The New South Wales Supreme Court recently heard a case involving Medi-Aid Centre Foundation (plaintiff) suing Joy's Child Care (defendant) for breach of lease of premises (see also previous post regarding this provider). The case is a complicated one and there are a number of issues involved. However, one issue raised in the case is of particular interest as the Court was required to assess whether Joy's had complied with its obligations under the National Law. The defendant's argument that it had complied was an interesting one. The Court said:
Under the lease, the defendant covenanted to comply with all laws regulating how the premises were to be used, including obtaining the essential licences needed and keeping current any licences or registration required for the use of the premises or for the conduct of the defendant's business there (see cl 6.1.4 of the lease).
Mr Issa gave evidence that the defendant had its provider approval suspended and subsequently cancelled, effective from 12 April 2017.
Mr Shang conceded that child care services are being carried out of the premises from the end of February 2016 to mid-2017 involving up to 20 children at a time with at least three or four educators. The defendant operated, therefore, the child care centre without provider approval, ultimately resulting in the Department seeking injunctive relief against the defendant to which I have earlier referred in this judgment.
The defendant contended that it was engaged in trial services but there is no exception in the National Law for such purposes.
It follows that the carrying on of such services whilst the relevant approvals were suspended or cancelled was a breach of the lease (paras. 144-8).
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