Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bark N Purr Pets Pty Ltd v Moussad [2024] NSWCATAP 201 Hearing dates: 22 August 2024 Date of orders: 15 October 2024 Decision date: 15 October 2024 Jurisdiction: Appeal Panel Before: G Burton SC, Senior Member J Ledda, Senior Member Decision: (1) Leave to appeal is granted and the appeal is allowed. (2) The orders made by the Tribunal on 14 May 2024 in proceedings 2023/00372868 are set aside. (3) The proceedings are remitted to a differently- constituted Tribunal in the Consumer and Commercial Division for a reconsideration, in accordance with the reasons of the Appeal Panel, of the issues of liability and damages. (4) The Tribunal in the remitted proceedings may allow the parties to rely on such further evidence as the Tribunal considers appropriate. (5) Subject to order (6), the Respondents must pay the costs of the Appellant in the appeal, on the ordinary basis, as agreed or assessed. (6) If a party seeks a different costs order, the following directions apply: (a) The party seeking the different costs order (the costs applicant) must lodge with the Tribunal and serve on the other party (the costs respondent) their application for costs, along with any supporting submissions (not exceeding five pages in length) and evidence, within 14 days of the date of this decision. (b) The costs respondent must lodge with the Tribunal and serve on the costs applicant any written submissions (not exceeding five pages in length) and evidence in response within a further 14 days of receipt of the costs applicant's submissions. (c) The costs applicant may lodge with the Tribunal and serve on the costs respondent any written submissions (not exceeding 3 pages) in reply within a further 7 days of receipt of the costs respondent's submissions. (d) The parties are to address in their submissions whether, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required. Catchwords: LEASES AND TENANCIES — retail lease — claim for damages for losses because of reduction of power supply during lease — expert evidence — application of NCAT Procedural Direction 3 to expert evidence in proceedings under Retail Leases Act 1994 (NSW) APPEALS — leave to appeal because decision at first instance not fair and equitable or against the weight of evidence — remittal of proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216 Bull v NSW Land and Housing Corporation [2016] NSWCATAP 266 Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 Collins v Urban [2014] NSWCATAP 17 FTB v Children's Guardian [2024] NSWCATAP 174 Funfood Pty Ltd v Centura Global Holdings Pty Ltd [2022] NSWCATAP 189 HanavePty Ltd v Wine NomadPty Ltd [2022] NSWCATAP 361; [2023] NSWSC 265 Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Meacham v Commissioner of Police [2020] NSWCATAP 107 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 The Owners Strata Plan No 63341 v Malachite HoldingsPty Ltd [2018] NSWCATAP 256 Thompson v Chapman [2016] NSWCATAP 6 Walker Corporation v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1; [2009] NSWCA 178. Texts Cited: NCAT Procedural Direction 3 (28 February 2018 and 11 September 2024) Category: Principal judgment Parties: Bark N Purr Pets Pty Ltd (Appellant) Akram Moussad (First respondent) Amel Moussad (Second respondent) Representation: Solicitors: