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 Retail Leases Act

3 The relevant parts of s. 31 of the RL Act, following amendments by the Retail Leases Amendment Act 2005 that came into force on 1 January 2006, are as follows:-

31 Reviews of current market rent

(1) A retail shop lease that provides an option to renew or extend the lease at current market rent is taken to include provision to the following effect:…

(b) If the lessor and the lessee do not agree as to what the actual amount of that rent is to be, the amount of the rent is to be determined by valuation carried out by a specialist retail valuer appointed by agreement of the parties to the lease, or failing agreement, by the Tribunal….

(e) A valuation for the purposes of paragraph (b) is to be in writing and to contain detailed reasons for the specialist retail valuer’s determination and to specify the matters to which the valuer had regard for the purposes of making his or her determination….

4 Since 1 January 2006, equivalent provisions are to be found in s. 19, dealing with the situation where a retail shop lease provides for rent to be ‘changed to current market rent’.

5 Section 32A of the RL Act was inserted by the Retail Leases Amendment Act 2005 and also came into force on 1 January 2006. The relevant subsections are as follows:-

32A Review of current market rent determinations

(1) Application for review

A party to a lease may apply to the Tribunal for the appointment of two specialist retail valuers to conduct a review of a determination of the current market rent made by a specialist retail valuer made under section 19 or 31.

(2) The application for a review must be made within 21 days after the party first received a copy of the determination.

Note. Subsection (13) provides another opportunity to make an application for a review if the decision on the review is set aside.

(3) Review by and decision of valuers

The specialist retail valuers may conduct the review and may jointly:

(a) affirm the reviewed determination, or

(b) vary the reviewed determination.

Outline of facts

6 For present purposes, the ensuing outline of facts, drawn mainly from the Tribunal’s rather longer account of its findings, is sufficient. These findings were based on an Agreed Statement of Facts and a number of affidavits filed by the parties. There was no hearing, since by agreement the Tribunal delivered its decision ‘on the papers’, pursuant to s. 76 of the ADT Act.

7 The Applicant/Appellant, Nick Tringas, is the owner and lessor of the relevant property (‘the Premises’), which is situated at 164 Bestic Street, Kyeemagh. When he purchased it, it was already subject to a registered lease (‘the Lease’) to the Respondent, Gu Quach. The Lease provided for a term of five years commencing on 18 December 2000 and an option to renew for five years. The Respondent exercised this option, with the result that the current term runs from 18 December 2005 to 17 December 2010.

8 The permitted use under the Lease was ‘bait and tackle shop’. Contrary to submissions made by the Respondent, the Tribunal decided that this use fell within Schedule 1 of the RL Act and that the Lease was governed by this Act. Those decisions are not challenged in this appeal.

9 The Lease provided that upon the exercise of the option the rent should be ‘the current market rent’. The parties could not agree as to the amount of this rent. On or about 7 June 2006, they agreed to appoint Mr Malcolm Gunning, of Gunning Commercial, as a valuer to determine it. They sent confirming instructions to him on 23 June 2006. A decision by the Tribunal, contrary to submissions by the Applicant, that Mr Gunning was appointed as a ‘specialist retail valuer…by agreement of the parties to the lease’ within the meaning of s. 31(1)(b) of the RL Act is not challenged in this appeal.

10 On or shortly after 19 July 2006, the parties received from Mr Gunning copies of a document bearing the heading ‘Property Valuation’, followed by the address of the Premises. This document (‘the Initial Valuation’) comprised 15 pages, together with a cover sheet and some appendices. The contents of the cover sheet included the words ‘Date of Valuation: 19th July 2006’. Near the conclusion of a two-page executive summary (which gave the same date as the date of valuation), the following statement appeared:-

RENTAL VALUATION

Having regard to those matters referred to in the following report and an analysis of the rental evidence, we are of the opinion that the (Gross Annual) Market Rental Value of the subject property, exclusive of GST and subject to the qualifications notes, is

$17,500.00

(Seventeen Thousand Five Hundred Dollars)

This summary is to be read in conjunction with the following report that forms part of the complete report.

