TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2023] NSWCATAP 29

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2023] NSWCATAP 29 Hearing dates: 28 June 2022 Date of orders: 03 February 2023 Decision date: 03 February 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member D Robertson, Senior Member Decision: 1. Appeals 2022/68195 and 2022/69427 are allowed 2. Orders (1) to (3) made on 10 February 2022 in proceedings COM 20/49367 and orders (1) and (2) made on 10 February 2022 in proceedings COM 20/52695 are set aside. 3. Both proceedings COM 20/49367 and proceedings COM 20/52695 are remitted to the Consumer and Commercial Division of the Tribunal, differently constituted, for determination in accordance with this decision. 4. Leave to the Consumer and Commercial Division the question whether the parties should be permitted to file further evidence. 5. Either party may, within 14 days of the date of publication of these reasons, file and serve submissions, not exceeding five pages, and any evidence relied upon in support, seeking an order in relation to the costs of either or both appeals. 6. If either party files submissions pursuant to order (5), the other party may file and serve submissions not exceeding five pages in response to any such submissions, and any evidence relied upon in support, within a further 14 days. 7. Any submissions filed in accordance with orders (5) and (6) should address the issue whether the question of costs can be determined on the basis of the written submissions and without a further hearing. 8. If neither party files submissions in accordance with order (5) there will be no order in relation to the costs of either appeal. Catchwords: LEASES AND TENANCIES — Retail Leases Act 1994 (NSW) — Retail and Other Commercial Leases (COVID-19) Regulation 2020 — Landlord entered into possession on ground of unpaid rent — Whether tenant "impacted lessee" for purposes of Regulation — Whether tenant had qualified for the jobkeeper scheme established by the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) — Whether Regulation proscribed action on the ground of a breach of lease occurring before the "prescribed period" – Whether landlord 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 CONTRACTS — Breach of contract — Consequences of breach — Right to damages – Assessment of damages – Reliance damages – Applicable principles - Whether landlord had established that the tenant would not have recouped its expenditure over the term of the lease. ADMINISTRATIVE LAW – Civil and Administrative Tribunal – Procedural fairness – Tribunal taking notice of facts not the subject of evidence – Tribunal erred by failing to draw the facts to the attention of the parties and allowing the parties to make submissions Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020 (Cth) Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) Income Tax Assessment Act 1997 (Cth) Interpretation Act 1987 (NSW) Public Health (COVID–19 Places of Social Gathering) Order 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Retail and other Commercial Leases (COVID–19) Regulation (No 2) 2020 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: APX Projects Pty Ltd v The Owners - Strata Plan No 64025 [2015] NSWSC 1250 Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42 Collins v Urban [2014] NSWCATAP 17 Commonwealth of Australia v Silverton Ltd (1997) 130 ACTR 1 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Darzi group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Darzi Group Pty Ltd v Nolde Pty Ltd (No 2) [2022] NSWSC 643 Fasako v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112 Foran v Wight (1989) 168 CLR 385 Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70 Jamaican Coffee Kitchen Pty Ltd trading as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 Meetfresh Franchising Pty Ltd v Ivanman Pty Ltd [2020] NSWCA 234 Minifie v Maxwell [2020] NSWCATAP 30 NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 R v Metropolitan Fair Rents Board; ex parte Canestra [1961] VR 89 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd (No 2) [2020] NSWSC 1141 Suttor v Gundowda Proprietary Limited [1950] HCA 35; (1950) 81 CLR 418 Thompson v Chapman [2016] NSWCATAP 6 Todarello Property Investments Pty Ltd v GJA Kalra Pty Ltd [2021] NSWSC 1678 Trustees of Sydney Grammar School v Winch [2013] NSWCA 37; (2013) 83 NSWLR 80 Tuck v White [2016] NSWCATAP 132 Texts Cited: Halsbury's Laws of Australia National Cabinet Mandatory Code of Conduct—SME Commercial Leasing Principles During COVID-19 Pearce, Statutory Interpretation in Australia, Ninth edition 2019 Category: Principal judgment Parties: TNAU Finery Pty Ltd (Appellant in 2022/00068195, Respondent in 2022/00069427) SuperBurrito Pty Ltd (First Respondent in 2022/00068195, Appellant in 2022/00069427) Zong Yuan Qin (Second Respondent in 2022/00068195) Representation: Counsel: D Smallbone (TNAU Finery Pty Ltd) W Chan with W Flick (SuperBurrito Pty Ltd and Zong Yuan Qin)