MJHQ Pty Limited v Wynne Ave Pty Limited [2018] NSWCATCD 61

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: MJHQ Pty Limited v Wynne Ave Pty Limited [2018] NSWCATCD 61 Hearing dates: 16 May 2018 Date of orders: 23 October 2018 Decision date: 23 October 2018 Jurisdiction: Consumer and Commercial Division Before: G.J. Sarginson, Senior Member Decision: 1 Declares that the notice to terminate issued by the respondent to the applicant dated 25 August 2017 is invalid, as the notice is inconsistent with the provisions of s 35 (1) (a) of the Retail Leases Act 1994. 2 The applicant's claim for damages is withdrawn, and accordingly dismissed under s 55 (1) of the Civil and Administrative Tribunal Act 2013. 3 Any application for costs is to be determined as follows: (i) The party making a costs application is to file and serve written submissions and documents in support of the application by 14 days from the date of this decision. Included in the submission is reference to whether or not the party consents to the issue of costs being determined on the papers pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013. (ii) The other party is to file and serve any written submissions and documents in reply by 14 days thereafter. (iii) Subject to the submissions of the parties, the issue of costs will be determined on the papers and a further oral hearing on the issue of costs dispensed with. Catchwords: RETAIL LEASES---Demolition notice---Whether a genuine proposal to demolish---s 35 Retail Leases Act 1994 (NSW)---Applicable principles Legislation Cited: Retail Leases Act 1994 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Retail Leases Amendment (Review) Act 2017 (NSW) Roads Act 1993 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Blackler v Felpure Pty Ltd [1999] NSWSC 958; (2000) NSWConvR 55-921; (2000) 9 BPR 17,257; [2001] ANZ ConvR 166 Citadin Pty Ltd v Eddy Azzi Australia Pty Ltd & General Pants Co Pty Ltd [2001] NSWADTAP 30 Eddy Azzi Australia Pty Limited v Citadin Pty Limited; Citadin Pty Ltd v General Pants Co Ltd [2001] NSWADT 79; (2001) 10 BPR 18,689 Fancy Bite Pty Limited v IOF Custodian Pty Limited [2015] NSWCATCD 27 Hampton Court Pty Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Helen Lazaros t/as Perfect Health v IOF Custodian Pty Limited [2015] NSWCATCD 25 Manly Council v Malouf [2004] NSWCA 299 Skiwing Pty Ltd v Trust Company of Australia (trading as Stockland Property Management) [2006] NSWCA 276 Wynne Ave Property Pty Limited v MJHQ Pty Limited [2018] NSWCATAP 197 Category: Principal judgment Parties: MJHQ Pty Limited (Applicant)