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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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Small Business Commissioner makes application for advisory opinion on the effect of s 251 of the Building Act and the costs of repair and maintenance under s 52 of the RLA

June 25, 2014

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A hot issue for retail and commercial leasing practitioners over the last few years has been whether s 251 of the Building Act 1993 (Vic) prevents a landlord from recovering from its tenant as an outgoing under the lease the cost of essential safety measures or other steps required to comply with obligations under the Building Act. A […]

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

June 25, 2014

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A number of Supreme Court decisions have confirmed that the supply of services business-to-business governed by the RLA 2003, provided that the second business is the ‘ultimate consumer‘ of the services. However, the cases also suggest that: the nature of the premises and the degree to which the premises is ‘open to the public’ may also influence whether […]

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More on Calderbank offers in the retail tenancies list

June 23, 2014

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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 […]

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A significant VCAT decision for rental determinations under the RLA

February 12, 2014

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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 […]

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