 14 days no written submissions are filed, then there will be no order as to costs Catchwords: LEASES AND TENANCIES – Retail Leases Act 1994 – claim by lessee to be given access to the premises to operate its business – whether an agreement is a retail shop lease – whether the lessee repudiated by the lease – failure to provide a lessor's disclosure statement – claim by lessee for outgoings paid – whether to order rectification of a lessor's disclosure statement or deem a disclosure statement to have been given in compliance with the Retail Leases Act – whether order should be made requiring the lessor to provide a lease in registrable form and to register the lease – damages claim – whether there has been a failure by lessor to comply with orders of the Tribunal – whether to make an order for the renewal of the proceedings pursuant to schedule 4, section 8 of the Civil and Administrative Tribunal Act 2013 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: Honings Bakery Pty Ltd v Cerialis Pty Ltd [2014] NSWCATCD 87 Moweno v Stratis [2002] NSWSC 1151 Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213 Texts Cited: Prof B Edgeworth, Butt's Land Law (7th Ed) WD Duncan and S Christensen, Commercial Leases in Australia (8th Ed) Category: Principal judgment Parties: The Hilltop Store Pty Limited (Applicant) BVL Partnership Pty Ltd (Respondent) Representation: Counsel: Mr T Davie (for the Applicant) Mr S Gray (for the Respondent)