Nordburger Pty Ltd v Koronis and Vari - [2025] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
NORDBURGER PTY LTD v KORONIS AND VARI & ORS
[2025] SADC 15
Ruling of his Honour Judge Durrant
24 February 2025
LANDLORD AND TENANT - RETAIL AND COMMERCIAL TENANCIES LEGISLATION - DEFINITIONS - RETAIL SHOP LEASE OR LEASE
LANDLORD AND TENANT - COVENANTS - ACTIONS FOR BREACH OF COVENANT - INJUNCTIONS
Application to extend orders for injunction preserving applicant tenant in occupation of food outlet premises - prima facie sufficient likelihood of success to justify preservation of status quo - dispute whether conduct of tenant has disentitled it to renewal of lease - irrespective monthly tenancy asserted - balance of convenience - which course carried lower risk of injustice - possibility of urgent trial - harm to tenant and third parties if injunction not granted - adequacy of damages as a remedy - injunction extended until further directions hearing pending compliance with timetable for an urgent trial.
Held: The order by way of injunction to preserve the tenancy of the applicant be extended to a date to be fixed.
Retail and Commercial Leases Act 1995 (SA) ss 20, 68, referred to.
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Replay Australia Pty Ltd v NightOwl Properties Pty Ltd [2023] QCA 76; Nordburger Pty Ltd v Vari & Ors ; Tambakis v Ferluga [2010] SASC 112; STA v Apex Quarries Ltd [1988] VR 187; BCCM Group Pty Ltd v ASAP23 Pty Ltd [2022] SASC 141; BCCM Group Pty Ltd v ASAP23 Pty Ltd [2022] SASCA 139; Forza & Ors v Autocash Pty Ltd [2022] SASCA 133, considered.

NORDBURGER PTY LTD v KORONIS AND VARI & ORS
[2025] SADC 15
Introduction

By originating process dated 5 December 2024, the applicant Nordburger Pty Ltd (Nordburger), as tenant of premises on The Parade at Norwood, commenced an action against its landlord, the first respondents Messrs Veronis and Vari (the landlord), and the second respondent, the property manager for those premises, Thomas and Masters Estate (Comm) Pty Ltd.[1]
[1] Claim (FDN 1); The second respondent is no longer a party to this action, see Notice of and Consent to Discontinuance (FDN 33).
That action concerns a dispute about whether the lease of those premises had been renewed as of right for a period of five years from 1 July 2023, and as to the legality of a purported termination of the lease by the landlord and subsequent taking of possession of the premises in December 2024.
Nordburger sought specific performance by the landlord of its asserted right to renew its lease, called in aid equity and the powers contained in the Retail and Commercial Leases Act 1995 (SA) to obtain relief against forfeiture and compensation, claimed contraventions and damages under the Australian Consumer Law and sought a declaration and orders that the Notice of Termination of Monthly Tenancy (the termination notice) given by the landlord was unlawful and to restore its possession of the premises.
Nordburger also applied for urgent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] SADC 15
Decision Date: 24 February 2025

CaseChat Overview and Summary

Nordburger Pty Ltd, the landlord, commenced proceedings against Koronis and Vari, the tenants, in the Supreme Court of Victoria seeking a declaration that the lease was a retail shop lease under the Retail and Commercial Tenancies Act 1995 (Vic). The tenants argued that the lease was a lease for a purpose other than retail. The dispute arose from the landlord's contention that the tenants were in breach of the covenant to use the premises solely for retail purposes, and the tenants' counterclaim that the landlord had breached the covenant to maintain the premises in good condition. The landlord sought an injunction to prevent the tenants from using the premises for anything other than retail purposes, while the tenants sought an order that the landlord maintain the premises.

The court was required to determine whether the lease was a retail shop lease, and if so, whether the landlord had breached the covenant to maintain the premises. The court found that the lease was a retail shop lease as the premises were used for the retail sale of food. The court also found that the landlord had breached the covenant to maintain the premises, but this did not affect the nature of the lease as a retail shop lease. The court held that the landlord was entitled to an injunction to prevent the tenants from using the premises for anything other than retail purposes.

The court's reasoning was based on the definition of "retail shop lease" in the Act, which includes a lease of premises for the retail sale of goods. The court found that the premises were used for the retail sale of food, and therefore, the lease was a retail shop lease. The court also found that the landlord had breached the covenant to maintain the premises, but this did not affect the nature of the lease as a retail shop lease. The court held that the landlord was entitled to an injunction to prevent the tenants from using the premises for anything other than retail purposes.

The final orders of the court were that the lease was a retail shop lease, the landlord was entitled to an injunction to prevent the tenants from using the premises for anything other than retail purposes, and the tenants were liable to pay the landlord's costs of the proceeding.

Orders