Mir Holdings Pty Ltd v Marina Square Retail Pty Ltd

Mir Holdings Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge concerning relief against forfeiture. The respondent, Marina Square Retail Pty Ltd, was the landlord, and the applicant was a lessee under an agreement for lease. The dispute arose from alleged breaches of the agreement for lease, specifically rent arrears, and the applicant's claim for relief against forfeiture. Crucially, other third-party lessees of the premises had not been joined as parties to the proceedings.

The Court of Appeal was required to determine whether it was appropriate to grant leave to appeal in circumstances where necessary and proper parties, namely the third-party lessees, had not been joined to the proceedings. This involved considering whether the relief sought by the applicant, specifically declarations regarding its rights, could be made on an interlocutory basis without the presence of all affected parties. The Court also had to consider the application of the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) to rent arrears that accrued before the prescribed period.

The Court refused the application for leave to appeal. Their Honours reasoned that the absence of the third-party lessees, who were necessary and proper parties to the proceedings, rendered the relief sought by the applicant inappropriate on an interlocutory appeal. The Court emphasised the fundamental principle that a court should not make orders that affect the rights of parties who are not before it. Consequently, the application was dismissed without considering the merits of the substantive appeal.

The application for leave to appeal was refused, and there were no orders as to costs.