11 The balance of the Initial Valuation comprised a discussion of the matters considered by Mr Gunning in reaching his conclusion regarding the current market rent. Towards the end, the passage just quoted from the executive summary was repeated.

12 In an affidavit sworn on 11 October 2006, the Applicant stated as follows:-

I first consulted Messrs. Slattery Jurd & Company Solicitors in relation to this matter on or about the 1 August 2006 during which time I was having further discussions with Malcolm Gunning of Gunning Commercial in relation to the [Initial Valuation]. As a result of my discussions with him I understood that he was to provide an amended valuation and to forward it to my previous Solicitors Redmond Hale Simpson. From and after the 8 August and upon the advice of Slattery Jurd & Company Solicitors I contacted the offices of Redmond Hale Simpson Solicitors on a daily basis to ascertain whether or not they had received the amended Valuation… During a telephone discussion on the morning of Monday 21 August 2006 a representative of Redmond Hale Simpson indicated that the valuation had just turned up and I arranged for my father to pick up the valuation that day… Until receiving that document I had no specific understanding of what amendments were to be made to the valuation and whether they related to simple amendments of spelling errors or addressed more fundamental matters of importance in the valuation.
13 No further evidence was supplied regarding the content of the ‘further discussions’ with Mr Gunning to which the Applicant referred in this passage. In addition, there was no evidence that the Respondent sought or agreed to any amendment to the Initial Valuation or, most importantly, that he was aware at the time of these ‘further discussions’ between the Applicant and Mr Gunning.

14 At the hearing of the appeal, the Respondent tendered a letter dated 8 August 2006 from Mr Gunning to the Respondent’s solicitors, J S Mueller & Co. The Applicant consented to its being admitted into evidence. Omitting formal parts, it was in the following terms:-

Please see included an amended valuation to the report submitted to you on 17th July 2006.

It has been brought to our attention that there were a number of type graphical (sic) errors in the report.

The assessed rental and the methodical (sic) are unchanged.

It would seem the drafts copy (sic) was printed and signed without being thoroughly checked.

Please include this amended valuation with our earlier report.

Please accept my apologies for any inconvenience that may result from this oversight by my office.

For any further discussion on this matter please don (sic) hesitate to contact the writer.

15 According to the Agreed Statement of Facts, on 8 August 2006, Mr Gunning sent a letter in similar terms to Redmond Hale Simpson. According to a letter dated 17 August 2006 from Slattery Jurd & Co to J S Mueller & Co (annexed to the Applicant’s affidavit), Redmond Hale Simpson received this letter from Mr Gunning on 14 August 2006.

16 The document accompanying these two letters of 8 August 2006 (‘the Amended Valuation’) had the same cover sheet as the Initial Valuation, except that the phrase ‘Amended Valuation’ was added, in brackets and italicised. Significantly, it still showed the ‘Date of Valuation’ on the cover sheet and in the executive summary as 19 July 2006.

17 In its judgment (Tringas v Quach [2007] NSWADT 24) at [105], the Tribunal stated that a comparison of the Initial Valuation with the Amended Valuation revealed ‘very little difference – certainly nothing of substance’. The Tribunal noted that the Amended Valuation altered a figure of $300 per square metre given in the Initial Valuation for the ‘gross unit rental rate’ to $275 per square metre, but that there was no change to ‘the calculations’ or to ‘the ultimate result’. At [102], the Tribunal expressed its agreement with a submission by the Respondent that the Amended Valuation merely corrected typographical errors.

18 In its judgment, the Tribunal also rejected a submission by the Applicant that on account of certain aspects of Mr Gunning’s methodology neither the Initial Valuation nor the Amended Valuation was a valuation carried out pursuant to s. 31 of the RL Act. That decision is not challenged in this appeal.

