Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265

Supreme Court New South Wales

Medium Neutral Citation: Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 Hearing dates: 5 December 2022 and 7 March 2023 Date of orders: 24 March 2023 Decision date: 24 March 2023 Jurisdiction: Common Law Before: Chen J Decision: (1) Grant leave to appeal in relation to grounds 1(a), 1(b), 2(a), 2(c), 3(a), 3(b), 3(c), 5(a), 5(c), 5(d), 6(a) and 6(b) of the amended summons seeking leave to appeal filed 9 June 2022. (2) Allow the appeal. (3) Set aside orders 1 and 3 of the Appeal Panel dated 12 May 2022, and in lieu thereof: (a) Order that the defendant's appeal to the Appeal Panel (by its amended notice of appeal filed 3 December 2021), so far as it relates to those orders, be dismissed. (4) Order that the question of whether the determination of the current market rent under the lease as at 14 July 2020 be remitted to Michael Hermiz, or another valuer, is remitted to the Appeal Panel for its determination in accordance with the plaintiff's notice of appeal filed 16 November 2021. (5) Order that the question of costs before the Appeal Panel be remitted to it for its determination. (6) Order the cross summons for leave to appeal filed 20 June 2022 be dismissed. (7) In relation to the cross summons for leave to appeal, make no order as to costs. (8) Order the defendant to pay the plaintiff's costs of the proceedings in this Court. (9) Order that any application to vary the order for costs in order 8, and any evidence in support and written submissions (limited to no more than 2 pages), be filed and served by 31 March 2023, 5pm. (10) In the event that any application to vary the costs order in 8 is so filed, order that the any evidence in reply and written submissions (limited to no more than 2 pages) be filed and served by 6 April 2023, 5pm. (11) I list the matter for argument in connection with costs on a date to be fixed. Catchwords: LEASES AND TENANCIES – Retail leases – Valuation – market rent – whether expert rental valuation report complied with the terms of the Retail Leases Act 1994 (NSW) LEASES AND TENANCIES – Retail leases – license – whether the licensed area, being a disused lift shaft, loading dock and roof area, constituted a 'retail shop lease' APPEALS – from Civil and Administrative Appeals Tribunal only "on a question of law" Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Retail Leases Act 1994 (NSW) Retail Leases Act 2003 (Vic) Cases Cited: Adwell Holdings Pty Ltd v Bourne (2007) NSW ConvR 56-188; [2007] NSWSC 730 Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCA 199 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515; [1990] FCA 689 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bevendale Pty Ltd v Lucky Eights Pty Ltd [2020] VSCA 312 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited (2020) 282 FCR 130; [2020] FCAFC 205 Corcoran v Far [2020] NSWCA 140 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; 96 ATR 875 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Klein v Minister for Education (2007) 81 ALJR 582; [2007] HCA 2 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Manly Council v Malouf (2004) 61 NSWLR 394; [2004] NSWCA 299 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175; [1988] FCA 119 Category: Principal judgment Parties: Hanave Pty Ltd (plaintiff) Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) (defendant) Representation: Counsel: Mr JE Lazarus SC with Mr M Sheldon and Ms Y Truong (plaintiff) Mr G Sirtes SC with Mr AL Oakes (defendant) Solicitors: Gilbert Mane Solicitors (plaintiff) Peterson Haines (defendant) File Number(s): 2022/153845 Publication restriction: Nil