Robert Hay KC Blog

Greens List

  • Caps on rent increases permitted

    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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  • Mortgagor cannot restrain sale of mortgaged property without paying debt into court

    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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  • 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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  • How to ensure that terms implied by the Retail Leases Act 2003 (Vic) into a “retail premises lease” do not appear in a renewed lease which is not a “retail premises lease”

    My last post considered Richmond Football Club Ltd v Verraty Pty Ltd  [2019] VSC 597 (Verraty) with particular reference to this question: Do terms implied into a “retail premises lease” by the Retail Leases Act 2003 appear in a renewed lease following the exercise of an option where the renewed lease is not a “retail premises…

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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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  • Understanding default notices given under a lease

    A default notice given under a lease does not necessarily require the tenant to rectify the defaults alleged within the time specified in the notice The Victorian provision concerning default notices is s.146(1) of the Property Law Act 1958. Section 146(1) provides in part: A right of re-entry or forfeiture under any proviso or stipulation in a lease…

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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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  • Creditors have a powerful weapon against fraudulent debtors

    Debtors often dispose of property to avoid paying creditors. Section 172 of the Property Law Act 1958 (Vic) provides creditors with a powerful weapon to defeat them. In Grapple Pay Pty Ltd v Conroy [2025] NSWCA 171 the New South Wales Court of Appeal added a gloss to the principles governing the New South Wales…

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