Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. This is an appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision made in the Consumer and Commercial Division (CCD) of the NSW Civil and Administrative Tribunal under the Retail Leases Act 1994 (NSW) which was delivered on 20 June 2024.

2. We made the principal decision in Swedzah Pty Ltd v Moama Waters Providore Pty Ltd [2025] NSWCATAP 90 (the principal decision) on 28 April 2025. This decision (the costs decision) is the determination of a costs application made by the respondent in the appeal.

3. In the principal decision, as in the decision under review, the parties were referred to as the landlords and the tenant. We will remain consistent with that terminology for the sake of clarity, noting that in these proceedings the tenant is the costs applicant.

4. The tenant and the landlords had entered into a written lease under the Retail Leases Act 1994 (NSW) (the Lease) over a restaurant in a caravan park in Moama.

5. The decision at first instance (the decision) was concerned with two applications:

1) An application by the tenant (the tenant's application) (2021/00416395 (formerly COM 21/02840)) for damages in the sum of $428,534 following the landlords' repudiation of the Lease, on the basis of which the tenant then terminated the Lease. The Tribunal at first instance found that the landlords had repudiated the Lease and the tenant had therefore validly terminated the Lease. After deducting the landlords' claim for unpaid rent and electricity, the Tribunal awarded the sum of $31,603.67 to the tenant; and

2) A cross-application by the landlords (the landlords' application) (2021/00401137 (formerly COM 21/18396)), for an order that the tenant pay for unpaid rent, utilities, cleaning and rubbish removal. That application was dismissed.

6. Only the orders in the tenant's application were the subject of the Appeal.

7. For the reasons set out in the principal decision, we decided that the landlords had failed to establish that the Tribunal made an error on a question of law. Leave to appeal on grounds other than a question of law was not sought. As the Notice of Appeal was filed out of time, leave to extend time was not granted and the Appeal was dismissed.

8. In Order 3 of the principal decision, we allowed the parties to file any written submissions in relation to costs within 14 days of the orders (by 12 May 2025) and to reply to each other's submissions 7 days thereafter (by 19 May 2025). Submissions were required to include whether the parties considered that the issue of costs could be determined on the papers in accordance with s 50(2) of the NCAT Act.

9. The tenant provided submissions on costs on 8 May 2025. Noting that no response had been received from the landlords, on 28 May 2025 Registry sent the tenant's costs submissions to the landlords and an extension of time was granted for the landlords to respond until 4 June 2025. No response was received from the landlords within that time frame, or up until the time of writing.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1979a1fbf471ad538f8a5e74)

Disclaimer: Curated by HT Syndication.