Pioneer Eagle Pty Ltd v Basha - [2025] NSWCATCD 124

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pioneer Eagle Pty Ltd v Basha [2025] NSWCATCD 124
Hearing dates: 12 and 13 November 2024
Final submissions 10 February 2025
Date of orders: 12 August 2025
Decision date: 12 August 2025
Jurisdiction: Consumer and Commercial Division
Before: G Ulman, Senior Member
Decision:
(1) The application against the first and third respondents is dismissed.
(2) In the event a party wishes to make a cost submission, it must file and serve a written submission of no more than four A4 pages within 21 days, any written submissions in reply of no more than four A4 pages in length must be filed and served within a further 21 days, and the Tribunal will then make a decision on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013, unless persuaded that there should be oral submissions.
(3) If no costs submissions are filed and served within the time specified in the preceding order, then the order of the Tribunal is that the applicant pay the first respondents’ costs of and incidental to the proceedings.
(4) A copy of these reasons is to be sent to the third respondent, care of the second respondent’s business address, 359-361 Concord Road, Concord West, NSW 2138.

Catchwords: Retail Lease – jurisdiction - permitted use of the premises is “massage and beauty” - whether the use of the premises is a prescribed business under the Retail Leases Act – what is the predominant use of the premises
Legislation Cited: Retail Leases Act 1994
Cases Cited: Diamond Certification Laboratories Ply Ltd v The Trust Company Pty Ltd (2015) NSWCATAP 122
Honings Bakery Pty Ltd v Cerialis Ply Ltd [2014] NSWCATCD 87
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd [2022] NSWCATAP 318
Robin Raju & Associates PL v Kaplan Investments PL [2021] NSWCATCD 90
Category: Principal judgment
Parties: Pioneer Eagle Pty Ltd – Applicant
Peter Basha, Renee Basha – First respondents
Emma Matiuzzo – Third Respondent
Representation: Mr M Playford, solicitor - Applicants
Ms B Kennedy, barrister – First Respondents
No appearance by or on behalf of the Third respondent
Solicitors:
Macquarie Playford Lawyers. – Applicants
Memcorp Lawyers – First respondents

File Number(s): 202300377884
Publication restriction: Nil

REASONs FOR DeCISION

Introduction

The applicant in these proceedings is the former lessee of a shop at [address] Concord West (premises). It occupied the premises under a lease that commenced on 31 January 2022, and which prematurely came to an end on 1 March 2023 (lease) when the applicant sold the business being conducted from the premises.
Ms Na Kang (Ms Kang) is the sole director and shareholder of the applicant.
Mr Peter Basha (Peter Basha) and his wife, Mrs Renee Basha, are the first respondents and the owners of the premises. Unless the context otherwise requires, I will refer to them as the “first respondents.”
Until March 2023, Exclusive Residential Real Estate Pty…

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 Pioneer Eagle Pty Ltd v Basha

Details

AGLC: Pioneer Eagle Pty Ltd v Basha [2025] NSWCATCD 124
Case: [2025] NSWCATCD 124
Decision Date: 12 August 2025

CaseChat Overview and Summary

Pioneer Eagle Pty Ltd, the appellant, filed an application against Basha, the respondent, seeking a declaration that the use of the premises at 359-361 Concord Road, Concord West, NSW, for the provision of a massage service is a permitted use under the Retail Leases Act 1994 (NSW). The application was also made against the first and third respondents, who were not parties to the lease but were involved in the proceedings. The dispute arose from the appellant's contention that the respondent was operating a massage business on the premises, which was not permitted under the lease. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The central legal issue before the court was whether the use of the premises for providing massage services constituted a permitted use under the lease, and whether it fell within the definition of a prescribed business under the Retail Leases Act. The court had to determine the predominant use of the premises and whether this use complied with the lease agreement and the statutory provisions. It was necessary to examine the nature of the massage services provided, the extent to which they were conducted on the premises, and whether these activities aligned with the permitted use as outlined in the lease.

The court examined the lease agreement and the statutory framework governing retail leases. It found that the lease specifically permitted the use of the premises for "massage and beauty" purposes. The court also considered the nature of the massage services provided by the respondent, concluding that they were predominantly massage services, which were within the permitted use. The court held that the respondent's activities did not contravene the lease terms or the statutory requirements. Consequently, the court dismissed the application against the first and third respondents, finding that the respondent's use of the premises for massage services was a permitted use under the lease.

The orders of the Tribunal were that the application against the first and third respondents was dismissed. The court provided that if any party wished to make a cost submission, it had to file and serve a written submission of no more than four A4 pages within 21 days. Any written submissions in reply must also be filed and served within a further 21 days. The Tribunal would then make a decision on the papers unless it was persuaded that oral submissions were necessary. If no cost submissions were filed and served within the specified time, the order was that the applicant would pay the first respondent's costs of and incidental to the proceedings.

Orders

Orders of the court

(1) The application against the first and third respondents is dismissed.

(2) In the event a party wishes to make a cost submission, it must file and serve a written submission of no more than four A4 pages within 21 days, any written submissions in reply of no more than four A4 pages in length must be filed and served within a further 21 days, and the Tribunal will then make a decision on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013, unless persuaded that there should be oral submissions.

(3) If no costs submissions are filed and served within the time specified in the preceding order, then the order of the Tribunal is that the applicant pay the first respondents’ costs of and incidental to the proceedings.

(4) A copy of these reasons is to be sent to the third respondent, care of the second respondent’s business address, 359-361 Concord Road, Concord West, NSW 2138.

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:	Pioneer Eagle Pty Ltd v Basha [2025] NSWCATCD 124
Hearing dates:	12 and 13 November 2024 Final submissions 10 February 2025
Date of orders:	12 August 2025
Decision date:	12 August 2025
Jurisdiction:	Consumer and Commercial Division
Before:	G Ulman, Senior Member
Decision:	(1) The application against the first and third respondents is dismissed. (2) In the event a party wishes to make a cost submission, it must file and serve a written submission of no more than four A4 pages within 21 days, any written submissions in reply of no more than four A4 pages in length must be filed and served within a further 21 days, and the Tribunal will then make a decision on the papers as permitted by section 50(2) of the Civil and Administrative Tribunal Act 2013, unless persuaded that there should be oral submissions. (3) If no costs submissions are filed and served within the time specified in the preceding order, then the order of the Tribunal is that the applicant pay the first respondents’ costs of and incidental to the proceedings. (4) A copy of these reasons is to be sent to the third respondent, care of the second respondent’s business address, 359-361 Concord Road, Concord West, NSW 2138.
Catchwords:	Retail Lease – jurisdiction - permitted use of the premises is “massage and beauty” - whether the use of the premises is a prescribed business under the Retail Leases Act – what is the predominant use of the premises
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Diamond Certification Laboratories Ply Ltd v The Trust Company Pty Ltd (2015) NSWCATAP 122 Honings Bakery Pty Ltd v Cerialis Ply Ltd [2014] NSWCATCD 87 Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd [2022] NSWCATAP 318 Robin Raju & Associates PL v Kaplan Investments PL [2021] NSWCATCD 90
Category:	Principal judgment
Parties:	Pioneer Eagle Pty Ltd – Applicant Peter Basha, Renee Basha – First respondents Emma Matiuzzo – Third Respondent
Representation:	Mr M Playford, solicitor - Applicants Ms B Kennedy, barrister – First Respondents No appearance by or on behalf of the Third respondent Solicitors: Macquarie Playford Lawyers. – Applicants Memcorp Lawyers – First respondents
File Number(s):	202300377884
Publication restriction:	Nil