TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2023] NSWCATAP 29

TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2023] NSWCATAP 29

The lessor was not prohibited by COVID-19 Regulation from re-entering on 3 July 2020 for failure to pay April 2020 rent, as that breach predated the prescribed period. The Tribunal erred in relying upon industry statistics without procedural fairness and in discounting reliance damages. The Tribunal failed to adequately resolve whether the lessor negotiated in good faith or accepted evidence regarding the lessee's impacted status. Proceedings are remitted for determination of unconscionable conduct and, if appropriate, assessment of damages and the lessor's claim.

Jurisdiction
Australia
Judgment Date
03 February 2023
Procedural Posture
Appeal / Appeal Panel Judgment With Orders Remitting Proceedings
Outcome
Appeals allowed. Original orders set aside. Proceedings remitted for further determination.
Legal Topics
['retail Leases Act 1994 (nsw)' 'covid 19 Regulations' 'jobkeeper Scheme' 'commercial Leasing Disputes' 'reliance Damages' 'assessment of Damages' 'procedural Fairness' 'good Faith Negotiations']
['leases and Tenancies' 'contracts' 'administrative Law'] ['retail Leases Act 1994 (nsw)' 'covid 19 Regulations' 'jobkeeper Scheme' 'commercial Leasing Disputes' 'reliance Damages' 'assessment of Damages' 'procedural Fairness' 'good Faith Negotiations']

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Procedural Posture

Appeal / Appeal Panel Judgment With Orders Remitting Proceedings

Legal Issues

  1. 1 ["Whether the lessor's re-entry was prohibited by COVID-19 Regulation" "Whether the lessee was an 'impacted lessee' under the Regulation" 'Whether damages were properly assessed on reliance basis' 'Whether procedural fairness was denied by reliance on industry statistics' 'Whether lessor acted in good faith in negotiations']

Ratio Decidendi

The lessor was not prohibited by COVID-19 Regulation from re-entering on 3 July 2020 for failure to pay April 2020 rent, as that breach predated the prescribed period. The Tribunal erred in relying upon industry statistics without procedural fairness and in discounting reliance damages. The Tribunal failed to adequately resolve whether the lessor negotiated in good faith or accepted evidence regarding the lessee's impacted status. Proceedings are remitted for determination of unconscionable conduct and, if appropriate, assessment of damages and the lessor's claim.

Court Disposition

Appeals allowed. Original orders set aside. Proceedings remitted for further determination.

Orders

  • ['Appeals 2022/68195 and 2022/69427 are allowed' 'Orders made on 10 February 2022 in proceedings COM 20/49367 (orders 1-3) and in COM 20/52695 (orders 1-2) are set aside' 'Both proceedings are remitted to the Consumer and Commercial Division (differently constituted) for determination in accordance with this...