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The High Court today held 4:1 that the liquidator of a landlord company could disclaim both the landlord’s interest and the tenant’s interest in a lease. See: Willmott Growers Group Inc v Willmott Forests Limited [2013] HCA 51. The decision will have significant implications for tenants and their financiers. Section 568(1) of the Corporations Act…
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There is a dearth of authority in Victoria concerning the principles that apply in determining claims for the partition of property under Part IV of the Property Law Act 1958. In broad terms Part IV permits a co-owner of land or goods to apply for orders in respect of that land or those goods. VCAT…
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Sam Hopper has posted an interesting article on his blog entitled “Is a franchisee’s outlet licence a retail premises lease?”. The article can be found at http://samhopperbarrister.com/2013/10/22/is-a-franchisees-outlet-licence-a-retail-premises-lease/
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It has long been a vexed question whether a vendor of land needs to include details of a lease affecting the land in the vendor statement provided to a purchaser pursuant to s.32 of the Sale of Land Act 1962. Section 32 requires the disclosure of, among other things, mortgages and charges affecting the land…
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On 17 October 2013 I posted a note about Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550 which concerned a dispute between a franchisor and a franchisee. The franchise agreement contained an arbitration clause. VCAT refused to refer the dispute to arbitration pursuant to s.8 of the Commercial Arbitration Act 2011 which provides…
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The Law Institute of Victoria is issuing a Practice Notice concerning the reference to the amount of, and the calculation of, management fees in item 10 of the schedule in the November 2012 Revision. The Practice Note says: “When using the LIV Commercial lease for a retail premises lease containing an option to renew and…
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In a fascinating decision given today the Supreme Court of Victoria held that an arbitration clause in a lease could not oust VCAT’s jurisdiction under the Retail Leases Act 2003 (2003 Act). In Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550 Croft J held that VCAT was not a “court” within the meaning of…
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Many readers will be familiar with the “ultimate consumer” test that is commonly used to determine whether premises are “retail premises” within the meaning of s.4(1) of the Retail Leases Act 2003. If the premises are “retail premises” the Act applies; if premises are not “retail premises” the Act does not apply. Premises are “retail…
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Lawyers acting for landlords of non-retail premises where the proposed lease term exceeds 3 years need to seriously consider whether to register the lease. This is one of the consequences of the Court of Appeal’s decision in Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106. If the lease is not registered, the…
