Author Archives | Sam Hopper

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Sam is a property and insolvency barrister.

A hidden trap in s 28 notices

March 24, 2016

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Readers should be aware of a hidden trap in the operation of s 28(2)(a) of the RLA 2003. The idea behind s 28 of the RLA 2003 is that: a retail tenant should have at least six months notice in writing of the last date to exercise its option; and if the notice is given […]

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Standard of repair under s 52 of the RLA 2003 and repudiation by a landlord

October 6, 2015

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Justice Croft’s recent decision in Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2015] VSC 515 contains two interesting findings for the leasing community: a landlord of a retail premises lease cannot avoid liability to repair and maintain the retail premises under sub-s 52(2) of the RLA 2003 because the tenant has exercised an […]

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Serene Hotels Pty Ltd v Epping Hotels Pty Ltd appeal dismissed

August 27, 2015

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The Court of Appeal today dismissed an appeal from Croft J’s decision in Epping Hotels Pty Ltd v Serene Hotels Pty Ltd [2015] VSC 104. The decision at first instance and the appeal before Croft J are discussed here and here. The first decision from VCAT held that the use of the profits method to determine rent during a […]

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Hopeless proceeding can result in a cost order under Retail Leases Act 2003 (Vic)

August 25, 2015

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My friend Robert Hay has recently published here a useful summary of the recent Court of Appeal in 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216. The Court of Appeal upheld a decision by Judge Jenkins, sitting as a Vice President of VCAT, to order costs against […]

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Epping Hotel v Serene Hotels appeal

July 3, 2015

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For those following the Epping Hotel v Serene Hotels rent determination case (see here), an application for leave to appeal the decision the decision of Croft J has been filed in the Court of Appeal. The application for leave to appeal and the hearing of any appeal (if leave is granted) will be heard on 31 […]

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Retail tenant wins VCAT fight but gets nil damages and an adverse costs order

May 15, 2015

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Originally posted on Paul Duggan:
VCAT’s no costs presumption is more elastic in some parts of the tribunal than in others. In building cases, the losers commonly pay the winners’ costs. In retail tenancies disputes the losers very rarely do. But the winner paying the loser’s costs? Calderbanks and their equivalents aside, it is almost unheard…

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More on outgoings …

May 8, 2015

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There has been a lot of debate in the leasing community over the effect of the President’s opinion discussed in my earlier post here. A copy of the President’s opinion is now available on AustLii here. Here are my thoughts on a few things that have emerged from the last fortnight’s discussions. Summary of the opinion In […]

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Landlords’ ability to recover outgoings curtailed

May 1, 2015

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Justice Garde, the President of VCAT, today handed down his advice to the Small Business Commissioner about the operation of s 251 of the Building Act 1993 (Vic) and s 52 of the Retail Leases Act 2003 (Vic). A copy of his Honour’s opinions and reasons are available here: Small Business Commissioner reference for advisory opinion (Building […]

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Epping Hotel Pty Ltd v Serene Hotels Pty Ltd decision – the profits method and consideration of supplementary report approved

April 29, 2015

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Justice Croft in the Supreme Court yesterday overturned the controversial decision in Serene Hotels Pty Ltd v Epping Hotels Pty Ltd (Retail Tenancies) [2014] VCAT 97. The decision at first instance had two important aspects: it suggested that the ‘profits method’ of determining the rent was prohibited by s 37(2) of the Retail Leases Act […]

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New VSBC guideline on ‘What are “retail premises”?’

March 31, 2015

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The Victorian Small Business Commissioner has recently re-published its guideline on the meaning of ‘retail premises’. A copy of the Commissioner’s new guideline is available here. The guideline discusses the following topics: Application of the Act Meaning of retail premises Guiding principles to determine ‘retail premises’ Ministerial Determinations Lease or licence Application if lease term […]

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