NB 4 Trading Pty Ltd v Tonsan Pty Ltd [2025] NSWCATCD 189;

"(1) The applicant conducts a convenience store from the premises.

(2) The respondent had originally granted a lease to a different company associated with Mr Al Jarba, Bazzam Transport Pty Ltd. That company is now deregistered.

(3) Before the deregistration of Bazzam Transport, Mr Al Jarba had sought the respondent's agreement to the assignment or novation of the lease in favour of the applicant.

(4) The respondent had agreed to that request and, on 9 September 2025, issued a disclosure statement and a form of lease to the applicant.

(5) Later in September 2025 the respondent's managing agent, Ms Grace Van Mourik, asked the applicant to vacate the premises and on 7 October 2025 sent a notice of termination addressed to Bassam Transport. The notice asserted that the lease had not been executed by the applicant and that this constituted a "clear refusal of any proposed lease". The notice did not specify a termination date.

(6) The notice of termination was sent by Ms Van Mourik under cover of an email, addressed to the applicant's solicitor and to Mr Al Jarba's daughter, Fatima Al-Jawareen, who Mr Al Jarba states has been assisting him because his English is not good. The email suggests that Ms Van Mourik had discussed with "Fatima" (ie Ms Al-Jawareen) that "the final date of operations will be Thursday 9th October 2025".

(7) On 9 October 2025 the respondent's solicitor emailed the applicant's solicitor asserting:

(a) that the lease had been surrendered by Bazzam Transport in February 2025 on the basis that a new lease would be executed;

(b) that Bazzam Transport had failed to execute the lease;

(c) that the respondent had agreed to "a proposal to enter into a new lease with NB 4 Trading Pty Ltd" and had presented a new lease for execution;

(d) that the applicant had failed to execute the lease; and

(e) that the respondent had "accepted the clear repudiation of any purported lease and has validly terminated any right to continued occupation of the premises."

(8) The applicant's solicitor responded the same day asserting that the lessor had cancelled or withdrawn the lease and that there had been no refusal to execute the lease.

(9) The respondent's solicitor emailed the applicant's solicitor in response, requiring the premises to be vacated by 5 pm on 17 October 2025. Ms Van Mourik sent a further email on 13 October 2025 also requiring the premises to be vacated by 5 pm on 17 October 2025.

(10) On 14 October 2025 the applicant's solicitor emailed the respondent's solicitor, stating that the applicant would not vacate the premises, and asserting that "our client has an equitable interest in the premises, our client is in possession, our client paying rent, there is no breach on our client's part, our client had a valid lease, there was an agreement between the lessor and our client to surrender the initial lease (Bazzam lease) and enter a new lease for NB 4 Trading." The email also asserted that the lessor had failed to provide a lease for execution.

(11) On 15 October 2025 the respondent's solicitor confirmed that the respondent required vacant possession by 5 pm on 17 October 2025."

"12. I am satisfied that there is a question to be tried whether the applicant has an entitlement to a lease on the same terms as the previous lease in favour of Bazzam Transport, whether under an enforceable agreement to lease or by estoppel. Subject to the balance of convenience, that warrants the grant of an interim order pending the contested hearing of the application for interim orders on 21 November 2025."

1. In the absence of evidence from the respondent, I concluded that the balance of convenience favoured the grant of an interim order until a contested hearing of the application for interim orders on 21 November 2025.
2. At the same time, I noted:

"13. ... [T]he applicant's solicitor's emails of 9 and 14 October 2025 are vague and inconsistent concerning the identity of his client and the party claiming an entitlement to a lease over the premises, but, as Bazzam Transport has been deregistered, I accept that the solicitor could only have been referring to Mr Al Jarba or the applicant (or both). Because Mr Al Jarba is the sole director and secretary of the applicant, he may in practice act as if he were the applicant. It is nevertheless surprising that a solicitor would not be careful to make the distinction. In any event, Mr Al Jarba's affidavit makes it plain that the solicitor represents the applicant and that it is the applicant which claims an entitlement to a lease over the premises. The evidence which the applicant files in compliance with Order 4 made on 17 October 2025 should be prepared with proper attention to the distinction between a corporation and its directors and shareholders and provide a full explanation of the circumstances in which Bazzam Transport surrendered the lease and the applicant (through its director and its solicitor) negotiated for the grant of a new lease to the applicant."

