tag:blogger.com,1999:blog-442066473912429986.post573091997898188555..comments2023-06-02T02:04:23.891-07:00Comments on Robert Hay Senior Counsel Commercial Law: Tenant seeks to overturn VCAT's exclusive jurisidictionAnonymoushttp://www.blogger.com/profile/10050476951543777568noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-442066473912429986.post-26982726668433484992012-10-10T11:03:40.000-07:002012-10-10T11:03:40.000-07:00Reblogged this on Sam Hopper Barrister and comment...Reblogged this on <a href="http://samhopperbarrister.com/2012/10/10/tenant-seeks-to-overturn-vcats-exclusive-jurisidiction/" rel="nofollow">Sam Hopper Barrister</a> and commented: <br>My friend Robert Hay has added a post on his blog about an interesting case that considered whether an arbitration clause could oust VCAT's jurisdiction under the Retail Leases Act 2003 (Vic). I have reblogged the post for readers here.Sam Hopperhttp://samhopperbarrister.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-442066473912429986.post-73590276989679305802012-10-10T10:23:26.000-07:002012-10-10T10:23:26.000-07:00Thank you George. George is correct that the arbit...Thank you George. George is correct that the arbitration clause was contained in a separate document (ie the franchising agreement). A party cannot avoid the Act through the mechanism of a document separate from the the lease because s 94 of the 2003 Act provides that such a provision is void. Except for the error concerning the source of the arbitration clause the post is correct because in the post I was not trying to address the issue of whether the agreement between the parties was a lease or a licence. The argument about the Commercial Arbitration Act was only relevant if the agreement was a lease.Robert Hay Property Law Barristerhttp://roberthaypropertybarrister.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-442066473912429986.post-35496778642880013782012-10-10T09:59:19.000-07:002012-10-10T09:59:19.000-07:00Hi Robert In relation to your post below, I need...Hi Robert <br><br> <br><br>In relation to your post below, I need to correct a couple of things for you. <br><br> <br><br>Subway as franchisor and as a lessor under a document held to be a sublease but labeled a licence agreement, tried to oust VCAT’s Retail Tenancy dispute jurisdiction by claiming that its sub tenant (and franchisee) under its sublease (the Irelands), should arbitrate the lease dispute pursuant to an arbitration clause in its franchise agreement. <br><br> <br><br>Subway claimed that the dispute was a franchise dispute and not a retail tenancy dispute and so the dispute resolution provisions of the Franchise Agreement took priority over the RLA. <br><br> <br><br>Subway argued that the occupancy agreement labeled a “licence agreement” between it and the Irelands was at law a licence agreement and not a lease (hence the RLA did not apply) and that if the document was deemed a lease, the arbitration clause under the franchise agreement should take priority over the provisions of the RLA pursuant to the provisions of the Commercial Arbitration Act. <br><br> <br><br>If you would like any further information, please let me know as I am involved in this matter. <br><br> <br><br>The decision is relevant on 2 counts. Firstly the interrelationship between The RLA and the Commercial Arbitration Act. It means that a franchisee can bring a dispute to VCAT and avoid the arbitration provisions of the franchise agreement if the dispute relates to a lease. This is the point you make in your blog but importantly, the arbitration clause was not in the lease but in the franchise agreement with a party that is not a party to the lease. <br><br> <br><br>Secondly, a licence agreement was held to be in substance, a lease distinguishing a full court of appeal decision that held that a similar licence agreement was not a lease under a franchise agreement. <br><br> <br><br>Regards <br><br>George Konidaris <br><br>SolicitorGeorge Konidarisnoreply@blogger.comtag:blogger.com,1999:blog-442066473912429986.post-61135753426961163332013-04-19T11:31:41.000-07:002013-04-19T11:31:41.000-07:00Thank you also for taking enough time to leave an ...Thank you also for taking enough time to leave an assessment, it really does help other people to make <br>their e-cig getting decision'! 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