Retail and Commercial Leasing Fundamentals
Even a seemingly mundane leasing matter can get very messy, very quickly. Misleading and deceptive conduct appears. External administrators are appointed to a Tenant. A breach or surrender occurs. Covid regulations linger. A guarantee or an indemnity suddenly becomes riddled with risk. Master how to deftly handle all these leasing fundamentals issues and more by attending this comprehensive leasing law checklist. 236N18
Description
Attend and earn 7 CPD units including:
6.5 units in Substantive Law
0.5 unit in Practice Management & Business Skills
This program is based on NSW legislation
Session 1
Commercial Leasing: Legal, Contract and Tenancy Considerations
Chair: Steven Cominos, Barrister, 6 St James Hall
9:00am to 9:45am Drafting Issues in Leases
Explore key drafting issues to avoid expensive mistakes in commercial leasing, including:
- Heads of Agreement
- The documents
- How the Courts approach problems in drafting
Presented by Deanne Ogilvie, Partner, Pinsent Masons; Recommended Leasing Lawyer, Doyle’s Guide 2022, 2021
9:45am to 10.30am Options and Leases
Gain a practical overview of key points to assist you in both drafting options to renew and exercising options to review, including a summary of recent decisions. A must for any lawyer practicing in the area of leasing. You will work through the following issues:
- Key points in drafting option clauses in leases
- Traps and pitfalls to avoid
- Exercising options
- Service provisions
- Denying options on the basis of the tenant’s default
- Early market review provisions
Presented by Anthony Herro, Principal Solicitor, Herro Solicitors; Recommended Leasing Lawyer, Doyle’s Guide 2022, 2021
10.30am to 10.45am Morning Tea
10.45am to 11.30am A Practical Guide to Guarantees
- Security for your lease: types of guarantees
- Key points in guarantees
- Conditions and limits in guarantees
- Caps on guarantees
- Commercial considerations: net worth, liquidity and risk
- Replacement or additional guarantees
- When will the guarantee expire?
Prepared by Tara Linn, Senior Associate, MinterEllison
Practice Management & Business Skills
11.30am to 12.00pm Understanding Your Alternatives: eGuarantee
With the market seeking an alternative to the antiquated bank guarantee, examine the digital alternative for commercial lease security and understand the options available to your clients. Topics include:
- Shortfalls of the bank guarantee
- Attributes of eGuarantee’s Lease Bond solution
- Application to de-risk the lease cycle
- Real use cases of Landlord’s & Tenants
- Market Penetration
Presented by Shaun Sergay, Co-Founder & CEO, eGuarantee
12.00pm to 12.45pm Retail and Commercial Leasing Case and Legislative Update
- Analyse the latest leasing cases, including the key facts in each, the important takeaways, and the potential impact on your clients and your practice
- Dive into major new legislation
Presented by Andrew Grima, Partner, Bartier Perry Lawyers
12.45pm to 1.10pm The Lingering Impact: Retail and Other Commercial Leases (COVID-19) Regulation 2022
Although the 2022 regulation has been repealed, it still has effect (pursuant to s. 88(1A) of the Retail Leases Act 1994) “despite the repeal of that regulation, to anything occurring in relation to a lease while the lease was an impacted lease within the meaning of that regulation”. Given the uncertain length of the “reasonable subsequent recovery period” mandated by the National Code, in this session you will work through how lessors need to consider their exposure because of the continuing impact of the regulation.
Presented by Dannelle Howley, Partner, Squire Patton Boggs
1.10pm to 1.15pm Final Comments
Session 2
Managing Risk and Dispute Resolution in Commercial Leasing
Chair: Robert Schneider, Consultant, HWL Ebsworth
2.00pm to 3.00pm Misleading and Deceptive Conduct and Illegal Transactions in Leases
- Overview of the law and relevant provisions of the Retail Leases Act
- Key decisions in relation to unconscionable conduct and misleading and deceptive conduct in commercial leasing
Presented by Andrew Harding SC, 12 Wentworth Selborne Chambers and Hayden Fielder, Eight Selborne Chambers
3.00pm to 4.00pm Issues Faced by Landlords and Tenants when a Tenant Enters External Administration
- How that affects your lease
- What a landlord should and should not do, on both a legal and commercial basis
Presented by Alicia Albury, Partner, Maddocks; Recommended Leasing and Property & Real Estate Lawyer, Doyle’s Guide 2022 and Marelda Hibberd, Partner, Maddocks
4.00pm to 4.15pm Afternoon Tea
4.15pm to 5.15pm Termination for Breach and Surrender by Agreement
- Pre-agreed break and relocation clauses
- Negotiating a surrender of lease
- Make good arrangements on early break arrangements or surrenders
- How is a termination for breach effected
- Damages and relief against forfeiture
Presented by Catherine Hallgath, Partner, Mills Oakley Lawyers; Accredited Specialist in Property Law; Recommended Leasing Lawyer, Doyle’s Guide 2022, 2021
Presenters
Steven Cominos
Prior to being called to the Bar in 2015, Steven Cominos practised as a solicitor with Clayton Utz, the corporate regulator (ASIC) and spent 8 years working as an in-house counsel in the investment banking sector in London and Sydney, most recently with the Swiss bank, UBS AG. This experience has given Steven a strong understanding of the practical drivers of commercial transactions and contracts from a client's perspective and has helped him develop a practical, solutions-based approach to advising clients and resolving disputes. Steven's expertise has been developed through advising clients on numerous large capital markets transactions and innovative investment products, important corporate law and regulatory reform (FSR, FOFA, PPSA, OTC derivatives) and negotiating and settling disputes involving complex financial products and commercial contracts.