1. On 22 October 2025 the respondent's solicitors filed an Application for Miscellaneous Matters seeking an order setting aside the orders made on 21 October 2025. The basis for the application was that the respondent had "in fact" filed and served material in accordance with the orders made on 17 October 2025. The application was accompanied by a statutory declaration from Paris Chanel Willis, a solicitor employed by the solicitors for the respondent. Ms Willis stated that she had attempted but been unable to link the case to her online registry profile and accordingly could not file evidence in accordance with the orders made on 17 October 2025. Ms Willis stated that, as she was located in Orange, she could not deliver the documents to the Registry in person and that she had been advised by the Registry to "email the Registry with the documents and explain in the email why you must file that way".
2. Ms Willis attached to her statutory declaration a copy of an email which she had sent to the Tribunal's Sydney Registry at 4:45 pm on 20 October 2025.
3. The evidence, upon which the respondent sought to rely to establish prejudice if the respondent was restrained from excluding the applicant from the premises, consisted of a statutory declaration by Tony Noor, the sole director and secretary of the respondent, dated 20 October 2025. Mr Noor's evidence is: that the premises are part of Lot 33 in Strata Plan 109234; that the insurance for the Strata Plan was due on 21 October 2025; and that the quoted premium for the renewal is more than three times the premium paid by the owners corporation last year. The difference in premium is over $80,000.
4. Mr Noor states:

"10. I have been advised by the insurance broker that the increase in insurance premium has arisen as a result of tobacco being sold from the Premises. The broker will not provide a quotation for insurance assuming no tobacco is being sold from the Premises unless and until we can confirm the Premises are not used for the sale of tobacco. The broker has advised: 'Regarding the increase in premium, I am waiting for the formal costing difference so we can outline how much the premium inflated due to the tobacconist. In the interim, you can use the total premium paid last year vs this year as a guidance.'"

1. Mr Noor states that the owners corporation does not have available funds to meet the increased premium. Mr Noor also states that:

"19. Although discussions took place with the former director of Bazzam Transport Pty Ltd in relation to the possibility of granting a new lease to NB 4 Trading Pty Ltd ..., neither any heads of agreement, nor any agreement to lease, nor a new lease was entered into."

1. Mr Noor states that he made the decision not to proceed with a new lease to the applicant and that the applicant was notified of that decision on 30 September 2025. Mr Noor does not explain how that decision was communicated to the applicant.
2. On 24 October 2025, I made orders permitting the applicant to file and serve by 5 pm on 27 October 2025 any evidence and submissions on which the applicant relied in response to the respondent's application to set aside the orders of 21 October 2025. I also directed the respondent to file and serve any submissions the respondent sought to make concerning whether the application to set aside the orders could be determined on the basis of the written submissions and without a further hearing.
3. In my reasons for the orders made on 24 October 2025 I stated:

"6. I note that s 82 of the SSMA provides that:

(1) If the use to which a lot in a strata scheme is put causes an insurance premium for the strata scheme to be greater than it would be if it were not put to that use, so much of a contribution payable by the owner of the lot as is attributable to insurance premiums may, with the consent of the owner, be increased to reflect the extra amount of the premium.

(2) The Tribunal may, on application, make an order for payment of contributions of a different amount to one or more contributions levied or proposed by an owners corporation on an owner if the Tribunal is of the opinion that the owner's consent has been unreasonably refused under this section.

7. It would be inappropriate to express any view concerning the question whether the Tribunal would, upon application by the owners corporation, make an order pursuant to s 82(2) in respect of any increased insurance premium which the owners corporation was required to pay by reason of the use of premises for the conduct of a business selling tobacco products, but the existence of that section may have relevance to whether the interim orders made on 21 October should be revoked.

