Robert Hay KC Blog

Landlords

  • Retail premises leases can “jump out” of the Retail Leases Act

    Can a “retail premises lease” (within the meaning of s.11 of the  Retail Leases Act 2003) cease to be a “retail premises lease” during its term? That long-standing question has finally been resolved. In Verraty Pty Ltd v Richmond Football Club Ltd [2019] VCAT 1073 the Tribunal held that a lease could cease to a

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  • High Court affirms traditional test for enforcing oral contracts based on acts of part performance

    The High Court has resisted an invitation to expand the grounds on which a party can enforce an oral contract for the sale of the land on the ground of part performance. Legislation in each State and Territory requires that contracts for the sale of land meet certain formal requirements if they are to be

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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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  • 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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  • Unfair term provisions provide tenants with a new weapon

    Tenants with less than 20 employees will soon have a new weapon in disputes with landlords as a result of amendments to the Australian Consumer Law: they will be able to challenge a term in a lease that is  “unfair”. The legislation effecting the changes, the Treasury Legislation Amendment (Small Business and Unfair Contract Terms)

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  • Hopeless proceeding can result in a cost order under Retail Leases Act 2003 (Vic)

    The weakness of a party’s case in a retail tenancy dispute can be taken into account in determining whether or not it has “conducted” a “proceeding in a vexatious way” that would entitle the other party to a cost order under s.92(2) of the Retail Leases Act 2003 (Vic). Part 10 of the Act contains

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  • “Claw back” of lease incentives thrown into doubt

    Landlords often offer incentives to a tenant to encourage the tenant to enter a lease. Common incentives are rent free periods and contributions to the fit out. The logic behind the inducement is that landlord will benefit because the tenant will occupy the premises for the term of the lease. Landlords sometimes require a “claw

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  • Franchisees beware of arbitration clauses

    There is a translation key(widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   Prospective franchisees should be cautious about agreeing to the inclusion of arbitration clauses in franchise agreements. It is common for a franchisee to enter into an ‘occupancy’

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  • Section 243 of Australian Consumer Law gives tenants a powerful weapon

    There is a translation key (widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   Landlords need to be very careful about what they say when negotiating leases because s.243  of the Australian Consumer Law provides a wronged tenant with

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