Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256

Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256

Clause 4 of the Second COVID Regulation operated as a blanket prohibition on termination for non-payment of rent by impacted lessees during the prescribed period; Croc's qualified as an impacted lessee as at 3 December 2020, so Alamdo's termination was invalid. Contractual obligations under the Agreement for Lease were enforceable, and the issue of damages for wrongful termination should be remitted as it was not properly litigated below.

Parties
First Appellant: Croc's Franchising Pty Ltd; Second Appellant: Brett Christopher Aldons; Third Appellant: Lawrence John Cusdin; First Respondent: Alamdo Holdings Pty Ltd; Second Respondent: State of New South Wales
Jurisdiction
Australia
Judgment Date
27 October 2023
Procedural Posture
Commercial Lease Dispute / Court of Appeal – Post Trial Appeal
Outcome
Appeal allowed; orders of primary judge set aside; cross-claim remitted for determination of damages.
Legal Topics
Retail Leases, COVID 19 Pandemic Regulations, Contractual Obligations, Guarantees, Good Faith Negotiations, Statutory Privilege, Termination of Lease, Damages, Lease Registration
Property Law Statutory Interpretation Contract Law Evidence Retail Leases COVID 19 Pandemic Regulations Contractual Obligations Guarantees +5 more

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Parties

Croc's Franchising Pty Ltd

First Appellant

Brett Christopher Aldons

Second Appellant

Lawrence John Cusdin

Third Appellant

Alamdo Holdings Pty Ltd

First Respondent

State of New South Wales

Second Respondent

Procedural Posture

Commercial Lease Dispute / Court of Appeal – Post Trial Appeal

Legal Issues

  1. 1 Was Croc's eligible for Jobkeeper benefits and therefore an 'impacted lessee' under the Second COVID Regulation?
  2. 2 Did clauses 5 and 6 of the Second COVID Regulation create a gateway through the prohibition in clause 4, or did clause 4 act as a blanket prohibition?
  3. 3 Did Alamdo comply with clause 5 of the Second COVID Regulation?

Ratio Decidendi

Clause 4 of the Second COVID Regulation operated as a blanket prohibition on termination for non-payment of rent by impacted lessees during the prescribed period; Croc's qualified as an impacted lessee as at 3 December 2020, so Alamdo's termination was invalid. Contractual obligations under the Agreement for Lease were enforceable, and the issue of damages for wrongful termination should be remitted as it was not properly litigated below.

Court Disposition

Appeal allowed; orders of primary judge set aside; cross-claim remitted for determination of damages.

Orders

  • Appeal allowed.
  • Set aside orders 1 and 2 of Stevenson J dated 28 February 2023 and all orders dated 8 March 2023.