Dr N Kalokerinos Pty Ltd v Jain

In the matter of *Dr N Kalokerinos Pty Ltd v Jain*, the applicant, Dr N Kalokerinos Pty Ltd, sought leave to appeal a decision of the NSW Civil and Administrative Tribunal (NCAT) concerning the termination of a retail lease. The dispute centred on whether the respondent, Jain, qualified as an "impacted lessee" under the COVID-19 regulatory regime, which would affect the terms of the lease termination. The appeal was heard by Ward P, Adamson JA, and Price AJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether NCAT erred in its determination that the respondent was an impacted lessee under the *Retail and Other Commercial Leases (COVID-19) Regulation 2021* (NSW), and consequently, whether the termination of the retail lease was validly effected. The court also considered the applicant's application for an extension of time to file its summons for leave to appeal and the principles governing the grant of such leave, particularly where questions of public importance arise.

The Court of Appeal granted the applicant an extension of time to file its summons for leave to appeal, acknowledging the public importance of the questions raised. However, despite granting leave to appeal, the court ultimately dismissed the appeal. The reasoning focused on the effect of an admission made by the applicant in its points of defence in NCAT, where it had conceded that the respondent was an impacted lessee. The court held that this admission was determinative of the issue, notwithstanding the applicant's subsequent attempts to resile from it. The court applied principles of civil procedure regarding admissions and the interpretation of the COVID-19 regulatory regime.

Consequently, the Court of Appeal ordered that the appeal be dismissed and that the appellant, Dr N Kalokerinos Pty Ltd, pay the respondent’s costs of the appeal.