Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322

Supreme Court New South Wales

Medium Neutral Citation: Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322 Hearing dates: 9 June 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Common Law Before: Walton J Decision: (1) Leave to appeal is refused.

(2) Within 28 days of the publication of this judgment, the defendant shall file and serve any application for costs and a short submission in support of the same. The plaintiff shall reply by written submissions filed and served no later than 28 days thereafter. In the absence of any request for an oral hearing on costs, the Court shall decide the question without further sittings upon the written submissions filed by the parties. Catchwords: APPEAL – civil – appeal from the NSW Civil and Administrative Tribunal Appeal Panel – whether questions of law – principles governing grant of leave to appeal – whether the Appeal Panel erred in law by finding that the lease had been lawfully terminated by the defendant – rental determination with respect to "current market rent" – whether "rent free period" for the new lease – under option – whether there was an error of law by not entertaining or refusing leave to bring claims for the conversion and unconscionable conduct – plaintiff failed to establish a proper basis for the grant of leave to appeal – leave to appeal was refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Retail Leases Act 1994 (NSW) Cases Cited: Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416 Be Financial Pty Ltd v Das [2012] NSWCA 164 Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 Davis v NSW Land and Housing Corporation [2016] NSWCA 325 Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2010] NSWCA 374 Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 Gan v Shop, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATCD (unreported, decision dated 20 April 2016) Hughes Brothers Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91 Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58 NSL Pty Ltd v 2 Roslyn Street Pty Ltd [2013] NSWSC 930 Re McCafferty [1994] 2 Qd R 538 Renard Constructions (CME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 Waterways Authority of New South Wales v Coal Allied (Operations) Pty Ltd [2007] NSWCA 276 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Texts Cited: Duncan, W D, Commercial Leases in Australia, (7th ed, 2014, Thomas Reuters) Category: Principal judgment Parties: Sing Kian Gan (Plaintiff) Shop 3, 228-230 Hanvaylee Parade Kensington Pty Limited (Defendant) Representation: Counsel: G Lucarelli (Defendant)