Cornucopia (Young) Pty Ltd v Ward [2023] NSWCATCD 149

Cornucopia (Young) Pty Ltd v Ward [2023] NSWCATCD 149

The respondents failed to prove waiver of rent, because the Tribunal accepted the applicant's evidence and contemporaneous documents, found no authority or holding out for the agent to waive arrears, and applied the no waiver clause. The respondents also failed to prove non-disclosure preventing recovery of outgoings, particularly in light of the lease acknowledgement and evidence that compliance with the Retail Leases Act 1994 (NSW) had been checked. The applicant proved entitlement to rent, outgoings, make good costs, legal costs for recovery of the bank guarantee, and interest, but did not prove the electricity agreement or the amount of electricity charges. After deducting payments...

Jurisdiction
Australia
Judgment Date
08 September 2023
Procedural Posture
Retail Lease Claim in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing
Outcome
Application allowed in part; respondents ordered to pay the applicant $72,797.15 immediately and the applicant's costs on the ordinary basis, subject to any application for a different costs order.
Legal Topics
['arrears of Rent and Outgoings' 'waiver of Rent' 'disclosure Statement Requirements' 'electricity Charges Under Related Agreement' 'make Good Obligations' 'interest' 'costs']
['retail Leases' 'civil Procedure' 'costs'] ['arrears of Rent and Outgoings' 'waiver of Rent' 'disclosure Statement Requirements' 'electricity Charges Under Related Agreement' 'make Good Obligations' 'interest' 'costs']

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Procedural Posture

Retail Lease Claim in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Was there a waiver of rent by the applicant?' 'If not, what amount is payable in respect of rent?' 'Was there a failure to disclose which prevents recovery of outgoings?' 'If not, what amount is payable in respect of outgoings?' 'Is the respondent entitled to recover charges for electricity?' 'If so, what amount is payable for electricity?' "What amount, if any, is payable in respect of the 'make good' claim?" 'What amount, if any, is payable in respect of legal expenses?' 'What amount, if any, is payable in respect of interest?']

Ratio Decidendi

The respondents failed to prove waiver of rent, because the Tribunal accepted the applicant's evidence and contemporaneous documents, found no authority or holding out for the agent to waive arrears, and applied the no waiver clause. The respondents also failed to prove non-disclosure preventing recovery of outgoings, particularly in light of the lease acknowledgement and evidence that compliance with the Retail Leases Act 1994 (NSW) had been checked. The applicant proved entitlement to rent, outgoings, make good costs, legal costs for recovery of the bank guarantee, and interest, but did not prove the electricity agreement or the amount of electricity charges. After deducting payments...

Court Disposition

Application allowed in part; respondents ordered to pay the applicant $72,797.15 immediately and the applicant's costs on the ordinary basis, subject to any application for a different costs order.

Orders

  • ['The respondents are to pay the applicant $72,797.15 immediately.' 'The respondents are to pay the costs of the applicant, on the ordinary basis, as agreed or assessed.' 'If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and directions are made for filing...