Layoun v Multiproperties Pty Ltd [2023] NSWCATAP 136

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Layoun v Multiproperties Pty Ltd [2023] NSWCATAP 136 Hearing dates: 17 January 2023 Date of orders: 19 May 2023 Decision date: 19 May 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member D Robertson, Senior Member Decision: (1) Grant leave to appeal. (2) Allow the appeal in part. (3) Set aside orders 1 and 2 made by the Tribunal on 13 October 2022 in proceedings COM 21/05854. (4) In lieu thereof, declare pursuant to s 72(f)(iv) of the Retail Leases Act 1994 (NSW) that Multiproperties Pty Ltd is entitled to payment of the sum of $7,816.16 from the bond lodged with the NSW Small Business Commissioner on 22 November 2015 and that that George Layoun is entitled to the balance of the bond. (5) In the event that the respondent has received from the bond an amount exceeding $7,816.16 or the appellant has paid to the respondent any part of the amount ordered to be paid by the Tribunal, the parties are to file consent orders for repayment of those amounts by 23 May 2023 and the Appeal Panel will make an order without requiring the further appearance of the parties. (6) Set aside the Tribunal's orders relating to the costs of proceedings COM 21/05854 and COM 21/23405. (7) Remit to the Consumer and Commercial Division of the Tribunal for determination only of the question of costs arising in proceedings COM 21/05854 and COM 21/23405. (8) No order in relation to the costs of the 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 landlord had entered into negotiations "in good faith" Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Lstar Holdings Pty Ltd v Ta [2021] NSWCATCD 62 Martin v Big Country Developments Pty Ltd; Big Country Developments Pty Ltd v Martin [2022] NSWCATAP 312 NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 TNAU Finery Pty Ltd v SuperBurrito Pty Ltd [2023] NSWCATAP 29 Texts Cited: None Cited Category: Principal judgment Parties: George Layoun (Appellant) Multiproperties Pty Ltd (Respondent) Representation: Counsel: S Andrews (Respondent)