Author Archives | Sam Hopper

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Sam is a property and insolvency barrister.

Landlord held to have repudiated a lease by not repairing a defective air conditioning unit

November 14, 2018

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In the significant recent decision of S3 Sth Melb Pty Ltd v Red Pepper Property Group Pty Ltd [2018] VCAT 1684, Deputy President Riegler held that a landlord’s failure to repair an air conditioning unit was a repudiation of the lease by the landlord, allowing the tenant to accept that repudiation and terminate the lease. […]

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New “ipso facts” provisions in the Corporations Act and their application to landlords and tenants

September 11, 2018

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Legislation came in force on 1 July 2018 that prevents a party terminating a contract under an insolvency clause, also known as an “ipso facto” clause if the other party is a company and has a receiver appointed or is placed into administration. Much has been written about the legislation. However, one of the most […]

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VCAT jurisdiction over interstate residents

April 27, 2018

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The High Court last week in Burns v Corbett [2018] HCA 15 held that a state tribunal does not have jurisdiction over residents of other states.   This may be raised at VCAT if either landlord or tenant are interstate residents. There are, at this stage, two apparent answers to this problem: it appears that the […]

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Challenging rental determinations because the valuer did not provide ‘detailed reasons’

February 7, 2018

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Clients often want to challenge a determination of the current market rent under a retail premises lease. The grounds for setting aside a rental determination are quite narrow. However, three recent cases have seen rental determinations under the RLA 2003 set aside because the specialist retail valuer failed to provide ‘detailed reasons’ as required under […]

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Two interesting findings – the RLA 2003 permits a ‘late exit’ from the Act and occupancy costs pre-2013 are GST-inclusive

January 19, 2018

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In an interesting decision handed down this week Senior Member Riegler at VCAT considered whether the $1M occupancy costs exclusion applied to exclude a lease from the operation of the RLA 2003 and found that: 1. while sub-s 11(2) of the RLA 2003 prevents late entry into the Act, it allows a late exit, that […]

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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

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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 […]

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Contents of notice of default under s 27 of the RLA 2003

November 15, 2017

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Robert Hay QC has written an excellent blog post here commenting on a recent VCAT case about the requirements of a notice of default under s 27 of the RLA 2003. You should read Robert’s note before reading post any further. Whether a tenant has validly exercised an option in a retail premises lease often […]

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Another application of the “ultimate consumer” test

November 2, 2017

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His Honour Judge Macnamara in the County Court of Victoria recently handed down a decision that considers and applies the controversial “ultimate consumer” test under s 4 of the RLA 2003. For some background, see my earlier post here. In the recent case of Access Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC […]

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Court of Appeal dismisses appeal in the C B Cold Storage case – When is a lease for business-to-business services governed by the Retail Leases Act 2003 (Vic)? Part 4

July 5, 2017

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The Victorian Court of Appeal today handed down its decision dismissing the much-anticipated C B Cold Storage appeal. The decision is cited as IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178 and is available online. The background to the decision is in earlier posts on my blog here.  If […]

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Ministerial Determination – overseas listed companies and their subsidiaries – Part 2

February 24, 2017

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In a previous post here I discussed problems with the reference to the World Federation of Exchanges in sub-s 4(2)(d) of the RLA 2003 and the Ministerial determination that excludes overseas listed companies and their subsidiaries from the operation of the RLA 2003 effective from12 August 2016. The recent decision of AMJE Pty Ltd v […]

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