Ballymaloe Pty Ltd v Retail Shop Leases Tribunal - [2003] QSC 369

SUPREME COURT OF QUEENSLAND

CITATION:

Ballymaloe Pty Ltd v. Retail Shop Leases Tribunal & Anor [2003] QSC 369

PARTIES:

BALLYMALOE PTY LTD
ACN 093 253 029
(applicant)
v.
RETAIL SHOP LEASES TRIBUNAL
(first respondent)
and
JIMWAY PTY LTD
ACN 010 632 989
(second respondent)

FILE NO:

5482 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

31 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2003

JUDGE:

Helman J.

CATCHWORDS:

ADMINISTRATIVE LAW – EXCESS OF JURISDICTION – whether Retail Shop Leases Tribunal is in excess of its jurisdiction in upholding valuer’s decision – whether valuer is independent as required by the Act – meaning of ‘independent valuer’

Judicial Review Act 1991 ss. 18(2), 41
Retail Shop Leases Act 1994 ss. 5, 28(3), 88(1) & 109(3)(a)

Craig v. South Australia (1995) 184 C.L.R. 163                    R. v. Essex Justices, ex parte Perkins [1927] 2 K.B. 475 R. v. Lilydale Magistrates Court [1973] V.R. 122 R. v. Williams, ex parte Phillips [1914] 1 K.B. 608

COUNSEL:

J.M. McKenna S.C. for applicant  M. Jarrett for second respondent

SOLICITORS:

Clarke Dowling for the applicant  C.W. Lohe, Crown Solicitor for the State of Queensland, for the first respondent
Lang Hemming & Hall for the second respondent

This is an application for relief under the Judicial Review Act 1991 in relation to a decision of the Retail Shop Leases Tribunal made on 23 May 2003. The Tribunal found that a determination of current market rent by Mr Gregory Clarke, specialist retail valuer, made on 29 November 2002 was valid and binding as between the applicant, Ballymaloe Pty Ltd, and the second respondent, Jimway Pty Ltd. The ground of the application is that the Tribunal’s decision was invalid and made without jurisdiction, or alternatively in excess of jurisdiction, by reason of its ‘failure to disregard the common law of waiver (and analogous doctrines) and to apply the express terms of section 28(3) of the Retail Shop Leases Act 1994 (Qld)’ to decide the validity of the determination. Ballymaloe seeks an order quashing the decision of the Tribunal, a declaration that the decision was invalid and made without jurisdiction or in excess of jurisdiction, and a declaration that the determination was ineffective to fix the rental as the valuer was not ‘independent of the interests of the lessor and lessee’ as required by s. 28(3).

So far as it is relevant, s. 88(1) of the Retail Shop Leases Act provides that the Tribunal’s hearing of a retail tenancy dispute and the Tribunal’s order must not be questioned in a proceeding other than a proceeding based solely on either or both of the following grounds –

(a)the Tribunal had or has no jurisdiction, or has exceeded its jurisdiction, in the hearing or in making the order;
(b)there has been a denial of natural justice.

There was no suggestion before me that (b) had any application to this case. Section 18(2) of the Judicial Review Act provides that that Act does not affect the operation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballymaloe Pty Ltd v Retail Shop Leases Tribunal

Details

AGLC: Ballymaloe Pty Ltd v Retail Shop Leases Tribunal [2003] QSC 369
Case: [2003] QSC 369
Decision Date: 31 October 2003

CaseChat Overview and Summary

The case before the court involved Ballymaloe Pty Ltd, the appellant, and the Retail Shop Leases Tribunal, the respondent. The dispute centred on the tribunal’s decision to uphold a valuer’s assessment of the rent for a retail shop lease under the Retail Tenancies Act 1994. The appellant contested the tribunal’s decision, arguing that it had acted beyond its jurisdiction by accepting the valuer’s determination without considering whether the valuer was sufficiently independent as required by the Act.

The primary legal issue before the court was whether the tribunal had exceeded its jurisdiction by not independently verifying the independence of the valuer appointed to assess the rent. The court was required to determine the meaning of ‘independent valuer’ as stipulated by the Act and whether the tribunal had correctly applied this definition in its decision-making process. Furthermore, the court needed to consider whether the tribunal's failure to assess the valuer's independence constituted a jurisdictional error.

The court found that the tribunal had indeed acted beyond its jurisdiction by not independently verifying the independence of the valuer. It held that the term ‘independent valuer’ in the Act required a valuer who was free from any interest or bias that could influence their assessment. The tribunal’s acceptance of the valuer’s decision without such verification was deemed a jurisdictional error. As a result, the court quashed the tribunal’s decision and remitted the matter back to the tribunal for reconsideration with proper adherence to the statutory requirements concerning the independence of the valuer.

Orders