Robert Hay Senior Counsel Commercial Law

Thursday, 18 April 2013

Be wary of unrepresented parties at mediations

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Mediations at which parties are unrepresented or not represented by lawyers are fraught with risk. Even with legal representation mediations are stressful, particularly where the mediation is only fixed for a half day and there is pressure to avoid long winded discussions about the facts. Experienced mediators invariably offer unrepresented parties an adjournment so that legal advice can be obtained. VCAT recently decided case in which landlords sought to set aside terms of settlement agreed at a half day mediation conducted by the Small Business Commissioner. In Wong v Hook Line and Sinker Fish and Chips Pty Ltd [2013] VCAT 263 the landlords sought to have the terms of settlement set aside on the grounds of undue influence or duress by the mediator and a barrister. At the mediation the parties had been in dispute about whether the tenant was being required to pay “key money” under a lease contrary to s.23 of the Retail Leases Act 2003. The terms of settlement required the parties to appoint a valuer to determine the market rent. The landlords were not represented by a lawyer at the mediation but were represented by an advocate who held himself out as an expert in retail tenancy matters and who prepared written submissions. The mediator was highly experienced and was accompanied by a trainee mediator. The tenant was represented by an experienced barrister. The mediator offered the landlords the opportunity to adjourn the mediation to enable them to obtain legal advice but the offer was declined. The landlords subsequently refused to appoint the valuer to determine the market rent and commenced a proceeding alleging that the terms of settlement had been obtained by undue influence or duress. At the hearing the mediator, the trainee mediator, the tenant's barrister at the mediation, representatives of the tenant, the landlords and the landlords' advocate all gave evidence. The Tribunal rejected all of the the landlords’ claims. An application for leave to appeal has been filed.

My clerk can be contacted via this link http://www.greenslist.com.au/ if you wish to retain my services for any legal matter which is within the gamut of my legal experience.

Author: Robert Hays Barrister subject to copyright under DMCA.

Landlord liable to pay compensation under s.54 of Retail Leases Act

Tenants commonly complain about water entering leased premises and affecting their use and enjoyment of a tenancy. In National Hospitality Group Pty Ltd v Regal Hotels Pty Ltd [2013] VCAT 413 a landlord was held to be liable to pay compensation to a tenant under s.54 of the Retail Leases Act 2003 despite there being no defects in the leased premises. The tenant complained on many occasions to the landlord about water entering the premises. The tenant sued for damages relying, among other provisions, s.54 of the Act. Section 54 implies into a lease a requirement that the landlord pay reasonable compensation to the tenant for loss or disruption suffered by the tenant because the landlord fails to, among other things, take reasonable steps to prevent or stop significant disruption with the landlord's control to the tenant's trading at the premises. Despite the cause of the water entering the premises being damage to storm water drains outside the leased area and there being no defects in the premises, the Vice President, Judge Jenkins held that the landlord was liable to pay the tenant damages of $35,000. Judge Jenkins held that the landlord was liable to pay compensation under s.54(2) of the Act because it had "breached the covenant of quiet enjoyment by failing or refusing to take steps which were reasonably available to it", the breach being that the landlord had not kept the tenant informed of progress or investigations or provide it with any reports or advice and did not engage its own engineering or plumbing consultant to give advice and undertaken appropriate investigations. It is respectfully submitted that the decision shows a misunderstanding of the covenant of quiet enjoyment and imposes obligations on landlords that are not supported by the Act. Pursuant to a provision in the lease the tenant also entitled to an abatement of rent for the period when the premises was unfit for use.

My clerk can be contacted via this link http://www.greenslist.com.au/ if you wish to retain my services for any legal matter which is within the gamut of my legal experience.

Author: Robert Hays Barrister subject to copyright under DMCA.

Friday, 8 February 2013

Damages assessed on breach of collateral contract to grant a new term

In an earlier post I referred to two cases in which the operator of restaurants in the Melbourne Casino and Entertainment Complex succeeded in claims that they were entitled to additional 5 year terms despite their leases not containing such a term. See: Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Limited and Fish and Company (Vic) Pty Ltd v Crown Melbourne Limited [2012] VCAT 225. The tenants, who operated the restaurants "Waterfront" and "Cafe Greco", succeeded in claims that Crown had breached a collateral contract that they would be granted an additional 5 year term after the expiry of the 5 year term provided for in their leases. The tenants claimed that they were induced to spend millions of dollars on fit-outs because of a promise that there existing leases would be renewed. At the end of the intial 5 year term Crown refused to renew the leases and the area occupied by restaurants was leased to new tenants. Crown denied the existence of any collateral contract. Damages and interest have now been assessed with the tenants being awarded a total of more than $2,000,000. See: Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Limited and Fish and Company (Vic) Pty Ltd v Crown Melbourne Limited (VCAT, unreported, 8 February 2013).

