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Major victory for tenants in landlord’s liquidation
It has long been a vexed question whether a liquidator can disclaim a lease with the effect of extinguishing the tenant’s leasehold estate or interest in the land? In a major victory for tenants...
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Tenants win claim for new 5 year term
Despite no mention being made of additional terms in their leases, the operators of two restaurants in the Melbourne Casino and Entertainment Complex have succeeded in claims that they were entitled to...
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Collateral contract not a disposition of an interest in land
Earlier today I referred to two recent cases in which tenants successfully claimed that they had entered into collateral contracts with the operator of the Melbourne Casino and Entertainment Complex...
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Tenants need the protection of s.146 of the Property Law Act
I have had a number of queries about a recent post concerning N.C.Reid & Co v Pencarl Pty Ltd [2011] VCAT 2241. In Reid Judge O’Neill held that before re-entering leased premises the landlord did...
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Tenant seeks to overturn VCAT’s exclusive jurisidiction
In Ireland v Subway Systems Australia Pty Ltd and Subway Realty Pty Ltd [2012] VCAT 1061 a tenant contended if an agreement (which it contended was a licence) was held to be a lease then the dispute...
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Land area of no consequence in determining whether premises are “retail...
Occasionally I am asked whether premises are “retail premises” under s 4(1) of the Retail Leases Act 2003 where a retail business is conducted on a small piece of a substantial area of leased land....
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More on essential safety measures and cost recovery
Last week I presented a paper at the Leo Cussen Centre for Law’s Property Law Conference entitled “Essential Services and the Recovery of Expenses”. The paper can be found here: Leo Cussen paper...
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Option not exercised because of default
Happy 2013 to you all. This blog has been quiet in recent times but that will change this year. In Computer & Parts Land Pty Ltd v Property Sunrise Pty Ltd [2012] VCAT 1522 the Tribunal was asked...
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Tenant cannot question the landlord’s title
In Create Invest Develop Pty Ltd v Cooma Clothing Pty Ltd [2012] VCAT 1907 VCAT had to decide the effect of a contract entered into by a tenant with a party that was not the registered proprietor of...
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Recovery of outgoings and the November 2012 LIV Lease
The November 2012 LIV Lease excuses a tenant from performing any work that is the responsibility of the owner under the Building Act 1993. See: clause 3.3.3 which provides that the tenant is not...
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Advisers must consider registration of leases
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...
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Most tenants who provide services engaged in “retail provision of services”
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...
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Arbitration clause ineffective to oust VCAT’s jurisdiction
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...
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Management fees – Practice Note for LIV’s November 2012 lease revision
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....
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VCAT not bound to refer matters to arbitration
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...
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Landlord’s liquidator can disclaim tenant’s lease
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...
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Settlement terms caught by prohibition on payment of “key-money”
Despite the prohibition on the payment of “key-money” landlords persist in seeking the payment of substantial sums of money as the price for granting a lease. A landlord who seeks or accepts...
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Settlement agreements must be genuine compromises
Care needs to be taken in resolving disputes in which an allegation is made that an act or proposed act is prohibited by the Retail Leases Act 2003: settlement agreements must be genuine compromises or...
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Section 243 of Australian Consumer Law gives tenants a powerful weapon
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 a powerful weapon. That section permits the...
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Franchisee’s outlet licence a retail premises lease?
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...
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