Tringas v Quach (RLD)

[2007] NSWADTAP 35

Appeal Panel - Internal

CITATION:	Tringas v Quach (RLD) [2007] NSWADTAP 35
PARTIES:	APPELLANT Nick Tringas RESPONDENT Gu Quach
FILE NUMBER:	079009
HEARING DATES:	6 June 2007
SUBMISSIONS CLOSED:	6 June 2007
DATE OF DECISION:	13 July 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); Fox R - Judicial Member; O'Neill A - Non Judicial Member
CATCHWORDS:	Retail Leases Act 1994-specialist retail valuers-extension of time-statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	065138
DATE OF DECISION UNDER APPEAL:	01/23/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Corporations Law (Vic) Freedom of Information Act 1989 Local Government Act 1993 Retail Leases Amendment Act 2005
CASES CITED:	Black v General Manager, Bathurst City Council [2001] NSWADT 139 Cheung v Administrative Decisions Tribunal of NSW [2000] NSWSC 1062 David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 Torrealba v District Court (NSW) (1996) 40 NSWLR 327 Tringas v Quach [2007] NSWADT 24 Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196
REPRESENTATION:	APPELLANT P Cullen, barrister RESPONDENT M Ashhurst, barrister S O’Brien, barrister
ORDERS:	1. The appeal is dismissed; 2. Any application for costs must be filed and served, with supporting submissions, within 28 days of the date of this decision. The opposing party must file and serve submissions in reply within a further 28 days. Unless reasons are advanced for a hearing to be conducted, the matter will be resolved ‘on the papers’, pursuant to s. 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

Introduction

1 This is an appeal challenging aspects of a judgment in the Retail Leases Division of the Tribunal that was delivered on 23 January 2007 (Tringas v Quach [2007] NSWADT 24). In this judgment, the Tribunal, constituted by Judicial Member Molloy, decided a number of issues arising in consequence of a determination of the current market rent applicable to the renewal of a lease of retail shop premises. The valuer making the determination was a specialist retail valuer acting under s. 31 of the Retail Leases Act 1994 (‘the RL Act’).

2 The issues raised in the appeal are these: (a) whether the Tribunal erred in its decision as to which of two documents prepared by the valuer was properly to be treated as his ‘determination’ of the current market rent, within the meaning of s. 32A of the RL Act; (b) whether a time limit, imposed by s. 32A(2) for the filing of an application under s. 32A(1) for the appointment of two specialist retail valuers to review such a determination, may be extended by order of the Tribunal under the power conferred on it by s. 44 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’); and (c) whether the Tribunal, assuming that this power was exercisable in these circumstances, erred in declining to exercise it so as to extend the time for a party to the lease to file an application under s. 32A(1).

Relevant provisions of the