Haxglow Pty Ltd v Mirvac Retail Sub SPV Pty Ltd [2020] NSWSC 233

Haxglow Pty Ltd v Mirvac Retail Sub SPV Pty Ltd [2020] NSWSC 233

The defendants failed to establish any breach of the API Code or any failure to comply with cll 7.3.5(d) or 7.3.5(g) of the lease. The Code fell within the professional practice standards of the API and a demonstrated breach could vitiate a determination, but no breach of rules 3.1(f) or 6.3 was shown. The valuer did not fail to disregard the goodwill of the Lessee's business by considering what a hypothetical potential lessee would pay based on likely potential business from the premises, and the valuer did have regard to incentives for comparable licensed premises. It was not shown that the Rental Determination was not carried out in accordance with the lease, so under cl 7.3.7 it was...

Jurisdiction
Australia
Judgment Date
17 March 2020
Procedural Posture
Equity Proceedings Concerning Lease Rent Review and Expert Determination of Current Market Rent / Principal Judgment After Hearing
Outcome
Valuer's determination of current market rent held to be final and binding; plaintiff entitled to recover overpayment of rent; defendants' cross-claim dismissed.
Legal Topics
['rent Review' 'current Market Rent' 'expert Determination' 'final and Binding Valuation' 'australian Property Institute Code of Professional Conduct' "goodwill of Lessee's Business" 'incentives for Comparable Premises' 'adequacy of Expert Reasons']
['land Law' 'leases' 'valuation' 'contract Law'] ['rent Review' 'current Market Rent' 'expert Determination' 'final and Binding Valuation' 'australian Property Institute Code of Professional Conduct' "goodwill of Lessee's Business" 'incentives for Comparable Premises' 'adequacy of Expert Reasons']

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Procedural Posture

Equity Proceedings Concerning Lease Rent Review and Expert Determination of Current Market Rent / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the valuer's Rental Determination was carried out in accordance with the terms of the lease and was final and binding under cl 7.3.7." 'Whether cl 7.3.4(f)(ii) required compliance with the Australian Property Institute Code of Professional Conduct and whether any breach of rules 3.1(f) or 6.3 was established.' "Whether the valuer failed to disregard the goodwill of the Lessee's business as required by cl 7.3.5(d)." 'Whether the valuer failed to have regard to incentives given to lessees of comparable premises as required by cl 7.3.5(g).' 'Whether the reasons given for the Rental Determination were adequate.']

Ratio Decidendi

The defendants failed to establish any breach of the API Code or any failure to comply with cll 7.3.5(d) or 7.3.5(g) of the lease. The Code fell within the professional practice standards of the API and a demonstrated breach could vitiate a determination, but no breach of rules 3.1(f) or 6.3 was shown. The valuer did not fail to disregard the goodwill of the Lessee's business by considering what a hypothetical potential lessee would pay based on likely potential business from the premises, and the valuer did have regard to incentives for comparable licensed premises. It was not shown that the Rental Determination was not carried out in accordance with the lease, so under cl 7.3.7 it was...

Court Disposition

Valuer's determination of current market rent held to be final and binding; plaintiff entitled to recover overpayment of rent; defendants' cross-claim dismissed.

Orders

  • ["The defendants' Further Amended Statement of Cross-Claim is dismissed." 'The plaintiff is entitled to recover an overpayment of rent in the amount of $1,004,318.04.' 'Interest is to run on that amount at the rates prescribed by General Practice Note 16 for the purposes of s 100 of the Civil Procedure Act 2005...