Newlife Centre Pty Ltd v Dymocks Book Arcade Pty Ltd; Dymocks Book Arcade Pty Ltd v Newlife Centre Pty Ltd [2021] NSWCATCD 26

Newlife Centre Pty Ltd v Dymocks Book Arcade Pty Ltd; Dymocks Book Arcade Pty Ltd v Newlife Centre Pty Ltd [2021] NSWCATCD 26

The lease was an impacted retail shop lease, but Dymocks had provided rent concessions consistent with the Regulation and Code and was entitled to the full claimed rent and outgoings of $3,220.47. Newlife had not established any binding waiver of its make good obligations, had failed to remove relevant fixtures and fittings, and was liable for reasonable make good costs of $5,970 excluding GST. Under clause 19.3 and section 72 of the Retail Leases Act 1994 (NSW), Dymocks was entitled to be paid $9,190.47 from the security bond, with the balance released to Newlife.

Jurisdiction
Australia
Judgment Date
10 June 2021
Procedural Posture
Retail Tenancy Claim Concerning a Retail Shop Lease / Principal Judgment After Hearing
Outcome
Dymocks Book Arcade Pty Ltd succeeded in COM 20/50480 to the extent of declarations for $9,190.47 from the security bond; Newlife Centre Pty Ltd's application COM 20/50086 was dismissed.
Legal Topics
['rent and Outgoings' 'make Good Obligations' 'security Bond' 'retail Shop Lease Jurisdiction' 'retail and Other Commercial Leases (covid 19) Regulation' 'national Cabinet Mandatory Code of Conduct Leasing Principles']
['retail Leases' 'leases and Tenancies' 'covid 19 Commercial Leasing Relief'] ['rent and Outgoings' 'make Good Obligations' 'security Bond' 'retail Shop Lease Jurisdiction' 'retail and Other Commercial Leases (covid 19) Regulation' 'national Cabinet Mandatory Code of Conduct Leasing Principles']

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Procedural Posture

Retail Tenancy Claim Concerning a Retail Shop Lease / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction under the Retail Leases Act 1994 (NSW) because the premises were a retail shop within a retail shopping centre.' 'How much rent and outgoings were owing by Newlife Centre Pty Ltd to Dymocks Book Arcade Pty Ltd for 1 April 2020 to 15 May 2020.' 'Whether any amount owing for rent and outgoings should be repaid over 24 months rather than deducted from the security bond.' 'Whether Newlife Centre Pty Ltd complied with its make good obligations under the lease or whether make good costs were recoverable by Dymocks Book Arcade Pty Ltd.' 'What orders should be made for release of the security bond held by the Office of the Small Business Commissioner.']

Ratio Decidendi

The lease was an impacted retail shop lease, but Dymocks had provided rent concessions consistent with the Regulation and Code and was entitled to the full claimed rent and outgoings of $3,220.47. Newlife had not established any binding waiver of its make good obligations, had failed to remove relevant fixtures and fittings, and was liable for reasonable make good costs of $5,970 excluding GST. Under clause 19.3 and section 72 of the Retail Leases Act 1994 (NSW), Dymocks was entitled to be paid $9,190.47 from the security bond, with the balance released to Newlife.

Court Disposition

Dymocks Book Arcade Pty Ltd succeeded in COM 20/50480 to the extent of declarations for $9,190.47 from the security bond; Newlife Centre Pty Ltd's application COM 20/50086 was dismissed.

Orders

  • ['In application COM 20/50480, declaration pursuant to section 72(1)(f)(iii) of the Retail Leases Act 1994 that Newlife Centre Pty Ltd is liable to Dymocks Book Arcade Pty Ltd the sum of $9190.47.' "In application COM 20/50480, declaration pursuant to section 72(1)(f)(iv) of the Retail Leases Act 1994 that from the...