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Hyper Star Market Pty Ltd v Mamacc Pty Ltd as trustee for Mamacc Property... [2026] NSWSC 1027 | Case summary | Zoe

NSWNSWSC

Hyper Star Market Pty Ltd v Mamacc Pty Ltd as trustee for Mamacc Property Unit Trust

[2026] NSWSC 1027

Supreme Court of NSW|2026-08-27|Before: Richmond J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-08-27

Before

Richmond J

Catchwords

LEASES AND TENANCIES — Default and termination — Repudiation — Where short-term closure order under s 50B(1) of the Public Health (Tobacco) Act 2008 (NSW) issued to premises for unlawful trading in illicit tobacco products — Where variation to order under s 50B(4) to permit premises to re-open and sell goods except tobacco, smoking and vaping products and smoking accessories — Where lessor gave notice to terminate lease under s 50J(1)

Source

Original judgment source is linked above.

Catchwords

LEASES AND TENANCIES — Default and termination — Repudiation — Where short-term closure order under s 50B(1) of the Public Health (Tobacco) Act 2008 (NSW) issued to premises for unlawful trading in illicit tobacco products — Where variation to order under s 50B(4) to permit premises to re-open and sell goods except tobacco, smoking and vaping products and smoking accessories — Where lessor gave notice to terminate lease under s 50J(1)

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Hyper Star Market Pty Ltd v Mamacc Pty Ltd as trustee for Mamacc Property Unit Trust [2026] NSWSC 1027

Hearing dates: 24 August 2026

Date of orders: 27 August 2026

Decision date: 27 August 2026

Jurisdiction: Equity - Duty List

Before: Richmond J

Decision: Summons dismissed with costs

Catchwords: LEASES AND TENANCIES — Default and termination — Repudiation — Where short-term closure order under s 50B(1) of the Public Health (Tobacco) Act 2008 (NSW) issued to premises for unlawful trading in illicit tobacco products — Where variation to order under s 50B(4) to permit premises to re-open and sell goods except tobacco, smoking and vaping products and smoking accessories — Where lessor gave notice to terminate lease under s 50J(1)

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 17
Public Health (Tobacco) Act 2008 (NSW) Part 6A, ss 50A, 50B, 50D(1), 50G, 50H, 50I, 50J, 50L, sch 2

Cases Cited: Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363; [1904] HCA 12
DZY (pseudonym) v Trustees of the Christian Brothers (2025) 282 CLR 495; [2025] HCA 16
R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12
Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12
SAS Trustee Corp v Miles (2018) 265 CLR 137; [2018] HCA 55

It will be seen that a short-term closure order may be made for premises if the Secretary reasonably suspects that a relevant breach has occurred, or is likely to occur, on the premises (s 50B(2)). The Secretary may make a short-term closure order subject to exemptions (s 50B(3)) and the Secretary may vary or revoke a short-term closure order (s 50B(4)).
Section 50G provides that the Secretary must: (a) give public notice of the making of a closure order by posting a copy of the order on the front of the premises which are subject to the order; (b) make relevant information about a closure order available on the website of NSW Health including ‘the date the order takes effect and the duration of the order’; and (c) take reasonably practicable steps to give each notifiable person (which includes the occupier of the relevant premises) a copy of the closure order and a statement explaining the effect of the order, the reasons for making the order and the lessor’s ability to terminate the lease under s 50J. It is not in dispute that s 50G was complied with in the present case. Section 50G(5) provides that ‘closure order’ in s 50G includes ‘a closure order that has been varied’.
Section 50H(1) prohibits any person entering closed premises without reasonable excuse. Under s 50H(2), it is a defence where the person satisfies the court that the person did not know, and could not reasonably have been expected to know, that the premises were closed premises. Also, s 50H(3)(c) provides that the prohibition in s 50H(1) does not apply to a person who enters closed premises in accordance with an exemption granted by the Secretary under s 50B(3).
Section 50I(1) provides that the Secretary may by written notice (an exemption notice) permit one or more named persons, or a member of a class of persons, to enter closed premises. By s 50I(2), an exemption notice may be given for a single entry or for multiple entries and subject to conditions. By s 50I(4) the Secretary may revoke an exemption notice.
Section 50J(1) provides that ‘if a closure order is in effect for a premises’, the lease for the premises is taken to include a provision allowing the lessor to terminate the lease because of the making of the order by giving not less than 28 days written notice to the lessee. Section 50J provides (emphasis added):

