The Highlands on a Plate Pty Ltd v Roloz Pty Ltd [2021] NSWSC 1072

Supreme Court New South Wales

Medium Neutral Citation: The Highlands on a Plate Pty Ltd v Roloz Pty Ltd [2021] NSWSC 1072 Hearing dates: 26-27 July 2021; 4 August 2021 Date of orders: 25 August 2021 Decision date: 25 August 2021 Jurisdiction: Equity Before: Darke J Decision: Plaintiff held to have validly exercised option to renew lease. Catchwords: LAND LAW – conveyancing – options – plaintiff lessee operated a café from premises owned by defendant lessor – lessee served a Notice of Exercise of Option to renew lease for further 5 year term – lessor responded with a Notice under section 133E of the Conveyancing Act 1919 (NSW) – the Notice stated the lessee was overdue on rent and electricity outgoings and proposed to treat those breaches of the lease as precluding the lessee from entitlement to the option – held that the plaintiff was not overdue on electricity outgoings – held that the plaintiff was overdue on rent but by less than half of the amount stated in the Notice – whether Notice specified the lessee's breach of the relevant obligation – Notice failed to specify the lessee's breach and thus was of no effect in respect of the breach – held that reliance upon a section 133E Notice in respect of the breach would in any event be contrary to cl 6(1) of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) – held that the lessee validly exercised its option to renew the lease – order made for specific performance to compel the grant of new lease Legislation Cited: Conveyancing Act 1919 (NSW), ss 133E, 133F National Energy Retail Law 2012 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW), cl 6(1) Cases Cited: Allsvelte Pty Ltd v Cassegrain Wines Pty Limited [2015] NSWSC 1370 Dee-Tech Pty Limited v Neddam Holdings Pty Limited [2012] NSWSC 251 Dee-Tech Pty Limited v Neddam Holdings Pty Limited (No. 2) [2012] NSWSC 517 Evanel Pty Ltd v Stellar Mining NL [1982] 1 NSWLR 380 Stellar Mining NL v Evanel Pty Ltd (1983) NSW ConvR ¶55-118 Category: Principal judgment Parties: The Highlands on a Plate Pty Ltd (Plaintiff) Roloz Pty Ltd (Defendant) Representation: Counsel: Mr J Braithwaite (Plaintiff) Mr P Horobin (Defendant)