In brief - The NSW Covid-19 Regulations for commercial and retail leases continue to apply to leases entered into before 26 June 2021, with the prescribed period now to run until 30 June 2022, but with the removal of the requirement of compulsory mediation or the Tribunal to consider the National Code of Conduct leasing principles to prescribed actions for prescribed breaches which occur after 13 March 2022.
The scope for the eligibility of an impacted lessee has also been re-defined.
Key updates under the Retail and Other Commercial Leases (Covid-19) Amendment Regulation 2022 (66 of 2022) (New South Wales)
Under the new Retail and Other Commercial Leases (Covid-19) Amendment Regulation 2022 (NSW 2022 Amended Regulation) the NSW Government has extended its protections for tenants in response to the Covid-19 pandemic. (For background information, read our 23 July 2021 article NSW Emergency COVID-19 Regulations regarding leases are back, with a few important differences and our 1 September 2021 article Update on NSW COVID-19 Regulations for commercial and retail leases).
The NSW 2022 Amended Regulation provides for the following key changes:
The 'prescribed period' for which the Regulation applies now runs from 13 July 2021 until 30 June 2022.
Section 9(1) is deleted in respect of a prescribed breach which occurred after 13 March 2022, so that the lessor is no longer required to mediate for a prescribed breach (post 13 March 2022 breach) prior to taking prescribed action.
The meaning of an 'impacted lessee' under Section 2 has been amended to provide that if a lessee qualifies for one or more of the following:
• Micro Business Covid-19 Support Grant;
• Covid-19 NSW Business Grant;
• 2021 Job Saver Payment; or
• 2022 Small Business Support Program; and
the lessee's turnover for the 2020/21 financial year was less than $5 million (reduced from $50 million).
Essentially the changes are the reduction of the threshold for turnover and the addition of the 2022 Small Business Support Program in the criteria for an 'impacted lessee'.
Section 15(2) is inserted which provides that the National Code of Conduct is no longer to be considered by the Tribunal when considering whether to make a decision or order relating to an impacted lease for prescribed actions after 13 March 2022.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.