Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd

Tenth Vandy Pty Ltd sought relief from Natwest Markets Australia Pty Ltd in the Supreme Court of Victoria. The dispute centred on a retail tenancy lease, with Tenth Vandy claiming that Natwest had exercised its legal right to re-enter the premises unconscionably by terminating the lease for non-payment of rent. Tenth Vandy argued that Natwest's actions constituted unconscionable conduct and sought relief under the Retail Tenancies Act 1986 (Vic). The court had to determine whether Natwest's conduct in terminating the lease was unconscionable and, if so, whether Tenth Vandy was entitled to equitable relief.

The legal issues involved interpreting the grounds for equitable relief and the nature of unconscionable conduct in the context of a retail tenancy. The court needed to assess whether Natwest's exercise of its legal right to re-enter for non-payment of rent was unconscionable under the provisions of the Retail Tenancies Act 1986 (Vic) and the common law principles established in cases such as Bofinger v Kingsway Group Ltd and Tanwar Enterprises Pty Ltd v Cauchi. The court also considered the admissibility of agreed documents and the implications of not calling factual witnesses.

The court concluded that Natwest's conduct did not amount to unconscionable exercise of a legal right. It found that the termination of the lease for non-payment of rent was not unconscionable as it was based on the terms of the lease and did not involve any misleading or deceptive conduct. The court also noted that Tenth Vandy had failed to call factual witnesses, which led to adverse inferences being drawn against it. Consequently, the court dismissed the application for relief.

The Supreme Court of Victoria dismissed Tenth Vandy's application for relief and ordered it to pay Natwest's costs.