Fair Dinkum Mowers Pty Ltd v McDonald; McDonald v Fair Dinkum Mowers Pty Ltd; Fair Dinkum Mowers Pty Ltd v McDonald [2022] NSWCATCD 175

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fair Dinkum Mowers Pty Ltd v McDonald; McDonald v Fair Dinkum Mowers Pty Ltd; Fair Dinkum Mowers Pty Ltd v McDonald [2022] NSWCATCD 175 Hearing dates: 10 October 2022 Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Consumer and Commercial Division Before: G Ellis SC, Senior Member Decision: In COM 22/17026: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs of this application, on the ordinary basis, as agreed or assessed. In COM 22/23229: 1. Pursuant to s 72(1)(a) of the Retail Leases Act 1994 (NSW), the respondent, Fair Dinkum Mowers Pty Ltd, is to pay the applicant, Graham Burns McDonald, $69,452.88 forthwith. 2. Pursuant to s 72(1)(f)(iii) of the Retail Leases Act 1974 (NSW), declare that the lease between the applicant and the respondent was validly terminated by notice dated 7 April 2022. 3. Pursuant to s 72(1)(c)(ii) of the Retail Leases Act 1974 (NSW), order the respondent to surrender possession of the premises the subject of the lease by 31 October 2022. 4. The respondent is to pay the applicant's costs of this application, on the ordinary basis, as agreed or assessed. In COM 22/35933: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs of this application, on the ordinary basis, as agreed or assessed. 3. In accordance with order 2 made on 26 August 2022, those costs are to include the costs of the related interim application (COM 22/35931). Catchwords: RETAIL LEASE – Whether termination valid – arrears of rent – order for roof repairs sought Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW), r 38 Retail and Other Commercial Leases (COVID-19) Regulation 2022 (NSW), cl 4, cl 9 Retail Leases Act 1994 (NSW), s 72 Category: Principal judgment Parties: In COM 22/17026: Fair Dinkum Mowers Pty Ltd (Applicant) Graham Burns McDonald (Respondent)