Oh v Cafe Great Pty Ltd [2018] NSWCATAP 291

Oh v Cafe Great Pty Ltd [2018] NSWCATAP 291

The Tribunal made errors of law by failing to give adequate reasons for material findings concerning the lease termination date and the amount of council rates owing. It did not err in construing the lease: clause 5.1.2 required payment only of the share stated in item 14A of outgoings in item 14B, and item 14A did not require payment of building insurance. Because the Appeal Panel did not have all the evidence before the Tribunal, the appropriate course was to set aside the decision and remit specified issues for reconsideration. No special circumstances justified an order for costs.

Jurisdiction
Australia
Judgment Date
30 November 2018
Procedural Posture
Appeal Concerning Retail Lease Dispute / Appeal Panel From Consumer and Commercial Division Decision Dated 27 July 2018
Outcome
Appeal upheld in part; decision set aside; specified issues remitted for reconsideration by the Tribunal; no costs order made in favour of the lessee.
Legal Topics
['appeal on a Question of Law' 'adequacy of Reasons' 'findings on Material Questions of Fact' 'lease Termination Date' 'council Rates' 'building Insurance Outgoings' 'costs in Claims Less Than $30, 000']
['civil and Administrative Law' 'retail Leases' 'contract Law' 'costs'] ['appeal on a Question of Law' 'adequacy of Reasons' 'findings on Material Questions of Fact' 'lease Termination Date' 'council Rates' 'building Insurance Outgoings' 'costs in Claims Less Than $30,000']

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Procedural Posture

Appeal Concerning Retail Lease Dispute / Appeal Panel From Consumer and Commercial Division Decision Dated 27 July 2018

Legal Issues

  1. 1 ['Whether the Tribunal made an error of law by giving inadequate reasons for the implied finding that the lease was terminated on 23 December 2014 rather than 31 December 2014.' 'Whether the Tribunal made an error of law by failing to give adequate reasons for a material finding of fact as to the amount of council rates owing.' 'Whether the Tribunal erred in construing the lease to mean that the lessee was not liable to pay insurance for the building.' 'How the Appeal Panel should deal with the appeal after finding errors of law.' "Whether the lessors should pay the lessee's costs of the appeal."]

Ratio Decidendi

The Tribunal made errors of law by failing to give adequate reasons for material findings concerning the lease termination date and the amount of council rates owing. It did not err in construing the lease: clause 5.1.2 required payment only of the share stated in item 14A of outgoings in item 14B, and item 14A did not require payment of building insurance. Because the Appeal Panel did not have all the evidence before the Tribunal, the appropriate course was to set aside the decision and remit specified issues for reconsideration. No special circumstances justified an order for costs.

Court Disposition

Appeal upheld in part; decision set aside; specified issues remitted for reconsideration by the Tribunal; no costs order made in favour of the lessee.

Orders

  • ['The appeal is upheld in part.' 'The decision of the Tribunal made on 27 July 2018 is set aside.' 'The Tribunal is to reconsider the issues set out at paragraph [21] of these reasons.']