New VSBC guideline on ‘What are “retail premises”?’

  • Author : Samuel Hopper - 31-03-2015

March 31, 2015

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 is less than a year
Extended application – dispute resolution under the Act
The discussion about the ‘15 year’ determination is particularly interesting.  There has been a long-standing controversy over whether the word ‘or’ between sub-paragraphs (e) and (f) of the determination should be read as ‘and’. A copy of the 15 year determination is available here. The Commissioner’s guideline neatly summarises arguments in favour of the ‘or’ being treated as ‘and’ at paragraph 7.1.3. However, Croft and Hay in Retail Leases Victoria (looseleaf service) suggest a different view, stating that (at [30,080.15]):

It has been suggested that paras A (d), (e) and (f) are in some way interdependent as a result of some cross-referencing between them. However, as these paragraphs are clearly and expressly cast in the alternative throughout (the word “or” is used consistently) and, in terms of substance, each paragraph introduces a different, separate, circumstance for its application which is not, again in substance, dependent upon the circumstances addressed by the other paragraphs, it seems clear that they operate independently and any cross-referencing is merely a drafting device, for economy of words (and see Pearce and Geddes, Statutory Interpretation in Australia , 6th ed, LexisNexis, Sydney, 2006, at [2.12], in relation to the circumstances where “and” and “or” may be “modified”).
We are not aware of any decisions that consider the operation of this determination. Consequently, while the Commissioner’s guideline provides useful support for the proposition that the ‘or’ at the end of sub-paragraph A(e) of the determination should be read as ‘and’, the debate remains a live one.
Sam Hopper and Lisa Rennie

About the Author

Samuel Hopper

Recent Posts

CTRS Regulations – 30 September 2021 is approaching fast …

Samuel Hopper Date: 23-09-2021

CTRS Regulations – My First Comments

Samuel Hopper Date: 24-08-2021

Wait times in the Building and Property list at VCAT

Samuel Hopper Date: 20-08-2021

CRTS extension has been gazetted and published

Samuel Hopper Date: 23-12-2020

First VCAT decision about the CTRS…

Samuel Hopper Date: 05-11-2020

Double win for the Tigers and a win for tenants in the Court of Appeal

Samuel Hopper Date: 19-10-2020