Zeus and Ra Pty Ltd v Nicolaou

(2003) 6 VR 606; [2003] VSCA 11

Victorian Court of Appeal

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Interrogate

Catchwords

1. Landlord and Tenant
2. › Retail tenancies
3. › Definition of 'retail premises'
4. › Floor area exceeding 1,000 square metres
5. › Meaning of 'floor area'
6. › Whether ministerial guidelines for measurement of 'lettable area' make 'lettable area' synonymous with 'floor area'
7. › Whether guidelines confined to internal areas of buildings
8. › Retail Tenancies Reform Act 1998 (Vic), s 3(1)(a), s 3(5)
1. Landlord and Tenant
2. › Retail tenancies
3. › Floor area
4. › Open concrete surfaces
5. › Whether uncovered paved areas constitute 'floor area'
6. › Application of Sorbara v McCallum principles
7. › Retail Tenancies Reform Act 1998 (Vic), s 3(1)(a)
1. Landlord and Tenant
2. › Fair trading disputes
3. › Jurisdiction of VCAT
4. › Whether VCAT has jurisdiction under Fair Trading Act 1999 to hear dispute between former landlord and tenant after termination of lease by re-entry
5. › Whether 'purchaser' and 'supplier' of services confined to present relationships
6. › Fair Trading Act 1999 (Vic), ss 3, 107, 108
1. Statutes
2. › Subordinate legislation
3. › Ministerial guidelines
4. › Whether guidelines issued under enabling provision can override appellate court decision
5. › Whether 'regard shall be had to' creates mandatory or discretionary obligation
6. › Retail Tenancies Reform Act 1998 (Vic), s 3(5)

Quick Take

The ministerial guidelines issued under s.3(5) of the Retail Tenancies Reform Act 1998 for measuring 'lettable area' do not make 'lettable area' synonymous with 'floor area'; the Sorbara principles continue to apply to determine whether external areas of demised premises constitute 'floor area'. VCAT has jurisdiction under ss.107 and 108 of the Fair Trading Act 1999 to hear disputes between former landlords and tenants even after the lease has been terminated by re-entry.