Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 Hearing dates: 31 July 2019 Decision date: 21 August 2019 Before: Bell P at [1]; Basten JA at [37]; Ward JA at [68] Decision: Appeal dismissed with costs.
Catchwords: CONTRACTS – Construction – Interpretation – determination of market rent by an expert valuer – construction of provision of sub-lease requiring the valuer to “have regard to” certain matters in determining the market rent for a sub-lease of premises located at King Street Wharf, Sydney – interpretation of requirement to “have regard to” “comparable premises in the vicinity of the Premises” – whether matters listed exhaustive – meaning of “have regard to”
VALUATION – expert determination – whether the trial judge erred in finding that the valuer did not have regard to market rents in the manner prescribed by the sub-lease – whether the trial judge erred in finding that the determination of market rent by the valuer was not binding on the appellant and the respondent as parties to the sub-lease – whether the valuer erroneously had regard to the physical configuration of the premises or tenant’s property – appeal dismissed with costs
VALUATION – nature of valuation – meaning of “acting as an expert and not as an arbitrator”Legislation Cited: Landlord and Tenant (Amendment) Act 1948-1961 (NSW), s 21(1) Cases Cited: AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173
AMP Henderson Global Investors Ltd v Valuer General [2004] NSWCA 264; 134 LGERA 426
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367; [2015] NSWCA 275
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26
Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183
Boland v Yates Property Corp Pty Ltd [1999] HCA 64; 167 ALR 575
Brickworks Ltd v Minister for Public Works (1949) 29 LVR 67
Burger King Corp v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187
Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184
Coplin v Al Maha Pty Ltd [2019] NSWCA 159
Data Base Corporate Pty Ltd v Strike Australia Pty Ltd [2019] NSWSC 271
Duffy v Minister for Planning [2003] WASCA 294; 129 LGERA 271
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Commission of New South Wales t/as Pacific Power v Arrow (1994) 85 LGERA 418
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Fitzgerald v Masters (1956) 95 CLR 420
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Homburg Houtimport BV v Agrosin Private Ltd [2004]…
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- Case
- [2019] NSWCA 205
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the trial judge had erred in finding that the valuer had not had regard to market rents in the manner prescribed by the sub-lease, and consequently, whether the valuer's determination of market rent was binding on the parties. Further, the Court considered whether the valuer had erroneously taken into account the physical configuration of the premises or the tenant's property. The nature of expert valuation, specifically the distinction between acting as an expert and an arbitrator, was also relevant.
The Court of Appeal affirmed the trial judge's findings. It was held that the requirement to "have regard to" certain matters did not mean those matters were exhaustive, but rather that they were to be considered. The Court found that the valuer had not adequately considered market rents in the manner required by the sub-lease, and that the matters listed were not exhaustive. The valuer's determination was therefore not binding on the parties. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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