Ngo v Sin & Partner Pty Ltd [2024] NSWCATAP 148

Ngo v Sin & Partner Pty Ltd [2024] NSWCATAP 148

The appeal was dismissed because the Appellant's application sought orders that the Tribunal had no power to make. The COVID Regulations, Code of Conduct and Retail Leases Act 1994 (NSW) did not confer jurisdiction on the Tribunal to reduce, waive, defer or refund rent, extend the lease term, require a new lease, or alter lease terms concerning land tax and council rates. The Appellant had not put an unconscionable conduct claim before the Tribunal, so the Tribunal was correct to dismiss the application for lack of jurisdiction.

Jurisdiction
Australia
Judgment Date
01 August 2024
Procedural Posture
Appeal Concerning a Retail Lease Dispute Regulated by the Retail Leases Act 1994 (nsw) / Appeal Panel Appeal From a Decision of the Consumer & Commercial Division Dismissing the Appellant's Application for Lack of Jurisdiction
Outcome
Appeal dismissed.
Legal Topics
['tribunal Jurisdiction' 'impacted Lessee Rent Relief' 'prescribed Action' 'good Faith Renegotiation' 'waiver or Deferral of Rent' 'extension of Lease Term' 'unconscionable Conduct Under S 62 B of the Retail Leases Act 1994 (nsw)']
['retail Leases' 'civil and Administrative Tribunal Appeals' 'covid 19 Leasing Regulation' 'costs'] ['tribunal Jurisdiction' 'impacted Lessee Rent Relief' 'prescribed Action' 'good Faith Renegotiation' 'waiver or Deferral of Rent' 'extension of Lease Term' 'unconscionable Conduct Under S 62 B of the Retail Leases Act 1994 (nsw)']

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Procedural Posture

Appeal Concerning a Retail Lease Dispute Regulated by the Retail Leases Act 1994 (nsw) / Appeal Panel Appeal From a Decision of the Consumer & Commercial Division Dismissing the Appellant's Application for Lack of Jurisdiction

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to order a refund, waiver, deferral or reduction of rent under the Retail & Other Commercial Leases (COVID-19) Regulation 2020 and related regulations.' 'Whether the Tribunal had jurisdiction to extend the term of a retail lease or require the lessor to enter into a new lease where the lease contained no option to renew and the lessor had given notice under s 44 of the Retail Leases Act 1994 (NSW).' 'Whether the Tribunal had jurisdiction to alter lease terms concerning land tax and council rates.' 'Whether the Code of Conduct empowered the Tribunal to impose rent relief or a lease extension when negotiations did not result in agreement.' 'Whether any costs order on the appeal should be considered after evidence and submissions.']

Ratio Decidendi

The appeal was dismissed because the Appellant's application sought orders that the Tribunal had no power to make. The COVID Regulations, Code of Conduct and Retail Leases Act 1994 (NSW) did not confer jurisdiction on the Tribunal to reduce, waive, defer or refund rent, extend the lease term, require a new lease, or alter lease terms concerning land tax and council rates. The Appellant had not put an unconscionable conduct claim before the Tribunal, so the Tribunal was correct to dismiss the application for lack of jurisdiction.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' 'If the Respondent seeks an order that its costs of the appeal be paid by the Appellant, the Respondent must, within 14 days of the date of this decision, file and serve evidence and submissions in support of such application.' "Within 28 days of the date of this decision, the Appellant may file...