I have been asked to explain the opinion that I proferred on 13 April that a landlord which complies with s 251 of the Building Act 1993 could not recover the costs of compliance from the tenant. Section 251 is similar in many respects to s 52 of the Retail Leases Act 2003: under both Acts the owner/landlord is required to do certain work and, if it is not done, the tenant can do the work and recover the cost of so doing from the owner/landlord.
VCAT has considered the question of whether a landlord can recover the costs of complying with s 52 of the 2003 Act. In Cafe Dansk Pty Ltd v Shiel [2009] VCAT 36 Deputy President Macnamara (as his Honour was then known) dismissed the landlord’s argument at [44] as follows:
"I find Dr Croft’s sceptical views on this point compelling. It would, in my view, make a mockery of s 52 if Parliament having allocated the responsibility for certain repairs to the landlord, the landlord could then send the bill to the tenant for the cost of carrying out those repairs…"
In my view the same logic applies to s 251 of the Building Act.