19 On 4 September 2006, the Applicant filed in the Tribunal an application under s. 32A(1) of the RL Act for the appointment of two specialist retail valuers to conduct a review of Mr Gunning’s determination of the current market rent for the Premises.

20 This date of filing fell outside the time limit of 21 days after the date of receipt of ‘the determination’ that s. 32A(2) stipulates, if the Initial Valuation was to be taken as constituting or containing ‘the determination’. But it was within this time limit if (a) the relevant document was the Amended Valuation and (b) this document had been received by the Applicant on 21 August 2006, as stated in his affidavit.

The Tribunal’s decisions regarding the matters raised in this appeal

21 In its judgment, the Tribunal dealt as follows with the three issues identified above (at [2]) as requiring resolution in this appeal.

22 Which of the two valuations constituted or contained Mr Gunning’s ‘determination’. The Tribunal held that for the purposes of s. 32A of the RL Act (notably s. 32A(2)), the Initial Valuation, not the Amended Valuation, was or contained the ‘determination’ made by Mr Gunning. It set out this conclusion as follows at [106]:-

No party has directed my attention to any legal principle that ought to be adopted in these circumstances. The Act is silent in that it makes no reference to any “amended” valuation or determination. But what is clear, in my view, is that the 21 day period runs from the date “the party first received a copy of the determination”. That determination was made by Mr Gunning [on] 19 July 2006 and given to the parties on that date. In my view, the fact that he subsequently amended that determination at the instance of the Applicant does not affect the plain terms of Section 32A(2) in that the copy of the determination was received by each party on or about 19 July 2006.
23 The Tribunal stated that this conclusion was supported by the consideration that, as already noted, there was no evidence that the Respondent sought or agreed to any amendment to the Initial Valuation. Implicitly, the Tribunal also took into account the fact that the Amended Valuation did not differ in substance from the Initial Valuation.

24 Whether the time limit in s. 32A(2) could be extended. The Tribunal assumed, without discussing the question, that a party could apply under s. 44 of the ADT Act for an extension of the time limit of 21 days stipulated in s. 32A(2) of the RL Act. This is apparent from its judgment at [109 – 111].

25 Whether an extension should be granted. On the assumption that s. 44 was applicable, the Tribunal held, at [111], that the Applicant had failed to provide a ‘reasonable explanation’, as required by s. 44(1), for his delay in filing the application under s. 32A. It accordingly dismissed his application.

26 In summary, the matters on which the Tribunal based this conclusion were these: (a) since the Respondent had received the Initial Valuation on or soon after 19 July 2006 and did not participate in the ‘unparticularised discussions’ between the Applicant and Mr Gunning, it could, some 21 days later, have ‘reasonably formed the opinion, and acted thereon, that the 21 day period had expired and the issue of valuation was at an end’; (b) the Amended Valuation did not change the Initial Valuation ‘as to quantum’; and (c) that any prejudice suffered by the Applicant accordingly arose as at 19 July 2006.

27 We will now review the submissions made to us, so far as necessary, and set out our conclusions on each of these three issues raised in the appeal. Although the submissions to us referred to the distinction between questions of law and questions of fact, by virtue of this distinction being drawn in the provisions of the ADT Act (ss. 113 –115) dealing with internal appeals, we have not found it necessary to examine this issue.

What constituted Mr Gunning’s ‘determination’?

28 In his written and oral submissions to us on this question, Mr Cullen, counsel for the Applicant, contended that the Tribunal had erred in failing to take account of two matters. These were (a) the existence of a belief by the Applicant, as from 1 August or thereabouts, that the Initial Valuation did not contain Mr Gunning’s final decision regarding the current market rent, but might well be altered in substance following the discussions between him and Mr Gunning and (b) indications both in the Amended Valuation and in Mr Gunning’s letter of 8 August 2006 to the solicitors for both parties that in Mr Gunning’s view the Initial Valuation was to be treated as a ‘draft’ only.

