Rowinadon Pty Ltd v Ward & anor t/as Robbo's Spare Parts (RLD) [2009] NSWADTAP 14

Rowinadon Pty Ltd v Ward & anor t/as Robbo's Spare Parts (RLD) [2009] NSWADTAP 14

Order 1 dismissing the application for appointment of a specialist retail valuer was upheld, not because the earlier Tribunal decision contained a binding direction that Mr Dupre remain the valuer, but because the Institute had no implied power to revoke his appointment once made; alternatively, any purported revocation was void because the Respondents were not given an adequate opportunity to respond. Order 2 awarding costs was set aside because the substantive issues were not so clear-cut or one-sided as to establish special circumstances warranting a costs order.

Jurisdiction
Australia
Judgment Date
13 March 2009
Procedural Posture
Appeal in Retail Tenancy Proceedings / Appeal Panel Review of Orders Dismissing an Application for Appointment of a Specialist Retail Valuer and Awarding Costs
Outcome
Appeal allowed in part: the refusal to appoint a specialist retail valuer was upheld, but the costs order against the Appellant was set aside.
Legal Topics
['appointment of Specialist Retail Valuer' 'current Market Rent Determination' 'revocation of Valuer Appointment' 'effect of Earlier Tribunal Reasons' 'special Circumstances for Costs' 'appeal Costs']
['administrative Law' 'retail Leases' 'costs'] ['appointment of Specialist Retail Valuer' 'current Market Rent Determination' 'revocation of Valuer Appointment' 'effect of Earlier Tribunal Reasons' 'special Circumstances for Costs' 'appeal Costs']

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Procedural Posture

Appeal in Retail Tenancy Proceedings / Appeal Panel Review of Orders Dismissing an Application for Appointment of a Specialist Retail Valuer and Awarding Costs

Legal Issues

  1. 1 ['Whether the earlier Tribunal decision setting aside a valuation of current market rent also set aside or discharged the appointment of the valuer.' 'Whether the Australian Property Institute New South Wales Division had power to revoke a valuer appointment made under the lease or section 19(1)(b) of the Retail Leases Act 1994.' 'Whether the Tribunal erred in refusing to appoint a specialist retail valuer under section 19 of the Retail Leases Act 1994.' "Whether the Tribunal erred in ordering the Appellant to pay the Respondents' costs on the basis of special circumstances."]

Ratio Decidendi

Order 1 dismissing the application for appointment of a specialist retail valuer was upheld, not because the earlier Tribunal decision contained a binding direction that Mr Dupre remain the valuer, but because the Institute had no implied power to revoke his appointment once made; alternatively, any purported revocation was void because the Respondents were not given an adequate opportunity to respond. Order 2 awarding costs was set aside because the substantive issues were not so clear-cut or one-sided as to establish special circumstances warranting a costs order.

Court Disposition

Appeal allowed in part: the refusal to appoint a specialist retail valuer was upheld, but the costs order against the Appellant was set aside.

Orders

  • ['Order 1 made by the Tribunal in the decision under appeal must stand.' 'Order 2 made by the Tribunal in the decision under appeal must be set aside.' 'There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days; in such...