BLOG AUTHOR : Robert Hay QC

Welcome to our Legal Blog with posts from expert barristers covering a vast range of jurisdictions, issues and updates in the law.

When does a deposit become a penalty?

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Content of default notices under s27 of Retail Leases Act

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Retail Leases Act 2003 (Vic) likely to apply where tenant provides a service

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Controversy resolved – but more tenants under 15 year leases lose protection of Retail Leases Act 2003 (Vic)

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AirBnB guests occupied apartment under a lease

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Valuers must furnish detailed reasons for rental determinations under Retail Leases Act

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Tan v Russell now on austlii

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Tenants should dispute rent nominated by landlord within time period specified in the lease

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Wife’s title as joint proprietor with husband not defeasible by reason of husband’s fraud

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Landlord cannot recover essential safety measure costs or the costs of complying with s.52 of Retail Leases Act 2003 (Vic)

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“Profits method” of rental valuation does not breach s.37 of Retail Leases Act 2003

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Vendor not entitled to interest on unpaid contract price where contract terminated

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Landlord cannot recover essential safety measure costs or the costs of complying with s.52 of Retail Leases Act 2003 (Vic)

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Landlords likely to consider gross leases

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

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Unfair term provisions provide tenants with a new weapon

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Lessor’s purpose for demolishing leased building is irrelevant

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Solak not followed in Victorian fraud case

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“Claw back” of lease incentives thrown into doubt

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Date of termination confirmed as the date for assessing damages for breach of contract for sale of land

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Rent reviews – mandatory or at the landlord’s discretion?

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Mortgagor verification rules now in force in Victoria

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Second Notice to Complete Revives Terminated Agreement – Contract Sale of Land

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NSW Court departs from general rule on drawing down of bank guarantees

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Franchisor’s internet trading breaches restraint clause

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Beware lodging caveat ‘without reasonable cause’

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Implied term that vendor must act in a reasonable manner when selling land pursuant to liquidated damages clause

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Franchisees beware of arbitration clauses

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VCAT is a “court” and therefore arbitration clause effective

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Mortgagee lender does not have duty of care to ensure that a loan is appropriate for borrower

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Parties can agree to higher standard than that imposed by s.52 of Retail Leases Act

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Undertaking as to damages must not be a ritual or a formality

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Mortgagor fails in last minute bid to stop auction

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Landlord’s consideration of proposed assignment must be “reasonable”

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Section 32 statements need not be attached to contract of sale

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“Terms contract” anomaly confirmed

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Proprietary estoppel – estopped party does not have to disprove reliance

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Tenants beware of onerous “make good” obligations

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Overstatement of amount owed does not make s.76 notice invalid

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Section 243 of Australian Consumer Law gives tenants a powerful weapon

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$1,000,000 in damages for loss of sperm even though purchaser not out of pocket

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Settlement agreements must be genuine compromises

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New Australian edition of classic mortgage text

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Settlement terms caught by prohibition on payment of “key-money”

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Landlord’s liquidator can disclaim tenant’s lease

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VCAT applies general law principles in property partition under Part IV

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Section 32 statements should disclose leases

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VCAT not bound to refer matters to arbitration

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

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Arbitration clause ineffective to oust VCAT’s jurisdiction

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Real estate agent not authorised to accept termination notice given under s.31 of Sale of Land Act 1962

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Most tenants who provide services engaged in “retail provision of services”

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Advisers must consider registration of leases

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Changes to excluded retail premises

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Be wary of unrepresented parties at mediations

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Landlord liable to pay compensation under s.54 of Retail Leases Act

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Damages assessed on breach of collateral contract to grant a new term

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Recovery of outgoings and the November 2012 LIV Lease

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Tenant cannot question the landlord’s title

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Option not exercised because of default

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The Mortgagee’s Power of Sale available

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More on essential safety measures and cost recovery

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Land area of no consequence in determining whether premises are “retail premises”

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No easy answers to whether premises are “retail premises”

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Tenant seeks to overturn VCAT’s exclusive jurisidiction

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The Mortgagee’s Power of Sale out soon

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Can a landlord pass to the tenant the costs of complying with the Building Act?

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Farewell Landlord and Tenant Act

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Can the landlord pass on the costs of complying with the Building Act?

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Consequences of repeal of Fair Trading Act

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Farewell to the Fair Trading Act

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The PPSA – where does one start?

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Can the landlord require the tenant to pay the costs of complying with s 251 of the Building Act?

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The tenants’ new weapon – s.251 of the Building Act 1993

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The awarding of costs when Fair Trading Act claims are included in retail tenancy disputes

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Beware national lease registration system

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Tenants need the protection of s.146 of the Property Law Act

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Section 172 of Property Law Act explained

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Meaning of “terms contract” examined

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Why no requirement for a s.146 notice?

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Swanton’s case doubted

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Landlords beat administrators and obtain possession under s.440C of Corporations Act

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Beware of lease variations

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Major victory for tenants in landlord’s liquidation

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Sub-tenant obtains relief against forfeiture of head lease

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Ministerial determination valid

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Ministerial determination not invalid

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Robert Hay’s post – Breach of s 52 can amount to repudiatory conduct

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Breach of s.52 can amount to repudiatory conduct

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Detailed examination required to determine if a tenant has parted with possession of leased premises

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Tenancy in common trumps joint tenancy

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Can a landlord’s failure to comply with s.52 consitute repudiatory conduct?

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Put in repair obligations not contrary to s.52 of the Retail Leases Act 2003

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Whoops! Error in start date for Part 2D

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Goods left on premises after the expiry or termination of a lease

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Further elaborations on s.52 of the Retail Leases Act

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Setting off damages claims against the rent

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Deposits in sales of land

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Amending the “interest” claimed in a caveat

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Deemed assignments and landlord’s consent

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What is a ‘tenant in possession”: s42(2)(e) of TLA

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s.42(2)(e) of Transfer of Land Act 1958

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Section 146 notices

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The fog is beginning to clear

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Is a purchaser of land bound by covenants in a lease?

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What is the effect of a nominee clause?

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Everything must be in writing

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Section 52 – when is the lease “entered into”?

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Tenants wins claim for new 5 year term

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No s.146 notice required for contractual right to terminate

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Relief against forfeiture of an option to renew not available to a tenant

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Registrar of Titles fails to comply with Model Litigant Guidelines

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Collateral contract not a disposition of an interest in land

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