Deanne Ogilvie
Deanne Ogilvie is commercial property Partner at Pinsent Masons and leads the firm’s Property practice for the APAC region. Deanne advises domestic, multinational and global corporate clients, REITs, investors, developers, not for profits and other private sector clients on all types of property transactions across most Australian and APAC jurisdictions with a particular focus over the last decade on infrastructure, renewable energy and transport projects. Deanne’s industry knowledge spans real estate, energy & renewables, ports, airports, and roads & rail. Throughout her career she has acted for both landlord and tenant clients and has extensive experience in commercial and industrial leasing. Deanne is recommended in the Doyle’s Guide 2021 and 2022 under ‘Leading Leasing Lawyers NSW’.
Anthony Herro
Anthony Herro is a recognised expert in retail and commercial leases. Anthony is ranked “leading” in the Doyle’s Guide 2023 in the category “Leading Leasing Lawyers NSW” 2023 and was ranked recommended in 2019, 2020, 2021 and 2022. He is Principal Solicitor of Herro Solicitors, a boutique CBD law firm specialising in Retail and Commercial Leases. Anthony is an accredited Mediator with National Accreditation and is a Mediator with the Office of the Small Business Commissioner. If you have any questions regarding anything in the seminar or this paper, please feel free to telephone Anthony on (02) 9247 0100.
Tara Linn
Tara Linn is a leading senior associate within the MinterEllison Real Estate practice in leasing and property agreements. Tara deals in complex and high volume real estate transactions spanning the development, leasing and management of commercial, industrial, and retail assets. She acts for both tenant and many of Australia's leading landlords on National property portfolios. Tara advises on property development and asset management strategies in a number of Australian jurisdictions including on large scale retail developments, redevelopments and the acquisitions of leasing portfolios. Tara prides herself of delivering holistic and commercially-aware legal advice. Over her decade at MinterEllison she has been invited to speak at LegalWise, Leo Cussens and Property Council of Australia seminars. Tara has also volunteered at Property Industry Foundation events.
Shaun Sergay
Shaun is Co-founder and CEO of eGuarantee. Shaun is the former co-head of Asset Performance Maia Financial/AllLeasing, ex PWC.
Andrew Grima
Andrew Grima is a Partner at Bartier Perry. Andrew has significant experience and expertise in all facets of retail and commercial leasing, including: assisting and advising both landlords and tenants in their negotiations; drafting leases and other related transactions; assignments, surrenders and enforcement of obligations. Andrew also has extensive experience in major leasing and construction projects. Andrew approaches his legal matters in a practical way -getting to the real issues at hand by bringing clients together to communicate with each other about their concerns. By getting the parties to the table quickly, Andrew finds that they are able to move past the legal fog to identify the real issues. This means matters are usually resolved quickly and efficiently, allowing his clients to focus on running their businesses. Andrew has acted for clients across a range of industries with regard to leases for premises of various sizes including national franchisors, retailers and distributors, local subsidiaries of foreign companies, ASX listed companies, local councils, government departments and government related entities, universities and SMEs. He has also acted on behalf of landlords in negotiating and drafting leases of sites to telecommunications carriers for the purposes of providing telecommunications facilities. Depth of experience and exposure to a wide range of clients and sectors provides Andrew with the expertise to resolve your legal needs. In addition to his legal and economics and accountancy degrees, Andrew is a graduate of the Australian Institute of Company Directors and has a sound understanding of the financial and governance issues affecting companies. Andrew also has experience in commercial securities and has acted on behalf of major clients such as financial institutions, a listed pharmaceutical company and numerous manufacturing and supply companies with regard to drafting and registering securities and related transactions. In keeping with the firm's core values, Andrew has a strong commitment to the community. He regularly presents to peers and clients in his particular areas of expertise with a strong emphasis on providing training for other lawyers and his clients' in-house teams. Andrew has also championed fundraising activities on behalf of the firm for not-for-, profit organisations, and is the driving force behind the Coleman Greig Challenge, an annual initiative that raises funds for St Gabriel's School for Children with Special Needs, the Royal Institute for Deaf and Blind Children, and My Westmead.
