Author Archives | Sam Hopper

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Sam is a property and insolvency barrister.

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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Continuing problems with specialist retail valuers’ ‘no liability’ clauses

March 30, 2015

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A continuing source of tension, particularly in the retail tenancies jurisdiction, is that valuers appointed to determine the market rent routinely refuse to accept an appointment unless the parties sign a particularly broad form of release, including releasing the valuer from a claim in negligence. The standard form of release and indemnity is taken from […]

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Lessor’s purpose for demolishing leased building is irrelevant

February 18, 2015

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Originally posted on The Property Law Blog:
Leases commonly permit a landlord to terminate a lease if the landlord intends to demolish the building located on the leased premises. Section 56 of the Retail Leases Act 2003 (Vic) implies terms into a retail premises lease that provides for the termination of lease on the grounds…

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