Nguyen v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen [2015] NSWCATAP 264

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nguyen v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen [2015] NSWCATAP 264 Hearing dates: 19 August 2015 Date of orders: 09 December 2015 Decision date: 09 December 2015 Jurisdiction: Appeal Panel Before: A Britton, Principal Member K Rosser, Senior Member Decision: (1) The appeal in AP 15/39175 (Perpetual's Appeal) is allowed. (2) The appeal in AP 15/32040 (the Nguyens' appeal) is allowed in part. (3) Order 1 of the decision made by the Tribunal on 16 June 2015 is set aside. Either party may apply for the Appeal to be relisted to determine the amount payable by Anthony and Thi Nguyen in accordance with these Reasons, providing that application is filed within 14 days of the date of this decision. (4) Order 2 of the decision made by the Tribunal on 17 February 2015 is set aside. In substitution for that order, Anthony and Thi Nguyen are to pay Perpetual Trustee Company Ltd's cost of the proceedings before the Tribunal, as agreed or assessed. Catchwords: RETAIL LEASES — construction of lease agreement — whether the literal meaning of contractual words creates an absurdity — whether parties' intention is self-evident

RETAIL LEASES — construction of lease agreement — commencement date of lease where lease agreement executed after its stated commencement date — application of ss 7, 8 of Retail Leases Act 1994 (NSW)

COSTS — whether rule 38 of the Civil and Administrative Tribunal Rules 2014 is invalid — principles applying to the exercise of the discretion to award costs under rule 38 Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137 Currabubula and Paola v State Bank NSW. Currabubula v State Bank NSW [2000] NSWSC 232 Dykes and Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46 Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 Helou & Ors v Bong Bong Pty Ltd & Anor [2006] NSWADT 128 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113; [2014] NSWCA 184 Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 National Australia Bank v Clowes [2013] NSWCA 179 Newey v Westpac Banking Corporation [2014] NSWCA 319 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Prieston v Panyiotou [2015] NSWCATAP 71 36 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Westpac Banking Corporation v Tanzone Pty Ltd (2000) 9 BPR 17,521; [2000] NSWCA 25 Category: Principal judgment Parties: Anthony and Thi Nguyen Appellants (AP 15/32040); Respondents (AP 15/39175) Perpetual Trustee Company Ltd Appellant (AP 15/39175); Respondent (AP 15/32040) Representation: Counsel: B Zipser Appellants AP 15/32040; Respondents (AP 15/39175 A Fernon Appellant AP 15/39175; Respondent AP 15/32040