Herbert v Lee; Lee v Hemphill

The matter before the court involved two proceedings, COM 23/24375 and COM 23/30593, between Herbert, the lessee of a retail space, and Lee, the lessor, along with Hemphill, the mortgagee. The dispute centred on issues of misleading or deceptive conduct, the duty of the lessor to repair common property, and the lessee's liability to pay rent when the common property is in disrepair. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining several legal issues, including whether the lessor’s duty to repair common property extends to only certain parts of that property, and whether the lessee is exempt from paying rent if the common property is in poor condition. The court also had to consider whether the conduct of the lessor amounted to misleading or deceptive conduct under the Australian Consumer Law.

The court held that the lessor's duty to repair common property extends to the entirety of the common property, and not just specific parts. Furthermore, the court ruled that the lessee's obligation to pay rent is not contingent upon the condition of the common property. The court also found that the lessor's conduct did not constitute misleading or deceptive conduct. Consequently, the respondents were ordered to repay the applicants $11,325.61 immediately, and the proceedings COM 23/30593 were dismissed.