203 Castlereagh Pty Ltd v Payce Properties Pty Ltd and Skybloo Holdings Pty Ltd [2017] NSWCATCD 20

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: 203 Castlereagh Pty Ltd v Payce Properties Pty Ltd and Skybloo Holdings Pty Ltd [2017] NSWCATCD 20 Hearing dates: 22 September 2016 Decision date: 20 April 2017 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1. Castlereagh can lodge its retail tenancy claim in these proceedings notwithstanding it is more than 3 years after the liability or obligation that is the subject of the claim arose.

2. Payce breached Special Condition 1 by not offering the purchase of the premises to Castlereagh.

3. The matter is relisted in the first directions hearing 14 days after publication of these orders for determination of damages for breach. Catchwords: Breach of clause in the lease granting right of first refusal for sale of property, application under s71B of the Retail Leases Act, the doctrine of waiver, waiver Legislation Cited: Retail Leases Act 1994 Cases Cited: 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited (No. 2) [2015] NSWCATAP170 Agricultural and Rural Finance Pty Ltd v Gardiner (2008) HCA 57 Bischof & Anor v Werncog Pty Ltd [2004] NSWADT Glencore Grain Ltd v Flacker Shipping Co. Lit (The Happy Day) [2002] 2 Lloyds Rep. 487 Panache Salons Pty Ltd v Kent Street Pty Ltd [2009] NSW ADT 247 Polylux Pty Ltd v Corpers (No. 5) Pty Ltd [2009] NSWADT 284 Rye v Rye [1952] AC 496 Texts Cited: Chesire and Fifoot's Law of Contract 9th Aus Ed. Category: Principal judgment Parties: 203 Castlereagh Pty Ltd (Applicant) Payce Properties Pty Ltd (1st Respondent) Skybloo Holdings Pty Ltd (2nd Respondent) Representation: Counsel: Leo Gorr (1st Respondent) Mr J Salama (2nd Respondent) Solicitors: Colin Biggers Paisley (1st Respondent) Osbornes (2nd Respondent) Agent: Retail Leases Doctor (Applicant) File Number(s): COM 14/36505 Publication restriction: Nil