NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR SWEDZAH V/S MOAMA WATERS PROVIDORE CASE

Australia, May 27 -- New South Wales Land and Environment Court issued text of the following judgement on April 28:

1. This is an appeal pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision made in the Consumer and Commercial Division (CCD) of the NSW Civil and Administrative Tribunal under the Retail Leases Act 1994 (NSW) which was delivered on 20 June 2024. In that decision, the parties were referred to as the landlords and the tenant, and we will remain consistent with that terminology for the sake of clarity.

2. The Appellants in this case are the owners of a caravan park in Moama, New South Wales (the landlords). The Respondent (the tenant) entered into a written lease (the Lease) over a restaurant (the Restaurant) within the caravan park.

3. The decision at first instance (the decision) was concerned with two applications:

1) An application by the tenant (the tenant's application) (2021/00416395 (formerly COM 21/02840)) for damages in the sum of $428,534 following the landlords' repudiation of the Lease, on the basis of which the tenant then terminated the Lease. The Tribunal at first instance found that the landlords had repudiated the Lease and the tenant had therefore validly terminated the Lease. After deducting the landlords' claim for unpaid rent and electricity, the Tribunal awarded the sum of $31,603.67 to the tenant; and

2) A cross-application by the landlords (the landlords' application) (2021/00401137 (formerly COM 21/18396)), for an order that the tenant pay for unpaid rent, utilities, cleaning and rubbish removal. That application was dismissed.

4. Only the orders in the tenant's application were the subject of the Appeal.

5. The Tribunal's orders were dated 20 June 2024. The Tribunal directed a timetable for a costs application and delivered a costs decision (the costs decision) on 1 November 2024.

6. The landlords lodged a Notice of Appeal on 22 November 2024. The Notice of Appeal listed the details of the decision under appeal as the decision dated 20 June 2024. A copy of the costs decision was included with the Notice of Appeal but was not the subject of any substantive submissions in the Appeal. When the question of whether the landlords also sought to challenge the costs decision was raised by the Appeal Panel at the end of the hearing, Counsel for the landlords confirmed that the costs decision was also appealed and that the result in relation to the costs decision should follow the Appeal Panel's decision in relation to the decision itself.

7. For the reasons which follow, we have decided that the landlords have failed to establish that the Tribunal made an error on a question of law. Leave to appeal on grounds other than a question of law was not sought. As the Notice of Appeal was filed out of time, leave to extend time was not granted and the Appeal will be dismissed.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19665dff7c2bf701830f57c4)

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