Fair Dinkum Mowers Pty Ltd v McDonald; McDonald v Fair Dinkum Mowers Pty Ltd; Fair Dinkum Mowers Pty Ltd v McDonald [2022] NSWCATCD 175

Fair Dinkum Mowers Pty Ltd v McDonald; McDonald v Fair Dinkum Mowers Pty Ltd; Fair Dinkum Mowers Pty Ltd v McDonald [2022] NSWCATCD 175

The lease was validly terminated because substantial rent arrears were owing, the lessor's rent relief offer had not been accepted, non-payment of rent breached an essential term of the lease, the COVID-19 Regulation did not prevent termination after the mediation certificate had been issued and the breach relied on was outside the relevant protection, and the claim for roof repairs provided no basis for relief because the roof repairs had been completed and the lease had been validly terminated.

Jurisdiction
Australia
Judgment Date
17 October 2022
Procedural Posture
Retail Tenancy Claim in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing of Three Applications Listed Together
Outcome
The lessee's applications in COM 22/17026 and COM 22/35933 were dismissed; the lessor's application in COM 22/23229 succeeded, with orders for payment of arrears and interest, a declaration of valid termination, surrender of possession, and costs.
Legal Topics
['validity of Lease Termination' 'rent Arrears and Interest' 'covid 19 Retail Lease Regulation' 'sub Letting Without Written Consent' 'surrender of Possession' 'roof Repairs' 'costs']
['retail Leasing' 'property Law' 'consumer and Commercial Law'] ['validity of Lease Termination' 'rent Arrears and Interest' 'covid 19 Retail Lease Regulation' 'sub Letting Without Written Consent' 'surrender of Possession' 'roof Repairs' 'costs']

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Procedural Posture

Retail Tenancy Claim in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing of Three Applications Listed Together

Legal Issues

  1. 1 ['What arrears of rent were owing under the lease' 'Whether the upstairs premises were sub-let by the lessee in breach of the lease' 'Whether the termination notice dated 7 April 2022 validly terminated the lease' 'What order, if any, should be made in relation to roof repairs' 'Whether interest and costs should be awarded']

Ratio Decidendi

The lease was validly terminated because substantial rent arrears were owing, the lessor's rent relief offer had not been accepted, non-payment of rent breached an essential term of the lease, the COVID-19 Regulation did not prevent termination after the mediation certificate had been issued and the breach relied on was outside the relevant protection, and the claim for roof repairs provided no basis for relief because the roof repairs had been completed and the lease had been validly terminated.

Court Disposition

The lessee's applications in COM 22/17026 and COM 22/35933 were dismissed; the lessor's application in COM 22/23229 succeeded, with orders for payment of arrears and interest, a declaration of valid termination, surrender of possession, and costs.

Orders

  • ['In COM 22/17026: The application is dismissed.' "In COM 22/17026: The applicant is to pay the respondent's costs of this application, on the ordinary basis, as agreed or assessed." 'In COM 22/23229: Pursuant to s 72(1)(a) of the Retail Leases Act 1994 (NSW), the respondent, Fair Dinkum Mowers Pty Ltd, is to pay...