SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2024] NSWCATAP 200

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2024] NSWCATAP 200 Hearing dates: 20 May 2024; 13 June 2024 Date of orders: 11 October 2024 Decision date: 11 October 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President D Goldstein, Senior Member Decision: (1) Leave is granted to the appellants to amend their Notice of Appeal to include grounds A1, 5 and 6 in the terms set out above. (2) Leave to appeal is granted in respect of grounds 5 and 6 and the appeal is allowed in respect of the award for damages for storage costs. (3) The award for damages (order 3 made 21 February 2024 is set aside insofar as it relates to the award of damages for storage cost. (4) The question of whether the respondent (TNAU Finery Pty Ltd) is entitled to an award under this head of damage and, if so, how much, is remitted to the Tribunal as originally constituted. (5) The remitted proceedings are to be listed before Senior Member Bluth for directions as soon as reasonably possible. (6) The stay granted by the Appeal Panel on 27 March 2024 is varied to continue up until 5pm on the day of the directions hearing referred to in the previous order. Any application for stay after that date is to be considered by the Tribunal at the directions hearing of the remitted proceedings (7) In respect of grounds A1-3, leave to appeal is granted but the appeal is dismissed. (8) In respect of ground 4, leave to appeal is refused. (9) In respect of costs of the appeal, the following directions apply: (a) Within 14 days from the publication of these reasons, any applicant for costs (costs applicant) is to file and serve any application for costs (costs application) which is to include any evidence and submissions. (b) Within 28 days from the publication of these reasons, the respondent to the costs application is to file and serve any evidence and submissions in reply. (c) Within 35 days from the publication of these reasons, the costs applicant is to file and serve any submissions in reply. Catchwords: LANDLORD AND TENANT – COVID 19 pandemic – restrictions on terminating lease – meaning of "impacted tenant" – whether relevant projection was made to qualify for JobKeeper LANDLORD AND TENANT – Retail Leases Act 1994 – unconscionable conduct – person acting on mistaken view of law – what constitutes unconscionable conduct DAMAGES – need for Tribunal to assess damages where no admission or concession made Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth) Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020 (Cth) Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) Retail Leases Act 1994 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (NSW) Cases Cited: Attorney General (NSW) v World Best Holdings Ltd and Others 63 NSWLR 557; [2005] NSWCA 261 Australian Securities and Investment Commission v Kobelt 267 CLR 1; [2019] HCA 18 Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27 Browne v Dunn (1893) 6 R 67 Collins v Urban [2014] NSWCATAP at 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 Darzi Group Pty Ltd v Nolde Pty Limited [2021] NSWSC 774, ASIC Norsk Dor Pty Ltd v Tuxfend Pty Limited [2020] NSWCATAP 127 NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378 Toradello Property Investments Pty Ltd v GJA Kalra Pty Ltd [2021] NSWSC 1678 Vidal v NRMA Insurance Ltd [2005] NSWCA 390 357 Thornleigh Place Pty Ltd v Shams [2023] NSWCATAP 127 Texts Cited: National Cabinet Mandatory Code of Conduct—SME Commercial Leasing Principles During COVID-19 Category: Principal judgment Parties: SuperBurrito Pty Ltd (First Appellant) Zong Yuan Qin (Second Appellant) TNAU Finery Pty Ltd (Respondent) Representation: Counsel: J Glissan KC and W Chan (First and Second Appellant) D Smallbone (Respondent)