The plaintiff submitted that in order for a ‘closure order’ to be ‘in effect’ for the purposes of s 50J the premises must be closed. It was said that this construction is supported by the text of Part 6A (entitled ‘Closure of Premises’), s 50B (which defines ‘short-term closure order’) and Division 5 (entitled ‘Effect of Closure Order’) in which s 50J is found, the ordinary and natural meaning of the words ‘closure’ and ‘closed’, the purpose (or ‘mischief’) to which the Act was directed, and the passages in the second reading speeches referred to above.
In relation to the text of Part 6A, emphasis was placed on the terms of s 50B(1), which provides that the Secretary ‘may by written order (a short-term closure order) direct that premises specified in the order are closed for the period, not longer than 90 days, specified in the order’. Therefore, pursuant to s 50B(1), a short-term closure order is, by definition, an order that ‘premises specified in the order are closed for the period’. The Secretary could not, pursuant to s 50B(1), make a closure order in any other terms (for example, only restricting the sale of tobacco products). To be a ‘closure order’ within the meaning of the section, the order must direct that the premises are closed.
Very substantial penalties attach to entering premises subject to a closure order, or purchasing tobacco or non-tobacco items from premises subject to a closure order. A corporate entity selling one food item from premises subject to a closure order faces a maximum penalty close to half a million dollars. Given the very substantial penalties attaching to breaches, the Act must therefore be construed both carefully and strictly.
In this context, the plaintiff submits that it cannot have been the intention of the legislature that a ‘closure order [being] in effect’ could mean anything other than the premises being closed, with the consequential effects and penalties set out in ss 50H and 50L.
The plaintiff therefore submits that in the circumstances where the Premises had reopened pursuant to the Variation Notice and were relevantly only prohibited from selling tobacco products, there was no ‘closure order … in effect’ within the meaning of s 50J of the Act, and accordingly, the defendant’s purported termination notice was invalid. Put another way, in substance, the Variation Notice had the effect of revoking the Order because as a consequence of it the Premises ceased to be closed.
Reliance was also placed on the principle of statutory construction that the preferable construction is that which authorises the least interference with private property rights: R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at [5], [40]-[43].
The defendant submitted that the meaning of the words ‘closure order … in effect’ in s 50J(1) of the Act is to be resolved by reference to the text, context, and purpose of the Act, and, having regard to four below matters in particular, the Order was a short-term closure order in effect for the Premises notwithstanding the variation made to it by the Variation Notice:
A closure order that is varied remains a closure order. So much is clear from the distinction between varying and revoking a closure order in s 50B(4).
C**losed premises (defined to mean premises subject to a closure order) remain closed premises (that is, premises subject to a closure order) even if they are subject to an exemption granted under s 50B(3) (see ss 50I and 50H(3)(c)).
There is nothing in s 50J or elsewhere in Part 6A which suggests an intention to limit the use of the term closure order to exclude a closure order that has been varied. This can be contrasted to other sections which state a general prohibition (see, e.g., s 50H(1), a person must not enter closed premises) and then include an exemption to that prohibition (i.e. the person enters closed premises in accordance with an exemption granted under s 50B(3)).
The legislative purpose of s 50J is to protect lessors where their tenant has conducted itself in a way that causes it to receive a closure order. The construction of s 50J(1) of the Act propounded by the plaintiff is not only contrary to the text and context, but it would also defeat the legislative purpose.

