Tsoukalas v Nguyen (International) Trading Co Pty Ltd; Dung Viet Nguyen and Nguyen (International) Trading Co Pty Ltd v Tsoukalas [2021] NSWCATCD 30

Tsoukalas v Nguyen (International) Trading Co Pty Ltd; Dung Viet Nguyen and Nguyen (International) Trading Co Pty Ltd v Tsoukalas [2021] NSWCATCD 30

No rent relief agreement was formed because the correspondence did not show acceptance by either party of the other's offer and there was no evidence that either party acted on the basis that an offer had been accepted. The tenant was an impacted lessee and the lease an impacted lease because the tenant had been granted Jobkeeper payments, and the landlord's presentation of the bank guarantee was a prohibited prescribed action because the landlord had not complied with the good faith renegotiation requirements under the COVID-19 regulation. However, exercising the discretion under section 72 of the Retail Leases Act 1994, the Tribunal declined to order repayment of the bank guarantee...

Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Retail Tenancy Dispute Concerning Unpaid Rent, Outgoings, Make Good Costs and Return of Bank Guarantee Proceeds / Principal Judgment After Hearing
Outcome
Nguyen (International) Trading Co Pty Ltd was ordered to pay Alexander Tsoukalas $23,938.64 within 28 days in COM 20/44332; application COM 20/46994 was dismissed.
Legal Topics
['unpaid Rent and Outgoings' 'make Good Obligations' 'bank Guarantee Proceeds' 'covid 19 Retail and Commercial Leasing Regulation' 'rent Relief Negotiations' 'impacted Lease and Impacted Lessee']
['leases and Tenancies' 'retail Leases' 'civil and Administrative Tribunal Procedure'] ['unpaid Rent and Outgoings' 'make Good Obligations' 'bank Guarantee Proceeds' 'covid 19 Retail and Commercial Leasing Regulation' 'rent Relief Negotiations' 'impacted Lease and Impacted Lessee']

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Procedural Posture

Retail Tenancy Dispute Concerning Unpaid Rent, Outgoings, Make Good Costs and Return of Bank Guarantee Proceeds / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Did the parties in April 2020 or later enter into a rent relief agreement and, if so, what were its terms?' "Was the landlord, by reason of the Retail and Other Commercial Leases (COVID-19) Regulation (No 3) 2020, precluded from presenting the tenant's $19,067 bank guarantee on 5 August 2020 and applying that amount against money owed by the tenant?" 'What consequences flowed from the findings on rent relief and the bank guarantee?' 'Was the tenant liable to the landlord for make good costs?']

Ratio Decidendi

No rent relief agreement was formed because the correspondence did not show acceptance by either party of the other's offer and there was no evidence that either party acted on the basis that an offer had been accepted. The tenant was an impacted lessee and the lease an impacted lease because the tenant had been granted Jobkeeper payments, and the landlord's presentation of the bank guarantee was a prohibited prescribed action because the landlord had not complied with the good faith renegotiation requirements under the COVID-19 regulation. However, exercising the discretion under section 72 of the Retail Leases Act 1994, the Tribunal declined to order repayment of the bank guarantee...

Court Disposition

Nguyen (International) Trading Co Pty Ltd was ordered to pay Alexander Tsoukalas $23,938.64 within 28 days in COM 20/44332; application COM 20/46994 was dismissed.

Orders

  • ['In application COM 20/44332 Nguyen International Trading Co Pty Ltd pay Alexander Tsoukalas the sum of $23,938.64 within 28 days.' 'Application COM 20/46994 is dismissed.']