Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWSC 49

Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWSC 49

Leave to appeal was refused as none of Fasako's grounds raised more than reasonably arguable errors, and the Appeal Panel's interpretation of clause 9.3, findings of breach, and termination were supported by evidence and relevant legal principles. The landlord was required to maintain fire safety systems in sound structural condition, and did not do so, but no issues of principle or injustice warranting leave to appeal were demonstrated.

Jurisdiction
Australia
Judgment Date
03 February 2022
Procedural Posture
Judicial Review / Appeal / Application for Leave to Appeal From NCAT Appeal Panel Decision
Outcome
Leave to appeal refused; summons dismissed; costs ordered against plaintiff.
Legal Topics
['judicial Review' 'leave to Appeal' 'construction of Lease' 'mis Exercise of Discretion' 'error of Law' 'repudiation and Termination' 'retail Leases' 'fire Safety Compliance']
['administrative Law' 'contract Law' 'property Law'] ['judicial Review' 'leave to Appeal' 'construction of Lease' 'mis Exercise of Discretion' 'error of Law' 'repudiation and Termination' 'retail Leases' 'fire Safety Compliance']

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Procedural Posture

Judicial Review / Appeal / Application for Leave to Appeal From NCAT Appeal Panel Decision

Legal Issues

  1. 1 ['Whether Appeal Panel erred in allowing lessee to rely on clause 9.3 in appeal' "Proper construction of clause 9.3 of the lease regarding landlord's obligation to keep building in sound structural condition" 'Whether findings were made in absence of evidence' "Whether landlord's breach was sufficiently serious to justify termination"]

Ratio Decidendi

Leave to appeal was refused as none of Fasako's grounds raised more than reasonably arguable errors, and the Appeal Panel's interpretation of clause 9.3, findings of breach, and termination were supported by evidence and relevant legal principles. The landlord was required to maintain fire safety systems in sound structural condition, and did not do so, but no issues of principle or injustice warranting leave to appeal were demonstrated.

Court Disposition

Leave to appeal refused; summons dismissed; costs ordered against plaintiff.

Orders

  • ['Leave to appeal is refused.' 'The summons filed 2 October 2020 is dismissed.' "The plaintiff is to pay the defendant's costs."]