City Convenience Stores Pty Ltd v Third Lafite Pty Ltd (No. 2); Third Lafite Pty Ltd v City Convenience Stores Pty Ltd (No. 2) [2017] NSWCATAP 90

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: City Convenience Stores Pty Ltd v Third Lafite Pty Ltd (No. 2); Third Lafite Pty Ltd v City Convenience Stores Pty Ltd (No. 2) [2017] NSWCATAP 90 Hearing dates: 16 February 2017, 17 February, 9 March and 20 March 2017 (submissions) Date of orders: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Appeal Panel Before: F Marks ADCJ, Principal Member S Thode, Senior Member Decision: City Convenience Stores Pty Ltd is to pay Third Lafite Pty Ltd;

1. the sum of $166248.95.

2. interest on the sum of $166248.95 calculated at the rate of 6.5% from 4 June 2014 to 21 December 2014 being 201 days, namely $5950.80.

3. one half of the costs of Third Lafite Pty Ltd of both appeal proceedings assessed in default of agreement.

4. 75% of the costs of Third Lafite Pty Ltd of the further proceedings which are the subject of this Decision assessed in default of agreement. Catchwords: Statutory construction- section 6A(2) of the Retail Tenancy Act- retail lease comes into effect at a time when more than one year of continuous entitlement to possession Interest-application of section 72A of Retail tenancy Act-held entitlement to interest ceased by application of section 72A(5) when appropriate settlement sum offered- further held no special circumstances applied Costs- appeal proceedings involved substantial consideration of unsuccessful jurisdiction argument- unsuccessful party to pay half the costs of other party of both appeals. Legislation Cited: Retail Leases Act Cases Cited: City Convenience Stores Pty Ltd v Third Lafite Pty Ltd; Third Lafite Pty Ltd v City Convenience Stores Pty Ltd [2016] NSWCATAP 254 Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211 Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049. Category: Principal judgment Parties: City Convenience Stores Pty Ltd (Appellant in AP 16/06134) Third Lafite Pty Ltd (Appellant in AP 16/22063) Representation: Counsel: A F Fernon (City Convenience Stores Pty Ltd) C P O'Neill (Third Lafite Pty Ltd)