Heard McEwan Pty Ltd v G Zanetti Pty Ltd [2017] NSWCATAP 213

Heard McEwan Pty Ltd v G Zanetti Pty Ltd [2017] NSWCATAP 213

Clause 5.21 formed part of the parties' agreed mechanism for determining rent and imposed a finite time for agreeing on, or applying for appointment of, a specialist retail valuer. Because no valuer was agreed and no application was made before the next rent review date, the rent did not change on the relevant review date. Clause 5.21 was not inconsistent with s 31 of the Retail Leases Act (NSW) 1994, and the Tribunal erred in appointing a specialist retail valuer. The Tribunal's order was therefore set aside and the lessor's application was dismissed.

Jurisdiction
Australia
Judgment Date
13 November 2017
Procedural Posture
Internal Appeal in Retail Lease Proceedings / Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Appointing a Specialist Retail Valuer
Outcome
Leave to appeal granted so far as required; appeal allowed; Tribunal order appointing specialist retail valuer set aside; lessor's application dismissed.
Legal Topics
['appointment of Specialist Retail Valuer' 'determination of Current Market Rent' 'construction of Lease' 'internal Appeal' 'retail Tenancy Claim']
['retail Leases' 'contract Law' 'civil and Administrative Tribunal Procedure'] ['appointment of Specialist Retail Valuer' 'determination of Current Market Rent' 'construction of Lease' 'internal Appeal' 'retail Tenancy Claim']

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Procedural Posture

Internal Appeal in Retail Lease Proceedings / Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Appointing a Specialist Retail Valuer

Legal Issues

  1. 1 ['Whether clause 5.21 of the lease prevented the lessor from applying for appointment of a specialist retail valuer after the next rent review date had passed without agreement on a valuer or an application for appointment.' 'Whether clause 5.21 was inconsistent with the Retail Leases Act (NSW) 1994 and void to that extent under s 7.' 'Whether the parties had reached a concluded agreement about the rent payable for the renewed lease term.' 'Whether the Appeal Panel could make the rent declaration sought by the appellant when the appellant had not made a retail tenancy claim below.']

Ratio Decidendi

Clause 5.21 formed part of the parties' agreed mechanism for determining rent and imposed a finite time for agreeing on, or applying for appointment of, a specialist retail valuer. Because no valuer was agreed and no application was made before the next rent review date, the rent did not change on the relevant review date. Clause 5.21 was not inconsistent with s 31 of the Retail Leases Act (NSW) 1994, and the Tribunal erred in appointing a specialist retail valuer. The Tribunal's order was therefore set aside and the lessor's application was dismissed.

Court Disposition

Leave to appeal granted so far as required; appeal allowed; Tribunal order appointing specialist retail valuer set aside; lessor's application dismissed.

Orders

  • ['In so far as is required, leave to appeal granted.' 'Appeal allowed.' 'The order of the Tribunal made on 29 May 2017 is set aside and in lieu thereof order that the application to the Tribunal dated 9 December 2016 be dismissed.']