Robin Raju & Associates Pty Ltd v Kaplan Investments Pty Ltd [2021] NSWCATCD 90

Robin Raju & Associates Pty Ltd v Kaplan Investments Pty Ltd [2021] NSWCATCD 90

The Tribunal dismissed all proceedings because the tenant did not establish jurisdiction. The premises were not shown to be used or intended to be used wholly or predominantly as a restaurant or other Schedule 1 retail shop business; any restaurant use was, on the evidence, minor, limited, ancillary or peripheral to use as a function centre. The Retail and Other Commercial Leases (COVID-19) Regulation 2021 did not apply because the breach relied on preceded its commencement, and the tenant did not establish that it had given the landlord the statement and evidence required to be treated as an impacted lessee under the 2020 Regulations.

Jurisdiction
Australia
Judgment Date
26 October 2021
Procedural Posture
Retail Lease Dispute Concerning Jurisdiction, COVID 19 Commercial Leasing Regulations, Non Payment of Rent, and Relief Against Forfeiture / Hearing to Determine Whether the Tribunal Had Jurisdiction And, If So, Whether Interim Relief Against Forfeiture Should Be Granted
Outcome
Proceedings dismissed for lack of jurisdiction.
Legal Topics
['ncat Jurisdiction' 'retail Shop Lease Definition' 'function Centre and Restaurant Use' 'relief Against Forfeiture' 'impacted Lessee' 'prescribed Breach' 'non Payment of Rent']
['leases and Tenancies' 'retail Leases' 'civil Procedure' 'covid 19 Commercial Leasing Regulation'] ['ncat Jurisdiction' 'retail Shop Lease Definition' 'function Centre and Restaurant Use' 'relief Against Forfeiture' 'impacted Lessee' 'prescribed Breach' 'non Payment of Rent']

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Procedural Posture

Retail Lease Dispute Concerning Jurisdiction, COVID 19 Commercial Leasing Regulations, Non Payment of Rent, and Relief Against Forfeiture / Hearing to Determine Whether the Tribunal Had Jurisdiction And, If So, Whether Interim Relief Against Forfeiture Should Be Granted

Legal Issues

  1. 1 ['Whether the premises were a retail shop within s 3 and Schedule 1 of the Retail Leases Act 1994 (NSW).' 'Whether the Tribunal had jurisdiction under Regulation 8 of the Retail and Other Commercial Leases (COVID-19) Regulation 2021 or the predecessor 2020 Regulations.' 'Whether the tenant was an impacted lessee for the purposes of the 2020 Regulations.' 'If jurisdiction existed, whether interim relief against forfeiture should be granted.']

Ratio Decidendi

The Tribunal dismissed all proceedings because the tenant did not establish jurisdiction. The premises were not shown to be used or intended to be used wholly or predominantly as a restaurant or other Schedule 1 retail shop business; any restaurant use was, on the evidence, minor, limited, ancillary or peripheral to use as a function centre. The Retail and Other Commercial Leases (COVID-19) Regulation 2021 did not apply because the breach relied on preceded its commencement, and the tenant did not establish that it had given the landlord the statement and evidence required to be treated as an impacted lessee under the 2020 Regulations.

Court Disposition

Proceedings dismissed for lack of jurisdiction.

Orders

  • ['The proceedings in Matters COM 21/26432; COM 21/33002; and COM 21/38550 are dismissed.']