Background
Hyper Star Market leased Parramatta premises from Mamacc Pty Ltd for a grocery business. On 6 July 2026, NSW Health issued a short-term closure order under the Public Health (Tobacco) Act 2008 after alleged unlawful trading in illicit tobacco and vaping products, and unlicensed retail tobacco sales.
On 17 July, the order was varied to allow the premises to reopen and sell goods other than tobacco products, non-tobacco smoking products, vaping goods and smoking accessories. The landlord then gave 28 days’ notice terminating the lease under s 50J(1). Hyper Star sought to restrain the termination, contending that the variation meant no closure order was “in effect” for the premises.
The Court’s Holding
Richmond J dismissed the summons with costs. A short-term closure order remains a closure order in effect for the purposes of s 50J(1) unless it is revoked or expires, even where it has been varied to permit limited reopening and sales under exemptions.
The variation did not substantively revoke the order. The statutory scheme distinguishes variation from revocation, and premises subject to an order remain “closed premises” notwithstanding exemptions. The continuing prohibitions on selling tobacco, vaping goods and related products also confirmed that the order remained operative. Mamacc’s termination notice was therefore valid.
Key Takeaways
- A landlord may use s 50J(1) while a closure order remains operative, despite a variation permitting restricted trade.
- Permitted entry or sales under an exemption do not themselves end a short-term closure order.
- The lease termination is statutorily treated as repudiation by the tenant.
Why It Matters
The decision gives s 50J a practical operation for landlords affected by NSW’s closure-order regime for illicit tobacco and vaping activity. A tenant cannot avoid the statutory termination power merely because NSW Health allows the business to resume limited, non-prohibited trading.