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Strike Australia Pty Ltd v Data Base Corporate Pty Ltd

Strike Australia Pty Ltd v Data Base Corporate Pty Ltd

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Case Copied 21 August 2019 75 min read

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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]…

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: [2019] NSWCA 205
Decision Date: 21 August 2019

CaseChat Overview and Summary

Strike Australia Pty Ltd (the appellant) and Data Base Corporate Pty Ltd (the respondent) were parties to a sub-lease. The dispute concerned the determination of the market rent for the sub-leased premises. The sub-lease stipulated that an expert valuer was to determine the market rent, having regard to specific matters, including comparable premises in the vicinity. The appellant contended that the valuer had failed to properly consider these matters, rendering the determination of market rent not binding. The appeal was heard by Bell P, Basten and Ward JJA.

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

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.

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]…