Lfracm Inc v Halski Pty Ltd (No 2)

[2025] VCC 1557

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-24-04309

LAKE FYANS RECREATIONAL AREA COMMITTEE OF MANAGEMENT INC (ABN 49 022 428 129)	Plaintiff
v
HALSKI PTY LTD (ACN 075 003 057)	First Defendant
and
DARRIN JOHN PALENSKY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers.
DATE OF JUDGMENT:	29 October 2025
CASE MAY BE CITED AS:	LFRACM INC v Halski Pty Ltd & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1557

REASONS FOR JUDGMENT
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Subject:Tenancy Dispute

Catchwords: Lease of holiday park for a term of 21 years – supplementary reasons as to application of ministerial determination made pursuant to s51C of the Retail Leases Act2003 on 20 August 2004

Legislation Cited:      Retail Leases Act2003

Cases Cited:LFRACM INC v Halski Pty Ltd & Anor [2025] VCC 1506

Judgment:                  1. The proceeding is permanently stayed

2. The plaintiff pay the defendant’s costs of the proceeding on a standard basis

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. Peters	Bowman & Knox
For the Defendant	Mr. Hopper SC with Mr. Kelly	Mann Legal

HIS HONOUR:

1In this proceeding, the defendants are tenant of the plaintiff and guarantor of the tenant’s obligation to the plaintiff landlord contended that the relevant tenancy was governed by the Retail Leases Act2003.  Consequently they challenged the jurisdiction of this court to hear and determine the plaintiff’s claim, contending that it lay within the exclusive jurisdiction of the Victorian Civil and Administrative Tribunal. On 16 October 2025 I published reasons dealing with some other preliminary contentions [2025 VCC 1506].  I directed the parties to bring in short minutes to give effect to those reasons.

2Counsel agreed as to the Orders to give effect to my reasons, which orders I propose making.  Counsel for the plaintiff, however, contended that I have failed to deal with one of his contentions in support of the view that the Retail Leases Act did not apply to the tenancy and that therefore this court had jurisdiction to entertain the plaintiff’s claim.

3Mr Peters had contended (outline paragraphs 61 – 67) that Additional Provision 18 of the relevant lease was apt to engage the Ministerial Order quoted at [57] of my principal reasons.  Additional provision 18 of the lease provided as follows:

“18. IMPROVEMENTS TO REMAIN PROPERTY OF LANDLORD

Any permanent improvements to the Premises (during the term of the further renewed term) will become the property of the landlord at the expiration or earlier determination of the lease. For the avoidance of any doubt, the term ‘permanent improvements’ does not include any un-registerable moveable dwelling within the meaning of the Residential Tenancies (Caravan Parks and Moveable Dwellings Registration and Standards) Regulations 2010 (the ‘Regulations’) and any relevant provisions of the Residential Tenancies Act 1997.” (Court Book (“CB”) 27)

4The contention on behalf of the plaintiff was, as I understand, that this provision (additional provision 18) engages paragraph (f) of the Ministerial Determination quoted at [57] of the principal reasons, thereby taking this tenancy outside the scope of the Retail Leases Act.

5Each of paragraphs (d), (e) and (f) of the Determination is an alternative one with another.  They are linked by the word “or”.  On the face of it, therefore, paragraph (f) is to be regarded as an entirely separate criterion which might be met independently of paragraph (d).  However, despite the disjunctive “or” which introduces it, it is linguistically linked to paragraph (d).  Paragraph (f) is engaged if, and only if, a tenant is “disentitled” to remove one of the things specified in paragraph (d).  For the reasons given in my principal determination, paragraph (d) has no application to this lease.  The repair obligations imposed by the lease are, for the reasons already given, not “substantial”.  Therefore additional provision 18 of the lease does not operate to disentitle the tenant from removing any of the things referred to in paragraph (d).  Paragraph (f) is not engaged by additional provision 18.

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Certificate

I certify that these 3 pages are a true copy of the judgment of his Honour Judge Macnamara delivered on 29 October 2025.

Dated:    29 October 2025

Jodie Daniel
Associate to His Honour Judge Macnamara