Robert Hay KC Blog

property law information

  • 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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  • 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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  • Court’s power to vacate an order for specific performance and substitute alternative relief

    What is the extent to which a contract is under the “control of the court” after an order for specific performance is made in favour of a vendor of land, the purchaser fails to comply with that order and the vendor then seeks vacation of the order and leave of the court to obtain damages…

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  • Default notice not needed where there is a repudiation of the contract

    In Gayed & Anor v Yuan [2024] VSCA 85 the Victorian Court of Appeal confirmed that: The purchasers bought land for $3,190,000 and paid a deposit of 10% of the purchase price, being $319,000. Three weeks before settlement the purchasers’ solicitor advised the vendor that the purchasers would be approximately $160,000 “short” of the balance needed to…

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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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  • VCAT loses jurisdiction to hear a dispute where a party is not resident in Victoria

    Following last week’s High Court decision in Burns v Corbett [2018] HCA 15 the Victorian Victorian Civil and Administrative Tribunal has lost its jurisdiction to hear and determine a dispute where one of the parties is resident of a State other than Victoria. This will pose significant problems for VCAT particularly concerning its exclusive jurisdiction to…

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