My clerk can be contacted via this link http://www.greenslist.com.au/ if you wish to retain my services for any legal matter which is within the gamut of my legal experience.

Author: Robert Hays Barrister subject to copyright under DMCA.

Thursday, 7 February 2013

Recovery of outgoings and the November 2012 LIV Lease

The November 2012 LIV Lease excuses a tenant from performing any work that is the responsibility of the owner under the Building Act 1993. See: clause 3.3.3 which provides that the tenant is not obliged “to carry out any work that applicable legislation makes the responsibility of the landlord”. The new LIV Lease also excludes from outgoings recoverable from the tenant “capital expenses and expenses whose recovery from the tenant would be contrary to applicable legislation”. See: the definition of “building outgoings in clause 1.1. However, the LIV Lease includes in the definition of “building outgoings” the costs of “maintaining and repairing the building and the landlord’s installations and carrying works as required by relevant authorities…” (sub-paragraph (c) of the definition).

Thus it appears that provided recovery is not contrary to the Act, costs incurred by the landlord in complying with the owner’s obligations under the Act are recoverable from the tenant under the LIV Lease. The question remains whether a landlord can or cannot recover from the tenant its costs in complying with owner’s obligations under the Act. The recent case of McIntyre v Kucminska Holdings Pty Ltd [2012] VCAT 1766 did not determine that question. In McIntyre the lease required the tenant to arrange for an essential safety measure report and to purchase whatever fire fighting equipment was required in order to comply with the report. Section 251 of the Act provides that:

“(1)      If the owner of a building or land is required under this Act or the regulations to carry out any work or do any other thing and the owner does not carry out the work or do the thing, the occupier of that building or land or any registered mortgagee of the land or the land on which the building is situated, may carry out the work or do the thing.

(2)        An occupier may-

(a)        recover any expenses necessarily incurred under subsection (1) from the owner as a debt due to the occupier; or

(b)        deduct those expenses from or set them off against any rent due or to become due to the owner.

(6)        This section applies despite any covenant or agreement to the contrary.”

Section 251 is enlivened if the landlord does not carry out the work or thing that the Act requires it to do. In McIntyre the Tribunal had to consider regulation 1217 of the Building Regulations 2006 which states:

“The owner of a building or place of public entertainment must ensure that any essential safety measure required to be provided in relation to that building or place under the Act or these Regulations or any corresponding previous Act or regulation-

(a) is maintained in a state which enables the essential safety measure to fulfil its purpose; and...”

Senior Member Riegler said at [64] that:

“In my view, the words of the provision [Regulation 217] made it clear that the obligation to bear the cost of the essential safety measures ultimately rests with the owner of land. I do not consider it open for a landlord to contract out of that obligation, even if at first instance the lease requires the tenant to undertake the work required in order to comply with whatever essential safety measures are applicable…”

And at [69]:

“In my view, s 251 of the Building Act 1993 does not necessarily prohibit a landlord from placing such an obligation [to arrange for a essential safety measures report and to purchase fire fighting equipment] on a tenant, save and except that the Landlord must reimburse the Tenant for the costs associated therewith, failing which the Tenant is entitled to set-off those costs against rent due and payable under the lease.”

And at [71}:

“I do not consider that a contractual obligation, placed on the tenant to undertake whatever work is required in order to comply with an essential safety measures report, offends s 251 of the Building Act 1993. The contractual and the statutory obligations are able to sit side-by- side.”

In summary, the Senior Member’s view is that:

(a) the owner landlord cannot contract out of its obligation under the Act;

(b) if the owner landlord is required by the Act to do any work and the lease requires the tenant to do that work, the tenant must do the work but is entitled to recover its costs from the landlord under s 251.

Assuming that the landlord does the work required by the Act or engages a person (other than the tenant) to do the work, it remains an open question whether a landlord can recover from the tenant as an outgoing the costs of complying with the Act. In my view there is nothing in the Act that suggests Parliament intended to interfere with a landlord’s right and a tenant’s right to bargain about the recovery of costs.

My clerk can be contacted via this link http://www.greenslist.com.au/ if you wish to retain my services for any legal matter which is within the gamut of my legal experience.

Author: Robert Hays Barrister subject to copyright under DMCA.

Friday, 25 January 2013

Tenant cannot question the landlord's title

In Create Invest Develop Pty Ltd v Cooma Clothing Pty Ltd [2012] VCAT 1907 VCAT had to decide the effect of a contract entered into by a tenant with a party that was not the registered proprietor of the leased land but who subsequently became the registered proprietor. The case is a good illustration of the principle that if two parties contract with each other as landlord and tenant, neither of them is entitled to deny the title of the other unless some other person by way of title paramount intervenes and disturbs the possession of landlord and tenant. In Create there was a lease in place the term of which was expiring on 31 January 2011 (“Original Lease”).

