New Australian edition of classic mortgage text

A new Australian edition of Fisher & Lightwood's Law of Mortgage has just been published by LexisNexis. This is the third Australian edition of the classic English text. The authors of the three Australian editions  have been Professor E.Tyler, the Honourable Justice Peter Young and the Honourable Justice Clyde Croft.  The first English edition (called Fisher on Mortgages) was published in 1856. There have been 13 English editions. The Australian editions are particularly useful because the English editions do not deal with the Torrens system. The third  Australian edition deals with the significant changes made to personal property securities by the Personal Property Securities Act 2009 (Cth).  The chapter on the PPSA was written by Clare Langford, the NSW Supreme Court Equity Researcher. This text is a significant  resource for any person practising in property law.

http://store.lexisnexis.com.au/product?product=fisher-lightwood-s-law-of-mortgage-3rd-edition-ebook&meta_F_and=9780409332605

Published by LexisNexis.

Most tenants who provide services engaged in retail provision of services

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Many readers will be familiar with the "ultimate consumer" test that is commonly used to determine whether premises are "retail premises" within the meaning of s.4(1) of the Retail Leases Act 2003. If the premises are "retail premises" the Act applies; if premises are not "retail premises" the Act does not apply. Premises are "retail premises" if "under the terms of the lease relating to the premises" they "are used, or are to be used, wholly or predominantly for.....(a) the sale or hire of goods by retail or the retail provision of services". See: s.4(1). Nathan J in Wellington v Norwich Union Life Insurance Society Limited [1991] VR 333 held that patent attorneys (and other professional businesses such as solicitors, architects and medical specialists) conducted a business providing retail services.  His Honour held that the  "essential feature of retailing" was the provision of an item or service "to the ultimate consumer for fee or reward".  The end user might be a member of the public but was not necessarily so. The problem has been to identify the "ultimate consumer". Nathan J did not regard it as significant that a patent attorney's advice might pass through the hands of an intermediary on the way to the ultimate consumer. But what would the position be if the patent attorney's advice was used as "input" into a solicitor's advice to the solicitor's client? Would the solicitor be the "ultimate consumer"?

It will be much easier to answer these questions following the recent decision of Fitzroy Dental Pty Ltd v Metropolitan Management Pty Ltd [2013] VSC 344. The effect of the decision is that most tenants whose business provide any sort of service will be engaged in the "retail provision of services" and the Act will apply.

In Fitzroy Dental the landlord leased premises premises comprising a cafe/restaurant and a conference centre and facilities to a tenant who in turn received bookings from conference or function providers to conduct functions and conferences. The cafe/restaurant was used only for the provision of food and drink to the attendees at the functions and conferences. The landlord commenced a proceeding against the tenant in the Supreme Court. The tenant contended that VCAT had exclusive jurisdiction to hear and determine the  dispute because it was "retail tenancy dispute" within the meaning of s.81(1) of the Act. See: s.89(4). The permitted use under the lease was "Conference Centre, Cafe/Restaurant Area and associated office and storage area".

Justice Croft held that the dispute between the landlord and the tenant was a "retail tenancy dispute" that had to be determined by VCAT. The conference facilities were open to the public in the sense that a member of the public (ie the conference provider) could approach the tenant to book the conference facilities. After reviewing the authorities His Honour held that conference provider was the "ultimate consumer" of services provided to him by the tenant. Those services were in turn an "input" into the different services provided to the attendees at functions and conferences.  Thus, there were two transactions involving the retail provision of services. The transaction between the tenant and the conference organising entity was for monetary consideration while the second transaction with the attendees did not always involve a fee or reward for the provision of services. It did not matter that the bodies organising the conferences and hiring the premises from the tenant were governmental authorities or public bodies such as a university, the Metropolitan Fire Brigade, the Police Federation or an industry association because such bodies had the capacity to enter into ordinary commercial agreements.

The case contains a helpful analysis of the relevant caselaw.

Author: Robert Hays Barrister subject to copyright under DMCA.

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The Mortgagee's Power of Sale available for purchase from Lexis Nexis

The latest edition of The Mortgagee's Power of Sale has been published.  Now in its third edition this book started life in 1980.

The book is primarily written for practitioners and the text is arranged, as far as possible, in the same chronological order as the steps a mortgagee may take in selling mortgaged property under the power of sale.

Clyde Croft (now Justice Croft of the Supreme Court of Victoria) was the sole author of the first edition and is a co-author of the third edition with Robert Hay.

The Chief Justice of the Supreme Court of Victoria, the Honourable Marilyn Warren AC has kindly written the foreword. 

A formal launch for the book was held in  January 2013.

Ecommerce - Purchase from Lexis Nexis Directly   http://www.lexisnexis.com/en-us/about-us/about-us.page

Put in repair obligations not contrary to s.52 of the Retail Leases Act2003

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In Retail Leases Victoria (Croft and Hay, LexisNexis) expressed the view (at para [70,005]) that a repair obligation imposed on a tenant that went beyond the obligation imposed on a landlord under s.52 of the Retail Leases Act 2003 would not be void under s.94 on the basis that it was contrary to or inconsistent with s.52.

The authors suggest that a provision in a lease that imposed a “put in repair” obligation on the tenant and which obliged it not to pick up the landlord’s "keep in repair" obligation under s.52, but rather, to place the premises, plant and equipment and fixtures and fittings in a higher standard of repair than they were in “when the retail lease was entered into” would be effective. Croft and Hay state (at para [70,005]) that a repair covenant that required the tenant to make up the "gap" between the fruits of a landlord's "keep in repair" covenant and a "put in repair" covenant" might be effective provided the lease provisions clearly established a capital works obligation on a tenant at its expense for the purposes of s.41(2).

In the authors' view there appeared to be no reason why the landlord could not enforce this obligation and, if necessary, recover the cost of the tenant's repair obligations as an "outgoing" (as defined in s 3) under s 39 . Croft and Hay's views were adopted by VCAT in Computer & Parts Land Pty Ltd v Aust-China Yan Tai Pty Ltd [2010] VCAT 2054 (at para [199] to [205]; see in particular para [203]) in deciding that a clause in a lease which required the tenant to contribute $3300 towards the cost of an air-conditioning system was a “put in repair” obligation with the consequence that the tenant had to reimburse the landlord for that cost.

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Is a purchaser of land bound by covenants in a lease?

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When premises are sold the question often arises as to whether a tenant can enforce  covenants contained in the lease against the new owner?

At common law, unaffected by statute, an assignee of the reversion is not bound by any of the covenants and conditions of the lease. See: In re Hunter's Lease [1942] 1 Ch 124 at 128. In Victoria, s 142 of the Property Law Act 1958 altered this position and an assignee of the reversion is bound by covenants contained in the lease that "touch and concern" the land. In Specialist Diagnostic Services Pty Ltd v Healthscope Ltd [2010] VSC 44 Croft J held that a restraint of trade clause contained in a lease did not "touch and concern" the leased land and therefore did not bind the assignee of the reversion.


The case contains a detailed analysis of the type of covenants that "touch and concern" land (see [52] - [67]). In broad terms any covenant that affects the landlord as a landlord or the tenant as a tenant will probably be within the class of covenants that touch and concern the land. See: Bradbrook, Coft & Hay Commercial Tenancy Law, 3rd ed, paragraph 15.20, p. 483.

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