Bluestream Enterprises Pty Ltd v Perich Property Pty Ltd - [2025] NSWCATCD 2

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bluestream Enterprises Pty Ltd v Perich Property Pty Ltd [2025] NSWCATCD 2
Hearing dates: 18 September 2024
Date of orders: 02 January 2025
Decision date: 02 January 2025
Jurisdiction: Consumer and Commercial Division
Before: D G Charles, Senior Member
Decision:
1 The application by the applicant, Bluestream Enterprises Pty Ltd, for orders of the Tribunal under the Retail Leases Act 1994 NSW, is dismissed.
2 Bluestream Enterprises Pty Ltd is to pay the respondent’s costs of the proceeding on the ordinary basis, as agreed or assessed.
3 The following orders apply if a party contends for a different costs’ order in relation to the proceeding:
(a) Order 2 above ceases to have effect if an application for a different costs’ order is made in the proceeding.
(b) The party contending for a different costs’ order (the costs’ applicant) is to file and serve the application for costs, supported by evidence and submissions, within 14 days of the date of these orders.
(c) The other party (the costs’ respondent) is to file and serve any evidence and submissions in response to the costs’ application within 28 days of the date of these orders.
(d) The costs’ applicant is to file and serve any material in reply within 35 days of the date of these orders.
4 Subject to the parties’ submissions on this point, any application for a different costs’ order in the proceeding will be determined without a hearing based on the written submissions and evidence provided, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW.

Catchwords:
RETAIL LEASE – whether payment of rent invoices waived – no evidence of misleading or deceptive conduct, unconscionability, or breaches of the COVID Regulations by a lessor – no estoppel by silence of lessor – no wrongful termination and re-entry by lessor – all lessee’s causes of action, including a rent reduction claim, dismissed.

Legislation Cited:
Retail Leases Act 1994 NSW
Retail and Other Commercial Leases (COVID-19) Regulation 2020 NSW
Retail and Other Commercial leases (COVID 19) Regulation 2022 NSW
Civil and Administrative Tribunal Rules 2014 NSW
Civil and Administrative Tribunal Act 2013 NSW

Cases Cited:
PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446
Nitopi v Nitopi [2022] NSWCA 162
Norsk Dor Pty Ltd v Tuxfend Pty Ltd [2020] NSWCATAP 183
Australian Securities and Investment Commission v Kobelt [2019] HCA 18
Darzi Group Pty Ltd v Nolde Pty Ltd (2021) NSWSC 774
Tuon Popo Big Bowl Noodles Pty Ltd [2022] NSWCATCD 172
Sneakerboy Pty Ltd v Georges Properties (No 2) [2020] NSWSC 1141
Jamaican Coffee Kitchen Pty Ltd v M20 Pty Ltd [2022] NSWCATAP 203
Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387
Sabouni v Revelop Building and Developments Pty Ltd (2021) NSWSC 31

Category: Principal judgment
Parties:
Bluestream Enterprises Pty Ltd – Applicant
Perich Property Pty Ltd - Respondent
Representation:
R Lay – Applicant’s director

Solicitors:
Marsdens Law Group…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCATCD 2
Decision Date: 02 January 2025

CaseChat Overview and Summary

The matter before the Civil and Administrative Tribunal of New South Wales involved a dispute between Bluestream Enterprises Pty Ltd, the lessee, and Perich Property Pty Ltd, the lessor, regarding a retail lease. Bluestream Enterprises alleged that the lessor had wrongfully terminated their lease and re-entered the premises without cause, sought a reduction in rent, and claimed estoppel by silence, among other things. Perich Property Pty Ltd denied all allegations and sought dismissal of the claims along with an order for costs.

The central legal issues were whether the lessor waived the payment of rent invoices, whether there was misleading or deceptive conduct, unconscionability, or breaches of COVID-19 regulations by the lessor, if there was estoppel by silence, and if the termination and re-entry were wrongful. Additionally, the court had to determine if the claims for rent reduction were valid. The Tribunal had to examine the contractual terms, the conduct of both parties, and applicable laws to resolve these issues.

