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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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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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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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When is a lease for business-to-business services governed by the Retail Leases Act 2003 (Vic)? Part 2

November 14, 2016

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The recent trend in retail leasing cases has seen a gradual broadening of leases that fall within the definition of “retail” under the Retail Leases Act 2003 (Vic) (RLA 2003). Many commentators, myself included, have suggested that all businesses that wholly or predominantly supply services will be considered retail, whether or not these services are […]

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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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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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Landlords’ ability to sue retail tenants’ guarantors at VCAT to be clarified

July 16, 2014

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A vexing issue in the retail tenancies list at VCAT has been whether and when a landlord can sue a retail tenant’s guarantor at the Tribunal. This issue was addressed by the Cavanough J in Tucci v Victorian Civil and Administrative Tribunal & Anor [2010] VSC 425, in which the Court held that a landlord could sue a tenant’s […]

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