Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Fancy a Bite Pty Limited v IOF Custodian Pty Limited [2015] NSWCATCD 28 Hearing dates: 26 February 2015 Decision date: 11 March 2015 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1. The Tribunal orders that until further order of the Tribunal, the respondent is restrained from:
a. excluding the Applicant from retail shop premises known as shop F2, Food Court Level, 99 Walker Street, North Sydney NSW; and
b. interfering with the Applicant's use and occupation of the premises.
2. Until further order the Applicant is excused from providing to the Respondent an undertaking as to damages.Catchwords: Demolition notice, injunctive relief, requirement for undertaking as to damages, balance of convenience, s72(4) Retail Leases Act, 1994 Legislation Cited: Retail Leases Act 1994 Cases Cited: Allen v Jambo Holdings Pty Ltd (1980) 2 ALL ER 502
Car City Minchinbury Pty Limited v Lifestyle Vehicles Pty Limited [2008] NSWADTAP 76
Car City Minchinbury Pty Limited v Lifestyle Vehicles Pty Limited [2008] NSWADTAP 76
Dein & Dein v Bealey (1960) NSWR 385
Nam v Commonwealth Funds Management [2002] NSWADT 80
Spuds Surf Chatswood Pty Ltd v P T Limited [2007] NSWADT 130
Victims Compensation Fund Corporation v Brown [2003] HCA 54Texts Cited: The Principles of Equitable Remedies by ICF Spry, Seventh Edition 2007
Equity Doctrines and Remedies Fifth Edition 2015, JD Heydon, MJ Leeming and PG TurnerCategory: Principal judgment Parties: Fancy a Bite Pty Ltd (applicant/ lessee
IOF Custodian Pty Limited (respondent/ lessor)Representation: Counsel: Mr Victor Kerr
Mr Guy Parker SC
Solicitors: David Landa Stewart (applicant)
Mills Oakley, Lawyers (respondent)
File Number(s): COM 15/06476 Publication restriction: Nil
REASONS FOR DECISION
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The Applicant Fancy a Bite Pty Limited filed an Application for Original Decision on 6 February 2015 relating to receipt of a demolition notice issued by IOF Custodian Pty Limited the Respondent (IOF) requiring the applicant to vacate a retail premises being shop F2, Food Court, 99 Walker Street, North Sydney (the shop) by close of business on 2 March 2015.
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By that Application filed under COM 15/06481 the Applicant sought a number of declaratory orders from the Tribunal to the effect that the demolition notice was invalid and of no effect.
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At the same time the Applicant filed Retail Leases Application for Interim Orders under file number COM 15/06476 seeking the following:
That until further order of the Tribunal, IOF be restrained from excluding the Applicant from the shop and be restrained from interfering with the Applicant's use and occupation of the shop.
Until further order, the Applicant be excused from providing to IOF an undertaking as to damages.
That the Tribunal finds that there are special circumstances warranting an order that IOF pay the Applicant's costs and incidental to this Application pursuant to Section 60 of the Civil and Administrative Tribunal Act 2013 and Section 77A of the Retail Leases Act 1994 (NSW) (the RL Act).
Such further…
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- Case
- [2015] NSWCATCD 28
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Tribunal were whether the applicant was entitled to injunctive relief to prevent the respondent from interfering with their use and occupation of the premises, and whether the applicant should be required to provide an undertaking as to damages. The Tribunal considered the statutory provisions under the Retail Leases Act 1994 and the common law principles relating to the grant of injunctive relief. Specifically, the Tribunal examined whether the balance of convenience favoured the applicant, as required by s 72(4) of the Act.
In determining the application, the Tribunal found that the balance of convenience did indeed favour the applicant. The Tribunal was satisfied that the applicant had a strong likelihood of success on the merits of their claim, and that the respondent's actions in serving the demolition notice were unlawful. The Tribunal also considered that the applicant had made a sufficient showing of the potential for irreparable harm if the injunctive relief was not granted. As such, the Tribunal found that the applicant was entitled to the injunctive relief sought, and that they should be excused from providing an undertaking as to damages.
The Tribunal made orders restraining the respondent from excluding the applicant from the premises and interfering with their use and occupation. Additionally, the applicant was excused from providing an undertaking as to damages. The Tribunal's decision provides guidance on the factors to be considered when granting injunctive relief in cases involving retail leases and demolition notices, and highlights the importance of the balance of convenience in such cases.
Orders
Orders of the court
1. The Tribunal orders that until further order of the Tribunal, the respondent is restrained from:
a. excluding the Applicant from retail shop premises known as shop F2, Food Court Level, 99 Walker Street, North Sydney NSW; and
b. interfering with the Applicant's use and occupation of the premises.
2. Until further order the Applicant is excused from providing to the Respondent an undertaking as to damages.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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