Golden Harvest (Aust) P/L v Paing P/L

Golden Harvest (Aust) P/L (the Lessor) and Paing P/L (the Lessee) were parties to a retail lease. The Lessee sought compensation from the Lessor under section 10 of the *Retail Leases Act 1994* (NSW) for alleged misrepresentation. A Judicial Member of the Administrative Decisions Tribunal awarded compensation, but this decision was subsequently set aside by an Appeal Panel, and the matter was restored to Newman AJ. The appeal to the Supreme Court of New South Wales concerned whether the Judicial Member's findings established that the Lessor had made a misrepresentation.

The central legal issue before the Court was whether the Judicial Member's findings demonstrated that the Lessor had made a misrepresentation to the Lessee, thereby entitling the Lessee to compensation under section 10 of the *Retail Leases Act 1994*. Specifically, the Court had to consider whether the Lessor's statements regarding the construction of a nearby residential tower constituted a misrepresentation, and if so, whether the statutory requirements for an award of compensation under section 10 were met. The appeal was limited to questions of law.

The Court reasoned that the evidence before the Judicial Member did not adequately address crucial aspects necessary to establish a misrepresentation under section 10. These deficiencies included a lack of clarity regarding when and on what terms development consent for the residential tower was refused, the Lessor's intentions concerning the tower, whether those intentions were reasonably based, and whether the representation was misleading to the Lessor's knowledge. The Court observed that representations concerning future matters require careful consideration.

Ultimately, the Court held that there was no sufficient basis in the evidence for the award of compensation under section 10. The appeal was allowed, and the cross-appeal was dismissed.