SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2024] NSWCATAP 200

SuperBurrito Pty Ltd v TNAU Finery Pty Ltd [2024] NSWCATAP 200

The Tribunal was entitled on the evidence to find the tenant did not satisfy the requirements to be an 'impacted lessee' under the COVID-19 leasing regime, as there was insufficient proof a qualifying GST turnover projection was made prior to the relevant date. No error of law or unreasonable evaluative decision was...

Source-derived case information.

Parties
First Appellant: SuperBurrito Pty Ltd; Second Appellant: Zong Yuan Qin; Respondent: TNAU Finery Pty Ltd
Jurisdiction
Australia
Judgment Date
11 October 2024
Procedural Posture
Appeal / Decision on Appeal From Second Tribunal Decision
Outcome
Appeal allowed in part; leave to appeal granted in respect of grounds relating to storage costs; appeal otherwise dismissed.
Legal Topics
COVID 19 Leasing Regulations, Impacted Tenant Definition, Job Keeper Eligibility, Unconscionable Conduct, Assessment of Damages
Landlord and Tenant Commercial Leasing Damages COVID 19 Leasing Regulations Impacted Tenant Definition Job Keeper Eligibility Unconscionable Conduct Assessment of Damages

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Parties

SuperBurrito Pty Ltd

First Appellant

Zong Yuan Qin

Second Appellant

TNAU Finery Pty Ltd

Respondent

Procedural Posture

Appeal / Decision on Appeal From Second Tribunal Decision

Legal Issues

  1. 1 Whether the tenant qualified as an 'impacted lessee' under the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) and associated JobKeeper rules as of the relevant date
  2. 2 Whether the landlord engaged in unconscionable conduct under s 62B Retail Leases Act 1994 (NSW)
  3. 3 Whether damages for storage costs were properly assessed and awarded

Ratio Decidendi

The Tribunal was entitled on the evidence to find the tenant did not satisfy the requirements to be an 'impacted lessee' under the COVID-19 leasing regime, as there was insufficient proof a qualifying GST turnover projection was made prior to the relevant date. No error of law or unreasonable evaluative decision was demonstrated, and the appeal on this ground was dismissed. The Tribunal's finding that the landlord did not engage in unconscionable conduct was supported by its analysis and did not constitute legal or factual error, particularly as acting on a mistaken legal interpretation alone does not render conduct unconscionable. However, in regard to damages, the Tribunal failed to...

Court Disposition

Appeal allowed in part; leave to appeal granted in respect of grounds relating to storage costs; appeal otherwise dismissed.

Orders

  • Leave is granted to the appellants to amend their Notice of Appeal to include grounds A1, 5 and 6.
  • Leave to appeal is granted in respect of grounds 5 and 6 and the appeal is allowed in respect of the award for damages for storage costs.