Commercial tenancy law PDF
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Commercial Tenancy Law Fourth Edition Commercial Tenancy Law Fourth Edition The Hon Clyde Croft BEc, LLM (Mon), PhD (Cantab), FAAL, LFACICA LFIAMA, JFAMINZ, FCIArb A Judge of the Supreme Court of Victoria Formerly one of the Senior Counsel for the State of Victoria Robert S Hay BA, LLB (Hons) (Tas), LLM (Mon) One of Her Majesty’s Counsel Castan Chambers, Melbourne Luke Virgona LLB (Mon), MCom (Swinburne) Barrister-at-Law Dawson Chambers, Melbourne LexisNexis Butterworths Australia 2018 LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, CHATSWOOD NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, BUENOS AIRES AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA BRAZIL LexisNexis Latin America, SAO PAULO CANADA LexisNexis Canada, Markham, ONTARIO CHILE LexisNexis Chile, SANTIAGO CHINA LexisNexis China, BEIJING, SHANGHAI CZECH REPUBLIC Nakladatelství Orac sro, PRAGUE FRANCE LexisNexis SA, PARIS GERMANY LexisNexis Germany, FRANKFURT HONG KONG LexisNexis Hong Kong, HONG KONG HUNGARY HVG-Orac, BUDAPEST INDIA LexisNexis, NEW DELHI ITALY Dott A Giuffrè Editore SpA, MILAN JAPAN LexisNexis Japan KK, TOKYO KOREA LexisNexis, SEOUL MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR NEW ZEALAND LexisNexis, WELLINGTON POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW SINGAPORE LexisNexis, SINGAPORE SOUTH AFRICA LexisNexis Butterworths, DURBAN SWITZERLAND Staempfli Verlag AG, BERNE TAIWAN LexisNexis, TAIWAN UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH USA LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO ISBN: 9780409343366 (hbk). 9780409343373 (ebk). © 2018 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 1990. Second edition, 1997. Third edition, 2009. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Bembo Std and Optima LT Std. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au Preface This book is designed to be a comprehensive analysis of the law throughout Australia relating to all aspects of commercial leases. Unlike residential leases, which in most jurisdictions are now codified by residential tenancies legislation, commercial leases are still primarily governed by the common law. This is the case even where these leases are subject to retail or shop leases legislation in the various jurisdictions as that legislation tends to supplement and rely upon the common law rather than provide anything in the nature of a comprehensive legislative code. Consequently, the majority of this book consists of an analysis of common law principles. The substance and application of common law principles has, in a number of instances, been modified by legislation other than the retail or shop leases legislation. The book also examines this legislation, with particular attention being given to the Australian Consumer Law. The retail or shop leases legislation is considered in separate chapters, jurisdiction by jurisdiction. This legislation has, in many instances, been the subject of major revision since the second and third editions of this book and has also been the subject of significant developments in the case law. Consequently, this edition has been substantially revised in its treatment of this legislation and its developed and developing case law. There have also been significant developments in the common law since the third edition in 2009, and these are dealt with comprehensively. In particular the treatment of the construction of leases and agreements for lease, equitable estoppel, set-off, leases and mortgages, rent and rent review and the contractualisation of leases, with particular reference to repudiation and its acceptance, has been revised and expanded. This was also the case with the second and third editions as these are areas of active development in the law of landlord and tenant. This fourth edition of Commercial Tenancy Law, like the three previous editions of this work, has grown out of its predecessor edition. The first edition, in turn, grew out of and revised and expanded the second edition of Brooking and Chernov, Tenancy Law and Practice — Victoria, which had, in its two editions (Butterworths, 1st ed, 1972; 2nd ed, 1980), itself grown out of earlier works by Anderson and Brooking and its predecessor Tenison-Woods and Anderson; all of which were influential and much used by, mainly, Victorian practitioners. As a result of this process, Commercial Tenancy Law has a long pedigree and one which dates back — now around 70 years — to the publication of Landlord and Tenant Legislation of Victoria (Butterworths, 1948) by Ms Mary Tenison-Woods and Mr Kevin Anderson (later a Judge of the