Alamdo Holdings Pty Ltd v Croc’s Franchising Pty Ltd [2022] NSWSC 1746

Alamdo Holdings Pty Ltd v Croc’s Franchising Pty Ltd [2022] NSWSC 1746

On a proper construction, ss 87(1)(c) and (d) of the Retail Leases Act 1994 (NSW) authorised the making of the COVID Regulation insofar as it regulated enforcement of agreements for commercial leases or exempted lessees from operation of lease provisions during the prescribed period. The regulation was therefore not ultra vires or invalid in the respect alleged by Alamdo.

Parties
Plaintiff: Alamdo Holdings Pty Ltd; First Defendant: Croc's Franchising Pty Ltd; Second Defendant: Brett Christopher Aldons; Third Defendant: Lawrence John Cusdin; Fourth Defendant: State of New South Wales
Jurisdiction
Australia
Judgment Date
21 December 2022
Procedural Posture
Civil / Preliminary Judgment on Validity of Regulation
Outcome
Held: the COVID-19 commercial leases regulation is valid
Legal Topics
Validity of Delegated Legislation, Retail Leases, COVID 19 Commercial Leases Regulation, Statutory Construction
Equity Commercial Law Statutory Interpretation Validity of Delegated Legislation Retail Leases COVID 19 Commercial Leases Regulation Statutory Construction

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Parties

Alamdo Holdings Pty Ltd

Plaintiff

Croc's Franchising Pty Ltd

First Defendant

Brett Christopher Aldons

Second Defendant

Lawrence John Cusdin

Third Defendant

State of New South Wales

Fourth Defendant

Procedural Posture

Civil / Preliminary Judgment on Validity of Regulation

Legal Issues

  1. 1 Whether the COVID-19 commercial leases regulation (Schedule 5 of the Conveyancing (General) Regulation 2018 (NSW)) is invalid to the extent it prohibits recovery of possession or termination of a lease by a lessor under the lease terms
  2. 2 Whether the regulation was authorised under ss 87(1)(c) or (d) of the Retail Leases Act 1994 (NSW)

Ratio Decidendi

On a proper construction, ss 87(1)(c) and (d) of the Retail Leases Act 1994 (NSW) authorised the making of the COVID Regulation insofar as it regulated enforcement of agreements for commercial leases or exempted lessees from operation of lease provisions during the prescribed period. The regulation was therefore not ultra vires or invalid in the respect alleged by Alamdo.

Court Disposition

Held: the COVID-19 commercial leases regulation is valid