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Our legal experts will keep you up to date on all relevant and current developments.

Retail and Commercial Leases During COVID-19: The Return of Rent Waivers and Deferrals (Another 2021 Update)

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.


Upcoming Webinar: Avoiding Delta in the Workplace w/ Prof. Catherine Bennett (26 August 2021)

Join Professor Catherine Bennett, Deakin’s Chair of Epidemiology and Holman Webb Workplace Relations Partner Alicia Mataere and Associate Lee Pike on Thursday 26 August as they discuss:

  • How has Delta changed the game?
  • How can businesses manage the risk of Delta in the workplace?
  • Can you ask employees to declare their vaccination status?
  • What are the potential consequences of a Delta outbreak in your workplace?
  • What will the workplace look like following COVID-19 and Delta?

Click through to register your attendance today!


Insurers Feel The Heat as COVID-19 Test Cases Mount

On 25 June 2021, the High Court of Australia refused two insurers special leave to appeal the decision of the NSW Court of Appeal in HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296.

The NSW Court of Appeal unanimously held that insurers could not rely on an exclusion clause contained in certain policies to refuse indemnity for business interruption claims arising out of the COVID-19 pandemic.

The first test case does not mandate a blanket approach to policy coverage for all business interruption claims. Each will turn on the language of each policy wording and the circumstances of each claim.

Insurers have sought further judicial guidance on a number of other matters affecting the operation of business interruption policies in the context of COVID-19 in a second test case, due to be heard by the Federal Court later this year.

This article was originally published by the Law Society of New South Wales in the Law Society Journal, Issue 80 August 2021.


Lenders and Financiers: The Importance of Meeting Obligations

The 16 July 2021 decision in LNCP002 Pty Limited v Akcin [2021] NSWSC 848 has highlighted the obligations of lenders and financiers to act fairly and in good faith with respect to borrowers in mortgage lending, and to do what they have promised to do.


COVID-19, Vaccinations and the Workplace –  What Employers Need to Know

In light of the recent extended lockdown in Sydney, and the new short lockdown in Melbourne, the question again arises in relation to whether an employer can require its workers to be vaccinated against the COVID‑19 virus.

There are a myriad of discretionary issues for an employer to step through in determining whether it can direct its workers to be vaccinated; as well as what steps an employer can take if the worker refuses to follow such a direction.


The Impact of COVID-19 on Property Contracts: Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltd [2021] NSWSC 504

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.


COVID-19 Employee Stand Down Found to be an Employment Benefit

An Arbitrator in the Personal Injury Commission has found that a worker, who sustained psychiatric injury when her employer stood her down during the early stages of the COVID-19 pandemic, was not entitled to compensation.


[Registrations Closed] Upcoming Insurance Webinar: 2020 – A Year in Review (Tuesday 16 February)

Holman Webb is pleased to invite readers to join our General Insurance Group for our first insurance webinar of the year: 2020 - A Year in Review.

Presented by Partner and National Insurance Group Leader John Van de Poll and taking place on Tuesday 16 February 2021, this webinar will examine a range of significant cases from 2020.


Revenge of the Zombie Company?

Revenge of the Zombies is a 1943 horror film in which zombies exact revenge on their mad scientist creator.

Although there are not many mad scientists on the scene in 2020, there are many zombie companies which, if subject to liquidation, are likely to create an influx of preference claims being brought by liquidators and which will cause grief to credit managers in the coming months and years.


Temporary Remote Witnessing Changes Extended to 2021
Thursday 15 October 2020 / by Courtney Tran posted in Commercial Recovery & Insolvency Document Witnessing COVID-19

In March 2020, the New South Wales Government enacted the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 to prepare New South Wales for the impacts of COVID-19 in line with health advice, and to take immediate steps to address existing barriers in our laws that were incompatible with social distancing policies.  This included amending the Electronic Transactions Act 2000 ('the Act') to create a regulation-making power that would allow for regulations to provide for alternative mechanisms for signing and witnessing documents.

Pursuant to these powers, the New South Wales Attorney-General introduced the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020, which allows for documents to be signed by one person in one place, and witnessed by another person in another place using facilities such as Microsoft Teams, Zoom or FaceTime.


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