Following on from previous articles on the same, this in-depth update from Property and Commercial Special Counsel Alex Bentancor takes a look at the current Retail and Commercial Lease landscape within NSW, as we move into another year of the COVID-19 Pandemic.

This piece covers a range of relevant information for commercial and retail landlords, as well as tenants, including:

• Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 (‘2021 Regulations’);
• Retail and Other Commercial Leases (COVID-19) Regulation 2022 (‘2022 Regulations’);
• “Leasing Principles” to be followed by landlords;
• Prescribed Actions by landlords that are prohibited by the Code; and
• Amended 2021 Regulations.

With a look at the recent matter of BP7 Pty Limited v Gavancorp Pty Limited [2021] NSWSC 265, Property Partner Robyn Chamberlain discusses Put and Call Option Agreements within the context of residential property transactions.

On 14 July 2021, the NSW Government passed the Retail and Other Commercial Leases (COVID-19) Regulation 2021 which limited the exercise of certain rights by a lessor under retail and other commercial leases for a breach of the lease if:

• the lessee is a business that qualifies for certain grants due to the impact of the COVID-19 pandemic; and
• the breach is a prescribed breach that occurs between 13 July 2021 and 20 August 2021.

Despite this, the 2021 Regulations did not initially provide for rent relief (waiver or deferrals of rent), or prohibit the increasing of rent under a lease as the Regulations made in 2020 did - they only prohibited landlords from taking certain "Prescribed Action" against a tenant between 13 July 2021 and 20 August 2021.   On 13 August 2021, in response to the surge of COVID-19 cases, the NSW Government passed the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 which:

• extended the Prescribed Period to 13 January 2022 (so that the Prescribed Period became the 6 month period from 13 July 2021 to 13 January 2022); and
• re-introduced the requirement for landlords and tenants to renegotiate the rent payable under Impacted Leases, in order to take into account the impact of the COVID-19 pandemic and the leasing principles set out in the Code.  

This update from Property and Commercial Special Counsel Alex Bentancor takes a look at the latest changes, and how they're set to impact both retail and commercial landlords and tenants.

In the Full Federal Court decision of Liberty Mutual Insurance Company Australia Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 given on 20 July 2021, the Full Court addressed the construction and scope of thirdparty liability policies in the context of claims made by a building and construction company for losses occurring as a result of the manifestation of serious defects within a building, during the defects liability period.

Key Take Away

1. The Full Court maintained that in the event of ambiguity in an insurance policy, the context (including the market) in which the parties are operating, as well as the commercial purpose of the policy, must be considered (Icon’s Cross Appeal); and
2. Similarly, the Full Court considered that the context of Insurance Policies must always be considered in circumstances where the definition of ordinary words are not clear (QBE Appeal).
3. The Full Court ultimately prefers Policy Interpretation which refers to extrinsic contextual material where Policy terms are not clear.

Retail and Commercial tenants in NSW are likely familiar with the operation of the provisions of the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles and the NSW Government’s regulations that followed to give effect to the Code in response to COVID-19 pandemic during 2020 and, for some tenants, the first quarter of 2021.

This piece includes a summary of the Code and the regulations that were made to give legal effect to the Code from April to December 2020 and, to a more limited extent, the first quarter of 2021.

The recent case of Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltd [2021] NSWSC 504 reminded me of a matter I was involved in last year during the first COVID-19 lockdown.

In that matter, Holman Webb acted for the seller of the freehold and business of a hotel.  Contracts were exchanged when knowledge of COVID-19 was only just starting to spread - although settlement was due after the public health orders had been implemented.

The lockdown caused hardship for many people.  Fortunately, in this particular matter, the parties came to a sensible settlement and the sale was able to proceed.

Contrastingly, in the recent NSW Supreme Court case of Dyco Hotels v Laundy Hotels (Quarry), the parties were unable to settle the dispute – with the seller terminating the Contract and keeping the deposit of $562,500.

The Registrar General recently made two important announcements relating to certificates of title within New South Wales.

• On 11 October 2021, all certificates of title ('CTs') will be abolished, known as 'cessation day'; and
• From 11 October 2021, paper dealings will no longer be accepted for lodgment and only electronic dealings will be accepted.  

This means that from 11 October 2021, New South Wales will have 100% e-conveyancing.

​Holman Webb is pleased to announce six promotions across our Sydney, Melbourne and Brisbane offices – effective 1 July 2021.

Holman Webb Lawyers is proud to relay that the firm has been listed as a finalist in two categories in the Lawyers Weekly Australian Law Awards 2021:

• Law Firm of the Year
• Insurance Team of the Year

Click through for more information on this year's finalists, and upcoming winner announcements.

In August 2020, Holman Webb published warnings regarding cyber safety, scammers, hackers and dodgy money transfers - with a particular focus on the crucial need to take extra precautions when transferring money to third parties.

In the recent case of Deligiannidou v Sundarjee [2020] NSWSC 437, we see just how cunning hackers have become, and why not doing your due diligence prior to transferring large sums of money can be financially devastating.