Australia, July 22 -- New South Wales Land and Environment Court issued text of the following judgement on June 20:

1. WARD P: I agree with Adamson JA.

2. ADAMSON JA: Dr N Kalokerinos Pty Ltd (the applicant, or DNK) seeks leave to appeal against orders made by Campbell J (the primary judge) in the Common Law Division of the Supreme Court (the Court below), dismissing its appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT). Leave to appeal is required under s 101(2)(r) of the Supreme Court Act 1970 (NSW) as the sum in issue does not amount to $100,000.

3. The applicant also needs an extension of time as the primary judge made substantive orders on 23 August 2024 although costs orders were not made until 6 November 2024. As the applicant seeks leave to appeal against the substantive orders, the material date is 23 August 2024. The applicant's notice of intention to appeal was filed on 4 December 2024, which was outside the 28 day period allowed. Furthermore, it was ineffective as leave to appeal is required. The applicant's summons for leave to appeal was ultimately filed on 5 February 2025, over five months after the material date. The question of whether time ought be extended will be addressed in the context of whether leave ought be granted.

Introduction

4. At the relevant time, the applicant was the lessor of commercial premises at Shellharbour which were leased by Abhishek Jain (the respondent). On 24 November 2021, the applicant served a notice of termination of lease on Mr Jain, citing various breaches including failure to pay rent and outgoings. The applicant purported to terminate the lease on 13 December 2021 by exercising its right of re-entry.

5. This precipitated Mr Jain's application to NCAT, filed on 20 December 2021, in which he alleged that DNK's termination was unlawful and amounted to a repudiation of the lease, which Mr Jain alleged that he had accepted. Mr Jain relied on the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW), which was in force between 1 December 2021 and 12 January 2022 (the Regulation). This Regulation applied when the applicant purported to re-enter the premises and terminate the lease. On 18 January 2022, the applicant also filed an application in NCAT, claiming damages for breach of the lease. These two applications were heard together.

The Regulation

6. The regulation-making power in s 87 of the Retail Leases Act 1994 (NSW) relevantly provided:

87 Regulation-making power

(1) The regulations under any relevant Act may provide for the following matters for the purposes of responding to the public health emergency caused by the COVID-19 pandemic-

...

(c) regulating or preventing the exercise or enforcement of another right of a lessor or owner of premises or land under the relevant Act or an agreement relating to the premises or land in particular circumstances,

...

(2) The Minister may recommend to the Governor that regulations be made under this section only if-

(a) Parliament is not currently sitting and is not likely to sit within 2 weeks after the day the regulations are made, and

(b) in the Minister's opinion, the regulations are reasonable to protect the health, safety and welfare of lessees or tenants under the Act.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197814f10356af1a2db49cfb)

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