Wellness Bodycare Pty Ltd v Newtons Pharmacy Services Pty Ltd [2023] NSWCATAP 312

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wellness Bodycare Pty Ltd v Newtons Pharmacy Services Pty Ltd [2023] NSWCATAP 312 Hearing dates: 16 November 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member P H Molony, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. Subject to order 4, no order as to costs. 4. If the respondent seeks an order for costs, the following orders apply: (a) Written submissions (not exceeding five pages in length) and any evidence, are to be provided to the Tribunal and the appellant within 14 days of the date of these orders. (b) Any submissions (not exceeding five pages in length) and evidence in response are to be provided, to the Tribunal and the respondent, within the following 14 days. (c) Any submissions (not exceeding two pages in length) and evidence in reply are to be provided, to the Tribunal and the appellant, within the following 7 days. (d) Any such submissions should indicate whether it is agreed that costs should be determined on the papers, without the need for a further hearing. Catchwords: APPEALS – Whether decision fair and equitable – whether Tribunal required to suggest basis for claim LEASES AND TENANCIES – Retail lease – power of Tribunal to declare rent not payable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act 1994 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Cases Cited: Cachia v Hanes [1994] HCA 14 Collins v Urban [2014] NSWCATAP 17 Darzi Group Pty Ltd v Nolde Pty Ltd [2021] NSWSC 774 Darzi Group Pty Ltd v Noble Pty Ltd (No 2) [2022] NSWSC 643 Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401 Huang v Abdelwahed Pty Ltd [2021] NSWSCATCD 154 Jamaican Coffee Kitchen t/as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 Jude Trading Pty Ltd v Mosszan Pty Ltd [2022] NSWCATCD 21 Minifie x Maxwell [2020] NSWCATAP 30 Miramax Pty Ltd v Mang Yu Lo [2021] NSWCATCD 12 Norman v Wall [2020] NSWSC 129 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 Sherikey Pty Ltd v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd [2020] NSWSC 996 Sneakerboy Retail Pty Ltd trading as Sneakerboy v Georges Properties Pty Ltd (No 2) [2020] NSWSC 1141 Tnau Finery Pty Ltd v SuperBurrito Pty Ltd [2023] NSWCATAP 29 Tuon v Popo Big Bowl Noodles Pty Ltd [2022] NSWCATCD 172 Texts Cited: None cited Category: Principal judgment Parties: Wellness Bodycare Pty Ltd (Appellant) Newtons Pharmacy Services Pty Ltd (Respondent) Representation: Appellant – S Spring Respondent – A Seo File Number(s): 2023/00282637 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: [2023] NSWCATCD Date of Decision: 10 August 2023 Before: G Sarginson, Senior Member File Number(s): COM 22/43724