In delivering the judgment, the Tribunal found no evidence of the lessor waiving the payment of rent invoices, nor did it find any misleading or deceptive conduct, unconscionability, or breaches of COVID-19 regulations by the lessor. The Tribunal also ruled out estoppel by silence and wrongful termination and re-entry by the lessor. Consequently, all of Bluestream Enterprises' claims, including the rent reduction claim, were dismissed. The Tribunal ordered that the application by Bluestream Enterprises be dismissed and that they pay Perich Property Pty Ltd's costs. It also set out procedures for any future costs applications.

Orders

Orders of the court

1 The application by the applicant, Bluestream Enterprises Pty Ltd, for orders of the Tribunal under the Retail Leases Act 1994 NSW, is dismissed.

2 Bluestream Enterprises Pty Ltd is to pay the respondent’s costs of the proceeding on the ordinary basis, as agreed or assessed.

3 The following orders apply if a party contends for a different costs’ order in relation to the proceeding:

(a) Order 2 above ceases to have effect if an application for a different costs’ order is made in the proceeding.

(b) The party contending for a different costs’ order (the costs’ applicant) is to file and serve the application for costs, supported by evidence and submissions, within 14 days of the date of these orders.

(c) The other party (the costs’ respondent) is to file and serve any evidence and submissions in response to the costs’ application within 28 days of the date of these orders.

(d) The costs’ applicant is to file and serve any material in reply within 35 days of the date of these orders.

4 Subject to the parties’ submissions on this point, any application for a different costs’ order in the proceeding will be determined without a hearing based on the written submissions and evidence provided, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bluestream Enterprises Pty Ltd v Perich Property Pty Ltd [2025] NSWCATCD 2
Hearing dates:	18 September 2024
Date of orders:	02 January 2025
Decision date:	02 January 2025
Jurisdiction:	Consumer and Commercial Division
Before:	D G Charles, Senior Member
Decision:	1 The application by the applicant, Bluestream Enterprises Pty Ltd, for orders of the Tribunal under the Retail Leases Act 1994 NSW, is dismissed. 2 Bluestream Enterprises Pty Ltd is to pay the respondent’s costs of the proceeding on the ordinary basis, as agreed or assessed. 3 The following orders apply if a party contends for a different costs’ order in relation to the proceeding: (a) Order 2 above ceases to have effect if an application for a different costs’ order is made in the proceeding. (b) The party contending for a different costs’ order (the costs’ applicant) is to file and serve the application for costs, supported by evidence and submissions, within 14 days of the date of these orders. (c) The other party (the costs’ respondent) is to file and serve any evidence and submissions in response to the costs’ application within 28 days of the date of these orders. (d) The costs’ applicant is to file and serve any material in reply within 35 days of the date of these orders. 4 Subject to the parties’ submissions on this point, any application for a different costs’ order in the proceeding will be determined without a hearing based on the written submissions and evidence provided, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW.
Catchwords:	RETAIL LEASE – whether payment of rent invoices waived – no evidence of misleading or deceptive conduct, unconscionability, or breaches of the COVID Regulations by a lessor – no estoppel by silence of lessor – no wrongful termination and re-entry by lessor – all lessee’s causes of action, including a rent reduction claim, dismissed.
Legislation Cited:	Retail Leases Act 1994 NSW Retail and Other Commercial Leases (COVID-19) Regulation 2020 NSW Retail and Other Commercial leases (COVID 19) Regulation 2022 NSW Civil and Administrative Tribunal Rules 2014 NSW Civil and Administrative Tribunal Act 2013 NSW
Cases Cited:	PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 Nitopi v Nitopi [2022] NSWCA 162 Norsk Dor Pty Ltd v Tuxfend Pty Ltd [2020] NSWCATAP 183 Australian Securities and Investment Commission v Kobelt [2019] HCA 18 Darzi Group Pty Ltd v Nolde Pty Ltd (2021) NSWSC 774 Tuon Popo Big Bowl Noodles Pty Ltd [2022] NSWCATCD 172 Sneakerboy Pty Ltd v Georges Properties (No 2) [2020] NSWSC 1141 Jamaican Coffee Kitchen Pty Ltd v M20 Pty Ltd [2022] NSWCATAP 203 Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; (1988) 164 CLR 387 Sabouni v Revelop Building and Developments Pty Ltd (2021) NSWSC 31
Category:	Principal judgment
Parties:	Bluestream Enterprises Pty Ltd – Applicant Perich Property Pty Ltd - Respondent
Representation:	R Lay – Applicant’s director Solicitors: Marsdens Law Group…