Catchwords:

LEASES AND TENANCIES – retail lease –executed agreement for lease and lease for period of 10 years – whether lessor entitled to terminate lease – whether termination prohibited by COVID-19 pandemic regulation – whether lessor elected to waive certain grounds for terminating lease – where lease not registered – whether parties bound by contractual force of agreement for lease – proper construction of guarantee – whether guarantors liable for obligations of lessee – where tenant’s entitlement to damage not sufficiently litigated – whether appropriate for appeal court to determine entitlement to damages

STATUTORY INTERPRETATION – subordinate legislation – schedule to regulation – application of principles of statutory interpretation – schedule replaced by second version – schedule containing blanket prohibition on terminating lease during “prescribed period” – separate provisions permitting termination subject to conditions – whether specific exceptions prevailed over general prohibition – coherent reading in light of extrinsic materials

EVIDENCE ­– privileges – settlement negotiations – privilege under Small Business Commissioner Act 2013 (NSW) s 19 over discussions during mediation – whether privilege waived by party’s conduct and communications