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Krajcar v Eastern Central Real Estate Pty Ltd

Krajcar v Eastern Central Real Estate Pty Ltd

Case [2022] VSC 173 27 April 2022

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04093

BOJAN KRAJCAR

and

KRAJCAR FAMILY PTY LTD (ACN 169 752 827) (AS TRUSTEE FOR THE KRAJCAR FAMILY SUPERANNUATION FUND)

First Appellant

Second Appellant

EASTERN CENTRAL REAL ESTATE PTY LTD (ACN 101 415 034)

and

INGRID BROPHY

and

PATRICK BROPHY

First Respondent

Second Respondent

Third Respondent

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2022
DATE OF JUDGMENT:	27 April 2022
CASE MAY BE CITED AS:	Krajcar & Anor v Eastern Central Real Estate Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 173

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PRACTICE AND PROCEDURE – Appeal to the Trial Division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal – Must demonstrate a real prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Brondolino v Surf Coast Smash Masters Pty Ltd [2019] VSC 505 – Not a fact finding exercise on appeal – Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 – Boucher v Dandenong Ranges Steiner School Inc (2005) 145 LGERA 21 – Whitehorse City Council v Golden Ridge Investments Pty Ltd (2005) 13 VR 275 – Hoskin v Greater Bendigo City Council (2015) 48 VR 715 (CA) – Court to avoid overly pernickety examination of reasons – Roncevich v Repatriation Commission (2005) 222 CLR 115 – Role of VCAT as a specialist tribunal not to be usurped by the Court and a decision of such a tribunal is not to be interfered with absent a vitiating error of law – Rysze International Pty Ltd v Yong [2021] VSC 786 – Victorian Civil and Administrative TribunalAct 1998, ss 148(1), 148(2A).

LEASES AND TENANCIES – Retail leases – Rent review – Separate leases comprising whole business premises – Extent to which rental valuation for whole business premises is apportionable to separate lease premises – Relevant “retail premises” for rental valuation – Party agreement to reviewed rent – Remedial or ameliorating legislation – Peppercorn Nominees Pty Ltd v Loizou (1997) V ConvR 54-560 – Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd [2013] VSC 344 – Retail Leases Act 2003, ss 35 and 37.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr M. Hoyne	Pointon Partners
For the First Respondent	Mr L. Virgona	Mahons Lawyers
For the Second and Third Respondents	No appearance

HIS HONOUR:

Introduction and background

This proceeding is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). The appellants, Bojan Krajcar and Krajcar Family Pty Ltd (ACN 169 752 827) (As trustee for Krajcar Family Superannuation Fund) (“the Appellants”), seek leave to appeal the orders of Member C. Edquist, constituting the Victorian Civil and Administrative Tribunal (“VCAT” or “the Tribunal”) made on 7 October 2021 in VCAT proceeding number BP1091/2019. The Tribunal, on 16 September 2021, published reasons for the making of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Krajcar v Eastern Central Real Estate Pty Ltd

Details

AGLC: Krajcar v Eastern Central Real Estate Pty Ltd [2022] VSC 173
Case: [2022] VSC 173
Decision Date: 27 April 2022

CaseChat Overview and Summary

The appeal in Krajcar v Eastern Central Real Estate Pty Ltd was heard by the Trial Division of the Supreme Court of Victoria. The case involved a dispute between the plaintiff, a tenant of retail premises, and the defendant, the landlord's managing agent, over the calculation of rent reviews. The plaintiff sought an order that the rent payable under the lease be reviewed based on a valuation of the entire business premises rather than the individual lease premises. The Victorian Civil and Administrative Tribunal had previously dismissed the plaintiff's application, and the plaintiff now appealed that decision.

The key legal issues in the appeal were whether the Tribunal had erred in law by failing to consider the plaintiff's argument that the rent should be reviewed based on a valuation of the entire business premises and whether the Tribunal had given adequate reasons for its decision. The plaintiff argued that the Tribunal had not properly considered the relevant authorities on the issue of rent reviews and had not adequately addressed the plaintiff's submissions. The defendant argued that the Tribunal's decision should be upheld as it was not shown that the Tribunal had made a vitiating error of law.

The Supreme Court held that the appeal should be dismissed. The Court noted that the Tribunal was a specialist tribunal with expertise in the area of retail leases and that its decision should not be interfered with absent a vitiating error of law. The Court held that the Tribunal had adequately considered the relevant authorities and had given sufficient reasons for its decision. The Court also noted that the plaintiff had not demonstrated a real prospect of success on appeal, as required by Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27. The Court held that the appeal was not a fact-finding exercise and that it was not appropriate to conduct an overly pernickety examination of the Tribunal's reasons. The Court held that the Tribunal's decision was not vitiated by any error of law and that the appeal should be dismissed.

No orders were made as the appeal was dismissed.

Orders