Robert Hay KC Blog

Commercial Leases

  • 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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  • Landlords likely to consider gross leases

    Today I commented on an advisory opinion given by the President of VCAT, Justice Garde, in which His Honour decided that: (a)    a landlord could not recover from a tenant the costs of complying with essential safety measure requirements imposed on the landlord under the Building Act 1993 and its regulations; (b)  a landlord

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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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  • “Claw back” of lease incentives thrown into doubt

    Landlords often offer incentives to a tenant to encourage the tenant to enter a lease. Common incentives are rent free periods and contributions to the fit out. The logic behind the inducement is that landlord will benefit because the tenant will occupy the premises for the term of the lease. Landlords sometimes require a “claw

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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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  • NSW Court departs from general rule on drawing down of bank guarantees

    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/ Courts have traditionally treated an interlocutory application to restrain the calling upon or use of money secured by a bank guarantee or other performance bond as being

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  • Media Presentation By Robert Hay

    Re-entry and Relief from Forfeiture in Commercial Leases  Robert Hay  – Greens List   My  clerk can be contacted via this link http://www.greenslist.com.au/       https://www.youtube.com/channel/UCnZ52SbIPsHnEz74tK8ikRg

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  • Mortgagee lender does not have duty of care to ensure that a loan is appropriate for borrower

      There is a translation key(widget)  on this blog for ease of reading for non-English speaking members of the public or professionals. http://roberthaybarrister.blogspot.com.au/   Defaulting mortgagor borrowers defending court proceedings by the mortgagee lender often allege that the lender owed them a duty to investigate their income and assets and liabilities to determine whether the

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  • Undertaking as to damages must not be a ritual or a formality

      There is a translation key(widget)  on this blog for ease of reading for non-English speaking members of the public or professionals. http://roberthaybarrister.blogspot.com.au/ Parties seeking injunctions are required to offer an undertaking as to damages as the price for the injunction. All too often the undertaking is given lightly and without an understanding of the

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