Trust Company of Australia Ltd v Skiwing Pty Ltd

The case involved an appeal to the Supreme Court of New South Wales from a decision of the Appeal Panel of the Administrative Decisions Tribunal. The parties were Trust Company of Australia Ltd (the appellant) and Skiwing Pty Ltd (the respondent). The dispute concerned the interpretation of provisions within the *Retail Leases Act 1994* (NSW) relating to a retail lease, specifically concerning the calculation and recovery of outgoings by the lessor.

The primary legal issues before the court were: (1) whether the term "services" in section 12 of the *Retail Leases Act 1994* (NSW) included "outgoings"; (2) whether the calculation of a lessee's contribution to outgoings should account for vacancy rates in the retail centre, as stipulated by section 30 of the Act; and (3) whether a contractual obligation to pay contributions to outgoings implicitly required the amounts claimed to be reasonable. Additionally, the court considered whether the Administrative Decisions Tribunal had erred in its procedural fairness by relying on an audited statement and cross-examination of an auditor without granting the lessee access to further documents.

The court reasoned that the term "services" in section 12 of the *Retail Leases Act 1994* should be interpreted in context with other terms in that section, such as "finishes, fixtures, fittings, and equipment," and that these terms were directed towards the fitout of the specific shop, not the shopping centre at large. The court also determined that section 30 of the Act, which limits a lessee's contribution to non-specific outgoings based on the ratio of the lettable area of the shop to the total lettable area of all retail shops to which the outgoing is referable, does not require the lessor to account for vacancy rates. The court clarified that if outgoings are calculated on a proportionate basis relative to the total lettable area, the lessor bears the cost of vacancies, and the existence of vacant premises or non-contributing tenants does not, in itself, constitute a breach of section 30.

The Supreme Court allowed the appeal, setting aside the order of the Appeal Panel. It remitted the matter to the Administrative Decisions Tribunal for determination of the applications under the *Retail Leases Act 1994* according to law. The court also ordered the respondent to pay the appellant's costs of the appeal and granted the respondent a certificate under the *Suitors' Fund Act 1951* (NSW).