The NSW Government has released the Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 (New Regulation), which extends the COVID-19 protections for lessees that were previously in the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (Repealed Regulation) to 31 December 2020. The new legislation implements a new definition of “Impacted Lease” to a lease to which an ‘Impacted Lessee’ is a party. An Impacted Lessee must qualify for Job Keeper payments under the amended rules.

The New Regulation clarifies that the prohibition on prescribed actions (such as terminating a lease) only apply in respect of a breach of an Impacted Lease that occurs within the prescribed period.

A party may make a second or subsequent relief request during the extended prescribed period if it does not relate to rent for a period for which relief was already granted. Thus, lessees who continue to be impacted can make additional requests for extended relief if they continue to be ‘Impacted Lessees.’ Lessors are required to commence negotiations within 14 days of receiving any request.

The dispute resolution provisions remain unchanged under the New Regulation. In the instance of a dispute, parties to a commercial lease must submit to mediation prior to commencing proceedings in a Court, and parties to retail leases must comply with Part 8 of the Retail Leases Act 1994.

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