Storage Depot Pty Ltd v EVP Brooklyn Logistics Park Pty Ltd (Building and Property) [2026] VCAT 8

1. I find and declare that the market rent assessment under the Determination is $417,690 plus GST.
2. The cross-claim is dismissed.

1. This is a dispute about the rent payable by a tenant following the exercise of an option under a retail premises lease.
2. EVP Brooklyn Logistics Park Pty Ltd is the registered proprietor ('Landlord') of premises in Geelong Road, Brooklyn, Victoria leased to Storage Depot Pty Ltd ('Tenant'). The Tenant operates a storage facility from the premises.
3. The dispute concerns a market rent determination undertaken by Mr Alan M Bertacco of Bertacco Property Valuations ('Valuer') assessing the market rent from 1 August 2020 ('Determination').
4. The Tenant contends for a particular construction of the Determination. The Landlord contends a different construction or alternatively seeks a declaration that the Determination is not binding on the parties.
5. The issues for determination by me are:

(a) What is the correct current market rent payable under the Determination? The Landlord contends that it is $556,920. The Tenant contends that it is $417,690; and

(b) Alternatively if the rent payable is $417,690, is the Determination vitiated by error and liable to be set aside?

1. The premises are retail premises, and it is not disputed that the Retail Leases Act 2003 (Vic) ('RLA') applies. There are no factual issues in dispute.

1. The Tenant's lease commenced on 1 September 2003. The landlord at the time was Coopersmith Holdings Pty Ltd. Subsequently M H Brooklyn Pty Ltd acquired the premises. Following three Deeds of Variations of Lease the initial term was extended to 31 July 2020.
2. The Tenant exercised its option for the next term. At the time of the review the passing rent was $399,708.96 per annum gross plus GST.
3. The parties to the lease (being the Tenant and M H Brooklyn Pty Ltd as landlord) could not agree on the new rent and engaged a valuer to determine the rent (first valuation). The first valuation was set aside by the Tribunal for its failure to provide detailed reasons.
4. In mid-2022 the Valuer was appointed by the Victorian Small Business Commission to perform a market rent determination. The Determination was provided on 24 August 2022.
5. Following the Determination, M H Brooklyn Pty Ltd issued invoices in accordance with its understanding of the rent payable being $556,920 per annum plus GST. The invoices were paid under protest by the Tenant between August 2022 and May 2023. After May 2023 the Tenant paid a lower amount.
6. The Landlord became the registered proprietor of the premises in about June 2023.
7. On 11 July 2023 the Landlord issued a s 146 Notice of default against the Tenant for failing to pay the full amount claimed as being the rent payable. Thereafter the Tenant issued these proceedings.
8. The Landlord cross-claimed seeking a declaration that the rent payable under the new lease is $556,920 per annum plus GST and orders consequential upon that declaration or alternatively that the Determination be set aside as vitiated by error and of no effect. that the ten
9. The Tenant says the Landlord is estopped from running an alternative ground of setting aside the Determination because the Determination is binding on the parties by reason of clause 7.4(h) of the lease.
10. For the reasons that follow, I accept the Tenant's interpretation of the Determination that the market rent is $417,690 per annum plus GST and I dismiss the Landlord's claims.

WHAT IS THE RENT PAYABLE UNDER THE DETERMINATION?

1. The Tenant says the market rent payable for the first year of the lease is $417,690 plus GST as set out in the Executive Summary and part 12 of the Determination.
2. The Landlord contends that the current market rent determined by the Valuer when the Determination is read as a whole is $556,920 plus GST.

1. The Valuer must determine the rent in accordance with s 37 of the RLA and to the extent it is not inconsistent, clause 7.4(d) of the lease. This is the Valuer's charter.
2. Section 37 of the RLA provides:

(1) A retail premises lease that provides for a rent review to be made on the basis of the current market rent of the premises is taken to provide as set out in subsections (2) to (6).

(2) The current market rent is taken to be the rent obtainable at the time of the review in a free and open market between a willing Landlord and willing Tenant in an arm's length transaction having regard to these matters-

(a) the provisions of the lease;

(b) the rent that would reasonably be expected to be paid for the premises if they were unoccupied and offered for lease for the same, or a substantially similar, use to which the premises may be put under the lease;

(c) the Landlord's outgoings to the extent to which the Tenant is liable to contribute to those outgoings;

(d) rent concessions and other benefits offered to prospective Tenants of unoccupied retail premises -

but the current market rent is not to take into account the value of goodwill created by the Tenant's occupation or the value of the Tenant's fixtures and fittings.

