Kokkinidis v Zaharopoulos - [2011] NSWADT 153

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Kokkinidis v Zaharopoulos [2011] NSWADT 153
Hearing dates: 18 and 19 May 2011
Decision date: 27 June 2011
Jurisdiction: Retail Leases Division
Before: K Rickards, Judicial Member
Decision:
1.The joint review determination of the specialist retail valuers Charles Verheyden and Ian Handley dated 20 October 2010 is set aside pursuant to section 32A(12)(a) of the Retail Leases Act 1994 .
2.The fees paid by the parties to the specialist retail valuers as above are to be refunded within 28 days pursuant to section 32A(12)(b) of the Retail Leases Act 1994 .
3.The parties are to bear their own costs of the proceedings.

Catchwords: Joint review of rent determination
Legislation Cited: Retail Leases Act 1994
Uniform Civil Procedure Rules 2005
Administrative Decisions Tribunal Act 1997
Cases Cited: Makita (Australia) Pty Ltd v Sprowles NSWCA 305
David Grant Pty Ltd & ors v Westpac Banking Corporation 184 CLR 265
Category: Principal judgment
Parties: George Kokkinidis (Applicant 105005)(Cross Respondent 105181)
Antonios Zaharopoulos and George Zaharopoulos (Respondent 105005) (Cross Applicant 105181)
Representation: Counsel
R Winfield (Applicant /Cross Respondent)
B Zipser (Respondents/Cross Applicants)
Papantoniou Blake (Applicant/Cross Respondent)
Brock Partners (Respondent/Cross Applicant)

File Number(s): 105005, 105181

REasons for decision

Background

The two subject sets of proceedings involve the same issues which relate to the determination of current market rent payable upon exercise of option to renew a lease.

On or about 30 April 2004 Antonios and George Zaharopoulos ("the Lessees") entered into a retail lease agreement with George Kokkinidis ("the Lessor") in relation to retail shop premises known as 368 Burwood Road, Belmore NSW ("the Property").

The lease commenced on 30 June 2004 and terminated on 30 June 2009 but contained an option to renew for a further term to expire on 30 June 2014. The option to renew was exercised by the lessees and, pursuant to Item 13 of the lease, the rent payable from commencement of the new lease was to be "current market rent".

The parties were unable to agree upon what the current market rent figure should be and so the lessor applied to this Tribunal for appointment of a specialist retail valuer, in accordance with section 31 of the Retail Leases Act 1994 (the " RL Act "). On 8 October 2009, the Tribunal appointed Mr Robert Farrell from Cushman & Wakefield to undertake valuation of the current market rent payable for the Property as at 1 July 2009.

The Cushman & Wakefield report was finalised on 5 November 2009. This report opined that the retail shop premises located at 402 Burwood Road Belmore were the "best evidence of market rental" for the purpose of comparing and considering the current market rent for the Property.

The Cushman & Wakefield report described 402 Burwood Road as having an area of 70 square metres and a frontage of 6.1 metres. The report noted that the rent payable for this property was $44,200 per annum and it was therefore deduced that the rent payable per…

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 Kokkinidis v Zaharopoulos

Details

AGLC: Kokkinidis v Zaharopoulos [2011] NSWADT 153
Case: [2011] NSWADT 153
Decision Date: 27 June 2011

CaseChat Overview and Summary

Kokkinidis v Zaharopoulos was a legal dispute involving the parties Kokkinidis, the landlord, and Zaharopoulos, the tenant. The case revolved around a joint review of a rent determination under the Retail Leases Act 1994. The court was tasked with determining whether the joint review was conducted appropriately and whether the rent determination was valid. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues that the court had to decide were whether the joint review process was conducted in accordance with the relevant statutory provisions and whether the rent determination made by the specialist retail valuers was fair and reasonable. The court needed to assess whether the valuers properly considered all relevant factors and whether their decision was supported by appropriate evidence. Additionally, the court examined whether the parties had complied with the procedural requirements set out in the Act.

The court found that there were procedural irregularities in the joint review process, which rendered the rent determination invalid. The valuers had not followed the correct procedures, leading to an unfair outcome for both parties. Consequently, the court set aside the joint review determination and ordered a refund of the fees paid to the valuers. The court emphasised that strict adherence to statutory procedures was crucial to maintain the integrity of the joint review process. The court also noted that the parties were to bear their own costs of the proceedings.

In summary, the Supreme Court of New South Wales set aside the joint review determination and ordered the refund of fees paid to the valuers. The court's decision highlighted the importance of following statutory procedures in joint review processes under the Retail Leases Act 1994. The parties were also directed to bear their own costs of the proceedings.

Orders

Orders of the court

1.The joint review determination of the specialist retail valuers Charles Verheyden and Ian Handley dated 20 October 2010 is set aside pursuant to section 32A(12)(a) of the Retail Leases Act 1994 .

2.The fees paid by the parties to the specialist retail valuers as above are to be refunded within 28 days pursuant to section 32A(12)(b) of the Retail Leases Act 1994 .

3.The parties are to bear their own costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kokkinidis v Zaharopoulos [2011] NSWADT 153
Hearing dates:	18 and 19 May 2011
Decision date:	27 June 2011
Jurisdiction:	Retail Leases Division
Before:	K Rickards, Judicial Member
Decision:	1.The joint review determination of the specialist retail valuers Charles Verheyden and Ian Handley dated 20 October 2010 is set aside pursuant to section 32A(12)(a) of the Retail Leases Act 1994 . 2.The fees paid by the parties to the specialist retail valuers as above are to be refunded within 28 days pursuant to section 32A(12)(b) of the Retail Leases Act 1994 . 3.The parties are to bear their own costs of the proceedings.
Catchwords:	Joint review of rent determination
Legislation Cited:	Retail Leases Act 1994 Uniform Civil Procedure Rules 2005 Administrative Decisions Tribunal Act 1997
Cases Cited:	Makita (Australia) Pty Ltd v Sprowles NSWCA 305 David Grant Pty Ltd & ors v Westpac Banking Corporation 184 CLR 265
Category:	Principal judgment
Parties:	George Kokkinidis (Applicant 105005)(Cross Respondent 105181) Antonios Zaharopoulos and George Zaharopoulos (Respondent 105005) (Cross Applicant 105181)
Representation:	Counsel R Winfield (Applicant /Cross Respondent) B Zipser (Respondents/Cross Applicants) Papantoniou Blake (Applicant/Cross Respondent) Brock Partners (Respondent/Cross Applicant)
File Number(s):	105005, 105181