8. I have made orders requiring the applicant to file further evidence and submissions responding to Mr Noor's statutory declaration and in particular the assertions regarding the consequences of the applicant's use of the premises for the conduct of a business selling tobacco products. That further evidence and submissions should address the question whether the applicant accepts that any increase in insurance premium arising from the use of the premises for the sale of tobacco products, which the respondent consented to pay or was directed by the Tribunal to pay, would form part of the outgoings applicable to the premises payable by the applicant under the lease to which the applicant claims to be entitled."

1. The applicant filed a further submission together with a further affidavit of Mr Al Jarba dated 27 October 2025. The respondent filed written submissions which stated that the respondent "agrees to the 22 October application being heard on the papers, provided that the below written submissions are taken into account."
2. Mr Al Jarba's affidavit of 27 October 2025 did not provide the full explanation of the circumstances in which Bazzam Transport surrendered the lease and the applicant (through its director and its solicitor) negotiated for the grant of a new lease to the applicant, which I indicated in my reasons of 21 October 2025 would be expected to be included in the further evidence to be filed by the applicant before the contested hearing of the application for interim orders on 21 November 2025. I recognise that the affidavit would have been prepared under time pressure, but it does not provide any further detail additional to that contained in Mr Al Jarba's 19 October 2025 affidavit concerning the circumstances in which the applicant alleges the respondent agreed to grant a new lease to the applicant. The affidavit merely states:

"4 in or about July 2025, when I requested a new lease for the applicant, the lessor agreed to grant a new lease to the applicant. The new lease was forwarded by the lessor's solicitor to the applicant. The new lease had the balance of period from the initial lease and the same terms and conditions as the initial lease to Bazzam."

1. Mr Al Jarba asserted that the applicant commenced to trade from the premises "in or about August 2025". I note that Bazzam Pty Ltd was deregistered on 24 August 2025. Mr Al Jarba asserted that:

"9 Prior to de-registration of Bazzam, Bazzam assigned its right in the shop to the Applicant."

1. No documentation of such an assignment was provided. I also note that the correspondence between the parties (and their respective solicitors) does not explicitly contemplate an assignment rather than a novation of the lease.
2. Mr Al Jarba stated in his first affidavit that on 12 September 2025 he had paid the rent invoice issued by the respondent in respect of rent and outgoings for October 2025. I note that that invoice was addressed to Bazzam Transport despite the deregistration of that company.
3. Mr Al Jarba also pointed out that the outgoings which Bazzam Transport had been required to pay under its lease, and which the applicant would be required to pay under the lease to which it claims to be entitled, do not include strata levies. Accordingly, if the insurance premium for the owners corporation of the strata scheme is increased by reference to the conduct of a tobacconist business from the premises, that increase in premium could not be passed on to the applicant, even if the owners corporation was able to pass it on to the respondent.
4. Because the applicant had not had an opportunity to respond to the further submissions filed by the respondent on 27 October 2025, and the respondent had made its consent to its application being determined on the papers conditional upon the further submissions being taken into account, on 28 October 2025 I directed that:

"The applicant may file with the Tribunal and serve upon the respondent, by 4pm on 29 October 2025, further submissions, strictly in reply to the submissions filed by the respondent on 27 October 2025."

1. The applicant filed further submissions on 29 October 2025 pursuant to that direction.
2. To the extent that the applicant's further submissions made assertions of fact, not supported by evidence filed by the parties, I have not taken those submissions into account, except to the extent they constitute admissions against interest by the respondent.
3. The applicant submits that the respondent has not provided evidence that it sought to "mitigate its potential losses" in that there is no evidence that the respondent or the owners corporation attempted to obtain cover from a different provider or that "the current quote is the cheapest quote". The applicant submits:

"[T]he Respondent elect to evict the Applicant rather than resolve the insurance issue in a reasonable way without causing any harm to the Applicant."

1. In response to the submission made by the respondent that the applicant had not proffered any undertaking as to damages, the applicant's submissions stated:

"[T]he Applicant is willing to provide undertaking to the Respondent's damages 'if any'."

