Robert Hay KC Blog

Commercial Law

  • AirBnB guests occupied apartment under a lease

    VCAT recently held that a tenant had not breached a lease by permitting users of AirBnB to stay in the tenant’s apartment. The landlord argued that the tenant had breached the lease by subletting the apartment in breach of the lease. The landlord sought possession of the apartment. The cornerstone of a lease is that…

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  • Real estate agent not authorised to accept termination notice given under s.31 of Sale of Land Act 1962

    A purchaser of land in Victoria may terminate the contract “at any time before the expiration of three clear business days” after signing the contract. See: s.31(2) of the Sale of Land Act 1962 (Vic). The termination notice must be “given to the vendor or his agent” or left at an address specified in the…

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  • Vendor not entitled to interest on unpaid contract price where contract terminated

    Vendors who terminate contracts for the sale of land on the ground of a default by the purchaser often claim interest on moneys that have not been paid calculated from the date of the breach to the date of termination. Clause 25 of the general conditions of the standard form of contract concerning the sale…

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  • Unfair term provisions provide tenants with a new weapon

    Tenants with less than 20 employees will soon have a new weapon in disputes with landlords as a result of amendments to the Australian Consumer Law: they will be able to challenge a term in a lease that is  “unfair”. The legislation effecting the changes, the Treasury Legislation Amendment (Small Business and Unfair Contract Terms)…

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  • Wife’s title as joint proprietor with husband not defeasible by reason of husband’s fraud

    In Cassegrain v Gerard [2015] HCA 2 the High Court of Australian had to decide whether a wife’s title as a joint proprietor with her husband was defeasible by reason of the husband’s fraud. The case contains an interesting discussion about when the fraudulent acts of an agent can be attributed to the principal and…

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  • Tenants should dispute rent nominated by landlord within time period specified in the lease

    Tenants should dispute the rent specified by a landlord at a rent review date within the time specified by the lease. Dire consequences can follow if the time periods are ignored . The rent review process for setting the market rent commonly provides for: the landlord to propose the new rent and, if the tenant…

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  • Lessor’s purpose for demolishing leased building is irrelevant

    Leases commonly permit a landlord to terminate a lease if the landlord intends to demolish the building located on the leased premises. Section 56 of the Retail Leases Act 2003 (Vic) implies terms into a retail premises lease that provides for the termination of lease on the grounds that the building is to be demolished.…

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  • Solak not followed in Victorian fraud case

    There have been many cases about whether a mortgage procured by fraud secured any money in circumstances where the mortgagee is innocent of the fraud. The latest case is Perpetual Trustees Victoria Limited v Xiao Hui Ying [2015] VSC 21 (Ying) where Hargrave J refused to follow the Victorian decision of Solak v Bank of…

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  • Rent reviews – mandatory or at the landlord’s discretion?

    The issue of whether a lease requires a rent review or whether the review is at the discretion of the landlord often arises. The problem can avoided by clear drafting. In Growthpoint Properties Australian Limited v Austalia Pacific Airports [2014] VSC 556 the court had to decide whether a rent review was mandatory under the…

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  • Franchisor’s internet trading breaches restraint clause

    There is a translation key(widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   Franchise agreements often restrict the franchisor from selling the franchised product in the territory in which the franchisee operates. Franchisors that engage in internet selling might…

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