In 2010 the land was offered for sale and the Applicant purchaser entered into a contract of sale with the landlord ("Landlord"). Before settlement, the Applicant purchaser offered the existing tenants a lease for a term of three years commencing 1 February 2011 which offer included a clause that permitted the landlord to terminate the lease to demolish or redevelop the premises and contemplated the execution of further documents including a lease that contained a demolition clause and guarantees. The tenants signed the offer (“the Lease Renewal”). Later, in 2010, the Landlord, the tenants and the Respondent signed a document styled “Transfer of Lease” which assigned the term of the Original Lease to the Respondent and contained a special condition in which the Respondents acknowledged being given a copy of the Lease Renewal and consent its terms and conditions.

In late 2010 the transfer of the freehold reversion was registered. In March 2011 the Respondent vacated the property and was sued by the Applicant for damages that comprised mainly rent for the period from 1 February 2011 pursuant to the Lease Renewal. The basis of the damages claim was that the Respondent was obliged to perform the Renewed Lease.

The Respondent contended that all that had occurred was that it had an option to renew or extend the Original Lease which option it had not taken up. The Respondent argued that at the time the Lease Renewal was made the Applicant was not the legal owner of the reversion and not entitled to the rents and profits as a purchaser and therefore there was no privity of estate or contract between the Applicant and the Respondent.

The Respondent also argued that what had taken place did not amount to a “renewal” of a lease within the meaning of s 9 of the Retail Leases Act 2003, the 2003 Act did not contemplate leases that were entirely prospective, and the Lease Renewal was not a concluded agreement. All the Respondent’s contentions were rejected by the Tribunal. The Tribunal held that the Respondent as tenant was estopped from questioning the Applicant landlord’s title and therefore it was irrelevant that the Applicant was not the registered proprietor of the land when the Lease Renewal was entered into. The Tribunal also held that while the Lease Renewal contemplated the execution of further documents there was a binding contract, the Lease Renewal was not a renewal but the entry by the parties into a new lease.

My clerk can be contacted via this link http://www.greenslist.com.au/ if you wish to retain my services for any legal matter which is within the gamut of my legal experience.

Author: Robert Hays Barrister subject to copyright under DMCA.

Thursday, 24 January 2013

Option not exercised because of default

In Computer & Parts Land Pty Ltd v Property Sunrise Pty Ltd [2012] VCAT 1522 the Tribunal was asked to determine whether an option contained in a lease was not exercisable by the tenant because of breaches of the lease that enlivened s.27(2) of the Retail Leases Act 2003 . Section 27(2) provides that the "only circumstances" in which an option is not exercisable is if the "tenant has not remedied any defaults under the lease about which the landlord has given the tenant written notice" (s.27(2)(a)) or " the tenant has persistently defaulted under the lease throughout its term and the landlord has given the tenant written notice of the defaults" (s.27(2)(b)). Section 27(2)(b) is ambiguous: what is meant by "persistently", what is meant by "throughout its term", does a landlord have to give notice of each default or is one notice that describes all the defaults adequate? There have been a number of cases concerning s.27(2) all of which have avoided giving any definitive answers to these questions.

See: for example, Westgate Battery Company Pty Ltd v GCA Pty Ltd [2005] VCAT 2080 and Westside Real Estate Investments Pty Ltd [2011] VCAT 1830. In this case the term of the lease was four years with two options for four year terms. The landlord relied on s.27(2)(a) and (b) in alleging that the option had not been exercised because at the time of the purported exercise the tenant had not remedied a default and the tenant had persistently defaulted under the lease throughout the four year term of the first option period. Firstly, the Tribunal held that s.27(2) prevailed over the provisions contained in the lease concerning the exercise of the option.

There had been nine occasions “over two stretches” when the rent was not paid on time and the rent had never been more than five weeks’ late. The Tribunal held that in those circumstances it was not “persuaded that the late payments could be described as ‘persistent’ (in the sense of ‘persevering’ or ‘constantly repeated’)" and that the late repayments had not occurred “throughout” the term of the lease. Nevertheless, the Tribunal held that the option had not been exercised because when the tenant exercised the option it had failed to provide a bank guarantee as required by the lease and the landlord had given written notice of the default (s. 27(2)(a)). Rectification of the default after the purported exercise of the option did not alter the position.

The tenant sought relief against forfeiture of the option. The Tribunal followed the decision of Dixon J in Lontav Pty Ltd v Pineross Custodial Services Pty Ltd (No. 2) [2011] VSC 485 in holding that VCAT had no power to grant relief against forfeiture of an option.

My clerk can be contacted via this link http://www.greenslist.com.au/ if you wish to retain my services for any legal matter which is within the gamut of my legal experience.

Author: Robert Hays Barrister subject to copyright under DMCA.

Thursday, 6 December 2012

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