Perri v Exego Pty Limited - [2009] NSWADT 170

CITATION: Perri v Exego Pty Limited [2009] NSWADT 170

DIVISION: Retail Leases Division

PARTIES:
APPLICANTS
Filippo Perri and Giuseppina Perri
RESPONDENT
Exego Pty Limited (formerly Repco Pty Limited)

FILE NUMBER: 85256 and 95023

HEARING DATES: 6 May 2009

DATE OF DECISION:
1 July 2009

BEFORE: Molloy G - Judicial Member

CATCHWORDS: Inadequate valuation - denial of natural justice - Section 32A review

LEGISLATION CITED: Retail Leases Act 1994.

CASES CITED: Batson Holdings Pty Ltd v Rose [2002] NSWADT 110
Eureka Funds Management Limited v. Freehills Services Pty Limited [2008] VSCA 156
Kindful (Australia) Pty Ltd v Country Villa Holdings Pty Ltd [2006] NSWADT 224
Webb v Clifton [2008] NSWADT 132

REPRESENTATION:
APPLICANT
J Mrsic, barrister
RESPONDENT
S J Stanton, barrister

ORDERS: 1.The Tribunal declares that the valuation of Mr Pierre Dupre of premises Showroom 1, 456-462 Canterbury Road Campsie NSW 2194 and dated 31 July 2008 is not a valuation of current market rent of those premises for the purposes of Retail Leases Act Section 19.
2.The proceedings are listed for Directions before the Tribunal at 12 noon on Thursday 6 August 2009.

Background

1 In proceedings 075041 the Respondent (then known as Repco Limited) on 9 March 2007 applied to the Tribunal for the appointment of a specialist retail valuer pursuant to Retail Leases Act 1994, Section 19.

2 The premises were described as “Showroom 1, 456-462 Canterbury Road, Campsie” and were occupied by the Respondent as lessee from the Applicants pursuant to an assigned lease commencing 8 December 2000 and terminating 7 December 2010 with two options for renewal each for a period of five years. The lease was registered 9914514T; it provided for a mid-term review to market effective 8 December 2005 consistent with Item 9 of the First Schedule to the Lease. The Second Schedule, clause 1.1, applies Item 9 to the lease contract. The Annual Rent is to be adjusted on every anniversary of the Commencement Date (8 December 2000) during the term and any further terms (except market review dates) by 4% and the rent is reviewed to market “on the Commencement Date of any further term, and the commencement of the sixth year”. Thus, so it seems to me, rent is adjusted to market on 8 December 2005.

3 The Application came before Higgins JM who expressed the opinion (22 March 2007) that she was not satisfied from the material filed that the parties had failed to reach an agreement on a particular valuer (see paragraph [6] of the Tribunal’s Practice Note 20) and she suggested “that the parties try to seek agreement in this regard, noting the (objection by the lessor Perri) to any valuer previously used by (Repco)”. The matter stood adjourned for further directions to 12 April 2007 when, on that date, the Tribunal was informed that the parties had agreed to a valuer and did not wish the Tribunal to make any appointment. The file was noted “resolved/settled – dismissed”.

4 In proceedings 085256 filed 11 December 2008 the…

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: [2009] NSWADT 170
Decision Date: 1 July 2009

CaseChat Overview and Summary

Perri brought a claim against Exego in the Civil and Administrative Tribunal of New South Wales, seeking a declaration that a valuation of certain premises was not in accordance with the Retail Leases Act. The parties disputed the valuation of the property in question and its relevance to the determination of market rent. The Tribunal was tasked with reviewing the valuation under Section 32A of the Act, which permits judicial review of administrative decisions.

The legal issues before the Tribunal were whether the valuation conducted by Mr Pierre Dupre was an accurate reflection of the current market rent for the premises, and whether the process of obtaining the valuation complied with the principles of natural justice. The Tribunal had to determine if the valuation process was fair and transparent, and whether the valuation itself was a genuine assessment of the market rent.

The Tribunal found that the valuation was not an accurate reflection of the current market rent, as it did not take into account the relevant factors specified in the Act. Furthermore, the Tribunal concluded that the process of obtaining the valuation did not adhere to the principles of natural justice, as the tenant was not given an opportunity to provide input or challenge the valuation. As a result, the Tribunal declared that the valuation was not a valuation of the current market rent for the purposes of the Retail Leases Act.

The Tribunal made two orders. First, it declared that the valuation of Mr Pierre Dupre of the premises in question was not a valuation of the current market rent. Second, it listed the proceedings for directions before the Tribunal at 12 noon on Thursday 6 August 2009.

Orders

Orders of the court

1.The Tribunal declares that the valuation of Mr Pierre Dupre of premises Showroom 1, 456-462 Canterbury Road Campsie NSW 2194 and dated 31 July 2008 is not a valuation of current market rent of those premises for the purposes of Retail Leases Act Section 19. 2.The proceedings are listed for Directions before the Tribunal at 12 noon on Thursday 6 August 2009.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Perri v Exego Pty Limited [2009] NSWADT 170
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Filippo Perri and Giuseppina Perri RESPONDENT Exego Pty Limited (formerly Repco Pty Limited)
FILE NUMBER:	85256 and 95023
HEARING DATES:	6 May 2009
DATE OF DECISION:	1 July 2009
BEFORE:	Molloy G - Judicial Member
CATCHWORDS:	Inadequate valuation - denial of natural justice - Section 32A review
LEGISLATION CITED:	Retail Leases Act 1994.
CASES CITED:	Batson Holdings Pty Ltd v Rose [2002] NSWADT 110 Eureka Funds Management Limited v. Freehills Services Pty Limited [2008] VSCA 156 Kindful (Australia) Pty Ltd v Country Villa Holdings Pty Ltd [2006] NSWADT 224 Webb v Clifton [2008] NSWADT 132
REPRESENTATION:	APPLICANT J Mrsic, barrister RESPONDENT S J Stanton, barrister
ORDERS:	1.The Tribunal declares that the valuation of Mr Pierre Dupre of premises Showroom 1, 456-462 Canterbury Road Campsie NSW 2194 and dated 31 July 2008 is not a valuation of current market rent of those premises for the purposes of Retail Leases Act Section 19. 2.The proceedings are listed for Directions before the Tribunal at 12 noon on Thursday 6 August 2009.