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Any practitioner who acts for vendors and purchasers of land should have a good understanding of what is and what is not a “terms contract” for the purpose of the Sale of Land Act 1962. The Act prohibits certain types of “terms contracts” and a purchaser can avoid contracts entered into in contravention of the
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In Stone v Leonardis [2011] SASC 153 the Supreme Court of South Australia held at [36] that in principle a registered proprietor could lodge a caveat on title to protect its own interests. In Stone the registered proprietor lodged a caveat preventing a mortgagee of the land settling on a contract of sale. The registered proprietor’s
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Division 6 of Part 5.3A of the Corporations Act 2001 provides for the imposition of a moratorium restraining parties from taking steps against a company under administration. According to s 435A the purpose of Part 5.3A is to provide for the business, property and affairs of an insolvent company to be administered in a way
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It is trite law that a slight variation to a lease may effect a surrender and re-grant. See: Pascoe-Webbe v Nuguna Pty Ltd (1985) 3 BPR 97,231 (SC, NSW per Young J). In Richmond Football Club Limited v Verraty Pty Ltd [2011] VCAT 2104 a variation to a lease had major consequences for an unwitting
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The termination of a lease automatically terminates any sublease. See: Bradbrook, Croft & Hay Commercial Tenancy Law, para 19.6. Where a landlord seeks to enforce a right of re-entry or forfeiture against a tenant the Court, on application of the sub-tenant, may vest the property in the head lease in a sub-tenant for the whole of the term
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My previous post contended that the Ministerial Determination dated 29 April 2003 made pursuant to s. 5 of the Retail Leases Act 2003 (2003 Act) was made with power by reason of s.13(3) of the Interpretation of Legislation Act 1984. By the Determination the Minister excluded from the definition of “retail premises” in s.4 of the
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My friend Sam Hopper has said in his blog that Judge Anderson in the County Court found that the Ministerial Determination which effectively excludes premises above the third storey from being “retail premises” was not a valid exercise of power. While Judge Anderson did express the view that it appeared the determination was made without power, His Honour said that
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On 9 September 2011 I posted an article entitled “Can a landlord’s failure to comply with s.52 constitute repudiatory conduct?”. In Hann-Woodlock v ADMR Pty Ltd [2011] VCAT 1776 Senior Member Walker held that the landlord had breached repair covenants contained in the lease and, with respect to a leaking roof, had breached the repair term imported into retail
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The issue of whether it is possible for a tenant to obtain relief against forfeiture of an option for a further term is often raised in circumstances where the tenant was in breach of the lease when the option was exercised. In Lontav Pty Ltd v Pineross Custodial Services [2011] VSC 485 Dixon J rejected a submission that
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Detailed examination required to determine if a tenant has parted with possession of leased premises
Most leases preclude the tenant from parting with possession of the leased premises without the prior written consent of the lessor. It is not always easy to determine whether a tenant has parted with possession and invariably a detailed examination of the facts is required. In Lontav Pty Ltd v Pineross Custodial Services Pty Ltd [2011] VSC 278 Hargrave J undertook such
