Third floor determination not a valid exercise of power

Judge Anderson of the County Court found yesterday that the Ministerial determination excluding premises above the third floor from which retail services are provided is not a valid exercise of power.

The Ministerial determination, a copy of which is available here, purports to have been made on 29 April 2003 under s 5(1)(c) of the RLA 2003 and was published in the Victorian Government Gazette on 30 April 2003. However, s 5 of the RLA 2003 did not come into force until 1 May 2003, 2 days after the determination purports to have been made.

The Court delivered reasons orally in court yesterday. Written reasons are expected shortly. I will post a copy of the reasons when they become available.

This is potentially significant for a number of leases. For example, this means the Act may apply to serviced apartments and professional service providers located above the third floor.