Deren Hassan and Clementine Fryer of Eakin MCCaffery Cox recently successfully acted for the landlord in a recent case to defeat an attempt by lessees claiming for relief against forfeiture following the landlord terminating the lease.

The case is MIR Holdings Pty Ltd & Anor v Marina Square Retail Pty Ltd [2020] NSWSC 1418.

The decision confirms:-

  • the well-established principles of relief against forfeiture including the effect of the intervention of third party rights; and
  • the rare exception where relief will not be granted where there is a serious risk the tenant will not be able to perform its obligations in the future. Importantly.

The case also determines that the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) will not apply to circumstances consisting of a failure to pay rent and outgoings prior to the prescribed period.

Landlords wanting to enforce leases for breaches prior to the commencement of the COVID-19 Leasing Regime now appear to have been given the green light.

For Eakin McCaffery Cox’s case note see NOTE LINK