Sauvage v Cleardon Pty Ltd [2017] NSWCATAP 47

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sauvage v Cleardon Pty Ltd [2017] NSWCATAP 47 Hearing dates: 17 October 2016 Date of orders: 28 February 2017 Decision date: 28 February 2017 Jurisdiction: Appeal Panel Before: R Seiden SC, Principal Member D Robertson, Senior Member Decision: 1. Appeal allowed 2. Order 1 made by the Tribunal in proceedings COM 16/19034 and COM 16/23621 is set aside 3. Order instead: (a) In proceedings 16/19034: Application dismissed (b) In proceedings 16/23621: Declare that the monthly rent payable in respect of Shops 4 and 5, 30 Paringa Avenue, Davistown NSW will remain unchanged at the rent review date 25 January 2016. Catchwords: APPEAL – point not raised by Notice of Appeal – pure question of law – construction of standard form lease – point permitted to be raised – guiding principle

LEASES – retail leases – Law Society lease - rent review clause – operation of provisions for market rent review - principles of construction Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: AMP Society v National Mutual Life Association of Australasia Limited [1995] 1 NZLR 581 Baycloud v Dowling Investments [2005] NSWSC 237 Cominos v Di Rico [2016] NSWCATAP 5 Domino's Pizza Enterprises v Seldex [2009] QSC 137 Electricity General Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Eureka Funds Management v Freehills Services (2008) 19 VR 676 Healthcare Australia Pty Ltd v Randstad Pty Ltd [2016] NSWSC 1407 Mamo v Surace (2014) 86 NSWLR 275 Myers v Pioneer Concrete [1997] ANZ ConvR 331; (1997) V ConvR 54-363 Prestcold (Central) v Minister of Labour [1969] 2 WLR 89 Texts Cited: Lewison, The Interpretation of Contracts in Australia (2012) Category: Principal judgment Parties: Dianne Gai Sauvage (Appellant) Cleardon Pty Ltd (Respondent) Representation: Solicitors: J Brent (Appellant) M Bradshaw (Respondent) File Number(s): AP 16/37455 Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 July 2016 Before: D Bluth, Senior Member File Number(s): COM 16/2362 & COM 16/19034