Author Archives | Sam Hopper

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Sam is a property and insolvency barrister.

The application of the RLA 2003 post – C.B. Cold Storage – part 2: Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property) [2018] VCAT 2000

September 13, 2019

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This is the second post in a series that I am publishing on the application of the RLA 2003 and the ultimate consumer test since the CB Cold Storage appeal. In Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property) [2018] VCAT 2000 from December 2018, Senior Member Forde at VCAT considered a […]

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Retail leasing post-C.B. Cold Storage Part 1: Koga Nominees Pty Ltd v Loscam Australia Pty Ltd & Ors [2018] VSC 455

September 2, 2019

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Noman Mermelstein of the firm Law Ink Pty Ltd has recently published an article in the Law Institute Journal that asks whether, in light of a string of recent decisions, there is really a need for retail tenancies legislation in our community. A copy of Norman’s article is available here. The article is excellent and […]

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The RLA 2003 permits a ‘late exit’ part 2

August 1, 2019

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My good friend and fellow retail leasing blogger Robert Hay QC has just posted a note here about the recent decision of Senior Member Forde at VCAT in Verraty Pty Ltd v Richmond Football Club Ltd [2019] VCAT 1073, which confirmed that a retail premises lease can ‘jump out’ of, or have a ‘late exit’ from the RLA […]

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Sand quarry is a lease of retail premises and late provided s 46 estimate does not revive liability for old outgoings under RLA 2003

July 12, 2019

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In the decision of Phillips v Abel [2019] VCAT 1031, handed down last week, VCAT held that: a lease of a quarry where the tenant processed and sold to members of the public sand extracted from the site was a lease of retail premises under the Retail Leases Act 2003 (Vic) (RLA 2003); and late provision […]

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New decision and the cost of s 52(2) RLA 2003 repairs

April 30, 2019

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Deputy President Lulham at VCAT has on 12 April 2019 handed down a decision that is potentially significant in the ongoing issue over the operation of both s 52 of the Retail Leases Act 2003 (Vic) and s 251 of the Building Act 1993 (Vic). For background to that issue, see here. Since President Garde […]

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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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