VCAT decisions

Below is a list of selected VCAT decisions, with summaries of their implications for Victorian small businesses:

2020–22

• AJ Moussi Pty Ltd v Luxor Corporation Pty Ltd (Building and Property) [2022] VCAT 434 (20 April 2022) – rent determination by a specialist retail valuer set aside due to error and insufficient reasons
• Storage Depot Pty Ltd v Brooklyn Logistics Park Pty Ltd (Building and Property) [2022] VCAT 210 (25 February 2022) ­– rent determination by a specialist retail valuer set aside due to insufficient reasons
• Lanigan v Circus Oz & Ors [2022] VSC 35 (9 February 2022) – N.B. Supreme Court of Victoria case: the decision held that the Limitation of Actions Act 1958 does not apply to VCAT, so the usual limitations on actions at VCAT in relation to leases (six years for a contract or rent) will not apply, which means there is the potential for older claims to be made by tenants
• 328 Hampshire Road Pty Ltd v Medical One Pty Ltd (Building and Property) [2021] VCAT 1117 (27 September 2021) – rent determination by a specialist retail valuer set aside due to insufficient reasons
• Steambrook Pty Ltd v Boulton (Building and Property) [2021] VCAT 996 (27 August 2021) ­– rent determination by a specialist retail valuer set aside due to error and insufficient reasons
• Dylanbella Pty Ltd v Loung (Building and Property) [2022] VCAT 412 (13 April 2022) – considered the requirements of an option notice
• HJJY Commercial Pty Ltd v Mathiopoulos (Building and Property) [2022] VCAT 330 (25 March 2022) – considered the requirements of a compliant rent relief application under the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020
• Eisfelder v Kubiak (Building and Property) [2021] VCAT 1092 (20 September 2021) – considered the requirements of a default notice and the issue of set-off in relation to a landlord’s obligation to repair under the Retail Leases Act 2003
• S & R Toth Pty Ltd & Duxvale Pty Ltd v Australia Zhengding International Pty Ltd (Building and Property) [2021] VCAT 1059 (6 September 2021) – discussed the requirements of a breach, notice to vacate and option notices
• Izett St Pty Ltd v Applgold Pty Ltd (Building and Property) [2021] VCAT 174 (3 March 2021) – examined what retail premises are
• Wilson v G C Beel Pty Ltd (Building and Property) [2021] VCAT 142 (19 February 2021) – considered the possible effect of overholding and application of sections 21 (five-year lease) and 64 (six month notice of renewal or lease end) of the Retail Leases Act 2003
• Filomeno Nominees Pty Ltd v Crown Group Pty Ltd (Building and Property) [2021] VCAT 81 (5 February 2021) – considered the requirements of a rent relief application under the Commercial Tenancy Relief Scheme
• PS Market Pty Ltd v Brijcam Nominees Pty Ltd (Building and Property) [2020] VCAT 1468 (29 December 2020) – considered a tenant’s eligibility under the Commercial Tenancy Relief Scheme

2018–19

• Richmond Football Club Ltd v Verraty Pty Ltd [2019] VSC 597 (26 September 2019) – status of a retail lease can’t change during the lease, even where occupancy costs exceed the statutory threshold of $1m (excl. GST)
• Cheng v Wang (Building and Property) [2019] VCAT 1016 (14 August 2019) – the landlord’s obligation and costs of repair cannot be passed on to the tenant
• Phillips v Abel (Building and Property) [2019] VCAT 1031 (10 July 2019) – what are retail premises, outgoings
• Meadsview Pty Ltd v Fenton (Building and Property) [2019] VCAT 934 (21 June 2019) – award of costs where the applicant’s claim was found to be manifestly hopeless
• River View Pty Ltd v Primrose Meadows Pty Ltd (Costs) (Building and Property) [2019] VCAT 631 (1 May 2019) – award of costs where the respondent’s was claim found to be vexatious
• Moussa v Herben (Building and Property) [2019] VCAT 560 (15 April 2019) – award of costs where the respondent’s conduct of proceedings was found to be vexatious
• Sth Melb Pty Ltd v Red Pepper Property Group Pty Ltd (Building and Property) [2018] VCAT 1684 (25 October 2018) – the landlord’s failure to repair air conditioner entitled the tenant to end their lease
• AVC Operations Pty Ltd v Teley Pty Ltd (Building and Property) [2018] VCAT 931 (18 June 2018) – considered s60 of the Retail Leases Act 2013 and the concept of reasonableness in finding that the landlord couldn’t refuse consent to transfer the lease
• William Buck (Vic) Pty Ltd v Motta Holdings Pty Ltd (Building and Property) [2018] VCAT 15 (16 January 2018) – occupancy costs and application of the Retail Leases Act 2003

