A significant issue in retail tenancy disputes is the impact of the no-cost rule and the leverage that it gives to an arguable but weak, or even a hopeless case. In a recent case, discussed here, the Tribunal suggested that a letter to the other side setting out the reasons why their case is hopeless […]

In the VCAT decision of Serene Hotels Pty Ltd v Epping Hotels Pty Ltd handed down last Friday, Member Farrelly at VCAT considered an application to set aside a determination of the rent at a hotel with gaming facilities and held that: a specialist retail valuer is not entitled to use the profits method to […]

  A few solicitors have asked whether, in light of the High Court’s decision in Willmott last week (discussed here), tenants still need to insist on the consent of their landlord’s mortgagee before taking a lease. The answer is ‘yes‘. The High Court’s decision in Willmott recognises that a landlord’s liquidator has the power to extinguish a lease.  It does not […]

  The High Court today found that Liquidators of a landlord company can use the disclaimer power in the Corporations Act to extinguish leases granted by that company. A summary of the decision is available here. The decision upholds a decision of the Victorian Court of Appeal that has created significant consternation among those acting for […]

In an interesting recent decision from the Supreme Court,[1] Croft J held that an arbitration clause in a retail leases does not oust the Tribunal’s jurisdiction. A detailed discussion of this issue can be found on Robert Hay’s blog here and here. The Court also referred to a finding at first instance that the franchisee’s […]

Robert Hay and Derry Devine of the Law Institute of Victoria’s Leases Committee have written a practice note about an issue with the November 2012 edition of the LIV’s standard lease. Any practitioner using the November 2012 revision of that LIV standard lease should be aware of the practice note, which states that: “When using […]

Whether a landlord can pass on the costs of complying with the Building Act 1993 has been the source of a significant debate over the last year or so. A recent article of mine on this issue has been published in the Law Institute Journal here. In summary, the article suggests that: the better view […]

A recent VCAT decision, discussed here, discussed a decision in which a letter stating that the tenant intended to exercise its option was equivocal and did not create a binding contract between the parties. In a recent decision from the Magistrates Court of Victoria, Magistrate Ginnane considered a similarly worded letter signed by the tenant […]

A colleague recently sent me this excellent article by Bill Burrough from DibbsBarker titled ‘Service station lease: Ensuring the lease is manageable and saleable’. The article talks about: leasing issues for investors considering a service station – an investment considered by some to be ‘recession proof’;  and the obligation to maintain the service station infrastructure […]

Here is an excellent summary by Robert Hay of the recent decision of Fitzroy Dental Pty Ltd v Metropolitan Management Pty Ltd [2013] VSC 344 . As many of you know, a retail sale is generally considered to be a sale to the ultimate consumer.  The question in that case was whether the conference provider or the attendees at […]