Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8

Rokheya Kane Pty Ltd v Lam [2022] NSWCATAP 8

The lease ended on 22 September 2019 and no cause of action existed to support an award of damages for loss of rent after that date. Section 72(1)(a) of the Retail Leases Act 1994 (NSW) authorised the Tribunal to order payment of money only by way of debt, damages or restitution, which required a supporting cause of action. Because that jurisdictional fact was absent, the Tribunal fell into jurisdictional error by awarding post-lease loss of rent. Alternatively, the Appeal Panel would have granted leave to amend the grounds of appeal and upheld the ground as an error of law. The original grounds of appeal otherwise had no substance.

Jurisdiction
Australia
Judgment Date
12 January 2022
Procedural Posture
Appeal in Retail Tenancy Proceedings / Appeal Panel Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 21 June 2021
Outcome
Appeal upheld. Orders awarding damages for post-lease loss of rent and related interest were set aside, and the appellant was ordered to pay only the pre-expiry arrears and other amounts of $35,706.54 together with any interest due under Order 2.3.
Legal Topics
['jurisdictional Error' 'retail Tenancy Claims' 'power to Order Payment of Money' 'cause of Action for Debt, Damages or Restitution' 'deregistration and Reinstatement of Company' 'option to Renew Lease' 'loss of Rent After Lease Expiry']
['administrative Law' 'retail Leases' 'corporations Law'] ['jurisdictional Error' 'retail Tenancy Claims' 'power to Order Payment of Money' 'cause of Action for Debt, Damages or Restitution' 'deregistration and Reinstatement of Company' 'option to Renew Lease' 'loss of Rent After Lease Expiry']

Case Brief

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Procedural Posture

Appeal in Retail Tenancy Proceedings / Appeal Panel Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 21 June 2021

Legal Issues

  1. 1 ['Whether the Tribunal fell into jurisdictional error by awarding the respondents damages for loss of rent for a period after the lease had ended when no cause of action supported that award.' 'Whether the appellant should be granted leave to amend its grounds of appeal to raise the absence of a cause of action as an error of law.' 'Whether the appellant validly exercised the option to renew the lease while deregistered and while Mr Diagne was not a director.' "Whether the appellant's original grounds of appeal demonstrated error in the Tribunal's decision."]

Ratio Decidendi

The lease ended on 22 September 2019 and no cause of action existed to support an award of damages for loss of rent after that date. Section 72(1)(a) of the Retail Leases Act 1994 (NSW) authorised the Tribunal to order payment of money only by way of debt, damages or restitution, which required a supporting cause of action. Because that jurisdictional fact was absent, the Tribunal fell into jurisdictional error by awarding post-lease loss of rent. Alternatively, the Appeal Panel would have granted leave to amend the grounds of appeal and upheld the ground as an error of law. The original grounds of appeal otherwise had no substance.

Court Disposition

Appeal upheld. Orders awarding damages for post-lease loss of rent and related interest were set aside, and the appellant was ordered to pay only the pre-expiry arrears and other amounts of $35,706.54 together with any interest due under Order 2.3.

Orders

  • ['Appeal upheld.' 'Orders 2.1, 2.2 and 3 made by the Tribunal on 21 June 2021 are set aside.' 'In lieu thereof, order the appellant to pay the respondents the sum of $35,706.54 together with any interest due under Order 2.3.' 'If any party desires to make an application for costs of the appeal, that party is to...