29 In relation to the first of these matters, Mr Cullen argued that the phrase ‘after the party first received a copy of the determination’ should be construed to mean, in effect, ‘after the party first received what he knew or believed to be a copy of the final determination’. To this extent, the phrase should be given a subjective interpretation. To rule otherwise would be to deprive a party of the opportunity to obtain a review of a ‘determination’ when he reasonably believed that a document received by him was not in fact the final ‘determination’ but was in the nature of a provisional or draft determination only. Mr Cullen pointed out that, since there was no cross-examination of witnesses, it was not open to the Respondent to challenge the Applicant’s account in his affidavit of what he understood the Initial Valuation to be, or of his belief regarding the changes that Mr Gunning might subsequently make to it.

30 With regard to the second matter, Mr Cullen relied on Mr Gunning’s use of the phrase ‘Amended Valuation’ on the cover sheet of the Amended Valuation and of the phrases ‘drafts copy’ and ‘amended valuation’ in his letter of 8 August 2006. He argued that Mr Gunning, in apologising in this letter for his firm’s ‘oversight’ and indicating a readiness to discuss the matter further, indicated that the Amended Valuation should be viewed as differing materially from the Initial Valuation.

31 Mr Cullen also argued that the Tribunal erred in making an ex post facto assessment of the differences between the two valuations prepared by Mr Gunning and basing its choice between them on the fact that they did not differ in substance.

32 In our opinion, however, these arguments are outweighed by an important consideration to which the Tribunal referred in its judgment and which Mr Ashhurst, counsel for the Respondent, pressed strongly upon us. This is that the Respondent was not a party to, and would appear not to have been aware of, the discussions between the Applicant and Mr Gunning, occurring around 1 August 2006. An associated consideration of importance is that, in the period between receipt of the Initial Valuation (on or soon after 19 July 2006) and the commencement of these discussions (around 1 August 2006), the Applicant himself had no grounds for viewing the Initial Valuation as constituting or containing anything other than Mr Gunning’s once-and-for-all ‘determination’ of the current market rent.

33 It may well be that, under the provisions of the RL Act with which we are dealing, a lessor and a lessee may, within the period of 21 days stipulated in s. 32A(2), agree with each other and with a specialist retail valuer who has been appointed under s. 31(1)(b) (or indeed under s. 19(1)(b)) that a determination of rent that the valuer has sent to the parties should not be regarded as the final ‘determination’, within the meaning of s. 32A. This might occur, for instance, where it was agreed on all sides that the calculations made by the valuer were manifestly erroneous. This would leave scope for the valuer to prepare an amended valuation that would constitute or contain the final ‘determination’. We do not purport to resolve this matter here.

34 The argument put by Mr Cullen, however, leaves it open for a party to a lease, after receiving a determination with which he or she is dissatisfied, to seek to persuade the valuer, without notice to the other party, that the determination should be changed and to claim, if an altered determination is then prepared by the valuer, that the latter determination is the ‘real’ one. This is clearly an unsatisfactory outcome, which has the potential to inflict significant injustice on the party who is kept in the dark. We consider therefore that except only, perhaps, when there is an agreement such as is described in the preceding paragraph, a valuation once completed by the valuer and sent to the parties must be regarded as constituting or containing the ‘determination’ to which s. 32A(1), establishing a review process, and s. 32A(2), stipulating a time limit for invoking this process, both apply.

35 We do not agree with Mr Cullen that Mr Gunning’s reference to a ‘drafts copy’ in his letter of 8 August 2006 implied that he regarded the Initial Valuation as merely a draft. The more natural interpretation of the relevant sentence (taking into account also his reference later to an ‘oversight’) is that what was sent out by his office as the ‘real’ or ‘official’ valuation was a draft that should have been ‘thoroughly checked’ but had not been.

36 Mr Ashhurst drew our attention to dictionary definitions of ‘determination’ and to a discussion of this term by Cole JA (with whom Clarke JA agreed) in Torrealba v District Court (NSW) (1996) 40 NSWLR 327 at 352-353. These sources provide some assistance, but certainly do not conclude the question.

