357 Thornleigh Place Pty Limited v Shams [2023] NSWCATAP 127

357 Thornleigh Place Pty Limited v Shams [2023] NSWCATAP 127

The Appeal Panel found that the Tribunal made errors of law by making key findings (such as manipulation of rent default and withdrawal of rebates) without probative evidence, failed to consider all relevant circumstances concerning unconscionable conduct, and incorrectly assessed the Lessee's evidence of disadvantage and provision of COVID-19-related evidence. The appeal was allowed and material claims remitted for re-determination by a differently constituted Tribunal.

Jurisdiction
Australia
Judgment Date
12 May 2023
Procedural Posture
Appeal / Judgment on Appeal From Consumer and Commercial Division, NCAT
Outcome
Appeal allowed. Orders 1–5 of 12 October 2022 set aside. Core claims remitted to differently constituted Tribunal for redetermination. Some claims dismissed.
Legal Topics
['retail Leases' 'unconscionable Conduct' 'relief Against Forfeiture' 'rental Rebate' 'covid 19 Regulations and Rent Relief' 'appeals on Questions of Law']
['commercial Law' 'landlord and Tenant Law' 'covid 19 Emergency Law'] ['retail Leases' 'unconscionable Conduct' 'relief Against Forfeiture' 'rental Rebate' 'covid 19 Regulations and Rent Relief' 'appeals on Questions of Law']

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Procedural Posture

Appeal / Judgment on Appeal From Consumer and Commercial Division, NCAT

Legal Issues

  1. 1 ['Whether the lessor engaged in unconscionable conduct contrary to s 62B(1) Retail Leases Act 1994 (NSW)' 'Whether findings of fact were made without probative evidence' 'Whether Tribunal failed to consider all relevant circumstances under s 62B' 'Whether correct procedures were followed for relief against forfeiture and arrears of rent' 'Whether s 129 Conveyancing Act notice requirements were met before re-entry']

Ratio Decidendi

The Appeal Panel found that the Tribunal made errors of law by making key findings (such as manipulation of rent default and withdrawal of rebates) without probative evidence, failed to consider all relevant circumstances concerning unconscionable conduct, and incorrectly assessed the Lessee's evidence of disadvantage and provision of COVID-19-related evidence. The appeal was allowed and material claims remitted for re-determination by a differently constituted Tribunal.

Court Disposition

Appeal allowed. Orders 1–5 of 12 October 2022 set aside. Core claims remitted to differently constituted Tribunal for redetermination. Some claims dismissed.

Orders

  • ['The appeal is allowed.' 'Orders 1, 2, 3, 4 and 5 made by the Tribunal on 12 October 2022 are set aside.' 'Claims for alleged contravention of s 62B(1) Retail Leases Act 1994 (NSW), relief against forfeiture, and cross-application for arrears of rent are remitted for re-determination.' 'Re-determination is to be on...