Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112

Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112

Leave to appeal was refused because Fasako did not demonstrate a reasonably arguable error of law in the primary judge's refusal of leave. The Appeal Panel was entitled to find that cl 9.3 had been relied upon below; the applicant's complaints about construction of cl 9.3 and termination either failed to identify a precise question of law or impermissibly challenged factual findings; and there was evidence supporting the findings attacked as having been made without evidence. The primary judge considered the applicant's submissions and was entitled to adopt and agree with the Appeal Panel's reasoning.

Jurisdiction
Australia
Judgment Date
01 July 2022
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From a Common Law Division Judgment Refusing Leave to Appeal From the NCAT Appeal Panel
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['leave to Appeal' 'interlocutory Judgment' 'appeal From NCAT Appeal Panel' 'question of Law' 'commercial Lease Termination' "lessor's Obligation to Keep Building in Sound Structural Condition" 'fire Protection System' 'no Evidence Ground' 'repudiation and Termination']
['appeals' 'leases and Tenancies' 'commercial Leases' 'administrative Law'] ['leave to Appeal' 'interlocutory Judgment' 'appeal From NCAT Appeal Panel' 'question of Law' 'commercial Lease Termination' "lessor's Obligation to Keep Building in Sound Structural Condition" 'fire Protection System' 'no Evidence Ground' 'repudiation and Termination']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From a Common Law Division Judgment Refusing Leave to Appeal From the NCAT Appeal Panel

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from the Common Law Division judgment refusing leave to appeal from the NCAT Appeal Panel.' 'Whether the Appeal Panel erred in allowing the respondents to rely on cl 9.3 of the lease as justifying the termination notice.' "Whether the Appeal Panel erred in construing cl 9.3 of the lease and in treating the defective fire protection system as relevant to the lessor's obligation to keep the building in sound structural condition." 'Whether findings made by the Appeal Panel were made in the absence of evidence.' "Whether the Appeal Panel erred in finding that Fasako's persistent failure to upgrade the water pump was a sufficiently serious breach of an innominate term to entitle TianyD to terminate the lease."]

Ratio Decidendi

Leave to appeal was refused because Fasako did not demonstrate a reasonably arguable error of law in the primary judge's refusal of leave. The Appeal Panel was entitled to find that cl 9.3 had been relied upon below; the applicant's complaints about construction of cl 9.3 and termination either failed to identify a precise question of law or impermissibly challenged factual findings; and there was evidence supporting the findings attacked as having been made without evidence. The primary judge considered the applicant's submissions and was entitled to adopt and agree with the Appeal Panel's reasoning.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Dismiss the application for leave to appeal from the judgment in the Common Law Division.' 'Order that the applicant pay the costs of the respondents in this Court.']