37 We have referred in this discussion to a valuation ‘constituting or containing’ the valuer’s determination in order to reflect a submission made by Mr Ashhurst. This was that in the present case the ‘determination’, for the purposes of s. 32A, might not have been the Initial Valuation nor the Amended Valuation (which in each case was a document of some length), but was instead only Mr Gunning’s statement in the Initial Valuation (and left unchanged in the Amended Valuation) that in his opinion the current market rental for the Premises was $17,500.00. We agree with Mr Ashhurst that the wording of ss. 31 and 32A provides some support for this view. But we do not need to decide whether it is correct.

38 For these reasons, we reject the claim by the Applicant that the Tribunal erred in deciding that for the purposes of s. 32A of the RL Act (notably s. 32A(2)), the Initial Valuation, not the Amended Valuation, was or contained the ‘determination’ made by Mr Gunning.

Whether the time limit in s. 32A(2) can be extended

39 Provisions of the ADT Act. In addition to the provisions of the RL Act set out above, ss 40, 42 and 44 of the ADT Act relate to this question. Section 40 forms part of Chapter 3 of this Act, whereas ss. 42 and 44 are in Chapter 4. These three sections are as follows:-

40 When enactment taken to make contrary provision to this Act

(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).

(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.

(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.

(4) In this section:

relevant enactment means an enactment under which the Tribunal has jurisdiction:

(a) to make an original decision, or

(b) to review a reviewable decision,

or that otherwise deals with the jurisdiction of the Tribunal.

42 When can an application for an original decision be made?

A person may apply to the Tribunal for an original decision if:

(a) the application is made by an interested person, and

(b) the application is made in the manner and within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).

Note. Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

44 Late applications to Tribunal

(1) Despite section 42 (b), the Tribunal may, on application in writing by an interested person seeking to make a late application, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(2) The time for making an application for an original decision may be extended under subsection (1) although that time has expired.

(3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).

40 The Respondent’s submissions. As indicated above, the Tribunal in its judgment in this case assumed, without discussing the question, that the power conferred on it by s. 44 of the ADT Act was exercisable in relation to applications made under s. 32A(1) of the RL Act, with the result that an application filed outside the time limit of 21 days in s. 32A(2) of the latter Act might still be accepted if the Tribunal found that the applicant had provided a ‘reasonable explanation for the delay’.

41 Mr Ashhurst submitted, however, that according to a Supreme Court decision dealing with a comparable situation this assumption was clearly incorrect. The case in question is Cheung v Administrative Decisions Tribunal of NSW [2000] NSWSC 1062.

42 In this case, an application was filed in the Tribunal under s. 329 of the Local Government Act 1993 (‘the LG Act’) seeking dismissal of the plaintiff from the office of councillor in a local government authority on the ground that there had been an irregularity in the manner of his election to that office. Subsection (3) of this section provided as follows:-

Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person’s election or appointment to that office.
43 The LG Act contained no provision for extension of this time limit. The application seeking to invalidate the election of the plaintiff was filed more than three months after the election. The Tribunal, however, made an order under s. 44 of the ADT Act extending this time limit until the date of filing. The plaintiff challenged this order by review proceedings in the Supreme Court.

44 Dunford J held that the Tribunal had no power to make this order. He noted at [7] that there appeared to be a ‘comparatively simple’ argument supporting the Tribunal‘s decision. This was that s. 329(3) of the LG Act indicated what was the time ‘prescribed by or under the enactment under which the application is made’, within the meaning of s. 42(b) of the ADT Act. Section 44(3) of the latter Act used the same wording in defining a ‘late application’ – that is, as ‘an application not made within the time… prescribed by or under the enactment under which the application is made’. Section 44(1) empowered the Tribunal to extend the time for making a ‘late application’ if a ‘satisfactory explanation for the delay’ was furnished.

