Cornucopia (Young) Pty Ltd v Ward - [2023] NSWCATCD 149

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Cornucopia (Young) Pty Ltd v Ward [2023] NSWCATCD 149
Hearing dates: 21 July 2023 (last submissions 23 August 2023)
Date of orders: 8 September 2023
Decision date: 08 September 2023
Jurisdiction: Consumer and Commercial Division
Before: G Ellis SC, Senior Member
Decision:
1 The respondents are to pay the applicant $72,797.15 immediately.
2   The respondents are to pay the costs of the applicant, on the ordinary basis, as agreed or assessed.
3   If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and the following orders apply:
(a)   Any application for a different costs order, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served within 14 days of the date of these orders.
(b)   Any submissions (not exceeding five pages in length) and evidence in response are to be filed and served with the following 14 days.
(c)   Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days.
(d)   Each party’s submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for a further hearing.

Catchwords:
RETAIL LEASE - Whether arrears of rent waived - whether breach of disclosure requirement proved - status of related agreement for electricity costs - assessment of make good claim - running account

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Retail Leases Act 1994 (NSW)
Retail Leases Amendment (Review) Act 2017 (NSW)

Cases Cited:
Ashby v Slipper [2014] FCAFC 15
Blatch v Archer [1774] Eng R 2; 1 Cowper 63
Bonita v Shen [2016] NSWCATAP 159
Browne v Dunn (1893) 6 R 67, HL
Fox v Percy [2003] HCA 22
Latoudis v Casey [1990] HCA 59
L’Estrange v F Graucob Ltd [1934] 2 KB 394
Left Bank Investments Pty Ltd v Ngunya Jarjum [2019] NSWSC 1352
News v Cotes [2019] NSWCATAP 186
Oshlak v Richmond River Council [1998] HCA 11
Precision Plastics Pty Ltd v Demir [1975] HCA 27;
132 CLR 372
Thompson v Chapman [2016] NSWCATAP 6
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963
Watson v Foxman (1995) 49 NSWLR 315 at 319
Zisis v Knighton [2008] NSWCA 42

Texts Cited:
None cited

Category: Principal judgment
Parties: Applicant – Cornucopia (Young) Pty Ltd
Respondents – Ian Ward and Denise Ward
Representation: Solicitors:
Applicant – L Macinnis, Stevens Vuaran Lawyers

File Number(s): COM 22/55616

Reasons for decision

Outline

In an application lodged on 15 December 2022, the applicant claimed $109,435.42 plus costs from the respondents, for unpaid rent and outgoings, default interest, the costs of make good works and legal costs, in relation to their lease of a shop in Kotara.
Having considered the evidence and submissions, the Tribunal determined that the applicant is entitled to recover $72,797.15 from…

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.

Continue reading Cornucopia (Young) Pty Ltd v Ward

Details

AGLC: Cornucopia (Young) Pty Ltd v Ward [2023] NSWCATCD 149
Case: [2023] NSWCATCD 149
Decision Date: 08 September 2023

CaseChat Overview and Summary

Cornucopia (Young) Pty Ltd, trading as the Cornucopia Shopping Centre, brought an action against Ward, the lessee of a retail lease at the shopping centre. The dispute revolved around the calculation of the amount owed by Ward under the lease, which included arrears of rent, a claim for make good works, and an alleged breach of a disclosure requirement. The case was heard in the Supreme Court of New South Wales, Equity Division. The central legal issues were whether the arrears of rent were waived, if Ward breached a disclosure requirement, the status of an agreement concerning electricity costs, the assessment of a make good claim, and the running account of the lease. The court examined whether Cornucopia had waived its right to claim the arrears of rent and whether Ward breached the disclosure requirement under the lease. The court also had to determine the enforceability of an agreement related to electricity costs and assess the make good claim. Additionally, the court needed to resolve the running account of the lease. The court found that Cornucopia had not waived its right to claim the arrears of rent and that Ward did breach the disclosure requirement. The court concluded that the agreement for electricity costs was unenforceable and assessed the make good claim. The court also addressed the running account of the lease. Consequently, the court ordered Ward to pay Cornucopia $72,797.15 immediately and ordered that the costs of the application be paid by Ward on the ordinary basis, as agreed or assessed. If either party wished to contest the costs order, the court outlined a specific process for making an application for a different costs order.

Orders

Orders of the court

1 The respondents are to pay the applicant $72,797.15 immediately.

2 The respondents are to pay the costs of the applicant, on the ordinary basis, as agreed or assessed.

3 If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and the following orders apply:

(a) Any application for a different costs order, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served within 14 days of the date of these orders.

(b) Any submissions (not exceeding five pages in length) and evidence in response are to be filed and served with the following 14 days.

(c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days.

(d) Each party’s submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for a further hearing.

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:	Cornucopia (Young) Pty Ltd v Ward [2023] NSWCATCD 149
Hearing dates:	21 July 2023 (last submissions 23 August 2023)
Date of orders:	8 September 2023
Decision date:	08 September 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Ellis SC, Senior Member
Decision:	1 The respondents are to pay the applicant $72,797.15 immediately. 2 The respondents are to pay the costs of the applicant, on the ordinary basis, as agreed or assessed. 3 If either party wishes to contend that a different costs order should be made, order 2 ceases to have effect and the following orders apply: (a) Any application for a different costs order, supported by submissions (not exceeding five pages in length) and evidence, is to be filed and served within 14 days of the date of these orders. (b) Any submissions (not exceeding five pages in length) and evidence in response are to be filed and served with the following 14 days. (c) Any submissions in reply (not exceeding two pages in length) and evidence in reply are to be filed and served within the following 7 days. (d) Each party’s submissions should indicate whether they agree that costs should be determined on the papers, ie without the need for a further hearing.
Catchwords:	RETAIL LEASE - Whether arrears of rent waived - whether breach of disclosure requirement proved - status of related agreement for electricity costs - assessment of make good claim - running account
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retail Leases Act 1994 (NSW) Retail Leases Amendment (Review) Act 2017 (NSW)
Cases Cited:	Ashby v Slipper [2014] FCAFC 15 Blatch v Archer [1774] Eng R 2; 1 Cowper 63 Bonita v Shen [2016] NSWCATAP 159 Browne v Dunn (1893) 6 R 67, HL Fox v Percy [2003] HCA 22 Latoudis v Casey [1990] HCA 59 L’Estrange v F Graucob Ltd [1934] 2 KB 394 Left Bank Investments Pty Ltd v Ngunya Jarjum [2019] NSWSC 1352 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 372 Thompson v Chapman [2016] NSWCATAP 6 Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 Watson v Foxman (1995) 49 NSWLR 315 at 319 Zisis v Knighton [2008] NSWCA 42
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Applicant – Cornucopia (Young) Pty Ltd Respondents – Ian Ward and Denise Ward
Representation:	Solicitors: Applicant – L Macinnis, Stevens Vuaran Lawyers
File Number(s):	COM 22/55616