JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 7 and 13 May 2015 and Written Submissions (20 July and 10 and 24 August 2015)
DATE OF JUDGMENT:	1 October 2015
CASE MAY BE CITED AS:	Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 515

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LEASES AND TENANCIES – Retail leases – Repair of leased premises – Failure to remediate leased premises – Tenant out of occupation for 22 months – Lease renewal – When a lease is “entered into” upon renewal – Whether landlord’s obligation to repair subsists in new lease term – Relationship between statutory obligations – Statutorily implied covenants – Retail Leases Act 2003, ss 7, 52, 54, 94.

CONTRACT – Repudiation – Repudiatory conduct – Reasonable person test – Laurinda Pty Ltd v Capalaba Park Shopping Centre Ltd (1989) 166 CLR 623.

ESTOPPEL – Issue estoppel – Prior finding of fact by the Victorian Civil and Administrative Tribunal – “Legally indispensable” finding – Forster v Legal Services Board (2013) 40 VR 587.

PRACTICE AND PROCEDURE – Appeal from decision of Victorian Civil and Administrative Tribunal – Victorian Civil and Administrative Tribunal Act 1998, s 148(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.D.S. Barber	Vincent J. Ryan
For the Defendant	Mr P.J. Bick QC with Mr A.T. Schlicht	Isakow Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The appeal........................................................................................................................................... 1

Principles applicable with respect to appeals............................................................................... 6

Factual matters.................................................................................................................................... 9

Legislative provisions...................................................................................................................... 15

Issues on appeal............................................................................................................................... 17

Question 1........................................................................................................................... 18
Question 2........................................................................................................................... 33
Question 3........................................................................................................................... 52
Question 4........................................................................................................................... 60
Question 5........................................................................................................................... 63
Questions 6(a) and (b)....................................................................................................... 64
Question 7........................................................................................................................... 67

Conclusions and orders.................................................................................................................. 69

HIS HONOUR:

Introduction

This proceeding comes to the Court by way of appeal following a decision of Judge Lacava, sitting as a Vice President of the Victorian Civil and Administrative Tribunal (“the Tribunal”) between the Plaintiff as Applicant and the Defendant as Respondent, delivered 1 December 2011 (“the Lacava decision”)[1] and a decision of Senior Member Riegler as the Tribunal delivered 22 April 2014 (“the Riegler decision”).[2]
[1]Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2011] VCAT 2273.
[2]Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (No 2) [2014] VCAT 454.

As the factual background to the proceedings is set out in significant detail in the Lacava decision, it is not necessary to repeat the detail in these reasons. Nevertheless, a broad outline with reference to the Lacava decision will be of assistance, and is provided in the reasons which follow.

Pursuant to leave granted by Derham AsJ on 31 July 2014, and further leave granted by Daly AsJ on 24 February 2015, the Plaintiff appeals by Amended Notice of Appeal filed 25 February 2015…

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 Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd

Details

AGLC: Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2015] VSC 515
Case: [2015] VSC 515
Decision Date: 1 October 2015

CaseChat Overview and Summary

In this case, Versus (Aus) Pty Ltd, the landlord, was in dispute with ANH Nominees Pty Ltd, the tenant, over the landlord’s obligations under a retail lease agreement. The matter came before the court following an appeal from a decision of the Victorian Civil and Administrative Tribunal (VCAT). The central issue was whether the landlord’s obligations to repair the leased premises continued into the renewed term of the lease, following the tenant's extended absence due to the landlord’s failure to address the premises' condition. The court was also required to determine the legal consequences of the tenant’s extended absence and the applicability of statutory obligations under the Retail Leases Act 2003.

The court examined the statutory framework governing retail leases, specifically the obligations of landlords to repair and maintain the premises and the tenants' reciprocal obligations. It considered whether the landlord’s failure to repair the premises constituted repudiatory conduct, which might have allowed the tenant to terminate the lease. The court also assessed the implications of the tenant being out of occupation for 22 months and whether this period constituted a legal bar to the landlord’s repair obligations. Additionally, the court addressed the application of issue estoppel based on a prior finding by VCAT, and whether this finding could legally bind the parties in the current proceedings.

The court held that the landlord’s obligation to repair the premises continued into the renewed term of the lease. The extended absence of the tenant did not negate the landlord's statutory obligations, as the landlord’s failure to repair constituted a breach of the lease terms. The court found that the tenant had not repudiated the lease, and therefore, the landlord remained bound by its obligations to repair. Furthermore, the court applied issue estoppel in favour of the tenant, enforcing the prior VCAT finding that the landlord's failure to repair was a significant factor in the tenant's absence. Consequently, the court ruled in favour of the tenant, affirming the lower tribunal's decision.

The court ordered that the landlord was liable for the costs of repairing the leased premises and directed the landlord to complete these repairs within a specified timeframe. The court also confirmed that the tenant was entitled to remain in occupation of the premises and that the landlord’s obligations to repair and maintain the premises were not affected by the tenant's extended absence.

Orders