45 His Honour held, however, at [8 – 10] that this argument failed to take account of the terms of s. 40, which set out the approach to be adopted in cases where a ‘relevant enactment’, such as the LG Act, contained a provision that was ‘contrary’ to the ADT Act. Because nothing in the LG Act permitted the three-month time limit in s. 329(3) to be extended, this subsection was inconsistent with s. 44 of the ADT Act. Section 40(1) of the ADT Act made it clear that in this situation, s. 329(3), being a provision of a ‘relevant enactment’, should prevail. This result was not altered by s. 40(2) because it was in a different chapter to ss. 42 and 44. As his Honour explained at [16]:-

Section 40(1) refers to the provisions of the Act, not to the provisions of Chapter 3, and indeed s 40(2) makes special provision in relation to Chapter 3, thereby suggesting that the other provisions of s 40 are to apply to all the chapters of the Act, including Chapter 4 where ss 40 and 42 are contained.
46 Dunford J stated at [10 – 12] that this result was supported by two further considerations. These were (a) that before the Tribunal took over from the District Court the jurisdiction to hear applications for dismissal from civic office, there was no provision for extension of the three-month time limit and (b) that there was a ‘general rule’ that the time for commencement of proceedings to challenge election results could not be extended.

47 Nevertheless, he observed at [16] that the conclusion that he had reached might not have been what Parliament intended. He considered it ‘surprising’ that s. 40 should override procedural provisions such as ss. 42 and 44, but he believed the meaning of the words to be ‘clear’.

48 This decision in the Supreme Court was applied by the Tribunal in two cases to which Mr Ashhurst referred us: Black v General Manager, Bathurst City Council [2001] NSWADT 139 and Wilmshurst v Vice Chancellor, Macquarie University [2002] NSWADT 196. In both of them, the Tribunal held that a time limit of 60 days stipulated in s. 54 of the Freedom of Information Act 1989 could not be extended by an order under s. 44 of the ADT Act.

49 Mr Ashhurst relied also on dicta of Gummow J (with whom Brennan CJ and Dawson, Gaudron and McHugh JJ agreed) in David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265. Here the High Court held that a 21-day time limited stipulated in s. 459G of the Corporations Law (Vic) for the filing of an application by a company to set aside a statutory demand by a creditor could not be extended under a general provision of the same statute (s. 1322(4)) authorising the court to make an order extending the period of time for, amongst other things, instituting any proceeding. The terms of s. 459G(2) were that ‘an application may only be made within 21 days after’ service of the demand on the company.

50 At 276-277, Gummow J placed significant emphasis on two matters: (a) that s. 459G was a provision defining in specific terms the conditions under which the court obtained jurisdiction to exercise this particular power, whereas s. 1322 was a provision of general operation; and (b) that the ‘force of’ the phrase ‘may only’ in s. 459G(2) was to ‘define’ this jurisdiction ‘by imposing a requirement as to time as an essential condition of the new right conferred by s 459G’.

51 Mr Ashhurst argued that the phrase ‘must be made within 21 days…’ in subsection (2) of s. 32A of the RL Act should similarly be viewed as imposing a condition upon the exercise of the right created by subsection (1): that is, the right to have two specialist retail valuers appointed by the Tribunal to review a determination that has been made pursuant to s. 19 or s. 31.

52 The Applicant’s submissions. In response, Mr Cullen argued that we were not bound to apply the Supreme Court decision in Cheung (though he could not challenge its correctness), nor indeed the Tribunal decisions in Black and Wilmshurst, because they were concerned with legislation other than the RL Act.

53 In seeking to distinguish Cheung, Mr Cullen submitted that a policy factor noted by Dunford J – namely, that there was a ‘general rule’ that the time for commencement of proceedings to challenge election results could not be extended – had no equivalent in proceedings under the RL Act. He also pointed out that Dunford J himself expressed some doubt as to whether Parliament intended that procedural sections in the ADT Act such as ss. 42 and 44 should be overridden, in the absence of express provision, by enactments that conferred jurisdiction on the Tribunal.

