Tuon v Popo Big Bowl Noodles Pty Ltd; Popo Big Bowl Noodles Pty Ltd v Tuon [2022] NSWCATCD 172

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tuon v Popo Big Bowl Noodles Pty Ltd; Popo Big Bowl Noodles Pty Ltd v Tuon [2022] NSWCATCD 172 Hearing dates: 26 May 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: In proceedings COM 21/46293: 1. Popo Big Bowl Noodles Pty Ltd (the lessee) is to pay Christine Tuon and Charles Tsong Ma (the lessors) arrears of rent and outgoings in the amount of $72,930.16 immediately. 2. The lessors may file and serve within 14 days of publication of this decision a document incorporating, and explaining in detail, the calculation of the interest claimed by the lessors on the arrears outstanding from time to time. 3. If the lessee disputes the lessors' calculations filed in accordance with order 2, the lessee may file and serve a document setting out its own calculation, within a further 14 days. 4. The lessee is to pay the lessors compensation for breach of the lease in the amount of $34,284 immediately. In proceedings COM 21/49263: 5. The application is dismissed. In both proceedings: 6. Either party may file and serve written submissions within 14 days of the date of this decision seeking orders in relation to the costs of the proceedings, including the costs of the applications for miscellaneous matters filed by the lessors on 8 April 2022 and by the lessee on 20 April 2022. 7. If either party files submissions in accordance with order (6), the other party may file submissions in response within a further 14 days. 8. Any submissions filed in accordance with orders (6) and (7) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: LEASES AND TENANCIES — Retail Leases Act 1994 (NSW) — Retail and Other Commercial Leases (COVID-19) Regulation 2022 — Claim by landlords for unpaid rent — Whether tenant "impacted lessee" for purposes of Regulation — "Prescribed action" – Whether landlords had entered into negotiations "in good faith" – Rent relief in accordance with the National Cabinet Mandatory Code of Conduct — SME Commercial Leasing Principles during COVID-19 — Parties failed to agree terms on which the tenant would be granted relief — Whether Tribunal has jurisdiction to determine terms of relief Legislation Cited: Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (NSW) Retail and Other Commercial Leases [COVID-19] Regulation 2021 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2022 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2021 (NSW) Retail Leases Act 1994 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Browne v Dunn (1894) 6 R 67 Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Frugtniet and Anor v Commissioner for Fair Trading; Commissioner for Fair Trading v Travel Action Pty Ltd and Anor (GD) [2004] NSWADTAP 12 Industry Funds Management (Nominees 2) Pty Limited v James Nicholas Panagopoulos and Anor [2013] NSWSC 868 Jamaican Coffee Kitchen Pty Ltd trading as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 Miramax Pty Ltd v Mang Yu Lo [2021] NSWCATCD 12 S & G Homes Pty Ltd t/as Pavilion Homes v Owen (No.2) [2016] NSWCATAP 218 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd (No 2) [2020] NSWSC 1141 St Joseph's Hospital Ltd v Correy (No 2) [2009] NSWADTAP 58 Swiss Concept Australia Pty Ltd v Diamondlite Pty Ltd [2021] NSWCATCD 106 Timwin Construction v Facade Innovations [2005] NSWSC 548 Westfield Management Ltd v AMP Capital Property Nominees Ltd [2012] HCA 54; 247 CLR 129 Texts Cited: Forbes, Justice in Tribunals 4th edition Category: Principal judgment Parties: Christine Tuon and Charles Tsong Ma (Applicants in COM 21/46293, Respondents in COM 21/49263)