The Court of Appeal recently considered a claim that a right to apply for an order to have a decision of a public body set aside on public law grounds, in and of itself, could constitute an in personam right for the purposes of the Transfer of Land Act 1958’s indefeasibility provisions. In MAPA Pearls Pty Ltd v Haliotis Fisheries Pty Ltd [2023] VSCA 108 the Court of Appeal rejected the claim and confirmed that the relevant “equity” necessary for an “in personam” claim usually arises out of “conduct, dealings or interactions – including contracts – between the person asserti ..read more

The Victorian Court of Appeal has confirmed that a ‘retail premises lease’ cannot cease to be such a lease during its term. In Verraty v Richmond Football Club [2020] VSCA 267 the Court of Appeal upheld Croft ‘s decision in Richmond Football Club v Verraty [2019] VSC 597. I will shortly publish another post about this decision ..read more

The latest edition of The Mortgagee’s Power of Sale has been published by LexisNexis.   Now in its fourth 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. The authors are Justice Croft (now the Honourable Dr Clyde Croft AM SC) and Robert Hay QC. Professor the Honourable Marilyn Warren AC QC has kindly written the foreword. Dr Croft  was the sole author of the first edition ..read more

The Supreme Court of Victoria has ruled that a lease that is a “retail premises lease” (within the meaning of s.11 of the Retail Leases Act 2003) when it is entered into cannot cease to be such a lease during its term. In Richmond Football Club v Verraty [2019] VSC 597. Croft J upheld an appeal by a tenant from a VCAT decision which held that a lease that was a “retail premises lease” when entered into could cease to be such a lease during the lease term. VCAT held that the Act ceased to apply when “occupancy costs” exceeded $1,000,000 exclusive of GST. Section 4(2) of the Act sets out circums ..read more

Today I posted an article about Verraty Pty Ltd v Richmond Football Club [2019] VCAT 1073. I have had queries about paragraph (i) where I said: “where the commencing rent under a new lease does not exceed $1,000,000 for the first 12 months,  before the lease is entered into the landlord should make an estimate of outgoings for the first 12 months of the lease and keep a record of the making of the estimate;” The point I was intending to make is that where a new lease is being entered into and the rent is less than $1,000,000 (but when added to outgoings  “occupancy costs” exceed $1,000,000), a ..read more

Can a “retail premises lease” (within the meaning of s.11 of the  Retail Leases Act 2003) cease to be a “retail premises lease” during its term? That long-standing question has finally been resolved. In Verraty Pty Ltd v Richmond Football Club Ltd [2019] VCAT 1073 the Tribunal held that a lease could cease to a “retail premises lease” during the lease term. The lease was for a term of 20 years commencing 7 May 1998. A variation made in 2004 effected a surrender and regrant with the consequence that a “retail premises lease” was entered into at that time.  In April 2017 the tenant exercised an ..read more