In order to determine the meaning of the words ‘if a closure order is in effect’ in s 50J(1), it is necessary to turn first to s 50B(1) which provides that a short-term closure order is an order made by the Secretary (or the Executive Director as delegate) that specified premises are closed for the period specified in the order. The Order was such an order.
It is clear from s 50B(4) that the Secretary (or the Executive Director as delegate) may subsequently vary or revoke a short-term closure order, including by making the order subject to exemptions. Consistently with s 50B(3) read with s 50H(3)(c) and s 50L(3)(a), the variation to a short-term closure order can be one which specifies an exemption permitting the premises to be used to sell products which are not tobacco products, non-tobacco smoking products or vaping goods. That is what occurred in the present case by the Variation Notice.
A variation to a short-term closure order of this kind necessarily involves the premises ceasing to be ‘closed’ in the ordinary sense of that word; they are permitted to re-open to sell products consistently with the exemption which has been granted by the variation. However, it is clear from s 50H(3) that the premises will continue to be ‘closed premises’ (i.e. premises subject to a closure order) despite that variation. It follows that the short-term closure order will still be in effect for the premises despite that variation to the order. This is consistent with the ordinary meaning of ‘in effect’ which is ‘the state or fact of being operative or in force’: Oxford English Dictionary, online ed, at 27 August 2026.
The terms of s 50G(3) read with s 50G(5) serve to confirm this construction. Section 50G(3) sets out the information about a short-term closure order which needs to be made public on NSW Health’s website, including ‘the date the order takes effect and the duration of the order’, and this applies to an order which has been varied under s 50B(4) to include an exemption of the kind described above. This is consistent with such an order continuing to be ‘in effect’ for its stated duration.
Accordingly, a short-term closure order which has been issued for premises is ‘in effect’ for those premises for the period, not exceeding 90 days, specified in the order, unless it is revoked before the expiry of that period, and this is so irrespective of whether it has been varied under s 50B(4) to include an exemption which permits some products to be sold from the premises.
While there is a principle, sometimes referred to as a ‘presumption’, that a statute does not interfere with vested property rights unless that intention is clear (Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 at 373; [1904] HCA 12), what this means, as French J pointed out in Fazzolari at [43], is that ‘where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights’. In the present case, there is a clear legislative intention through s 50J to interfere with vested property rights of a lessee where a closure order is in effect, even if it has been varied to permit the sale of goods from the premises under an exemption. In other words, there is no alternative construction of the critical words ‘if a closure order is in effect for a premises’ in s 50J(1) which is reasonably open.
I do not accept the plaintiff’s submission that the Variation Notice had the effect, in substance, of a revocation of the Order. First, the express words of the Variation Notice indicate that the intention of the Executive Director was to vary and not revoke the Order.
Second, the clear intention of the Variation Notice is that the premises may re-open but not for the sale of ‘Prohibited Goods’ (being ‘tobacco products, non-tobacco smoking products, vaping goods and smoking accessories’). That engages s 50L(1) in so far as the sale by the plaintiff of tobacco products, non-tobacco smoking products and vaping goods is concerned – the sale of such goods would be an offence by the plaintiff under s 50L(1) only if the Order has been varied rather than revoked (because if it was revoked, the premises would cease to be closed premises).
Third, the definition of ‘Prohibited Goods’ goes further than s 50L(1) in that it also includes ‘smoking accessories’ – it is through the making of a variation to the Order (rather than its revocation) that the Executive Director is able, in effect, to preclude the sale of smoking accessories which would not otherwise be caught by the prohibition in s 50L(1).
Fourth, while the words ‘are closed’ in s 50B(1) are in the present tense, and the Premises following the Variation Notice are not closed (in the ordinary sense of that word), those words must be read in their statutory context which includes the power to vary a short-term closure order after it was made in a manner which permits the premises to re-open but on a restricted basis through the grant of an exemption under s 50B(3). It is sufficient therefore that the Order when made required the premises to be closed and hence met the definition of a ‘short-term closure order’ when it was made; the subsequent variation of the Order under s 50B(4) in that manner does not cause the Order to cease to be a short-term closure order.
In my view, the passages from the second reading speeches do not assist the plaintiff’s argument and are entirely consistent with this construction of s 50J(1). The highlighted words in the second reading speech at [23] above do not assist with the determination of the purpose of s 50B or s 50J, are explicable as a reference to the effect of a closure order when made, and in any event reflect at most the subjective intention of the Minister as to the meaning of the provisions which cannot be substituted for the statutory text: Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 at 518.