CCS 251 Elizabeth Street Sydney Pty Ltd v Hellenic Club Ltd

The matter between CCS 251 Elizabeth Street Sydney Pty Ltd and Hellenic Club Ltd was heard by the Civil and Administrative Tribunal of New South Wales. The applicant sought an interim order for possession of the premises and permission to operate a convenience store until the resolution of the main proceedings. The respondent, the landlord, contested the application and sought an adjournment. The central legal issues involved the requirements for granting an interim order under the Retail Leases Act 2003 and the necessary considerations in determining whether to exercise the Tribunal’s discretion to grant such an order. Specifically, the court had to assess the strength of the applicant's case and the balance of convenience to determine if the applicant was likely to succeed and whether it would suffer undue hardship without the interim order. Additionally, the court had to consider if the applicant should provide an undertaking as to damages.

The Tribunal, in its decision, held that the applicant had demonstrated a strong case on the merits and that the balance of convenience favoured granting the interim order. The Tribunal found that the applicant was likely to succeed in establishing that a retail shop lease had been created. It was also noted that the applicant would suffer significant hardship if the order was not granted. The Tribunal further required the applicant to provide an undertaking as to damages as per Regulation 25.8 of the Uniform Civil Procedure Rules 2005. The Tribunal concluded that the applicant’s likelihood of success, the balance of convenience, and the provision of an undertaking as to damages warranted the granting of the interim order.

The Tribunal made an order for the respondent to deliver possession of the premises to the applicant by a specified date and permitted the applicant to operate a convenience store at the premises under certain conditions. The order included provisions that the respondent’s compliance did not constitute an admission of the existence of a retail shop lease, that the applicant prosecute the claim with due diligence, that the applicant pay an occupation fee, and that the applicant provide an undertaking as to damages. Additionally, the Tribunal outlined the process for any party seeking costs, including deadlines for filing and serving applications, evidence, and submissions.