Todarello Property Investments Pty Ltd v GJA Kalra Pty Ltd [2021] NSWSC 1678

Supreme Court New South Wales

Medium Neutral Citation: Todarello Property Investments Pty Ltd v GJA Kalra Pty Ltd [2021] NSWSC 1678 Hearing dates: 16 June 2021; 15 and 22 September 2021; 3 December 2021 Date of orders: 20 December 2021 Decision date: 20 December 2021 Jurisdiction: Equity Before: Darke J Decision: Option for renewed lease validly exercised by defendant. Plaintiff's purported termination of the lease invalid. Judgment given in favour of plaintiff for arrears owed to it under the lease. Catchwords: LAND LAW – leases – options to renew – defendant lessee purported to exercise option to renew lease – plaintiff lessor served a notice under section 133E of the Conveyancing Act 1919 (NSW) – notice not served until seven months after date of expiry of lease – notice alleged breaches that existed at that date and continued thereafter – held that regardless of whether breaches are continuing, only breaches occurring up to date of expiry of lease can preclude lessor from exercising option – notice held invalid because not given within time – defendant not precluded from exercising option – declaration made that the defendant validly exercised option to renew and is entitled to a new lease LAND LAW – leases – termination of leases – plaintiff lessor served a Notice of Termination for the defendant's failure to pay $117,702.94 in rent and operating expenses – COVID-19 pandemic special provisions – where defendant an "impacted lessee" under Schedule 5 to the Conveyancing (General) Regulation 2018 (NSW) – Regulation prohibits lessors terminating leases in certain circumstances – Regulation prohibited plaintiff from terminating lease for failure to pay rent during "prescribed period" unless plaintiff complies with requirement to renegotiate in good faith rent payable under lease – plaintiff fails to comply with requirement and is not deemed to have complied due to a failure of defendant to provide information – plaintiff's termination of lease invalid – declaration made that termination invalid and of no effect Legislation Cited: Conveyancing Act 1919 (NSW), s 133E Conveyancing (General) Regulation 2018 (NSW), Schedule 5 Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 (NSW) Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 (NSW) Cases Cited: Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2012] NSWSC 251 Category: Principal judgment Parties: Todarello Property Investments Pty Ltd (Plaintiff/Cross-Defendant) GJA Kalra Pty Ltd (Defendant/Cross-Claimant) Representation: Counsel: Mr P Afshar (Plaintiff/Cross-Defendant) Mr J Mack (Defendant/Cross-Claimant)