Robert Schneider
Robert Schneider is a consultant at HWL Ebsworth Lawyers. He holds a Master of Laws degree from the University of Sydney and has been practising as a solicitor in New South Wales for the past 44 years. Over this time, he has amassed extensive experience in commercial litigation. He has a special interest in land related litigation, and has acted for both landlords and tenants to commercial and retail leases and vendors and purchasers to transactions for the sale of commercial and residential property in proceedings in the Federal Court of Australia, the Supreme Court of New South Wales, the District Court of New South Wales, the Local Court of New South Wales and the New South Wales Civil & Administrative Tribunal (and its predecessor, the Administrative Decisions Tribunal). Robert has also acted for both landlords and tenants in mediations of lease disputes, including retail tenancy disputes under the Retail Leases Act 1994. Robert has spoken at a number of seminars on retail and commercial tenancies and other property related topics, as well as chairing such seminars. Robert is listed in the 12th Edition (2020) and 13th (2021) Best Lawyers in Australia for Alternative Dispute Resolution.
Andrew Harding SC
Andrew has a strong and diverse commercial and equity practice, predominantly in the Supreme Court of New South Wales, the Federal Court of Australia and their respective appellate courts but also in jurisdictions including the Supreme Court of Victoria and the High Court of Australia. Andrew regularly appears in commercial causes. Areas of focus include commercial contracts, equity and trusts, trade practices, corporations and real property. Andrew is also briefed to advise and appear in cases involving building and construction, restraints of trade, confidential information, professional negligence and banking and insolvency. Prior to coming to the Bar in 2004, Andrew worked as a solicitor at Freehills in Sydney.
Hayden Fielder
Hayden Fielder is a Barrister at Eight Selborne Chambers. Mr Fielder has recently been recognised in ‘Best Lawyers: Ones to Watch in Australia’ (2023) for Commercial Law. Mr Fielder is experienced in a range of commercial, corporate, building and construction and insurance matters, including first instance and appellate proceedings in the District and Supreme Courts across Australia, the Court of Appeal, Federal Court and High Court of Australia. He is experienced in regulatory and investigatory proceedings, including royal commission and public inquiry work. Prior to coming to the Bar, Mr Fielder was a Senior Associate at Clayton Utz in commercial litigation.
Alicia Albury
Alicia specialises in all aspects of commercial property transactions, including property-related restructuring, turnaround and insolvency matters and energy and resources land tenure issues. Alicia is highly experienced in acquisitions and disposals of real estate, regularly advising developers, owners, fund managers, investors and government authorities on industrial, commercial, retail and hotel acquisitions, disposals and development, large scale residential and ‘mixed use’ developments, industrial, commercial and ‘anchor tenant’ retail leasing, property management, joint venture and co-ownership arrangements and major infrastructure projects. Alicia has acted for a range of clients across the public and private sector.
Marelda Hibberd
Marelda has extensive experience advising directors, government agencies, financial institutions, and insolvency practitioners in insolvency, banking recovery and restructuring matters. Marelda has advised on a wide range of banking and insolvency processes, including bankruptcy, corporate insolvency, securities enforcement, asset realisation and commercial litigation. She also acts on behalf of several banks in recovery of corporate and commercial debts. Her work has led her to be recognised as a recommended Restructuring and Insolvency lawyer in Doyle's Guide, Legal 500 and Best Lawyers.
Catherine Hallgath
Catherine Hallgath is a Partner with Mills Oakley Lawyers and is a Law Society accredited specialist in property law. Catherine has acted for a range of leading Australian and Asian property owners and has extensive experience in acquisition, development and disposal of major property assets, especially commercial office blocks, retail shopping centres and industrial parks. She has acted for landlords throughout Australia in relation to ownership and management of property assets and for tenants in Australia, New Zealand and Asia, negotiating and advising on commercial, industrial and retail leases. Catherine is the author of the Lexis-Nexis Practical Legal Guidance Leasing Service and a member of the Property Law Advisory Committee for the Accredited Specialist program.
Venue
Legalwise Seminars - Pitt Street
Level 11 70 Pitt Street
Sydney 2000 NSW
Australia
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Secure Park 20 Bond Street - click here for rates
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Directions:
Nearby Public Transport:
Train Stations - Wynyard 400m OR Martin Place 500m
Bus Interchange - Clarence Street 450m
Ferry - Circular Quay 1.2km