...

(5) In determining the amount of the rent, the specialist retail Valuer must take into account the matters set out in subsection (2).

1. Clause 7.4 (d) sets out the matters the Valuer must take into account in deciding the new rent. It provides:

(d) In deciding the new rent, the valuer must take into account:

(i) the Permitted Use;

(ii) any inducement or incentive or both (for example: allowances, payments, benefits, rent free periods, discounted rent periods, assuming liability) given by the Landlord or the Tenant, or a person associated with the Tenant, for the Tenant entering into this lease;

(iii) the fair market rent for the Premises;

(iv) the provisions of this lease;

(v) the rent payable for industrial premises comparable to the Premises; and

(vi) that the basis for the determination is:

• (A) the Premises are vacant and available for leasing by a willing landlord to a willing tenant; and
• (B) the Tenant is not in breach of this lease.

1. Both s 37 and clause 7.4(d) require the Valuer to take into account rent concessions and other benefits offered to prospective tenants when determining the current market rent.

1. The Executive Summary on page 4 of the Determination reads

Market Rent assessment: $417,690 excl GST per annum

Four Hndred (sic) &Seventeen Thousand, Six Hundred & Ninety Dollars

1. The Valuer sets out his instructions in part 1 recording that he has been requested to undertake a market rent valuation in accordance with the lease and the RLA. He sets out the definition of 'market rent' in s 37(2) of the RLA.
2. Part 10 sets out the basis for the valuation.
3. Part 10.2 highlights s 37 of the RLA stating that in respect of the assessment of market rent, primary regard is given to s 37(2). It then addresses each of the criteria s 37(2).
4. In addressing the criteria of rent concessions and other benefits offered to prospective tenants of unoccupied retail premises the Valuer states:

Rent concessions and other benefits offered to prospective tenants of unoccupied retail premises

• Rental evidence relied upon has included inquiry in respect to incentives offered by the Lessor that may take the form of rent- free periods at the commencement of the term, a premises fit out or cash contributions towards tenant fit out, or a combination of some or all. Experience shows that most incentives take the form of rent-free months from commencement of the lease with few choosing to amortise the incentive over the term of the lease. Subject to localised market conditions incentives can vary significantly and those applied to the subject property has had regard to the localised market, drawn from Lease is negotiated and anecdotal advice from commercial agents active in the leasing of industrial property full

As an observation drawn from experience, locations of high vacancy will carry higher incentives than those in tightly held locations.

The subject property is in a moderate location that had few apparent vacancies on or around the relevant date, but it would appear incentives nonetheless part of lease negotiations on and around the relevant date, Particularly in an uncertain Covid period.

In my opinion a 5- year lease would expect to receive in the market at the relevant date from the Lessor, a period in the order of three Month's rent free as an incentive.

1. Part 10.3 contains the rent assessment. It reads:

10.3 Rental assessment

I assess the net Market Rent inclusive of outgoings under S37(2) as follows:

Face Rental inclusive of outgoings

Demise Premises 6,188 sqm @ $90 sqm/pa = $556,920 pa + GST

Having regard to leasing activity, I am of the view that 3-months' rent free would attach to a new leasing of the subject premises by way of incentive. For the first year of the further term I has (sic)assumed the incentive will be taken as a rent-free period from commencement. On occasions a Lessor and Lessee may agree to amortize the incentive over the full term of the lease. I have not undertaken the exercise on this basis as such an approach by lessor and lessee is very much in the minority. The rental incentive is applicable only to the market review provision.

Should the Lessor and Lessee agree to an amortization approach, I reserve the right to recalculate the effective rent on that method.

Accordingly, the Effective Rent[1] for Year 1 of the new term is assessed as follows:

Face Rent: $556,920 pa

Less Incentive $139,230 pa

Year 1 Effective Rent $417,690 pa

[1] Face rent less incentives/concessions.

For clarity Year 2 reverts to the fixed 3% review based on the face gross rent with subsequent years reviewed to 3% on the preceding year on each anniversary.

The rate of $90 sqm/pa gross has been adopted on the basis that the gross rental evidence given regard ranges between $79 sqm to $120 sqm.

