‘or’ means ‘or’ in 15 year determination

  • Author : Samuel Hopper - 14-06-2016

There has been a long running controversy in the retail leasing community over the effect of the word ‘or‘ in a Ministerial determination that excludes certain leases from the operation of the Retail Leases Act 2003 (Vic).

Some of the background to the dispute is contained in an earlier post here and in documents linked to that post.

In short, the debate has been over whether the word ‘or‘ in the 15 year determination should be read as ‘and‘.

If ‘or‘ is read conjunctively as ‘and‘ then the effect of the determination is significantly reduced.  This, in turn, increases the number of leases of more than 15 years duration that are governed by the RLA 2003.

However, if the word ‘or‘ is read disjunctively as ‘or‘, then many (and perhaps most) leases of more than 15 years duration are excluded from the RLA 2003.

In the recent decision of Luchio Nominees Pty Ltd v Epping Fresh Food Market Pty Ltd (Building and Property) [2016] VCAT 937 published today, Member Edquist considered the various arguments and concluded that:

47 Having regard to the actual text employed in the Determination and its context, I find that Epping’s proposition that sub-paragraph (f) assumes the prior application of either (d) or (e), in other words that the word ‘or’ after sub-paragraph A(e) must be read as an ‘and’, is not sustainable. 

In short, the Member held that ‘or’ means ‘or’ in the 15 years determination.

Practitioners should be aware of this decision and consider its impact for landlord and tenant of leases over 15 or more years as it suggests that a number of those leases will be excluded from the RLA 2003.

A copy of the 15 year determination is available here.

I will post a copy of the decision when it becomes available.

About the Author

Samuel Hopper

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