PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 Hearing dates: 13, 14, 20 November 2013 Decision date: 18 December 2013 Before: McColl JA at [1]; Leeming JA at [2]; Sackville AJA at [3]. Decision: 1. The appeal be allowed in part. 2. The cross-appeal be allowed in part. 3. Set aside Order 1 made by the Appeal Panel on 3 October 2012. 4. Set aside Orders 1 and 2 made by the Appeal Panel on 1 March 2013. 5. Remit the proceedings to the Appeal Panel to assess the damages (if any) to be awarded to Spuds by reason of PT's unconscionable conduct, consistently with this Judgment. 6. Order PT to pay Spuds' costs of the appeal. 7. No order as to the costs of the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LANDLORD AND TENANT - retail lease - obstruction of sightlines to lessee's premises - whether Tribunal erred in finding obstruction constituted unconscionable conduct on part of lessor - whether Tribunal applied wrong test in finding unconscionability - whether a finding of unconscionability against a corporation requires a finding of dishonesty or bad faith against individual officers or employees of the corporation - whether Tribunal adopted erroneous approach to determining causation - whether Tribunal denied parties procedural fairness in assessing damages on basis not put to parties - whether appeal raised questions of law Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12CC Competition and Consumer Act 2010, Sch 2, ss 20, 21, 22 Trade Practices Act 1974 (Cth), ss 51AA, 51AB, 51AC