Cong v Ning [2021] NSWCATAP 292

Cong v Ning [2021] NSWCATAP 292

The Tribunal erred in law in rejecting impacted lessee status because it wrongly required the turnover reduction to be COVID-19 related, treated Jobseeker as inconsistent with JobKeeper without a legal basis, and required both tenants to qualify for JobKeeper. The May 2020 rent claim and related legal and mediation costs therefore had to be remitted for determination according to the COVID-19 leasing regulations. The finding that the earlier rent increase was deferred rather than waived was a factual finding not shown to be unfair, inequitable, or against the weight of evidence, so the $1,294.44 rent arrears award stood.

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Internal Appeal in a Retail Lease Dispute / Appeal Panel of the Civil and Administrative Tribunal of New South Wales From a Consumer and Commercial Division Decision Dated 25 February 2021
Outcome
The appeal was allowed in part. The award was varied to require payment of $1,294.44 for rent arrears, with the May 2020 rent claim and claims for solicitors' and mediation costs remitted to the Consumer and Commercial Division, differently constituted.
Legal Topics
['impacted Lessee' 'job Keeper Eligibility' 'recovery of Rent Arrears' 'prescribed Action' 'security Bond' 'legal and Mediation Costs Under Lease' 'leave to Appeal']
['leases and Tenancies' 'retail Leases' 'administrative Law' 'covid 19 Commercial Leasing Regulation'] ['impacted Lessee' 'job Keeper Eligibility' 'recovery of Rent Arrears' 'prescribed Action' 'security Bond' 'legal and Mediation Costs Under Lease' 'leave to Appeal']

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Procedural Posture

Internal Appeal in a Retail Lease Dispute / Appeal Panel of the Civil and Administrative Tribunal of New South Wales From a Consumer and Commercial Division Decision Dated 25 February 2021

Legal Issues

  1. 1 ['Whether the Tribunal applied an incorrect test in determining that the tenants were not eligible for JobKeeper and were not impacted lessees.' 'Whether the landlords were prohibited from taking prescribed action to recover May 2020 rent without complying with the COVID-19 retail leasing regulations.' 'Whether the landlords had waived or merely deferred a rent increase for the period 1 June 2017 to 31 May 2018.' "Whether the tenants were liable for the landlords' solicitors' costs and mediation costs under the lease."]

Ratio Decidendi

The Tribunal erred in law in rejecting impacted lessee status because it wrongly required the turnover reduction to be COVID-19 related, treated Jobseeker as inconsistent with JobKeeper without a legal basis, and required both tenants to qualify for JobKeeper. The May 2020 rent claim and related legal and mediation costs therefore had to be remitted for determination according to the COVID-19 leasing regulations. The finding that the earlier rent increase was deferred rather than waived was a factual finding not shown to be unfair, inequitable, or against the weight of evidence, so the $1,294.44 rent arrears award stood.

Court Disposition

The appeal was allowed in part. The award was varied to require payment of $1,294.44 for rent arrears, with the May 2020 rent claim and claims for solicitors' and mediation costs remitted to the Consumer and Commercial Division, differently constituted.

Orders

  • ['The appeal is allowed in part.' 'Order (1) made by the Tribunal in proceedings COM 20/32615 and COM 20/50753 on 25 February 2021 is varied by replacing the words "$7,531.55 on account of rent arrears and other out of pocket expenses" with the words "$1,294.44 on account of rent arrears".' 'Order (2) made by the...