Dr N Kalokerinos Pty Ltd v Jain [2024] NSWSC 1069

Supreme Court New South Wales

Medium Neutral Citation: Dr N Kalokerinos Pty Ltd v Jain [2024] NSWSC 1069 Hearing dates: 30 November 2023 Date of orders: 23 August 2024 Decision date: 23 August 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Grant leave to the plaintiff to appeal on Grounds 1, 2 and 3. (2) Appeal dismissed. (3) Grant leave to the defendant to cross-appeal on Grounds 1 and 2 and refuse leave on Ground 3. (4) Cross-appeal allowed. (5) Set aside Order 4 made by the Appeal Panel of the Civil and Administrative Tribunal ("Appeal Panel") pronounced on 30 May 2023 and instead order that Order 1 in proceedings COM 22/020333 is varied by substituting the amount of $4,134.53 for $60,025.34. (6) Set aside Order 5 pronounced by the Appeal Panel on 30 May 2023 and instead order that the plaintiff is to pay the defendant's costs of the appeal to the Appeal Panel. (7) The plaintiff is to pay the defendant's costs of the appeal and cross appeal to the Court. (8) Grant liberty to either party to apply for a special order as to costs by filing written submissions not exceeding 3 pages in length together with any necessary supporting affidavit by lodging them electronically with the chambers of Justice Campbell by 20 September 2024. The opposing party may respond by filing written submissions not exceeding 3 pages in length by lodging them electronically with the chambers of Justice Campbell within 14 days of the lodgement of the moving party's written submissions. Catchwords: APPEALS – s 83 Civil and Administrative Tribunal Act 2013 (NSW) – termination of retail lease covered by COVID-19 Regulation – application for leave to appeal – cross-appeal – "appeal on a question of law" – question of law raised in cross-appeal – appeal dismissed – cross-appeal allowed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 80, 83 Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), s 133A Conveyancing General Regulation 2018 (NSW), Sch 5 Evidence Act 1995 (NSW), s 191 Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 Retail and Other Commercial Leases (COVID-19) Regulation 2021, cll 3, 4, 5, 6, 6A, 6B, 6C, 6D, 9A Retail Leases Act 1994 (NSW), ss 85, 87 Uniform Civil Procedure Rules 2005 (NSW), rr 12.6, 14.23 Civil and Administrative Tribunal Rules 2014 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Gaslight Co. v Valuer General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bulga Cole Management Pty Ltd v Hope Wine Group Pty Ltd [2020] NSWSC 1783 Chen v The Owners Corporation – Strata Plan No 55792 [2020] NSWSC 151 Day v SAS Trustee Corporation [2021] NSWCA 71 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Fisher v Non-Conformist Pty Ltd [2024] NSWCA 32 Hope v Bathurst City Council (1980) 144 CLR 1 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Liddell Coal Operations Pty Ltd v Hector [2021] NSWCA 47 Lustre Hoisery Ltd v York (1935) 54 CLR 134; [1935] HCA 71 Midcoast Petroleum Pty Ltd v Keldros Pty Ltd [2019] NSWSC 970 Minister for the Environment, Heritage and the Arts v PGP Developments Pty Ltd (2010) 183 FCR 10; [2010] FCA 58 Peacock v Repatriation Commission [2007] 161 FCR 256; [2007] FCAFC 156 Todarello Property Investments Pty Ltd v GJ Kalra Pty Ltd [2021] NSWSC 1678 Category: Principal judgment Parties: Dr N Kalokerinos Pty Ltd (Plaintiff) Abhishek Jain (Defendant) Representation: Counsel: E Vuu (Plaintiff) A Lim (Defendant)