Cameli Pty Ltd v Place Management NSW - [2020] NSWSC 1132

Supreme Court

New South Wales

Medium Neutral Citation: Cameli Pty Ltd v Place Management NSW [2020] NSWSC 1132
Hearing dates: 18 August 2020
Date of orders: 25 August 2020
Decision date: 25 August 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Declaration to be made that the term of plaintiff’s lease was extended by operation of s 44(3) of the Retail Leases Act to 14 August 2020.

Catchwords:
LAND LAW – leases – parties enter into lease pursuant to Retail Leases Act 1994 (NSW) (“the Act”) – parties agree to extend tenancy by entering into a Deed of Retail Licence – despite its terms, Deed of Retail Licence held to be a “retail shop lease” and hence subject to the Act – whether term of lease extended by operation of s 44 of the Act – held that lessor failed to give notice under s 44(1) within specified period – whether lessor later gave notification as required by s 44 – held that such notification was given on 14 February 2020 – whether lessee made written request for an extension of term pursuant to s 44(3) – held that such a request was made on 11 February 2020 – term of lease extended to 14 August 2020 – whether term could be further extended pursuant to cl 9 of Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) and leasing principles of National Code of Conduct – held that even if cl 9 applied, the leasing principles of the Code were not relevant to the question concerning the operation of s 44 of the Act

Legislation Cited:
Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW), cll 3, 4, 6, 7, 9, 10
Retail Leases Act 1994 (NSW), ss 3, 7, 44

Cases Cited:
Anka (Civic Center) Pty Ltd v Sahyoun [2014] NSWSC 17
Pyrmont Point Pty Ltd v Westacott [2016] NSWCA 33

Category: Principal judgment
Parties: Cameli Pty Ltd (Plaintiff)
Place Management NSW (Defendant)
Representation:
Counsel:
Mr P Tiliakos (Plaintiff)
Mr A F Fernon (Defendant)
Solicitors:
Lazarus Legal (Plaintiff)
Holding Redlich (Defendant)

File Number(s): 2020/91307
Publication restriction: None

Judgment

Introduction

These proceedings concern the land known as Shop 22 at The Rocks Centre in Playfair Street, The Rocks (“the shop”). The plaintiff conducts a café business, known as Dare, at the shop. The defendant, which is a corporation established pursuant to the Place Management NSW Act 1998 (NSW), is the registered proprietor of the land that includes the shop.
In about early July 2016 the plaintiff became the lessee under a registered lease (AK376888) of the shop premises. The lease was for a term that commenced on 24 March 2016 and terminated on 23 March 2019. The lease incorporated the provisions set out in Memorandum AD480860M to the extent that they were not inconsistent with the special conditions of the lease.
After the expiration of the term on 23 March 2019, the plaintiff remained in possession of the shop with the consent of the defendant in accordance with the holding…

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: [2020] NSWSC 1132
Decision Date: 25 August 2020

CaseChat Overview and Summary

Cameli Pty Ltd, the lessee, entered into a lease with Place Management NSW, the lessor, pursuant to the Retail Leases Act 1994 (NSW). To extend the tenancy, the parties executed a Deed of Retail Licence. The dispute centred around whether the Deed of Retail Licence constituted a retail shop lease under the Act, and whether the term of the lease was extended in accordance with the statutory requirements. The primary issue before the court was whether the term of the lease was extended by operation of section 44 of the Act. Specifically, the court needed to determine if the lessor complied with the notice requirement stipulated in section 44(1) and if the lessee's written request for an extension made under section 44(3) was valid.

The court examined the statutory provisions and found that the lessor did not provide the required notice within the specified period. However, the lessor later gave notification as mandated by section 44, which was deemed to have occurred on 14 February 2020. The court also found that the lessee had made a written request for an extension of the term on 11 February 2020, fulfilling the requirement under section 44(3). Consequently, the term of the lease was extended to 14 August 2020. The court further considered whether the term could be further extended under clause 9 of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) and the leasing principles of the National Code of Conduct. The court held that while clause 9 may apply, the leasing principles of the Code were not relevant to the operation of section 44 of the Act.

The court's final order was that the term of the lease was extended to 14 August 2020, but the further extension under the COVID-19 regulations and the National Code of Conduct did not apply to the operation of section 44 of the Act. The court did not address the applicability of the COVID-19 regulations or the National Code of Conduct beyond their irrelevance to the operation of section 44.

Orders