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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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Do tenants still need mortgagee’s consent to lease in light of the Willmott decision?

December 9, 2013

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  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 […]

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Willmott appeal dismissed – landlord’s Liquidators may disclaim leases

December 4, 2013

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  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 […]

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Is a franchisee’s outlet licence a retail premises lease?

October 22, 2013

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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 […]

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Management fees – Practice Note for LIV’s November 2012 lease revision

October 21, 2013

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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 […]

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