The High Court has refused special leave to appeal the CB Cold Storage case – When is a lease for business-to-business services governed by the Retail Leases Act 2003 (Vic)? Part 5

December 15, 2017

Property / leasing

The High Court of Australia this morning refused special leave to appeal the decision of the Victorian Court of Appeal in IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178.

For a discussion of that decision, see my earlier post here. If you are really keen, you can follow the links in that post to read some of the history of the debate.

The upshot of special leave being refused is that:

  1. the ‘ultimate consumer’ test of retailing is cemented as part of the test of whether a premises is a retail premises under the Retail Leases Act 2003 (Vic) for the foreseeable future (or unless Parliament intervenes);
  2. a substantial number of leases in Victoria are likely to be retail without the parties realising (see, for example, the discussion here); and
  3. litigation on some of those leases is likely, such as by tenants seeking to recovery the payment of land tax made under the mistaken belief that their lease was not regulated by the RLA 2003 (eg see here).

About Sam Hopper

Sam is a property and insolvency barrister.

View all posts by Sam Hopper

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