1. The rental valuation in part 12 of the Determination provides:

12.0 Rental Valuation

We hereby determine the market rent of 1/600 Geelong Road, Brooklyn, Victoria for the Year 1 [2] from the effective date of this assessment that is inclusive of outgoings (gross rent), incentives, subject to the lease terms and conditions and out remarks contained herein to be as follows:

FOUR HUNDRED & SEVENTEEN THOUSAND SIX HUNDRED & NINETY DOLLARS ($417,690) per annum plus GST.

[2] Refer comments under 10.2 regarding incentives and subsequent fixed reviews

1. On 28 September 2020 the former landlord through its solicitors wrote to the Valuer seeking confirmation that the rental amounts for each year were as follows:-

1. The Valuer responded on the same day confirming that the calculations were correct for Year 1 and subsequent years.
2. I note that the Valuer was not required to determine the rent payable for the subsequent years of the new lease. His only task was to determine the market rent at the review date of 1 August 2020. The lease provides a mechanism for the rent payable in subsequent years.

1. The Landlord submits that the proper interpretation of the Determination, read as a whole, is that the Valuer determines a current market rent of $556,920.00. This is the figure intended to be carried forward to future years. The Valuer's 'effective rent' simply applies an incentive after having determined the current market rent.
2. The Landlord says one can discern from comments in the Determination and subsequent correspondence the amount the Valuer determined the Tenant to pay over the five year term of the new lease.
3. The Landlord says the figure of $417,690 is expressly said to be subject to 'our remarks contained herein' - which would have to include:

(a) the statement at part 10.3 that: For clarity Year 2 reverts to the fixed 3% review based on the face gross rent with subsequent years reviewed to 3% on the preceding year on each anniversary; and

(b) footnote 2 next to 'Year 1' in part 12 which expressly states: 'Refer comments under 10.2 regarding incentives and subsequent fixed reviews'.

1. The Landlord contends that it is an express finding in part 10.3 of the determination that the net market rent inclusive of outgoings under s 37 of the PLA is $556,920 pa plus GST.
2. In support of its interpretation, the Landlord highlights the reference by the Valuer in part 10.3 of the need to recalculate the effective rent if the parties choose an amortization approach to the rent incentive.
3. The Landlord says the Determination does not conclude that, having regard to the rent concessions, the current market rent is $417,690 on which the 3% increases are to apply in future years as per the lease. It says this was made clear by the 20 September 2020 correspondence between the Valuer and the former landlord.
4. The Landlord contends that the Valuer's 'effective rent' simply applies an incentive after having determined the current market rent.
5. The Landlord says that when read as a whole the Valuer really determined the market rent as being $556,920 rather than as $417,690. This is said to be confirmed by clarifying statements in the Determination and by the Valuer's subsequent confirmation that the rent for the second year of the lease term is to be a 3% increase on the $556,920 figure.
6. The Landlord relies heavily upon the first 4 lines of part 10.3 in support of its position. They read:

I assess the net Market Rent inclusive of outgoings under S37(2) as follows:

Face Rental inclusive of outgoings

Demise Premises 6,188 sqm @ $90 sqm/pa = $556,920 pa + GST

1. The Tenant paid the rent for the first year of the new term at $417,690 per annum plus GST. This was the amount determined in the executive summary and under the heading '12 Rental Valuation'.
2. The parties fell into dispute about what was payable in the second year.
3. The Tenant says the Valuer was aware of the rent-free period and deliberately chose to factor it into the Determination in a particular way.
4. Having determined the rent at the market rent review date, the contractual mechanisms for further reviews of rent are set out in the lease. The Tenant says the Valuer was not tasked to determine how the remainder of the contractual provisions are to operate for subsequent rent increases. Commentary by the Valuer of anything other than the market rent review is said to be outside the remit and of no consequence.

1. It is not contentious that the Determination must be read as a whole. The reader cannot cherry pick sentences and take them out of context.
2. It is also well accepted that determinations are not to be scrutinised with the technical eye of a lawyer applying a strict legal interpretation of their contents. They are a commercial document and are to be interpreted with an understanding that the author is not a lawyer.
3. Part 10.3 references 'Face Rental' and 'Effective Rent' and 'net Market Rent'.
4. While not defined in the Determination, the term 'Face Rental' usually means the rent stated in a lease before any landlord incentives. This is consistent with the Valuer's use of the term.
5. It is clear from the Determination that the Valuer makes a distinction between 'Face Rent' and 'Effective Rent' in part 10.3. He defines 'Effective Rent' as 'Face rent less incentives/concessions.'
6. In my view the first few lines of part 10.3 cannot be read as contended for by the Landlord, as if there was a full stop after '$556,920 + GST'. The rest of the part must be considered as it sets out the Valuer's assessment.
7. The Valuer determined the face rent (being the rent payable without taking into account rent concessions) to be $556,9920 pa. He then determined the effective rent (being face rent less incentives/concession) as $417,690.
8. The Valuer took the figure of $417,690 from his rental assessment in part 10.3 and determined that figure of $417,690 to be the market rent assessment for the purpose of the Determination. This is stated clearly in the Executive Summary and in Part 12 Rental Valuation.
9. Part 12 of the Determination contains the footnote 'Refer comments under 10.2 regarding incentives and subsequent fixed reviews.' Part 10.2 addresses the criteria of rent determinations set out in s 37 of the RLA.
10. Under the criteria of rent concession in part 10.2, the Valuer discusses his consideration of rent concessions and explains why he applied a three-month rent-free period as an incentive.
11. It is clear from the Determination that the Valuer chose a figure for rent for the first year of the new term and then discounted that figure by applying a three-month rent-free period to determine the market rent. The Valuer chose to make his determination on this basis. The Valuer could of but did not amortise the concession over the term of the lease.
12. Section 37 of the RLA and the lease required the Valuer to consider the rent payable taking into account concessions. When the Valuer undertook that task, he determined the rent to be 'Face Rent' ($556,920 pa) less incentive ($139,230 pa) giving a year 1 effective rent of $417,690 pa. This effective rent is what the Valuer determined the market rent to be.
13. Had concessions not been considered, the Valuer would have been in breach of his charter.
14. The Valuer makes a clear distinction between market rent and face rent. No where in the Determination does he assess the market rent as being $556,920.
15. The Valuer set the market rent payable for the first year of the lease taking into account concessions at $417,690. This is what he was tasked to do - determine the market rent considering any concessions. He clearly stipulated this to be his determination in the executive summary and under the heading '12 Rental Valuation'.
16. The fact that he opined that the rent should revert to the 'Face Rent' in the second year with the stipulated 3% CPI increase applied does not change his determination. While he did not intend the figure of $417,690 to be carried forward, that does not change his assessment of that figure being the market rent.
17. I find and declare that the Valuer determined the market rent to be $417,690 per annum plus GST and not $556,920 per annum plus GST.

General principals - When can an expert determination be set aside?

1. The law as to when an expert determination can be set aside is well established. The starting point is to look at the terms of the contract (Valuer's charter), express or implied. It is only when there has been fraud, collusion or a mistake which shows the valuation is not in accordance with the contract that a determination may be set aside.[1]
2. As previously stated, the Valuer must determine the rent in accordance with s 37 of the RLA and to the extent it is not inconsistent, clause 7.4(d) of the lease.

1. In this case, there is no suggestion of fraud or collusion, therefore it must be considered whether the Tenant has a basis to claim that the Determination is vitiated by a mistake because the Valuer has failed to consider the matters set out in s 37 of the RLA and the terms of the lease.
2. Nettle JA (as his Honour was then) in AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd & Anor2 stated:

[51] I agree with the judge that the question of whether it is open to review an expert determination on the ground of error is in the first place to be decided according to whether the determination answers the contractual description of what the expert was required to determine. I also agree with the judge that the question of whether an error in determination deprives the determination of compliance with the contractual description of what the expert was required to determine is in the first place to be answered according to whether the error occurred in respect of a task which the contract entrusted to the expert. As Mason, P. explained in Holt v. Cox, although mistake is not itself a ground for vitiation of a final and binding expert determination, a mistake may still be of such a nature that the resultant determination is beyond the realm of contractual contemplation - beyond anything which the parties may be supposed to have intended to be final and binding - and therefore susceptible to review.

3. These and similar statements have been followed in numerous cases about challenging rental determinations.[2]
4. The questions to be considered by me when deciding if the Determination is vitiated by mistake are:

(a) What did the parties agree to remit to the expert?

(b) Did the Valuer make a mistake, and if so, what was the nature of the mistake?

1. Is the mistake of such a kind which demonstrates that the valuation was not made in accordance with the terms of the contract and accordingly does not bind the parties?[3]

What did the parties agree to remit to the expert?

1. There is no dispute that the Valuer was required to undertake a market rent assessment in accordance with s 37 of the RLA and the lease.

1. The Landlord says that if the proper interpretation of the Determination is that the rent payable is $417,690 then it is vitiated by error for want of compliance with the Valuer's charter and/or because it lacks detailed reasons as required by s 37(6) of the RLA.
2. The Landlord relies upon the following four errors: -

(a) Error 1 - Failing to properly have regard to the provisions of the lease, particularly the 3% fixed rent increases referred to in cl 7.7 as required by s 37(2) of the RLA;

(b) Error 2 - Failing to properly take into account the provisions of the lease particularly the 3% fixed increases in deciding the new rent as required by cl 7.4(iv) of the lease;

(c) Error 3 - Failing to provide 'adequate detailed reasons' for his Determination; and

(d) Error 4 - Failing to properly have regard to rent concessions offered to prospective Tenants in determining the market rent in breach of s 37(2) of the RLA.

Errors 1 & 2 - Failing to properly have regard to the provisions of the lease as required by s 37(2)(a) of the RLA and clause 7.4 (d) (iv) of the lease - particularly the 3% fixed rent increases

1. The Landlord addressed these grounds together.
2. Clause 6.2 of the Deed of Variation dated 21 September 2012 required the rent for the further term to be determined in the manner set out in clauses 7.3, 7.4 and 7.5 of the Lease and 'for each successive year' of that further term the rent will be increased annually on 1 August by 3% as described in clause 7.7 of the Lease.
3. The Landlord submits that having regards to the terms of the lease, the Valuer had to understand that the subsequent fixed increases of 3% are to be applied on the commencing rent for the first year. This is not in dispute.
4. The 3% fixed rent increase is referenced multiple times in the Determination. For example, the Valuer states after assessing the net market rent and year 1 effective rent that 'For clarity Year 2 reverts to the fixed 3% review based on the face gross rent with subsequent years reviewed to 3% on the preceding year on each anniversary.'
5. The Landlord says that if the market rent is interpreted as $417,690 then the Valuer failed to properly regard the 3% fixed increase referred to in clause 7.7 of the lease.
6. The difference between the rent received with a starting rent of $417,690 and a starting rent of $556,920 for the term of the lease is about $600,000.
7. Section 37(2) of the RLA only requires a valuer to have regard to the matters set out in that section. There is no obligation to have 'proper' regard to the matters.
8. If the Valuer made a mistake in his consideration of the incentive by failing to properly regard the 3% rent increase, then, adopting the words of Nettle JA, the mistake must be of such a nature that the resultant determination is beyond the realm of contractual contemplation. To invalidate the Determination there must be a mistake or error which shows that the determination is not in accordance with contract or, in other words, in accordance with the Valuer's charter.
9. A valuation can stand even if made negligently. An error in the discretionary judgement of the Valuer will not invalidate an assessment if it is otherwise made within the terms of the contract.[4]
10. It is unclear on the material before me whether the Valuer did in fact make a mistake. I have no expert evidence to support that finding.
11. While the Valuer may have intended the second year's rent of the new term to revert to face rent plus 3% increase, he assessed the market rent as at 1 August 2020 to be $417,690.
12. It is clear on the face of the Determination that the Valuer took into account, as he was required to do by clause 7.4(d) of the lease and s 37 of the RLA, incentives. He explained how he arrived at the incentive he applied in determining market rent.
13. The method of inclusion of an incentive is a matter within the discretion of the Valuer. It is within his expertise as to how he is to account for incentives. The Valuer set out in some detail his consideration of the incentive and why he chose the three-month rent-free period. He chose to deduct the three-month incentive from the 'face rent' to arrive at the market rent for the first year.
14. I am satisfied that the calculation of the market rent was made within the Valuer's charter. The Valuer determined the question which was referred to him. There is nothing in the nature of the mistake, if in fact there was one, which indicates a departure from the terms of the contract. The mistake (if there was one) was made in the process of valuation and was not a departure from the terms of the lease.
15. I accept the submission of the Tenant that the fact that the way in which the incentive was taken into account could be seen to have created an unbalanced gross rent over the whole of the term because the discount is repeated over and over is simply a mistake in methodology. It does not fall outside of the Valuer's charter.
16. For the reasons given I find that errors 1 and 2 do not vitiate the Determination.

