The “Ultimate Consumer” Test: Another Application

By Evelyn Marcou, Senior Associate, MST Lawyers

The question around the “ultimate consumer” test continues.  Following the Victorian Court of Appeal decision in IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017] VSCA 178   (special leave to appeal the decision will be heard by the High Court on 15 December 2017), the County Court has handed down a decision in the case of Access Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC 1563.

In the case of Access Solutions International Pty Ltd v Gamet Pty Ltd [2017] VCC 1563, his Honour Judge Macnamara applied the controversial “ultimate consumer” test under section 4 of the Retail Leases Act 2003.

The decisions arising from these cases have held that the premises were used for supplying services to other businesses; the “ultimate consumers” of those services. As such, the lease of the premises is covered by the Retail Leases Act 2003 (the ‘Act’).

The effect of the decisions, if and until the High Court determines otherwise, is that the Act is likely to apply to premises used for supplying services and possibly goods where those services or goods are supplied to the ultimate consumer end user which can include another business. This means that that Act will apply to almost every premises lease.

Until the High Court Appeal decision is handed down, both landlord’s and tenant’s need to use the “ultimate consumer” test when considering whether the Act applies. This will be particularly important where the proposed permitted use of the premises is for “manufacturing” or “warehouse” or another similar purpose.

Click on the links below to read earlier articles by Evelyn Marcou on this topic.

Is your business to business lease governed by the Retail Leases Act 2003 (Vic)?

 UPDATE: Is Your Business To Business Lease Governed By The Retail Leases Act 2003 (Vic)?

 

For further information, please contact our Property & Leasing team by email property@mst.com.au or by telephone Ph: +61 3 8540 0200.