Cornucopia (Young) Pty Ltd v Ward [2023] NSWCATCD 149

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cornucopia (Young) Pty Ltd v Ward [2023] NSWCATCD 149 Hearing dates: 21 July 2023 (last submissions 23 August 2023) Date of orders: 8 September 2023 Decision date: 08 September 2023 Jurisdiction: Consumer and Commercial Division Before: G Ellis SC, Senior Member Decision: 1 The respondents are to pay the applicant $72,797.15 immediately. 2 The respondents are to pay the costs of the applicant, on the ordinary basis, as agreed or assessed. 3 If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and the following orders apply: (a) Any application for a different costs order, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served 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 filed and served with the following 14 days. (c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days. (d) Each party's submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for a further hearing. Catchwords: RETAIL LEASE - Whether arrears of rent waived - whether breach of disclosure requirement proved - status of related agreement for electricity costs - assessment of make good claim - running account Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act 1994 (NSW) Retail Leases Amendment (Review) Act 2017 (NSW) Cases Cited: Ashby v Slipper [2014] FCAFC 15 Blatch v Archer [1774] Eng R 2; 1 Cowper 63 Bonita v Shen [2016] NSWCATAP 159 Browne v Dunn (1893) 6 R 67, HL Fox v Percy [2003] HCA 22 Latoudis v Casey [1990] HCA 59 L'Estrange v F Graucob Ltd [1934] 2 KB 394 Left Bank Investments Pty Ltd v Ngunya Jarjum [2019] NSWSC 1352 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 372 Thompson v Chapman [2016] NSWCATAP 6 Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 Watson v Foxman (1995) 49 NSWLR 315 at 319 Zisis v Knighton [2008] NSWCA 42 Texts Cited: None cited Category: Principal judgment Parties: Applicant – Cornucopia (Young) Pty Ltd Respondents – Ian Ward and Denise Ward Representation: Solicitors: Applicant – L Macinnis, Stevens Vuaran Lawyers File Number(s): COM 22/55616