Ozoris Investments Group Pty Ltd v Malabar Headlands Pty Ltd; Malabar Headlands Pty Ltd v Ozoris Investments Group Pty Ltd [2024] NSWCATAP 73

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ozoris Investments Group Pty Ltd v Malabar Headlands Pty Ltd; Malabar Headlands Pty Ltd v Ozoris Investments Group Pty Ltd [2024] NSWCATAP 73 Hearing dates: 5 February 2024 Date of orders: 07 May 2024 Decision date: 07 May 2024 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member R C Titterton OAM, Senior Member Decision: 1. The appeal and the cross-appeal are dismissed. 2. Ozoris Investments Group Pty Ltd to pay the Malabar Headlands Pty Ltd's costs of both the appeal and the cross appeal as agreed or as assessed. 3. If either party contends for a different costs order, order 2 above ceases to have effect and the following orders apply. (a) The party seeking the different costs order (the costs applicant) is to file and serve evidence and submissions in support of the application for a different costs order within 14 days of the date of publication of these reasons. (b) The costs respondent may file and serve any evidence and submissions in response within 28 days of the date of publication of these reasons. (c) The costs applicant may file and serve any evidence and submissions in reply within 35 days of the date of publication of these reasons. Catchwords: APPEAL – Retail leases – construction of Covid regulation – rent review clause Legislation Cited: Interpretation Act 1987 (NSW), s 33 Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2022 (NSW), s 16(1)(a)) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456 Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575; [2023] HCA 22 Life Insurance Co. of Australia Ltd v Phillip (1925) 36 CLR 60; [1925] HCA 18 M H Investments Aust Pty Ltd v Hurstville City Council [2015] NSWCATAP 180 Maunsell v Olins [1975] AC 373 at 382 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 ; [1998] HCA 28 SZTAL v Minister for Immigration and Border Protection (2017) CLR 362; [2017] HCA 34 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9: Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248 Texts Cited: J Edelman, The Interpretation of Written Contracts Category: Principal judgment Parties: Ozoris Investments Group Pty Ltd (Appellant and Cross-Respondent) Malabar Headlands Pty Ltd (Respondent and Cross-Applicant) Representation: Counsel: