News v Cotes and Laptev [2019] NSWCATAP 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: News v Cotes and Laptev [2019] NSWCATAP 110 Hearing dates: 19 February 2019 Date of orders: 30 April 2019 Decision date: 30 April 2019 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member J S Currie, Senior Member Decision: 1. Time for lodging the notice of appeal is, to the extent that extension is required, extended to and including 2 November 2018. 2. Leave to appeal, to the extent that leave is required, is refused. 3. The appeal is allowed on an error of law, with a re-consideration by the Appeal Panel of the matter according to law on the existing evidence and material before it. 4. On re-consideration of the matter by the Appeal Panel, confirm the orders of the Tribunal made 3 October 2018 for different reasons to those given by the Tribunal and with variation by date alteration, to the following effect of the orders: 1. The application is dismissed. 2. The applicant is to pay to the respondents on or before 1 May 2019 the sum of $15,062.74 plus interest from 2 March 2018 to and including date of payment, to the extent that such principal amount and interest have not already been paid under order 2 made on 3 October 2018. 3. The applicant is to reinstate the paving tiles around the grease trap. 5. Note that there has been no appeal against any costs orders made in respect of the primary hearing. 6. Note the preliminary view of the Tribunal that there should be no order as to the costs of the appeal. 7. Note the Tribunal's view that questions of costs can be decided on written submissions without the need for further hearing on costs. 8. Order as follows: 8.1 Any party's written submissions and any further evidence in chief on costs (including any reasons for seeking a hearing on costs) is to be lodged with the Tribunal and served on each other party on or before 13 May 2019. 8.2 Any party's written submissions and any further evidence in reply on costs is to be lodged with the Tribunal and served on each other party on or before 27 May 2019. 8.3 If there are no submissions and material lodged and served pursuant to 8.1 and 8.2, then the order will be that there is no order as to costs. Catchwords: Retail tenancy - implied terms - adequacy of reasons on term implied that parties reasonably co-operate in performance of the contract - re-determination of those matters - no different conclusion on the evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Tenancies Act 1994 (NSW) Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81] Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175, [2009] HCA 27 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Craig v South Australia (1995) 184 CLR 163 Eadie v Harvey [2017] NSWCATAP 201 House v The King (1936) 55 CLR 499 Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 Ku-ring-gai Council v Chan [2017] NSWCA 226 Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 Legal Profession Complaints Committee v Rayney [2017] WASCA 78 Mackay v Dick (1881) 6 App Cas 251 Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 OC SP 68751 v CA DP 270281 [2015] NSWCATCD 99 Owen v Kim [2017] NSWCATAP 26 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86] Rozenblit v Vainer [2018] HCA 23 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 UBS AG v Tyne [2018] HCA 45 Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 Texts Cited: None cited Category: Principal judgment Parties: Rosemary News (Appellant) Jane Cotes and Constantine Laptev (Respondents) Representation: Counsel: Appellant self-represented V Thomas (Respondents)