Darzi Group Pty Ltd v Nolde Pty Ltd (No 2)

The matter involved Darzi Group Pty Ltd, the plaintiff, and Nolde Pty Ltd, the defendant. The plaintiff sought a declaration that the defendant was unable to take "prescribed action" as defined in the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) against the plaintiff in respect of any shortfall in rent the plaintiff was otherwise obliged to pay to the defendant for the period of two months. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the defendant was able to take prescribed action against the plaintiff for any shortfall in rent and whether the defendant could rely on certain provisions of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW). The court had to consider the meaning and scope of the relevant provisions and the effect of the regulation on the rights and obligations of the parties.

The court found that the defendant was unable to take prescribed action against the plaintiff for any shortfall in rent during the two-month period. The court held that the regulation applied to the lease and that the defendant's right to enforce the terms of the lease was subject to the restrictions imposed by the regulation. The court also held that the defendant could not rely on certain provisions of the regulation to argue that it was not subject to its restrictions. The court's decision was based on a careful analysis of the language of the regulation and the context in which it was enacted.

The final orders of the court were that the defendant was unable to take prescribed action against the plaintiff for any shortfall in rent during the two-month period and that the plaintiff was entitled to a declaration to that effect. The court also ordered that the costs of the proceeding be paid by the defendant.