1. I am satisfied that the respondent's Application for Miscellaneous Matters filed on 22 October 2025 can be adequately determined on the basis of the written evidence and submissions and without a hearing. Accordingly, I will make an order pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing.
2. I accept that the original interim orders of 21 October 2025 were made in circumstances where the respondent had complied with my order of 17 October 2025 but, without fault on its part, the submissions and evidence filed by the respondent did not come to my attention and were not taken into account when making the orders. In those circumstances, in my view, I should approach the question whether to set aside the orders of 21 October 2025 without any pre-disposition towards their continuation. The question should be addressed as if it were the initial determination of the question whether to grant interim relief. Although I have received submissions and evidence from both parties, I do not proceed on the basis that either party has put forward all that it might wish to put before the Tribunal at the contested hearing on 21 November 2025.
3. In J Family Trading Pty Ltd v Scone Village Food Emporium Pty Ltd [2022] NSWCATAP 311, at [32], the Appeal Panel of the Tribunal noted that, in the decision under appeal in that case:

"32 The Tribunal identified the factors relevant to its consideration of the application for interlocutory relief by reference to the principles outlined in decisions such as CCS 251 Elizabeth Street Sydney Pty Ltd v Hellenic Club Ltd [2016] NSWCATCD 88. The Tribunal noted that the relevant matters the appellant needed to demonstrate to obtain the interlocutory relief sought were:

1. that there was a serious issue to be tried in the substantive proceedings (i.e. the appellant had an arguable cause of action);

2. the balance of convenience was in favour of making the orders sought by the appellant;

3. that damages were not an adequate remedy; and

4. that, in respect of the balance of convenience, a relevant consideration is whether the applicant is prepared to offer the usual undertaking as to damages."

1. The Appeal Panel did not suggest the Tribunal had erred in proceeding on that basis. I accept that the relevant matters there identified are the matters which I must take into account in considering the respondent's Application for Miscellaneous Matters.

1. Although the respondent has disputed that there is any basis upon which the applicant might have, or be entitled to, a lease over the premises, there is evidence upon which it might be concluded, at a final hearing, that the applicant has been in occupation of the premises since August 2025 and has been paying rent to the respondent. That the respondent was aware of the existence of the applicant is established by the fact that it forwarded a disclosure statement and form of lease to the applicant. It is clear from an email to Mr Al Jarba from Ms Van Mourik sent on 26 August 2025 that the respondent was aware of the deregistration of Bazzam Transport. I do not consider that the issue of invoices for rent and outgoings addressed to Bazzam Transport is necessarily suggestive that the respondent believed that company was still in occupation.
2. There is no evidence of any form of agreement between Bazzam Transport and the applicant relating to the assignment of the lease to the applicant, and there is no evidence of any request by the applicant for approval to an assignment. Nevertheless, the applicant has asserted that there was such an assignment. Section 41 of the Act requires a request for the lessor's consent to be made by the lessee in writing. If that has not already occurred, it would seem that, the original lessee, Bazzam Transport, having ceased to exist, such a request could not now be made. Pursuant to s 39(1)(c) of the Act, the failure of a lessee to comply with s 41 is a permissible reason for the refusal of consent to a request for assignment.
3. However, the applicant also asserts that there was an agreement for the grant of a lease between the applicant and the respondent. A retail lease may arise in the absence of an agreement in writing: the Act, ss 3 and 8; Perhauz and Anor v SAF Properties Pty Ltd and Ors [2007] NSWADT 122. As noted above, the applicant's evidence of such an agreement is neither specific nor detailed, but the allegation is made, and the respondent's denials of such an agreement do not provide a full explanation of the course of events. The documents appear to establish that the respondent did provide a disclosure statement and form of lease to the applicant. Mr Noor does not provide any explanation of how or why that occurred.
4. I am satisfied that there is a question to be tried whether the applicant is entitled to a lease over the premises on the same terms as the lease to Bazzam Transport.

