Pastina Pty Ltd v Hosanna Excelsis One Universal Church Inc

Pastina Pty Ltd, the plaintiff, brought an action against Hosanna Excelsis One Universal Church Inc, the defendant, for damages for breach of a holding over lease. The dispute concerned the continuation of a lease agreement beyond its expiration date and the subsequent breach of the terms of a holding over lease. The case was heard in the Supreme Court of New South Wales. The central legal issues revolved around the interpretation of the terms of the lease, particularly clause 4.8, which dealt with the holding over of the premises after the expiration of the lease term. The court needed to determine whether the defendant's occupation of the premises constituted a holding over under the Retail and Commercial Leases Act 1995 and, if so, whether the defendant was liable for breach of the holding over lease.

The court found that the defendant was conducting two retail shops from the premises from September 2010 pursuant to a retail shop lease. The lease had expired, but the defendant continued to occupy the premises. The court assessed the holding over period at the commencement of the extension to a term of five years and concluded that the exception provided by s 20B(3)(d) did not apply as the possession of the retail shop fell short of five years. The court held that the defendant breached the holding over lease by vacating the premises on 21 October 2017, and was therefore liable for damages in the sum of $383,207.16 plus interest. The court further noted that the terms of the holding over lease were on the same terms as the original lease, except for variations in rent and necessary changes to accommodate the monthly tenancy. The court will hear the parties as to GST, interest and costs and the formal orders to be made.