Wing Da Pty Ltd v CC United Developments Pty Ltd [2020] NSWCATAP 123

Wing Da Pty Ltd v CC United Developments Pty Ltd [2020] NSWCATAP 123

The Appeal Panel held that the appellant established no error of law. The Tribunal properly followed Heard McEwen in relation to the lease clause limiting the time for seeking a rent review, and the factual differences relied on by the appellant did not distinguish that authority. The section 34 compensation ground failed because the appellant had conceded below that it had not made the required written request for rectification, and section 72AB was irrelevant to that requirement. The Tribunal did not err in rejecting unconscionable conduct or misleading and deceptive conduct, including because it considered the relevant circumstances, the appellant knew of the proposed redevelopment...

Jurisdiction
Australia
Judgment Date
30 June 2020
Procedural Posture
Appeal From the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Appeal Panel Decision
Outcome
Appeal dismissed; leave to appeal refused; appellant ordered to pay the respondents' costs; hearing dispensed with.
Legal Topics
['rent Review Under the Retail Leases Act 1994 (nsw)' 'compensation for Disruption and Access to Retail Premises' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'leave to Appeal' 'error of Law' 'fresh Evidence' 'discretion to Reject Tendered Documents']
['retail Leases' 'civil Procedure' 'administrative Law' 'consumer Law'] ['rent Review Under the Retail Leases Act 1994 (nsw)' 'compensation for Disruption and Access to Retail Premises' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'leave to Appeal' 'error of Law' 'fresh Evidence' 'discretion to Reject Tendered Documents']

Case Brief

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Procedural Posture

Appeal From the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in following Heard McEwen v Zanetti [2017] NSWCATAP 213 in relation to a retrospective market rent review under section 31 of the Retail Leases Act 1994 (NSW).' 'Whether the Tribunal erred in rejecting the claim for compensation under section 34 of the Retail Leases Act 1994 (NSW) for inhibited access or disruption to trade.' 'Whether the Tribunal erred in rejecting claims of unconscionable conduct under section 62B of the Retail Leases Act 1994 (NSW) and misleading and deceptive conduct under section 62D of the Retail Leases Act 1994 (NSW).' "Whether the Tribunal's rejection of documents tendered on the day of the hearing involved an error of law or procedural unfairness." 'Whether the Tribunal erred in relation to damages.' 'Whether leave to appeal should be granted on grounds other than error of law.']

Ratio Decidendi

The Appeal Panel held that the appellant established no error of law. The Tribunal properly followed Heard McEwen in relation to the lease clause limiting the time for seeking a rent review, and the factual differences relied on by the appellant did not distinguish that authority. The section 34 compensation ground failed because the appellant had conceded below that it had not made the required written request for rectification, and section 72AB was irrelevant to that requirement. The Tribunal did not err in rejecting unconscionable conduct or misleading and deceptive conduct, including because it considered the relevant circumstances, the appellant knew of the proposed redevelopment...

Court Disposition

Appeal dismissed; leave to appeal refused; appellant ordered to pay the respondents' costs; hearing dispensed with.

Orders

  • ['The appeal is dismissed.' "The appellant to pay the respondents' costs." 'A hearing is dispensed with.']