Robert Hay KC Blog

Robert Hay

  • Real estate agents face claims for recovery of commissions

    Vendors of properties who have paid commissions to real estate agents are gearing up to recover the commissions on the ground that they were paid by mistake following the Court of Appeal’s decision in Advisory Services Pty Ltd v Augustin [2018] VSCA 95. Agents are in turn likely to take action against the party that drafted…

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  • ‘Ultimate consumer test” remains one of the indicia of the retail provision of services

    The CB Cold Storage and IMCC Group saga has ended. This morning the High Court of Australia refused the landlord’s application for special leave to appeal. The consequence is that the Court of Appeal’s decision in IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178 stands and practitioners can draft…

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  • When does a deposit become 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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  • New edition of Commercial Tenancy Law

    The long awaited fourth edition of the leading text on leasing law, Commercial Tenancy Law, will be published in mid December 2017 by LexisNexis.  The authors of the fourth edition are Justice Croft, Robert Hay QC and Luke Virgona of the Victorian Bar.  The third edition was published in 2009. As was the case with the third…

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  • Content of default notices under s27 of Retail Leases Act

    At general law the question of whether a tenant has validly exercised an option for a further term depends upon whether the tenant has met the conditions contained in the lease for the exercise of the option. The general law has been altered by the Retail Leases Act 2003. Section 27(2) provides that: ” If…

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  • Retail Leases Act 2003 (Vic) likely to apply where tenant provides a service

    Where a tenant provides services from leased premises in accordance with the permitted use the lease is likely to be a “retail premises lease” and therefore governed by the Retail Leases Act 2003 (Vic). In every case it is necessary to identify precisely the service being provided, consider what activity is permitted under the lease…

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  • Controversy resolved – but more tenants under 15 year leases lose protection of Retail Leases Act 2003 (Vic)

    Leased premises that are “retail premises” within the meaning of s.4(1) of the Retail Leases Act 2003 are excluded from the operation of the Act where the lease term is 15 years or longer and other conditions are met. See: ss.5(1)(c) and 4(2)(f) and the Ministerial Determination dated 23 August 2004. The Ministerial Determination has…

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  • Valuers must furnish detailed reasons for rental determinations under Retail Leases Act

    Valuers determining the “current market rent” rent under leases concerning retail premises must ensure that the valuation: contains “detailed reasons” for the determination; and “specify the matters to which the valuer had regard in making the determination”. See: s.37(6)(b) and (c) of the Retail Leases Act 2003. Both requirements must be met; a determination that…

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  • Tan v Russell now on austlii

    Last seek I published a post about Eng Tan and Chen Lo v Thomas Russell [2016] VSC 93.  At that time the case did not appear on austlii. The case is important because it decided that a termination notice given under s.31 of the Sale of Land Act 1962 (Vic) could not be given to…

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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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