Retail and Commercial Leasing Fundamentals
Issues covered include: 'Ultimate Consumer' test, heads of agreement, guarantees, assignment, special tenancy arragement, lease documents interpretation, breaches of lease, termination
Description
Even a seemingly mundane leasing matter can get very messy, very quickly. A mistake was made in pre-lease documentation. An unsual tenancy arrangement pops up. A dispute arises over an assignment. A guarantee suddenly becomes riddled with risk. Master how to deftly handle all these issues and more in this comprehensive guide to leasing.
Attend and earn 7 CPD units in Substantive Law
This conference was recorded in VIC on 4 June 2019
Session 1
Navigating Pre-Lease Issues, Guarantees & Unique Situations
Chair: Peter Mitchell, Partner, MinterEllison; Recommended Property & Real Estate Lawyer and Leasing Lawyer; Doyle's Guide 2018; Best Lawyers 2019, Real Property Law
9.00am to 10.00am: Developments in the Application of the ‘Ultimate Consumer’ Test
- Outline of the history of and test considered by the Court of Appeal in IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178
- Consideration of subsequent cases that have applied that test and raised related issues about the application of the Retail Leases Act 2003 (Vic)
- Discussion of emerging areas of controversy in the application of the Act
Presented by Sam Hopper, Barrister, Greens List
10.00am to 11.00am: Heads of Agreement for Leases: Practical Guidance
- The principals and goals of an effective HoA: tenant and landlord perspectives
- Clearly specifying what should be binding or non-binding
- Clear, precise drafting tips and examples: avoiding problematic legalese
- The importance of including tenant and landlord obligations
- Due diligence considerations
- What happens if a lease doesn’t eventuate?
Presented by Phillip Leaman, Principal, Tisher Liner FC Law
11.00am to 11.15am Morning Tea
11.15am to 12.15pm: The Ins and Outs of Guarantees and Assignment
- How guarantees are formed and defining their scope
- Absolute unconditional guarantees vs limited guarantees
- Caps on guarantees
- Net worth and liquidity requirements
- Individual Guarantees
- Replacement guarantors upon guarantor default or death of individual guarantor
- When is a guarantor released?
- Defaults and enforcement
- Assignment: What happens to the guarantee, particular if there’s a cash bond?
- Bank guarantees and why cash bonds have issues in the PPSR world
- Liquidators attacking guarantees
Prepared by David McKenzie, Principal, LMG Lawyers
12.15pm to 1.15pm: Special Tenancy Arrangement Roundup: Understanding Unique Leasing Situations
- Co-tenancy and operating issues
- Subleasing or office sharing
- Franchise leasing issues
- The unique challenges and benefits of short-term leases and pop-up stores
- Added benefits to the tenancy: car parking, storage or equipment
Prepared by Aurora Kostezky, Counsel, Dobson Mitchell Allport; Accredited Specialist in Commercial Tenancy Law
Session 2
Avoiding and Managing Lease Disputes and Litigation
Chair: Kristen Giansalvo, Senior Associate, MinterEllison
2.00pm to 3.00pm: Planning Ahead: How Lease Documents may be Interpreted by the Courts and how to Protect Your Client from the Start
- Leases, contract principles and how it can all go wrong
- How imprecise or superfluous language can lead to unintended consequences
- The perils of legal jargon
- The key rules of contract interpretation and canons of construction
- Litigation issues you must keep in mind even in the drafting stage
- Cases, examples and hypotheticals
Presented by Scott Cromb, Barrister, Foley’s List
3.00pm to 4.00pm: Breaches of Lease: How to Avoid and Otherwise Resolve
- General strategies for avoiding and managing defaults
- Warning signs and important principles
- Non-payment of rent
- The tenant and landlord perspectives: common issues that arise
- Dealing with insolvency practitioners
Prepared by David Dickens, Special Counsel, Hall & Wilcox
4.00pm to 4.15pm Afternoon Tea
4.15pm to 5.15pm: Lease Termination: Methods, Procedures, Obligations and Damages
- Methods of termination
- General methods, by notice and for repudiation
- Relief against forfeiture
- Who gets what on termination? Fixtures, chattels, fitout
- The obligation to yield up in good repair
- Calculation of damages on termination
Presented by Philip H Barton, Barrister, Owen Dixon Chambers West, Foley's List
Venue
RACV City Club
Level 2, 501 Bourke St
Melbourne 3000
VIC
Australia