A dispute between a landlord and tenant has recently found its way to the High Court of Australia, where special leave to appeal the Victorian Court of Appeal’s decision was refused.
The dispute, which was initially heard in the Victorian Civil and Administrative Tribunal (CB Cold Storage Pty Ltd v IMCC Group (Australian) Pty Ltd VCAT 1866, VCAT), revolved around the application of the Retail Leases Act 2003 (Vic) (“Act”) to a lease of premises used as a cold storage facility. For a further description of the case and subsequent appeals, please click here.
This case demonstrates a broad application of the Act, which has inevitably resulted in many leases, previously treated by the leasing parties as non-retail premises leases, falling within the operation of the Act. There will be implications for those parties who have entered into a lease on the assumption that it is non-retail. Those leases are likely to have been drafted so as to:
However, those provisions will be void on the basis that they are inconsistent with the Act. In particular, by operation of the Act:
It is therefore essential that the application of the Act is considered when negotiating a lease to ensure that each party understands its respective rights and obligations.
If you require advice or further information in relation to any of the matters discussed in this article, please contact our Corporate & Commercial team on 03 5273 5273.
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