MIR Holdings Pty Ltd & Anor v Marina Square Retail Pty Ltd [2020] NSWSC 1418

Supreme Court New South Wales

Medium Neutral Citation: MIR Holdings Pty Ltd & Anor v Marina Square Retail Pty Ltd [2020] NSWSC 1418 Hearing dates: 13 October 2020 Date of orders: 14 October 2020 Decision date: 14 October 2020 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Relief against forfeiture refused Catchwords: EQUITY – equitable remedies – relief against forfeiture – third party rights – where new lessees are in possession of the premises EQUITY – equitable remedies – relief against forfeiture – Retail and Other Commercial Leases (COVID-19) 2020 Regulation – whether breach during the prescribed period Legislation Cited: Conveyancing Act 1919 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Cases Cited: New Dragon Investments Pty Limited v Morgan & Banks Development Pty Ltd [2006] NSWSC 1139 Wilkinson v S & S Gikas Pty Ltd [2006] NSWSC 1314 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) Category: Procedural and other rulings Parties: MIR Holdings Pty Ltd (First Plaintiff) SKRG Pty Ltd (Second Plaintiff) Marina Square Retail Pty Ltd (Defendant) Representation: Counsel: T Alexis SC with C Palmer (Plaintiffs) R Angyal SC (Defendant)

Solicitors: Strathfield Law (Plaintiffs) Eakin McCaffery Cox (Defendant) File Number(s): 2020/287386

Judgment 1. The plaintiffs, MIR Holdings Pty Ltd and SKRG Pty Ltd, were the lessees of retail premises in a shopping centre known as Marina Square at Wentworth Point. The defendant, Marina Square Retail Pty Ltd, was the lessor. 2. By registered leases, the plaintiffs operated restaurants from premises known as RT 414 and RT 412/413. 3. The leases were for nine and eight years respectively, commencing on 21 November 2018. 4. On 11 September 2020 Marina Square served on MIR Holdings a Notice of Breach of Covenant pursuant to s 129 of the Conveyancing Act 1919 (NSW) reciting that MIR was in default under specified provisions the relevant lease by reason of non-payment of the following amounts: Relevant period Type of charge Amount Up to 31 March 2020 Rent $33,615.50 Up to 31 March 2020 Lessee's Contribution to Outgoings $50,319.13 Up to 31 March 2020 Marketing Fund Contribution $3,577.83 Up to 31 March 2020 Tradewaste Charges for the period 21/11/2018 to 31/3/2020 $525.08 Up to 31 March 2020 Water Usage Charges for the period 06/04/2019 to 31/01/2020 $882.82 Subtotal $88,920.36 GST payable on outstanding charges above $8,892.03 Total $97,812.39