1. The critical question which I must determine is whether the balance of convenience favours the continuation of the interim order made on 21 October 2025 until the contested hearing on 21 November 2025. I note that the evidence before the Tribunal at that contested hearing should be much more detailed and substantial than that which is before me in considering whether the order should continue in force until that time.
2. In weighing the balance of convenience, it is necessary to recognise that, at least in part by reason of the respondent's insistence upon the Tribunal taking into account its further submissions, the decision whether to revoke the order or leave it in place until the contested hearing is being made less than three weeks before the contested hearing.
3. Mr Noor's evidence was that the owners corporation's insurance required renewal on 21 October 2025, but the respondent's submissions filed on 27 October 2025 state that "an extension has been granted to 14 November 2025 for payment of the insurance premium". The submissions assert that:

"If the premises continues to be occupied by a tobacconist, the entire building in which the premises is located would be uninsured after that date, at least for until the Owners Corporation and [the respondent] either reach agreement for payment of an additional premium or the Owners Corporation obtain an order from the Tribunal in proceedings against [the respondent]".

1. I accept that the evidence discloses that, if the applicant continues to conduct its business, including tobacco sales, from the premises, the owners corporation will be subject to a substantially higher insurance premium, which it may potentially seek to recover from the respondent pursuant to s 82 of the Strata Schemes Management Act 2015 (NSW). I do not consider that the evidence before me establishes that there is a real risk that the strata plan will become uninsured if the interim order is not set aside.
2. I accept that the applicant will suffer detriment if it is excluded from the premises, even for the short period until the contested hearing of the interim order application. In the absence of evidence of the financial arrangements between Bazzam Transport and the applicant, I cannot be satisfied that the applicant would have any claim in respect of moneys expended on fitting out the premises, but I accept that the applicant does have possession of the premises and, while occupying the premises, has the benefit of any fit out installed by Bazzam Transport.
3. I am satisfied that any loss which might be sustained by the applicant through being unable to trade if it is excluded from the premises could be adequately remedied by an award of damages, if the applicant were subsequently able to establish that it had been wrongfully excluded. However, I accept that damages would not be an adequate remedy if the applicant could not be restored to possession if ultimately successful in the proceedings. In particular, the applicant may not be in a position to recover the value or cost of any fit out, given that, as the respondent points out, the applicant did not incur the cost of the fit out.
4. There is no evidence before the Tribunal that, in the event the applicant is excluded from the premises, the respondent would enter into a lease with an alternative tenant before the contested hearing of the application for interim orders. It may be assumed that, in the event that the applicant is excluded from the premises after the contested hearing of the application for interim orders, it is likely that the applicant will not be able to be restored to possession if ultimately successful at the final hearing of the proceedings. However, that proposition is not relevant to the current application.
5. The respondent pointed out that the applicant had not, in its originating application to the Tribunal, offered an undertaking as to damages, that is to pay the respondent compensation in respect of any loss which it might suffer if the Tribunal restrained the respondent from retaking possession of the premises and the respondent subsequently succeeded in establishing that it was entitled to do so. The application rather contained a suggestion that the respondent should give an undertaking as to damages. Whether this was a typographical error and the applicant actually intended to offer such an undertaking, the applicant has now offered to give an undertaking. The wording included in the applicant's reply submissions of 29 October 2025 is ambiguous and, in my view, does not amount to an undertaking which the Tribunal could accept. However, I consider it a sufficient indication that the applicant is prepared to give an appropriate undertaking as to damages.
6. As the Tribunal held in CCS 251 Elizabeth Street Sydney Pty Ltd v Hellenic Club Ltd [2016] NSWCATCD 88 at [54]:

"[T]he making of orders in the nature of interlocutory injunctions as permitted by the RL Act must be done in "in a manner best calculated to achieve justice between the parties in the circumstances of the particular case". While there may be circumstances in which an undertaking as to damages should not be required, in my opinion there is no universal rule that applies to retail lease claims and the making of interim orders under the RL Act that would prevent the Tribunal from requiring an undertaking for damages."

1. In those proceedings, the Tribunal required the giving of an undertaking as to damages as a condition of an interim order requiring the respondent landlord to restore possession of a shop to the applicant pending the final determination of proceedings.
2. The undertaking required was said to be "in the form specified in Reg 25.8 of the Uniform Civil Procedures Rules 2005". Rule 25.8 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

"The 'usual undertaking as to damages', if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking."

