Robert Hay KC Blog

Robert Hay KC

  • When will rectification damages not be awarded?

    Where a builder constructing a house builds a garage which does not comply with the contract should the builder be required to pay damages equivalent to the cost of demolishing and rebuilding the house if that were the only way to rectify the faulty garage? Watson J in Stanley v EWH Construction West Pty Ltd [2025] VSC…

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  • Suspension of rent obligation where wrongful re-entry and tenant evicted

    Where a landlord wrongfully re-enters leased premises and physically takes possession of the premises is the tenant obliged to continue to pay the rent? This question arises where a landlord re-enters the premises and the tenant disputes the landlord’s right to do so. Where the tenant obtains an interlocutory injunction enabling it to regain possession…

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  • What are the consequences of renewing a “retail premises lease” where the lease (as renewed) is not a “retail premises lease”?

    This post is a revised version of a post published on 7 November 2025. Please ignore the earlier post. If a lease is a “retail premises lease” governed by the Retail Leases Act 2003 (Vic) but upon renewal the lease is not a “retail premises lease”, is the renewed lease affected by the lease having been a…

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  • Device to avoid Retail Leases Act not effective

    Parties to long term leases sometimes attempt to avoid the application of the Retail Leases Act 2003 by purporting to invoke the Ministerial Determination of 24 August 2004 made under s.5(1) of the Act. The Act applies to a “retail premises lease” (s.11(1)) which is not a defined expression. However, the expression “retail premises” are defined in…

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  • When will a deposit be a penalty?

    Deposits hold a special place in contracts for the sale of land and do not fall within the general rules about penalties. Where a purchaser defaults the deposit (customarily 10 per cent) can be forfeited even though the amount of the deposit bears no reference to the anticipated loss to the vendor flowing from the…

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  • Court’s power to vacate an order for specific performance and substitute alternative relief

    What is the extent to which a contract is under the “control of the court” after an order for specific performance is made in favour of a vendor of land, the purchaser fails to comply with that order and the vendor then seeks vacation of the order and leave of the court to obtain damages…

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  • Default notice not needed where there is a repudiation of the contract

    In Gayed & Anor v Yuan [2024] VSCA 85 the Victorian Court of Appeal confirmed that: The purchasers bought land for $3,190,000 and paid a deposit of 10% of the purchase price, being $319,000. Three weeks before settlement the purchasers’ solicitor advised the vendor that the purchasers would be approximately $160,000 “short” of the balance needed to…

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