Jennifer Mee appeared for the respondent landlords in the NSW Court of Appeal in successfully defending an appeal brought by the guarantors of a tenant claiming that the lease had been frustrated due to the COVID-19 public health orders.

The Court clarified the operation of the doctrine of frustration, both generally and as it may apply to leases. Among other things, express clauses regarding allocation of risk, such as a statement that the use and occupation is at the tenant’s own risk, may preclude a finding of frustration. Clauses requiring operation during specified hours are not generally to be construed as requiring operations contrary to law.

Reasons for the judgment can be found here.