Shams v 357 Thornleigh Place Pty Ltd [2022] NSWCATCD 177

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shams v 357 Thornleigh Place Pty Ltd [2022] NSWCATCD 177 Hearing dates: 15 December 2021 31 March 2022 1 April 2022 2 August 2022 Date of orders: 12 October 2022 Decision date: 12 October 2022 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: (1) The respondent breached section 62B(1) of the Retail Leases Act 1974 (NSW). (2) The respondent is to pay to the applicant the sum of $21,525 within 7 days of publication of these orders. (3) The applicant is entitled to a rent rebate of 30% of the base rent from 1 January 2019 until the date of publication of these orders. (4) The cross claim of the respondent is dismissed. (5) The respondent is to pay the costs of the applicant on an indemnity basis. (6) Any written submissions the respondent wishes to make regarding Order no 5 are to be provided to the Tribunal and the applicant on or before 5 weeks after the date of publication of these orders. (7) If such submissions are lodged any submissions in reply are to be provided to the Tribunal and the respondent within 3 weeks of receipt of the submissions from the respondent. (8) Any such submissions are to indicate whether it is agreed that the costs should be decided on the papers without the need for a further hearing. Catchwords: Retail lease, unconscionable conduct s62B, misleading and deceptive conduct s62D Legislation Cited: Conveyancing Act 1919 (NSW) Retail Leases Act 1994 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Cases Cited: Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (No 2) (2020) FCA 802 Australian Securities and Investment Commission v Kobelt (2019) HCA 18 Hadley v Baxendale (1954) 2 CLR 517 Norsk Dor Pty Limited v Tuxfund Pty Limited (2020) NSWCATAP 183 Category: Principal judgment Parties: Halimah Shams (Applicant) 357 Thornleigh Place Pty Limited (Respondent) Representation: Counsel: J O'Sullivan (Applicant) A Fernon SC ( Respondent)