The recent case of MIR Holdings Pty Ltd v Marina Square Retail [2020] NSWCA 286 considered whether tenants who failed to pay rent before the COVID-19 pandemic could rely on the ‘no-eviction’ protections under the COVID-19 Regime.

On 1 October 2020, the landlord served Notices of Re-Entry and Termination on the tenants for non-payment of amounts due under their leases for the period ending March 31 2020. The landlord subsequently granted possession to new lessees under new lease agreements in August and September.

MIR Holdings and SKRG (the tenants, and also the Appellants) sought both a declaration that the respondent’s re-entry into and re-possession of the premises was unlawful, and an order that the Notices of Re-Entry and Termination be set aside. They argued that the landlord’s taking of possession was contrary to the NSW COVID-19 Regulations that prohibit landlords from evicting retail tenants. However, the relief could not be granted as the new lessees had not been joined as parties, and the order, if made, would create concurrent leases, or negatively affect the new lessees’ rights and interests.

Overall, the Court held that the provisions of the COVID-19 Regulations which prohibit landlords from evicting tenants did not apply to breaches that occurred before the commencement of these regulations, and regardless, MIR Holdings and SKRG had consistently been in default of their leases.

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