Sherikey Pty Limited v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sherikey Pty Limited v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218 Hearing dates: 27 July 2023 Date of orders: 08 August 2023 Decision date: 08 August 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member P Durack SC, Senior Member Decision: 1. To the extent required, leave to appeal is granted. 2. The appeal is dismissed. Catchwords: LEASES AND TENANCIES-retail lease-claim for unpaid rent-separate claim by a tenant seeking relief based upon allegations that lessor failed to comply with COVID-19 regulations in respect of an "impacted lessee"-preliminary question decided by Tribunal in favour of the lessee as to whether the lessee had forfeited the COVID-19 "protections"-commercial leasing principle 2 in National Cabinet Mandatory Code of Conduct referred to forfeiture of protections provided to the tenant under the Code-no statutory provision for such forfeiture. APPEALS-appeal from a decision on a preliminary question -question of law-preliminary question posed and answered on incorrect premise as to status and effect of the commercial leasing principle in issue. Legislation Cited: Civil and Administrative Tribunal Act (NSW) (2013) Retail Leases Act 1994 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 Retail and Other Commercial Leases (COVID-19) Regulation 2022 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Sherikey Pty Limited v Amos 1386 Pty Ltd, James Chiin-Ming Kwok and Gui Chuan Jiang Representation: Counsel: A Blank (Appellant) Solicitors: G Pickering (Appellant) Agent: S Spring (Respondents) File Number(s): 2023/00188188 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 01 June 2023 Before: D. Bluth, Senior Member File Number(s): COM 22/ 43257 and COM 23/08757