Error 3 - Failing to provide 'adequate detailed reasons' for his Determination

1. Section 37(6)(b) of the RLA requires the Valuer to provide 'detailed reasons' for the determination
2. The Landlord says there is a lack of detailed reason of how the Valuer had regard to the provisions of the lease and in particular clause 7.7 which provided for 3% subsequent rent review increases and how and why the Valuer applied the three month rent incentive as he did.
3. The Landlord says the lack of detailed reason is amplified by on the one hand applying the three-month rent-free period at the start of the lease and on the other stating that for clarity year 2 rent reverts to 3% increase on the face gross rent.
4. In considering whether detailed reasons have been provided the following matters are relevant:

(a) the reasons must be sufficient to enable the parties to understand the basis upon which the determination has been made;[5]

(b) the requirement to provide detailed reasons goes further than merely requiring "sufficient" reasons and requires the Valuer to set out details as to how he or she arrived at the determination;[6] and

(c) it is not sufficient for a Valuer to 'leap to a judgment': the valuation must disclose the steps of reasoning.[7]

1. I am satisfied that the reasons provided in the Determination by the Valuer satisfy the requirements of s 37(6) for the reason that follow.
2. The Valuer made comments about the rent concessions in part 10.2 and 10.3 of the Determination. He provided sufficient reasons to understand why he chose a three-month rent-free period based upon location and occupancy rates and the impact of COVID-19 on leasing. He explained why he chose not to amortise the incentive over the full term of the lease. He said it was very much a minority approach to do it that way. He made judgments about the incentives based upon his expertise as a Valuer.
3. The reasoning of the Valuer is clear. There is no leap to judgement about why or how he applied the incentive. He applied the incentive knowing that there was a 3% increase on rent in year 2. The fact that his determination of the market rent may have unintended consequences does not make his reasoning unclear. He has provided sufficient detail to enable the parties to understand the basis of his determination.

Error 4 - Failing to properly have regard to rent concessions offered to prospective Tenants in determining the market rent in breach of s 37(2) of the RLA.

1. The Tenant says the Valuer failed to properly have regard to rent concessions offered to perspective Tenants in determining the market rent because the effect of applying the incentive to year 1 rental as he did would be that the Tenant would be required to pay approximately $600,000 less rent over the duration of the lease than the Valuer expressly identified was his intention.
2. The Tenant says the Valuer therefore proceeded in error in how he had regard to the rent concessions offered to prospective Tenants given his expressed intention that year 2 reverts to the fixed 3% review based on face gross rent.
3. Section 37(2) requires the Valuer to have regard to the matters set out in that provision. It does not require the valuer to have 'proper regard'.
4. The Tenant's claims may be correct but if there was an error, it was one of methodology and did not take the Determination outside of the contract.
5. How the incentive was to be considered is a matter within the special skill of a Valuer 'performing an art, not a science.'[8]
6. It is not the Tribunal's role to set a prescriptive position with respect to valuation methodology. A valuer has a specialised knowledge and is required to apply that knowledge in the context of the facts and circumstances of the property in question.
7. The Valuer chose to apply the incentive as a three-month rent-free period to the rent applicable in the first year of the lease. This was the basis of determining the market rent. He chose this methodology notwithstanding the basis of rent increases in subsequent years of which he was aware.
8. The Valuer had regard to the rent concessions and future rent increases. Any error in the way he regarded rent concessions is an error made in the process of valuation and not a departure from the terms of the contract.

1. Given my findings, it is unnecessary to consider the Tenant's defence of election and waiver in response to the Landlord's counterclaim seeking orders that the Determination is invalid and unenforceable.

1. I find and declare that the current market rent payable under the Determination is $417,690 plus GST.
2. The Landlord's cross-claim is dismissed.

[1] Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314.

[2] [2006] VSCA 173. For the latest examples, see Redgum Developments Pty Ltd v G8 Education Ltd [2020] VSC 142 at [15] and Bevendale Pty Ltd v Lucky Eights Pty Ltd [2020] VSCA 312.

1. [3] As per Gillard J in Commonwealth of Australia v Wawbe Pty Ltd & Pinebark Park Pty Ltd [1998] VSC 82 at [45].

[4] Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) NSWLR 314 at 336.

[5] See 756 Glenferrie Road Pty Ltd v Mountford Shoes Ltd [2013] VCAT 640.

[6] Adwell Holdings Pty Ltd v Bourne [2007] NSWSC 17; (2007) NSW ConvR 56-188.

[7] Higgins Nine Group Pty Ltd v Ladro Greville St Pty Ltd [2016] VSC 244.

[8] Challenger Property Asset Management Pty Ltd v Stonningham City Council [2011] VSC 184; (2011) 34 VR 445 at 457.