Hunt v Casaran Pty Ltd - [2012] NSWADT 193

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Hunt v Casaran Pty Ltd [2012] NSWADT 193
Hearing dates: 29 February 2012
Decision date: 19 September 2012
Jurisdiction: Retail Leases Division
Before: D R Bluth, Judicial Member
Decision:
1. On file number 115190 declare pursuant to Section 72(1)(f)(iii) of the Retail Leases Act 1994, that the parties are not bound by the valuation of David Bird of Kohler Bird, dated 29 March 2011 in respect of Shop 22, Bangor Shopping Centre as it is not a valuation for the purposes of Section 31 of that Act.
2. On file number 15131, declare that the interim appointment of Specialist Retail Valuer, Richard Wood is confirmed.
3. The Respondent to pay the costs of the Applicant.

Catchwords: Retail leases - appointment of specialist retail valuer
Legislation Cited: Retail Leases Act 1994
Administrative Decisions Tribunal Act 1997
Cases Cited: Adwell Holdings v Bourne (2007) NSWSC 17, (2007) NSW Conv R 56188
Perri v Exego Pty Limited [2009] NSWADT 170
Richardson v Lockevo Pty Ltd [2010] NSWADT 305
Eastpoint Shopping Village Pty Ltd v Grayson Pty Ltd [2011] NSWADT 68
Category: Principal judgment
Parties: Robert Hunt, Susan Hunt and Stephen Hunt (Applicants)
Casaran Pty Ltd (Respondent)
File Number(s): 115131 and 115190

REASONS FOR DECISION

Casaran Pty Ltd (the Respondent) leased retail shop premises shop 22 Bangor Shopping Centre (the Premises) originally to the Lessee named in the Lease under a registered Lease which commenced on 12 March 2009 until 11 March 2011 (the Lease). The Lease contained an option for renewal for five years from 12 March 2011.

The premises were to be used as a Licensed Post Office. The commencing rent was $16,363.64 per annum plus GST. The Lease was assigned to Robert Hunt, Susan Hunt and Stephen Hunt, (the Applicants).

The lease made provision for annual CPI increases of rent. On exercise of the option, if the rent payable for the first year of the new lease was not agreed between the parties then pursuant to Clause 32(a) of the Lease the rent was to be the then current market rent determined in accordance with Clause 37.

Clause 37(a) of the Lease provides:

"The current market rent of the demised premises is the rent that would be reasonably be expected to be paid for the property, determined on an effective rent basis, having regard to the following matters:

(i) the provisions of this lease;

(ii) the rent that would reasonably be expected to be paid for the property if it were unoccupied and offered for renting for the same or substantially similar use to which the property may be put under this lease;

(iii) the gross rent, less the landlords outgoing payable by the tenant;

(iv) rent concessions and other benefits that are frequently or generally offered to prospective tenants of unoccupied retail shops.

The current market rent is not to take into account the value of goodwill created by the lessee's occupation the value of the lessee's fixtures and fittings on…

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.

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Details

Case: [2012] NSWADT 193
Decision Date: 19 September 2012

CaseChat Overview and Summary

The case before the court involved Hunt, the applicant, and Casaran Pty Ltd, the respondent. The dispute centred around the valuation of Shop 22 at the Bangor Shopping Centre, which was a matter pertinent to a retail lease. The matter was heard in the Supreme Court of New South Wales. The applicant sought a declaration that a particular valuation, conducted by David Bird of Kohler Bird, was not valid under the Retail Leases Act 1994. Additionally, the applicant requested confirmation of an interim appointment of a Specialist Retail Valuer, Richard Wood, and sought an order for the respondent to pay the costs of the application.

The primary legal issues the court needed to address were whether the valuation by David Bird was valid for the purposes of the Retail Leases Act and whether the interim appointment of Richard Wood as a Specialist Retail Valuer should be confirmed. The court had to determine if the valuation conducted by Bird complied with the requirements set forth in the Act, particularly whether it was a valuation within the meaning of Section 31. Furthermore, the court needed to consider if the interim appointment of Richard Wood as the Specialist Retail Valuer was justified and appropriate.

The court examined the evidence and submissions presented by both parties. It found that the valuation by David Bird did not meet the statutory requirements and thus was not valid for the purposes of the Retail Leases Act. The court confirmed the interim appointment of Richard Wood as the Specialist Retail Valuer, finding it to be in the best interests of ensuring a fair and accurate valuation process. Consequently, the court declared that the parties were not bound by the valuation of David Bird and confirmed the interim appointment of Richard Wood as the Specialist Retail Valuer. The respondent was ordered to pay the costs of the application.

Orders

Orders of the court

1. On file number 115190 declare pursuant to Section 72(1)(f)(iii) of the Retail Leases Act 1994, that the parties are not bound by the valuation of David Bird of Kohler Bird, dated 29 March 2011 in respect of Shop 22, Bangor Shopping Centre as it is not a valuation for the purposes of Section 31 of that Act.

2. On file number 15131, declare that the interim appointment of Specialist Retail Valuer, Richard Wood is confirmed.

3. The Respondent to pay the costs of the Applicant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hunt v Casaran Pty Ltd [2012] NSWADT 193
Hearing dates:	29 February 2012
Decision date:	19 September 2012
Jurisdiction:	Retail Leases Division
Before:	D R Bluth, Judicial Member
Decision:	1. On file number 115190 declare pursuant to Section 72(1)(f)(iii) of the Retail Leases Act 1994, that the parties are not bound by the valuation of David Bird of Kohler Bird, dated 29 March 2011 in respect of Shop 22, Bangor Shopping Centre as it is not a valuation for the purposes of Section 31 of that Act. 2. On file number 15131, declare that the interim appointment of Specialist Retail Valuer, Richard Wood is confirmed. 3. The Respondent to pay the costs of the Applicant.
Catchwords:	Retail leases - appointment of specialist retail valuer
Legislation Cited:	Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997
Cases Cited:	Adwell Holdings v Bourne (2007) NSWSC 17, (2007) NSW Conv R 56188 Perri v Exego Pty Limited [2009] NSWADT 170 Richardson v Lockevo Pty Ltd [2010] NSWADT 305 Eastpoint Shopping Village Pty Ltd v Grayson Pty Ltd [2011] NSWADT 68
Category:	Principal judgment
Parties:	Robert Hunt, Susan Hunt and Stephen Hunt (Applicants) Casaran Pty Ltd (Respondent)
File Number(s):	115131 and 115190