Victorian Supreme Court). Again this work was built upon and expanded in Landlord and Tenant (Butterworths, 2nd ed, 1958; 3rd ed, 1959) by Anderson and Brooking. As indicated, this work, again expanded, became Brooking and Chernov. This book, like its previous editions, continues to owe an enormous debt to the work, scholarship and practical experience of The Hon Mr Justice Brooking and The Hon Justice Chernov AC (both of whom were formerly Justices of Appeal of the Victorian Supreme Court and in the case of Justice Chernov formerly the Governor of Victoria), and their predecessors, whose writings continue to form a significant part of this work. However, this book, unlike Brooking and Chernov, but like its previous editions, is written as an Australian book and deals with legislation in all states, applicable Commonwealth and national scheme legislation (such as the Australian Consumer Law and the Corporations Act) and also the common law. For reasons of space, we have been unable to cite the full text of the relevant legislation on each point in all states. Where there is common legislation throughout the states, our approach has been to cite the text of the New South Wales or Victorian provision and to give the citation to the equivalent provisions in the other states (and in some instances, the territories). Also, unlike Brooking and Chernov, as in the previous editions, this work omits all reference to residential tenancies legislation and cases relating to the lease of dwelling houses except where they are relevant to general principles also applicable to commercial leases. This book contains a detailed analysis of the present law. As with the previous editions, it will be of particular interest and assistance to counsel, solicitors and corporate lawyers throughout Australia. It will also be of considerable interest and assistance to everybody affected by or involved with commercial leases; in particular estate agents, land agents, academic lawyers and undergraduate and postgraduate law students. It is hoped that this edition will continue to provide a useful source of reference for law students enrolled in property law and be an essential text for students enrolled in specialist landlord and tenant courses at the LLB, LLM and JD level currently offered in various Australian law schools. We have made every effort to ensure that this book is up-to-date at the time of writing. The law is stated as available to us on 31 August 2017, except where a later date is specified in the text. Updates on recent developments in commercial tenancy law may be obtained regularly at www.roberthaypropertybarrister.wordpress.com. We all wish to thank Professor Adrian Bradbrook for his enormously significant work and contribution as author and editor of the preceding three editions of Commercial Tenancy Law: all of which contributes to the content and depth of this work. We also wish to thank Ms Amy Hando, Ms Tracie Stewart and Mr Thomas Egan for their assistance with research, checking and the preparation of tables for this edition. Finally, we all wish to thank the staff at LexisNexis, particularly Ms Georgina Gordon, Commissioning Editor — Texts, for their work in steering this fourth edition though all the developmental and final stages of publishing. Serviceton C E Croft 17 October 2017 R S Hay L A Virgona Landlord and Tenant Act Comparative Table Landlord and Date of Topic Tenant Act Current Position* Amendment 1958 Leases Pt I Provisions as to Execution and Repealed and not replaced, the legislature Pt II 1 August Seizure by being of the opinion that the legislation 2010 Third Party was redundant. Emblements: Pt III Fixtures Not replaced, but as noted by Garde J in Asian Pacific Building Corporation Pty Ltd v Sharon-Lee Distress for rent 1 August Holdings Pty Ltd [2013] VSC 11 at [24], distress s 12 abolished 2010 for rent remains abolished in accordance with s 14(2)(a)–(d) of the Interpretation of Legislation Act 1984. Tenant may Replaced by s 154A of the Property Law Act remove buildings 1 August 1958, which now gives the tenant the option to s 28(2) and fixtures they 2010 pay the costs of repair, rather than the tenant have installed having a specific obligation to repair. Summary 1 Proceedings to Repealed and not replaced (but see, Pt IV September Recover generally, various Court Rules). 2012 Possession Repealed and replaced by Pt 4.2 of the Removal and Australian Consumer Law and Fair Trading Disposal of 1 Act 2012 (ACLFT Act), except for leases Goods Left on Pt IVA September prior to the ACLFT Act which are still Vacated 2012 governed by Pt IVA of the LL&T Act (ss 9,
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