Ozoris Investments Group Pty Ltd v Malabar Headlands Pty Ltd; Malabar Holdings Pty Ltd v Ozoris Investments Group Pty Ltd [2023] NSWCATCD 113

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ozoris Investments Group Pty Ltd v Malabar Headlands Pty Ltd; Malabar Holdings Pty Ltd v Ozoris Investments Group Pty Ltd [2023] NSWCATCD 113 Hearing dates: 5 and 6 June 2023 Date of orders: 12 September 2023 Decision date: 12 September 2023 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1. In proceedings COM 22/54793 the Respondent is to pay to the Applicant the sum of $5,139.33 within 14 days of the date of publication of these orders. 2. The proceedings COM 22/51649 is dismissed. 3. Each party is to pay their own costs of the two proceedings. 4. In the event that either party contends different costs order should be made, the following order and directions are made: (a) the cost applicant is to file any application for costs (limited to 4 pages) within 21 days from the date of publication of these orders, including submissions about whether an order can be made dispensing with a hearing pursuant to section 50(2) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). (b) The respondent to the costs application is to file any submissions in reply (limited to 4 pages) within 35 days from the date of these orders, including submissions about whether an order can be made dispensing with a hearing pursuant to s 50(2) of the NCAT Act. (c) The cost applicant is to file and serve any submissions (limited to 2 pages) in reply with 42 days from the date of these orders. (d) Order 3 ceases to have effect if a cost application is filed in the time permitted by these orders. Catchwords: Interpretation of COVID regulations 6B prohibition on increasing annual rent, Estoppel by convention, Approbation and Reprobation, Repudiation Legislation Cited: Retail and Other Commercial Leases (COVID-19) Regulation 2021 Cases Cited: Apotex Pty Limited v Sanofi [2013] FCA 1425 CCS 251 Elizabeth St Ply Ltd v Hellenic Club Ltd [2021] NSWCATAP 279 DTR Nominees Pty Ltd v Mona Homes Ply Ltd [1978] 138 CLR 444 Express Newspapers PLC v News (UK) Ltd [1990] 18 IPR 201 Grundt v The Great Boulder Proprietary Gold Mines Ltd [1937] 59 CLR 641 at 675 Moratic Ply Ltd v Gordon [2007] NSWSC 5 Rae and Partners Pty v Shaw [2020] TASFC 14 Ryledar Piy Ltd v Euphoric Pty Ltd [2007] 69 NSWLR 603; [2007] NSWCA 65 at [200] The August Leonhardt [1985] 2 Lloyd's Rep 28 CA The Indian Grace (No 2) [1998] AC 878 Thompson v Palmer (1933) 49 CLR 507 Texts Cited: Handley, Estoppel by Conduct and Election (Sweet & Maxwell, 3rd Ed, 2016) Category: Principal judgment Parties: Ozoris Investments Group Pty Ltd (Applicant/Cross-Respondent) Malabar Headlands Pty Ltd (Respondent/Cross-Applicant) Representation: Counsel: Wilson Chan (Applicant/Cross- Respondent) D S Allen (Respondent/Cross-Applicant)