357 Thornleigh Place Pty Limited v Shams [2023] NSWCATAP 127

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 357 Thornleigh Place Pty Limited v Shams [2023] NSWCATAP 127 Hearing dates: 23 February 2023 Date of orders: 12 May 2023 Decision date: 12 May 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member E Bishop SC, Senior Member Decision: (1) The appeal is allowed. (2) Orders 1, 2, 3, 4 and 5 made by the Tribunal on 12 October 2022 are set aside. (3) The following claims in proceedings COM 21/23200 and COM 21/25982 are remitted to a differently constituted Tribunal for re-determination: (a) The respondent's claim for relief for an alleged contravention of s 62B (1) of the Retail Leases Act 1994 (NSW); (b) The respondent's claim for relief against forfeiture; (c) The appellant's cross-application for arrears of rent. (4) Such re-determination is to be on the basis that the appellant did not give the required notice under s 129 of the Conveyancing Act 1919 (NSW) in respect of any breach of the lease concerning the provision of a replacement bank guarantee before the action taken by it to retake possession of the leased premises on 20 May 2021. (5) The respondent's claims for relief as an alleged "impacted lessee", for compensation pursuant to s 34 of the Retail Leases Act 1994 (NSW) and for relief in respect of the alleged misleading and deceptive conduct by the appellant, the subjects of the Orders 2, 4 and 5, respectively, sought by the respondent in the amended application are dismissed. (6) The question as to what costs order, if any, should be made in respect of proceedings COM 21/23200 and COM 21/25982 is also remitted to the differently constituted for re-determination. (7) As to the costs of the appeal, the parties are to lodge with the Appeal Registry and serve written submissions concerning such costs, including whether a decision about such costs should be made on the papers, commencing with the appellant's submissions within 7 days from the date of the publication of this decision, followed by the respondent's submissions 7 days after service of the appellant's submissions, followed by any written submissions of the appellant in reply within 7 days after service of the respondent's submissions. Catchwords: APPEALS — retail lease of pharmacy — whether lessor engaged in unconscionable conduct in contravention of s 62B of the Retail Leases Act 1994 (NSW) — dealings between lessor and lessee about rent during the COVID-19 pandemic — lessee in arrears of rent before the pandemic — lessor withdrew rent rebate applied before the pandemic — legislative measures introduced during the pandemic concerning an 'impacted lessee" — no COVID rent relief agreed upon — lessee did not provide lessor with documents showing any decline in sales as a result of the pandemic — Tribunal did not examine all circumstances pertaining to alleged unconscionable conduct — whether questions of law raised on appeal — findings of fact without probative evidence — leave to appeal sought in the alternative if questions of law not raised — remitter of some claims to differently constituted Tribunal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Conveyancing Act 1919 (NSW) Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) Retail Tenancies Act 1994 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 Cases Cited: Australian Securities and Investments Commission v Kobelt [2019] HCA 18; 267 CLR 1 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (No 2) [2020] FCA 802 Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 Collins v Urban [2014] NSWCATAP 17 Forbes v Wan [2020] NSWCATAP 129 Norsk Dor Pty Limited v Tuxfend Pty Limited [2020] NSWCATAP 183 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 96 ALJR 271 Texts Cited: None cited Category: Principal judgment Parties: 357 Thornleigh Place Pty Ltd (Appellant) Halimah Shams (Respondent) Representation: Counsel: A F Fernon SC (Appellant) R Higgins (Respondent)