54 With reference to Gummow J’s observations in the Grant case, Mr Cullen submitted that the phrase ‘may not’ had a ‘negative’ and ‘exclusionary’ quality which was not present in the terminology of s. 32A.

55 Our conclusions. In our opinion, there is no ground on which the decision in Cheung can be distinguished, so as to provide scope for a ruling that the time limit in s. 32A(2) can be extended under s. 44 of the ADT Act.

56 We accept that the two points that Mr Cullen made in seeking to persuade us that Cheung should be distinguished (see [53]) have some weight. But, as we pointed out near the end of the appeal hearing, the following aspects of the retail leases legislation suggest, by implication, that the time limit of 21 days in s. 32A(2) cannot be extended.

57 The Retail Leases Amendment Act 2005, which inserted s. 32A into the RL Act, also amended pre-existing provisions that stipulated a limitation period of three years for retail tenancy claims and unconscionable conduct claims and made no allowance for extension of this period. Under a new section (s. 71B), the Tribunal may extend this period to six years (at most) if the applicant satisfies the Tribunal that it is ‘just and reasonable’ to do so. The contrast between the express power to extend a time limit in s. 71B and the lack of any equivalent provision in s. 32A is in our opinion significant, since both these sections were inserted in the RL Act by the same amending statute.

58 It also appears to us that the protection afforded to lessees by s. 32(1)(c), which extends in certain circumstances the period in which an option to renew may be exercised, might be seriously weakened if extensions of the time limit in s. 32A(2) could be granted. But as this point was not raised at the appeal hearing, our conclusion in this judgment does not in any way depend on it.

59 As far as we can tell, the decision in Cheung was not relied upon by the Respondent in his submissions to the Tribunal at first instance. But in these appeal proceedings the Applicant has not sought to rely in any way on this aspect of the case.

60 For these reasons, our conclusion is that, although the Tribunal assumed to the contrary, the 21-day time limit imposed by s. 32A(2) of the RL Act cannot be extended by an order under s. 44 of the ADT Act.

Whether the Applicant provided a ‘reasonable explanation’ as required by s. 44

61 In view of the conclusion that we have just reached, this third question strictly does not arise for determination. But in case our prior conclusion is incorrect, we will simply say, having examined the competing arguments, that we would be inclined to uphold the Tribunal’s decision that such explanation as the Applicant furnished was not ‘reasonable’. It fell short of being reasonable because throughout the period of more than six weeks between his receipt of the Initial Valuation and his filing of the application for a review he assumed that he could, in effect, prevent time from running under s. 32A(2) merely by holding unilateral discussions with the valuer, of which he gave no notice to the Respondent. If the Respondent, having been advised of such discussions, had given the Applicant some reason for believing that he (the Respondent) was also inclined to treat the Initial Valuation as being in some sense provisional only, the Applicant’s explanation for delaying might have qualified as ‘reasonable’. But this is not what occurred.

Conclusions

62 Having agreed with the Tribunal that the relevant ‘determination’ by Mr Gunning, for the purposes of s. 32A of the RL Act, was dated 19 July 2005 and was received by the Applicant soon after that date, we find, as the Tribunal did, that the Applicant’s application under s. 32A(1) for the appointment of two specialist retail valuers to review this determination was filed outside the time limit stipulated in s. 32A(2).

63 Having further concluded, contrary to the Tribunal’s assumption, that this time limit cannot be extended under s. 44 of the ADT Act, we hold that the Tribunal’s decision to dismiss the application was correct. We reach by a different route the same result as the Tribunal reached.

64 For these reasons, the appeal must be dismissed.

65 The question of costs was not raised before us. In the order set out in the next paragraph, we make provision for costs to be applied for. But we should state our preliminary view that, because the case of Cheung was not cited to the Tribunal at first instance, the requirement of ‘special circumstances’ contained in s. 88 of the ADT Act would appear not to have been satisfied.

66 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 ADT Act.