Ozoris Investments Group Pty Ltd v Malabar Headlands Pty Ltd; Malabar Holdings Pty Ltd v Ozoris Investments Group Pty Ltd [2023] NSWCATCD 113

Ozoris Investments Group Pty Ltd v Malabar Headlands Pty Ltd; Malabar Holdings Pty Ltd v Ozoris Investments Group Pty Ltd [2023] NSWCATCD 113

The Tribunal held that the effect of clause 6B of the COVID-19 Regulations was to suspend the enforcement, and not the operation, of rent increases during the prescribed period. After that period, the agreed automatic rent increase under the Lease became enforceable. The Lessee could not offset alleged rent overpayments against insurance outgoings without authorisation and was estopped by convention from asserting otherwise given its previous communications and actions. The Lessee's conduct did not constitute repudiation. Accordingly, the Lessor's re-entry for non-payment of insurance outgoings was valid, and the Lessee was ordered to pay specified amounts.

Jurisdiction
Australia
Judgment Date
12 September 2023
Procedural Posture
Consumer and Commercial (retail Lease Dispute) / Principal Judgment at First Instance
Outcome
Partial judgment for the Respondent in COM 22/54793; applicant succeeds in claim for insurance outgoings; other proceeding dismissed; costs reserved subject to further submissions.
Legal Topics
['retail Leases' 'covid 19 Pandemic Regulations' 'estoppel by Convention' 'approbation and Reprobation' 'repudiation' 'lease Termination and Re Entry' 'interpretation of Legislation']
['commercial Law' 'property Law' 'landlord and Tenant Law' 'contract Law'] ['retail Leases' 'covid 19 Pandemic Regulations' 'estoppel by Convention' 'approbation and Reprobation' 'repudiation' 'lease Termination and Re Entry' 'interpretation of Legislation']

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Procedural Posture

Consumer and Commercial (retail Lease Dispute) / Principal Judgment at First Instance

Legal Issues

  1. 1 ["Whether the Lessor was entitled to re-enter the premises and terminate the Lease for non-payment of rent and outgoings during the operation of COVID-19 Regulations; Whether clause 6B of the Retail and Other Commercial Leases (COVID-19) Regulation 2021 suspended the operation or enforcement of rent increases; Whether the Lessee's conduct amounted to repudiation of the Lease; Whether estoppel by convention precluded the Lessee from claiming credit for overpayment; Whether the principle against approbation and reprobation applied"]

Ratio Decidendi

The Tribunal held that the effect of clause 6B of the COVID-19 Regulations was to suspend the enforcement, and not the operation, of rent increases during the prescribed period. After that period, the agreed automatic rent increase under the Lease became enforceable. The Lessee could not offset alleged rent overpayments against insurance outgoings without authorisation and was estopped by convention from asserting otherwise given its previous communications and actions. The Lessee's conduct did not constitute repudiation. Accordingly, the Lessor's re-entry for non-payment of insurance outgoings was valid, and the Lessee was ordered to pay specified amounts.

Court Disposition

Partial judgment for the Respondent in COM 22/54793; applicant succeeds in claim for insurance outgoings; other proceeding dismissed; costs reserved subject to further submissions.

Orders

  • ['In proceedings COM 22/54793 the Respondent is to pay to the Applicant the sum of $5,139.33 within 14 days of the date of publication of these orders.' 'The proceedings COM 22/51649 is dismissed.' 'Each party is to pay their own costs of the two proceedings, subject to further submissions on costs as directed.']