1. If an undertaking as to damages were to be required to be given by the applicant, as a condition of the interim orders made on 21 October 2025 continuing in force until the contested hearing of the application for interim orders on 21 November 2025, it should be in those terms, amended to substitute references to the Tribunal for references to "the court".
2. I also note that there is no evidence of the applicant's financial circumstances, so the Tribunal has no basis for confidence that the undertaking as to damages offered by the applicant has any value.
3. Nevertheless, in all the circumstances, I am satisfied that it is appropriate that, provided the applicant gives the Tribunal an undertaking as to damages, the interim orders made on 21 October 2025 should not be set aside but should remain in force until 21 November 2025. On that occasion the Tribunal will have the more detailed and complete evidence contemplated by the directions made on 17 October 2025 and will hear submissions from both parties.
4. I reach the conclusion that the balance of convenience favours the continuation of the interim order because, given that there is to be a contested hearing of the application for interim orders in less than three weeks, it is not apparent from the evidence before the Tribunal that the owners corporation will be able to negotiate insurance, which does not include an increased premium by reason of the possibility that the premises may be utilised for the sale of tobacco products, until after the contested hearing, even if the present interim order were set aside.
5. In other words, I am not satisfied that setting aside the interim order which restrains the respondent from retaking possession of the premises would assist the owners corporation to obtain cheaper insurance. I have considered whether it would be appropriate to set aside the existing order and instead make an order restraining the respondent from re-letting the premises before 21 November 2025. However, I have not received submissions from either party concerning such an order. In any event, because I am not persuaded that preventing the applicant from trading from the premises until 21 November 2025 would have any impact on the insurance premium which the owners corporation will be liable to pay, I do not consider that such an order would reduce the potential detriment to the respondent sufficiently to balance the clear disadvantage to the applicant.
6. I note that the respondent had granted a five year lease, with a five year option, to Bazzam Transport for use as a "convenience store", which was clarified by a special condition to mean:

"[A] shop that sells a variety of items ordinarily sold at a convenience store which may include, but must not be limited to, items of a kind ordinarily sold at a tobacconist."

1. It would appear that, if Bazzam Transport had not been deregistered, the respondent would have been bound to a lease, potentially until 2034, which permitted the lessee to conduct business selling tobacco products. I do not consider that that circumstance should affect the assessment of the balance of convenience, but it does provide perspective.
2. The undertaking as to damages which the applicant must give the Tribunal as a condition of the continuation of the interim orders should be in the following form:

"The applicant undertakes to the Tribunal to submit to such order (if any) as the Tribunal may consider to be just for the payment of compensation (to be assessed by the Tribunal or as it may direct) to any person (whether or not a party) affected by the operation of the interim order made by the Tribunal in these proceedings on 21 October 2025 or of any interlocutory continuation (with or without variation) of the interim order."

1. As noted above, the applicant has not proffered an undertaking in those terms. The Tribunal cannot compel the applicant to provide an undertaking in those terms. However, unless the applicant, or its solicitor on its behalf, does provide an undertaking in those terms to the Tribunal, copied to the respondent, by 5pm on 5 November 2025, the interim order will lapse.

(1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing of the Application for Miscellaneous Matters filed by the respondent on 22 October 2025 is dispensed with.

(2) On condition that the applicant gives to the Tribunal an undertaking as to damages in the terms set out below, and provides a copy to the respondent, by 5 pm on 5 November 2025, order 1 made on 21 October 2025 continues in force until 5 pm on 21 November 2025 or until further order of the Tribunal, whichever occurs first.

(3) The undertaking referred to in the previous order is as follows:

The applicant undertakes to the Tribunal to submit to such order (if any) as the Tribunal may consider to be just for the payment of compensation (to be assessed by the Tribunal or as it may direct) to any person (whether or not a party) affected by the operation of the interim order made by the Tribunal in these proceedings on 21 October 2025 or of any interlocutory continuation (with or without variation) of the interim order.

(4) If the applicant does not give the undertaking in the terms set out in the previous order by 5 pm on 5 November 2025, order 1 made on 21 October 2025 will be set aside without further order.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.