CCS 251 Elizabeth Street Sydney Pty Ltd v Hellenic Club Ltd [2016] NSWCATCD 88

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CCS 251 Elizabeth Street Sydney Pty Ltd v Hellenic Club Ltd [2016] NSWCATCD 88 Hearing dates: 3 November 2016 Decision date: 08 November 2016 Jurisdiction: Consumer and Commercial Division Before: M Harrowell, Principal Member Decision: The Tribunal makes the following orders: (1) That the respondent is to deliver up to the applicant possession of the premises known as Shop 2, Ground Floor, 251-253 Elizabeth Street, Sydney on or before 5:00pm on 9 November 2016 and is to permit the applicant to operate a convenience store at the premises until the earlier of the resolution of proceedings COM 16/45810 or further order of the Tribunal, whichever is the earlier. (2) Order 1 is subject to the following conditions that: (a) Compliance with order 1 by the respondent is without admission that a "retail shop lease" arose to the applicant and the respondent; (b) The applicant prosecute its claim with due diligence; (c) The applicant pays the respondent and occupation fee at the monthly rate of $8708.33 inclusive of GST from the time the applicant takes possession of the premises until the time of the determination of the original application, such amount payable monthly in advance; and (d) The applicant provides to the Tribunal, by its Counsel Mr Nathan, an undertaking as to damages (which undertaking the Tribunal notes was given at the hearing of this application), such undertaking to be in the form specified in Reg 25.8 of the Uniform Civil Procedures Rules 2005. (3) Any party seeking costs (costs applicant) is to file and serve an application and submissions on the other party (costs respondent) on or before 16 November 2016. (4) The costs respondent is to file and serve any evidence and submissions in reply by 23 November 2016. (5) The costs applicant is to file and serve submissions in reply by 30 November 2016. (6) The submissions are to include submissions as to whether an order should be made dispensing with a hearing. Catchwords: Retail Leases Act- Interim orders, considerations as to strength of case and balance of convenience, requirement for undertaking as to damages. Legislation Cited: Civil and Administrative Tribunal Act, 2013 Civil Procedures Rules, 2005 Retail Lease Act, 1994 Cases Cited: Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 Australian Broadcasting Corporation v O'Neill [2006] HCA 46 CAC Pty Ltd v Diamond Hill International Pty Ltd, BC9602665 Lineablu Pty Ltd v St George Sailing Club Ltd [2004] NSWSC 1199 Masters v Cameron 91 CLR 353 Nam & Anr v Commonwealth Funds Management Limited & Anr [2002] NSWADT 80 Nam & Anr v Commonwealth Funds Management Limited & Anr (No 2) [2002] NSWADT 120 Perhauz & Anr v SAF Properties Pty Ltd & Ors [2007] NSWADT 122 Texts Cited: Ritchie's Uniform Civil Procedure (NSW) Category: Procedural and other rulings Parties: Applicant: CCS 251 Elizabeth Street Sydney Pty Ltd Respondent: Hellenic Club Ltd Representation: Counsel: Applicant: Mr J Nathan Respondent: Mr F Salama