Robert Hay KC
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The long-running saga about whether the Retail Leases Act 2003 precludes “caps” on rent increases has ended with the Victorian Court of Appeal affirming that “caps” on rent increases do not contravene the Act. In Northcote Shopping Centre Pty Ltd v Aldi Foods Pty Ltd [2024] VSCA 140 the Court of Appeal held that a…
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There is a general rule that an injunction to restrain the exercise by a mortgagee of powers given by a mortgage will not be granted until the amount of the mortgage debt, if it is not in dispute, or the amount claimed by the mortgagee, if the amount is disputed be paid into court: see Inglis…
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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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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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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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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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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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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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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…
