Table Of ContentCommercial Tenancy Law
Fourth Edition
Commercial Tenancy Law
Fourth Edition
The Hon Clyde Croft
BEc, LLM (Mon), PhD (Cantab), FAAL, LFACICA
LFIAMA, JFAMINZ, FCIArb
A Judge of the Supreme Court of Victoria
Formerly one of the Senior Counsel for the State of Victoria
Robert S Hay
BA, LLB (Hons) (Tas), LLM (Mon)
One of Her Majesty’s Counsel
Castan Chambers, Melbourne
Luke Virgona
LLB (Mon), MCom (Swinburne)
Barrister-at-Law
Dawson Chambers, Melbourne
LexisNexis Butterworths
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Preface
This book is designed to be a comprehensive analysis of the law throughout
Australia relating to all aspects of commercial leases. Unlike residential leases,
which in most jurisdictions are now codified by residential tenancies
legislation, commercial leases are still primarily governed by the common law.
This is the case even where these leases are subject to retail or shop leases
legislation in the various jurisdictions as that legislation tends to supplement
and rely upon the common law rather than provide anything in the nature of
a comprehensive legislative code. Consequently, the majority of this book
consists of an analysis of common law principles. The substance and
application of common law principles has, in a number of instances, been
modified by legislation other than the retail or shop leases legislation. The
book also examines this legislation, with particular attention being given to the
Australian Consumer Law.
The retail or shop leases legislation is considered in separate chapters,
jurisdiction by jurisdiction. This legislation has, in many instances, been the
subject of major revision since the second and third editions of this book and
has also been the subject of significant developments in the case law.
Consequently, this edition has been substantially revised in its treatment of this
legislation and its developed and developing case law.
There have also been significant developments in the common law since
the third edition in 2009, and these are dealt with comprehensively. In
particular the treatment of the construction of leases and agreements for lease,
equitable estoppel, set-off, leases and mortgages, rent and rent review and the
contractualisation of leases, with particular reference to repudiation and its
acceptance, has been revised and expanded. This was also the case with the
second and third editions as these are areas of active development in the law of
landlord and tenant.
This fourth edition of Commercial Tenancy Law, like the three previous
editions of this work, has grown out of its predecessor edition. The first
edition, in turn, grew out of and revised and expanded the second edition of
Brooking and Chernov, Tenancy Law and Practice — Victoria, which had, in its
two editions (Butterworths, 1st ed, 1972; 2nd ed, 1980), itself grown out of
earlier works by Anderson and Brooking and its predecessor Tenison-Woods
and Anderson; all of which were influential and much used by, mainly,
Victorian practitioners.
As a result of this process, Commercial Tenancy Law has a long pedigree and
one which dates back — now around 70 years — to the publication of
Landlord and Tenant Legislation of Victoria (Butterworths, 1948) by Ms Mary
Tenison-Woods and Mr Kevin Anderson (later a Judge of the Victorian
Supreme Court). Again this work was built upon and expanded in Landlord
and Tenant (Butterworths, 2nd ed, 1958; 3rd ed, 1959) by Anderson and
Brooking. As indicated, this work, again expanded, became Brooking and
Chernov.
This book, like its previous editions, continues to owe an enormous debt to
the work, scholarship and practical experience of The Hon Mr Justice
Brooking and The Hon Justice Chernov AC (both of whom were formerly
Justices of Appeal of the Victorian Supreme Court and in the case of Justice
Chernov formerly the Governor of Victoria), and their predecessors, whose
writings continue to form a significant part of this work. However, this book,
unlike Brooking and Chernov, but like its previous editions, is written as an
Australian book and deals with legislation in all states, applicable
Commonwealth and national scheme legislation (such as the Australian
Consumer Law and the Corporations Act) and also the common law.
For reasons of space, we have been unable to cite the full text of the
relevant legislation on each point in all states. Where there is common
legislation throughout the states, our approach has been to cite the text of the
New South Wales or Victorian provision and to give the citation to the
equivalent provisions in the other states (and in some instances, the territories).
Also, unlike Brooking and Chernov, as in the previous editions, this work
omits all reference to residential tenancies legislation and cases relating to the
lease of dwelling houses except where they are relevant to general principles
also applicable to commercial leases.
This book contains a detailed analysis of the present law. As with the
previous editions, it will be of particular interest and assistance to counsel,
solicitors and corporate lawyers throughout Australia. It will also be of
considerable interest and assistance to everybody affected by or involved with
commercial leases; in particular estate agents, land agents, academic lawyers
and undergraduate and postgraduate law students. It is hoped that this edition
will continue to provide a useful source of reference for law students enrolled
in property law and be an essential text for students enrolled in specialist
landlord and tenant courses at the LLB, LLM and JD level currently offered in
various Australian law schools.
We have made every effort to ensure that this book is up-to-date at the
time of writing. The law is stated as available to us on 31 August 2017, except
where a later date is specified in the text. Updates on recent developments in
commercial tenancy law may be obtained regularly at
www.roberthaypropertybarrister.wordpress.com.
We all wish to thank Professor Adrian Bradbrook for his enormously
significant work and contribution as author and editor of the preceding three
editions of Commercial Tenancy Law: all of which contributes to the content
and depth of this work. We also wish to thank Ms Amy Hando, Ms Tracie
Stewart and Mr Thomas Egan for their assistance with research, checking and
the preparation of tables for this edition. Finally, we all wish to thank the staff
at LexisNexis, particularly Ms Georgina Gordon, Commissioning Editor —
Texts, for their work in steering this fourth edition though all the
developmental and final stages of publishing.
Serviceton C E Croft
17 October 2017 R S Hay
L A Virgona
Landlord and Tenant Act
Comparative Table
Landlord and
Date of
Topic Tenant Act Current Position*
Amendment
1958
Leases Pt I
Provisions as to
Execution and Repealed and not replaced, the legislature
Pt II 1 August
Seizure by being of the opinion that the legislation
2010
Third Party was redundant.
Emblements:
Pt III
Fixtures
Not replaced, but as noted by Garde J in Asian
Pacific Building Corporation Pty Ltd v Sharon-Lee
Distress for rent 1 August Holdings Pty Ltd [2013] VSC 11 at [24], distress
s 12
abolished 2010 for rent remains abolished in accordance with s
14(2)(a)–(d) of the Interpretation of Legislation
Act 1984.
Tenant may Replaced by s 154A of the Property Law Act
remove buildings 1 August 1958, which now gives the tenant the option to
s 28(2)
and fixtures they 2010 pay the costs of repair, rather than the tenant
have installed having a specific obligation to repair.
Summary
1
Proceedings to Repealed and not replaced (but see,
Pt IV September
Recover generally, various Court Rules).
2012
Possession
Repealed and replaced by Pt 4.2 of the
Removal and Australian Consumer Law and Fair Trading
Disposal of 1 Act 2012 (ACLFT Act), except for leases
Goods Left on Pt IVA September prior to the ACLFT Act which are still
Vacated 2012 governed by Pt IVA of the LL&T Act (ss 9,
