Yigiter v Al Haery [2021] NSWCATCD 125

Yigiter v Al Haery [2021] NSWCATCD 125

The applicant was not prohibited by the COVID-19 Regulations from commencing proceedings because the respondent did not comply with their obligations to provide information and evidence of being an impacted lessee, and mediation was attempted. No binding agreement for reduced rent was established. The applicant is entitled to rent arrears but not an order for possession as the evidence did not establish lawful service or validity of the notice of termination.

Jurisdiction
Australia
Judgment Date
02 December 2021
Procedural Posture
Retail Tenancy Claim / Hearing and Final Orders
Outcome
Rent arrears declared and payment ordered; claim for possession rejected
Legal Topics
['retail Leases' 'rent Arrears' 'covid 19 Pandemic Regulations' 'possession Orders' 'lease Termination' 'rent Relief' 'good Faith Negotiation Under COVID 19 Regulations']
['commercial Law' 'tenancy Law'] ['retail Leases' 'rent Arrears' 'covid 19 Pandemic Regulations' 'possession Orders' 'lease Termination' 'rent Relief' 'good Faith Negotiation Under COVID 19 Regulations']

Case Brief

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Procedural Posture

Retail Tenancy Claim / Hearing and Final Orders

Legal Issues

  1. 1 ['Whether the applicant was prohibited by the Retail and Other Commercial Leases (COVID-19) Regulation 2021 from taking action in the Tribunal for payment of outstanding rent and for an order for possession' 'Whether the parties agreed to a reduced rent of $4,000 per month during the pandemic' 'Whether the lease had been validly terminated' 'Whether relief should be granted for rent arrears and/or possession']

Ratio Decidendi

The applicant was not prohibited by the COVID-19 Regulations from commencing proceedings because the respondent did not comply with their obligations to provide information and evidence of being an impacted lessee, and mediation was attempted. No binding agreement for reduced rent was established. The applicant is entitled to rent arrears but not an order for possession as the evidence did not establish lawful service or validity of the notice of termination.

Court Disposition

Rent arrears declared and payment ordered; claim for possession rejected

Orders

  • ['Pursuant to section 72(1)(f)(iii), declare that the respondent is indebted to the applicant for rent arrears in the amount of $65,475.' 'Pursuant to section 72(1) order that within 28 days the respondent pay to the applicant the sum of $45,975.' 'The respondent pay to the applicant the sum of $19,500 by 24 equal...