Replay Australia (Replay) was the landlord of a commercial premises at 123 Albert Street, Brisbane where NightOwl Property (NightOwl) was the tenant. The lease was due to expire on 13 October 2020 and contained an option to renew or extend the term for a further term of 5 years.
NightOwl exercised the option in early 2020 within the option exercise period. NightOwl did not receive any substantive response to its exercise of the option until after the expiry of the lease on 13 October 2020.
When COVID happened, NightOwl wrote to Replay requesting a rent reduction but no agreement was reached. Nevertheless, NightOwl decided to unilaterally reduce its rent payments.
As of midnight of the initial term of the lease (i.e. 13 October 2020), NightOwl was in arrears of rent due to its failure to pay part rent for April, May, June, July and August 2020.
After the expiry of the initial term, the solicitors of Replay wrote to NightOwl advising Replay was not obliged to grant a new or extended lease as NightOwl had decided to unilaterally reduce its rent payments and was otherwise in breach of the lease after it exercised the option to renew and at the expiry of initial lease term.
Replay’s solicitors pointed out that NightOwl had not fully complied with the requirements of the option to renew or extend clause, specifically, relating to there being no unremedied breaches at the end of the term and NightOwl having at all times observed and performed its obligations under the lease.
NightOwl was successful at trial on the issue of the Court’s jurisdiction to grant equitable relief against forfeiture. Replay appealed the Court’s decision on the basis the trial judge erred in deciding that equitable relief against forfeiture was available to NightOwl.
The Court of Appeal considered the grounds of appeal by Replay and stated:
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 Replay Australia Pty Ltd v NightOwl Properties Pty Ltd  CA 76, .
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