Kirk & Anor v Sunshine Developments (Vic) Pty Ltd

Kirk and Anor v Sunshine Developments (Vic) Pty Ltd involved a dispute between Grant Kirk and Aquarius Resource Management Pty Ltd, as tenants, and Sunshine Resource Management (Vic) Pty Ltd, as the landlord. The case arose during the COVID-19 pandemic when the landlord attempted to take action against the tenants under the Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld). The tenants sought an interim order to restrain the landlord from taking this prescribed action during the response or extension period, arguing that damages would not be an adequate remedy. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issues before the court were whether an interim order should be granted to prevent the landlord from taking the prescribed action, and whether damages would be an adequate remedy for the tenants if the landlord proceeded with the action. The court had to consider the urgency and potential irreparable harm to the tenants, as well as the balance of convenience in granting the interim order. The court also needed to assess the adequacy of damages as a remedy for the tenants if the landlord was allowed to proceed with the prescribed action.

The court granted the interim order, restraining the landlord from taking the prescribed action, pending the determination of the main application. The court found that the tenants had demonstrated urgency and the potential for irreparable harm, and that the balance of convenience favoured granting the interim order. The court also concluded that damages would not be an adequate remedy for the tenants, given the nature of the dispute and the potential harm to the tenants' business. The court outlined specific requirements for the filing of statements and other material by both parties and scheduled a directions hearing.

The court ordered that the landlord was restrained from taking the prescribed action, provided the tenants gave the usual undertaking as to damages and costs. The court also set out a detailed timetable for the filing of statements and other material by both parties, and scheduled a directions hearing by telephone to be held not before 19 February 2021.