Krimbogiannis v Fallshaw (Investments) Pty Ltd [2015] NSWCATCD 155

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Krimbogiannis v Fallshaw (Investments) Pty Ltd [2015] NSWCATCD 155 Hearing dates: 2 June 2015 and 16 September 2015 Decision date: 18 December 2015 Jurisdiction: Consumer and Commercial Division Before: D. Goldstein. Senior Member Decision: 1. Pursuant to section 71B of the Retail Leases Act 1994 the lodging of the claim with the Tribunal in proceedings COM 14/20620 is allowed. 2. Fallshaw (Investments) Pty Ltd must pay Andrew Krimbogiannis Connie Krimbogiannis and Arthur Krinbogiannis the sum of $133,685.32 immediately. 3. Fallshaw (Investments) Pty Ltd must pay Andrew Krimbogiannis Connie Krimbogiannis and Arthur Krinbogiannis the amount they are required to pay The Owners - Strata Plan 21702 as costs, either agreed or as assessed, in Court of Appeal proceedings 2013/277696. 4. The claim in COM 14/45236 is dismissed. 5. The following orders will apply in the event that either party wishes to make an application for costs. 6. Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 or rule 38 of the Civil and Administrative Tribunal Rules 2014 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application. 7. The costs respondent will have 21 days after the date of receipt of the costs application referred to above, to lodge in the Tribunal and serve on the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 8. The cost applicant will have 14 days after the date of receipt of the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 9. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal. Catchwords: Misleading and deceptive conduct by silence Legislation Cited: Civil and Administrative Tribunal Act 2013 Retail leases Act 1994 Strata Schemes Management Act 1996 Cases Cited: Armstrong Jones Management Pty Ltd v Saies – Bond Associates Pty Ltd [2007] NSWADTAP 47 (6 September 2007), Blair v Curran (1939) 62 CLR, Burns v M.A.N. Automotive (AUST.) Pty Ltd 161 C.L.R. 653, Claremont Petroleum NL v Cummings [1992] FCA 446, Demagogue Pty Ltd v Ramenensky Pty Ltd [1992] FCR 31, Gates v City Mutual Life Assurance Society Ltd 160 CLR 1, Golden Harvest (Aust) Pty Ltd v Paing Pty Ltd & Ors [2004] NSWCA 85, Hellyer Drilling Co v Macdonald Hamilton & Co Pty Ltd (1983) 51 ALR 177, Henjo Investments Pty Limited and Ors v Collins Marrickville Pty Limited (1988) 39 FCR 546, Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited, Moss v Lowe Hunt and Partners Pty Ltd [2101] FCA 1181, Nicolaou v Gpt Re Ltd [2010] NSWADT, Polyux Pty Ltd v Corpers (No 5) Pty Ltd [2009] NSWADT 284, Queanbeyan leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 1100, Simonius Vischer & Co v Holt & Thompson [1979] 2 N.S.W.L.R.332, TCN Channel 9 v Hayden Enterprises 16 NSWLR130. Category: Principal judgment Parties: Andrew Krimbogiannis (applicant) Fallshaw (Investments) Pty Ltd (respondent) Representation: Counsel:Mr D. Knoll for the Applicants Mr Glissan for the respondent Solicitors:Konstan Lawyers for the applicants Blake Lawyers for the respondent File Number(s): COM 14/20620 and COM 14/45236 Publication restriction: Unrestricted