First Renewable Pty Ltd v Nastevski [2020] NSWSC 1508

First Renewable Pty Ltd v Nastevski [2020] NSWSC 1508

The plaintiffs could not demonstrate a serious question to be tried because (i) the first plaintiff breached the lease by granting a sub-lease without consent, entitling the defendant to forfeit the lease; (ii) statutory and discretionary relief was either not sought or unavailable; (iii) the COVID-19 protections did not apply because the first plaintiff was not an 'impacted lessee' and the second plaintiff was not a 'lessee' vis a vis the defendant.

Jurisdiction
Australia
Judgment Date
28 October 2020
Procedural Posture
Interlocutory Application / Interlocutory
Outcome
Plaintiffs' notice of motion dismissed; costs awarded to defendant; procedural orders for potential amendment of summons and management of proceedings made.
Legal Topics
['leases' 'relief Against Forfeiture' 'subleases' 'covid 19 Commercial Leasing Legislation' 'equitable Remedies']
['land Law' 'equity'] ['leases' 'relief Against Forfeiture' 'subleases' 'covid 19 Commercial Leasing Legislation' 'equitable Remedies']

Case Brief

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Procedural Posture

Interlocutory Application / Interlocutory

Legal Issues

  1. 1 ['Whether the plaintiffs are entitled to interlocutory relief against forfeiture of a commercial lease after forfeiture by the defendant' "Whether a sublessee is a 'lessee' for the purpose of COVID-19 legislation with respect to the head lessor" 'Whether the defendant consented to the sub-lease granted by the first plaintiff to the second plaintiff']

Ratio Decidendi

The plaintiffs could not demonstrate a serious question to be tried because (i) the first plaintiff breached the lease by granting a sub-lease without consent, entitling the defendant to forfeit the lease; (ii) statutory and discretionary relief was either not sought or unavailable; (iii) the COVID-19 protections did not apply because the first plaintiff was not an 'impacted lessee' and the second plaintiff was not a 'lessee' vis a vis the defendant.

Court Disposition

Plaintiffs' notice of motion dismissed; costs awarded to defendant; procedural orders for potential amendment of summons and management of proceedings made.

Orders

  • ["The plaintiffs' notice of motion filed on 16 October 2020 be dismissed." 'The plaintiffs be granted leave to amend the summons filed on 16 October 2020.' 'Any amended summons filed pursuant to that grant of leave be filed and served no later than 4 November 2020.' 'The proceedings be listed before Lindsay J at...