203 Castlereagh Street Pty Ltd v Payce Properties Pty Ltd [2015] NSWCATCD 89

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 203 Castlereagh Street Pty Ltd v Payce Properties Pty Ltd [2015] NSWCATCD 89 Hearing dates: 17 February 2015, on the papers Decision date: 06 August 2015 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1 The Tribunal grants leave for the Application for Original Decision to be lodged with the Tribunal. 2 I grant liberty to restore the Application for directions on seven days' notice by either party once the Appeal in AP 14/0351 is determined. 3 No order for costs. Catchwords: Section 71B of Retail Leases Act, 1994 Legislation Cited: Civil and Administrative Tribunal Act, 2013 Retail Leases Act, 1994 Cases Cited: Bischof & Anor v Werncog Pty Ltd [2004] NSWADT 241 DB Rreef Funds Management Ltd & PT v Valentino Home Fashion Pty Ltd [2009] NSWADT 216 Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADT 354 Polylux Pty Ltd v Corpers (No 5) Pty Ltd [2009] NSWADT 284 Category: Principal judgment Parties: 203 Castlereagh Street Pty Ltd (applicant) Payce Properties Pty Ltd (respondent) Representation: Counsel: N/A Solicitor: CBP Lawyers (applicant) Agent: Retail Leases Doctor (respondent) File Number(s): COM 15/05335 Publication restriction: Nil

Reasons for Decision 1. The applicant, 203 Castlereagh Street Pty Ltd (the applicant), was the tenant at premises Shop [***], The Waterfront, Homebush Bay, NSW, from Payce Properties Pty Ltd (the respondent). The lease commenced on 18 July 2010 and terminated in July 2014 (the Lease). 2. There have been a series of cases between the parties and more particularly between the applicant and Skybloo Pty Ltd (Skybloo) who purchased the property from the respondent and then terminated the Lease. 3. On 27 January 2015, the applicant filed an Application for an Original Decision in the Tribunal (the application). The application relates to a claim for rent and land tax purportedly charged incorrectly by the respondent in connection with the Lease. The amounts claimed relate to the following periods: 1. rent – 19 January 2011 to 2 March 2011 (rent claim); and 2. land tax – 30 August 2010 to 7 June 2011 (land tax claim). 1. Section 71(2) of the Retail Leases Act 1994 (NSW) (RLA) provides: A claim may not be lodged more than three years after the liability or obligation that is the subject of the claim arose. 1. Section 71B(1) of the RLA provides: A retail tenancy claim may be lodged more than 3 years but no later than 6 years after the liability or obligation that is the subject of the claim arose, if the Tribunal orders that the claim may be lodged with the Tribunal. 1. When the matter was before me on 17 February 2015, I ordered that the applicant: 1. apply for leave of the Tribunal under s 71B; and 2. file and serve written submissions in relation to such application by 10 March 2015. 1. On 1 May 2015, I later ordered that the respondent file written submissions by 7 May 2015 and the applicant file a reply by 21 May 2015. 2. It is noted that the applicant has not filed a separate application for leave but seeks leave under s 71B in its submissions as filed. 3. Section 71B(3) states: (3) The Tribunal may make an order under this section: (a) on application by the party or former party concerned, and (b) after hearing such of the persons likely to be affected by the application as it sees fit, and (c) if the applicant satisfies the Tribunal that it is just and reasonable to make the order. 1. The respondent filed submissions in response to the applicant's submissions. The respondent correctly notes that the onus is on the applicant to satisfy the Tribunal that it is just and reasonable for the Tribunal to make the order extending the time for the Application for an Original Decision to be filed.