Sherikey Pty Limited v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218

Sherikey Pty Limited v Amos 1386 Pty Ltd & Ors [2023] NSWCATAP 218

The preliminary question and the Tribunal's reasoning proceeded from the false premise that commercial leasing principle 2 created a statutory right of forfeiture of COVID-19 protections. The Code was not legislation, and the COVID-19 regulations did not provide that a lessee forfeits rights to pursue unconscionable conduct relief or to rely on a reduced rent agreement merely because of a material failure to comply with lease terms. Although this revealed an error of law in the premise of the question, the Tribunal's answer that the lessee was not disentitled by non-payment of rent to seek COVID-19 protections was not incorrect in its terms, so there was no utility in setting it aside and...

Jurisdiction
Australia
Judgment Date
08 August 2023
Procedural Posture
Appeal in a Retail Leases Dispute / Appeal From the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning an Answer to a Preliminary Question
Outcome
Leave to appeal granted to the extent required; appeal dismissed.
Legal Topics
['unpaid Rent' 'impacted Lessee' 'covid 19 Leasing Protections' 'national Cabinet Mandatory Code of Conduct' 'forfeiture of Protections' 'preliminary Question' 'question of Law' 'leave to Appeal']
['retail Leases' 'leases and Tenancies' 'civil Procedure' 'covid 19 Commercial Leasing Regulations'] ['unpaid Rent' 'impacted Lessee' 'covid 19 Leasing Protections' 'national Cabinet Mandatory Code of Conduct' 'forfeiture of Protections' 'preliminary Question' 'question of Law' 'leave to Appeal']

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Procedural Posture

Appeal in a Retail Leases Dispute / Appeal From the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning an Answer to a Preliminary Question

Legal Issues

  1. 1 ["Whether the Tribunal's answer to the preliminary question was an internally appealable decision under s 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW)." 'Whether the lessee was disentitled, by reason of non-payment of rent at various times, to seek protections under the COVID Regulations and the Code.' 'Whether commercial leasing principle 2 in the National Cabinet Mandatory Code of Conduct operated as a statutory provision causing forfeiture of COVID-19 leasing protections.' 'Whether the appeal should be allowed despite an identified error of law in the premise of the preliminary question.']

Ratio Decidendi

The preliminary question and the Tribunal's reasoning proceeded from the false premise that commercial leasing principle 2 created a statutory right of forfeiture of COVID-19 protections. The Code was not legislation, and the COVID-19 regulations did not provide that a lessee forfeits rights to pursue unconscionable conduct relief or to rely on a reduced rent agreement merely because of a material failure to comply with lease terms. Although this revealed an error of law in the premise of the question, the Tribunal's answer that the lessee was not disentitled by non-payment of rent to seek COVID-19 protections was not incorrect in its terms, so there was no utility in setting it aside and...

Court Disposition

Leave to appeal granted to the extent required; appeal dismissed.

Orders

  • ['To the extent required, leave to appeal is granted.' 'The appeal is dismissed.']