Perri v Exego Pty Limited [2009] NSWADT 170

Perri v Exego Pty Limited [2009] NSWADT 170

The valuation was not a valuation of current market rent for the purposes of Retail Leases Act 1994, s 19 because the valuer proceeded by reference to the lease and the API definition rather than the mandatory statutory criteria, failed to adopt and apply the effective rent basis and other required s 19 matters, and failed to specify with sufficient precision all matters considered as required by s 19(1)(e). Since there was no s 19 compliant valuation, there could be no s 32A review, although the delay under s 19(2) and any breach of s 19(4) did not themselves vitiate the valuation.

Jurisdiction
Australia
Judgment Date
01 July 2009
Procedural Posture
Retail Tenancy Claim Concerning Current Market Rent Valuation Under the Retail Leases Act 1994 / Decision on Whether the Valuation Was a Section 19 Compliant Valuation; Further Directions Listed
Outcome
The Applicants obtained a declaration that the valuation was not a Section 19 valuation; remaining issues were left for further directions.
Legal Topics
['current Market Rent' 'specialist Retail Valuer' 'section 19 Valuation' 'section 32 a Review' 'natural Justice' 'tribunal Jurisdiction']
['retail Leases' 'administrative Tribunal Proceedings' 'valuation'] ['current Market Rent' 'specialist Retail Valuer' 'section 19 Valuation' 'section 32 a Review' 'natural Justice' 'tribunal Jurisdiction']

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Procedural Posture

Retail Tenancy Claim Concerning Current Market Rent Valuation Under the Retail Leases Act 1994 / Decision on Whether the Valuation Was a Section 19 Compliant Valuation; Further Directions Listed

Legal Issues

  1. 1 ['Whether the valuation dated 31 July 2008 was void or voidable because it was delivered outside the time referred to in Retail Leases Act 1994, s 19(2).' 'Whether the valuer failed to apply the statutory requirements for current market rent in Retail Leases Act 1994, s 19(1)(a) and instead applied the lease or Australian Property Institute definition.' 'Whether the valuation contained detailed reasons and specified the matters to which the valuer had regard as required by Retail Leases Act 1994, s 19(1)(e).' 'Whether there could be a review under Retail Leases Act 1994, s 32A if the valuation was not a Section 19 valuation.' 'Whether the Tribunal had jurisdiction to declare the rights and liabilities of the parties in relation to the valuation.']

Ratio Decidendi

The valuation was not a valuation of current market rent for the purposes of Retail Leases Act 1994, s 19 because the valuer proceeded by reference to the lease and the API definition rather than the mandatory statutory criteria, failed to adopt and apply the effective rent basis and other required s 19 matters, and failed to specify with sufficient precision all matters considered as required by s 19(1)(e). Since there was no s 19 compliant valuation, there could be no s 32A review, although the delay under s 19(2) and any breach of s 19(4) did not themselves vitiate the valuation.

Court Disposition

The Applicants obtained a declaration that the valuation was not a Section 19 valuation; remaining issues were left for further directions.

Orders

  • ['The Tribunal declares that the valuation of Mr Pierre Dupre of premises Showroom 1, 456-462 Canterbury Road Campsie NSW 2194 and dated 31 July 2008 is not a valuation of current market rent of those premises for the purposes of Retail Leases Act Section 19.' 'The proceedings are listed for Directions before the...