2014–15

• Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2015] VSC 515 (1 October 2015) – repair of a leased premises, lease renewal, the landlord’s obligation to repair
• Anchong Nominees Pty Ltd v Rafei (Building and Property) [2015] VCAT 1313 (18 August 2015) – outgoings, repairs and maintenance
• HJ Corporation Pty Ltd v Nguyen (Building and Property) [2015] VCAT 1300 (13 August 2015) – assignment of the lease by the tenant, failure to provide a disclosure statement to the landlord and assignee, the tenant’s liability for unpaid rent and outgoings
• Keriani Pty Ltd v Long (Building and Property) [2015] VCAT 1212 (7 August 2015) – rent review by a specialist valuer, whether the parties are bound by the valuer’s determination
• VCAT Advisory Opinion – Essential Safety Measures (1 May 2015)
• Jim Lazogas and Company Pty Ltd v Nyle Pty Ltd trading as White Dove Funeral Care (Building and Property) [2014] VCAT 840 (17 June 2014) – use of premises and whether premises are retail
• Nanjor Pty Ltd v Golden Pearl Holdings Pty Ltd (Retail Tenancies) [2014] VCAT 453 (22 April 2014) – the landlord’s obligation to act reasonably in withholding unpaid rent and outgoings
• Villa v Emaan Pty Ltd (Retail Tenancies) [2014] VCAT 274 (17 March 2014) – the landlord’s obligation to act reasonably in withholding consent to transfer the lease
• Serene Hotels Pty Ltd v Epping Hotels Pty Ltd (Retail Tenancies) [2014] VCAT 97 (7 February 2014) – Specialist Retail Valuer and rental determination methods

2012–13

• Bretair Pty Ltd v Cave (No 2) (Retail Tenancies) [2013] VCAT 1808 (24 October 2013) – what constitutes fair wear and tear, whether gravel pavement constitutes structure of leased premises
• Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd & Anor [2013] VSC 344 (5 July 2013) – whether the lease is a retail premises lease
• Market Ring Write Services Pty Ltd v Dudson (Retail Tenancies) [2013] VCAT 546 (16 April 2013) – payment of rent and outgoings, interest on a security deposit
• South Yarra Colonnade Pty Ltd v Designbuilt Industries Pty Ltd & Ors (Retail Tenancies) [2013] VCAT 266 (8 March 2013) – whether the option for a further lease term has been exercised, notice of intention
• Computers & Parts Land Pty Ltd v Property Sunrise Pty Ltd (Retail Tenancies) [2012] VCAT 1522 (9 October 2012) – options to renew, the tenant defaults, the landlord’s obligations

2009–11

• Jones and Anor v Globeoz Consultant Pty Ltd and Anor (Retail Tenancies) [2011] VCAT 2102 (7 November 2011) – abandonment of premises, damages and costs
• Richmond Football Club Limited v Verraty Pty Ltd (ACN 076 360 079) (Retail Tenancies) [2011] VCAT 2104 (3 November 2011) – outgoings, land tax
• Rast v Rajakovic (Retail Tenancies) [2010] VCAT 246 (26 February 2010) – re-entry of premises, costs
• Figgins Holdings Pty Ltd v Williamson Place Pty Ltd (Retail Tenancies) [2010] VCAT 243 (25 February 2010) – rent reviews, s37 of the Retail Leases Act 2003
• 1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd [2009] VSCA 308 (18 December 2009) – obligations of parties to sign the expert’s terms of appointment
• Awad v Conell (Retail Tenancies) [2009] VCAT 2402 (11 November 2009) – overholding and entitlement to a five-year term
• Australian Competition and Consumer Commission v Dukemaster Pty Ltd (ACN 050 275 226) [2009] FCA 682 (24 June 2009) – unconscionable conduct of the landlord
• Victorian Education Foundation Ltd v Brislugan Pty Ltd (Retail Tenancies) [2009] VCAT 317 (25 February 2009) – appointment of a Specialist Retail Valuer, costs
• AAMR Hospitality Group Pty Ltd v Goodpar Pty Ltd & Anor (Retail Tenancies) [2009] VCAT 2782 (13 February 2009) – the landlord’s obligation to act reasonably in withholding consent to transfer the lease
• Cafe Dansk Pty Ltd v Shiel & Ors (Retail Tenancies) [2009] VCAT 36 (14 January 2009) – renewal of lease, estimate of outgoings, security deposit

2005–08

• Yan & Anor v Wang & Anor (Retail Tenancies) [2008] VCAT 2405 (27 November 2008) – payment of outgoings, repairs, land tax
• Xiao v Perpetual Trustee Company Limited & Anor [2008] VSC 412 (13 October 2008) – the landlord’s obligation to notify the tenant of their option for a further lease term
• My Club Pty Ltd v Samalex Nominees Pty Ltd (Retail Tenancies) [2008] VCAT 171 (31 January 2008) – the landlord’s liability for repairs under s52 of the Retail Leases Act 2003
• Daco Enterprises Pty Ltd v The Golden Sultana Pty Ltd (Retail Tenancies) [2006] VCAT 2547 (19 December 2006) – overholding and entitlement to a five-year term
• Brimbank City Council v Westvale Community Centre Inc [2006] VSC 100 (22 March 2006) – provision of community-type services on a retail basis
• State of Victoria v Tymbook Pty Ltd [2005] VSC 267 (29 July 2005) – application of the dispute resolution provisions of the Retail Leases Act 2003

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