GOLDEN HARVEST (AUST) P/L v PAING P/L & ORS [2004] NSWCA 85

GOLDEN HARVEST (AUST) P/L v PAING P/L & ORS [2004] NSWCA 85

The lessees did not present evidence capable of supporting findings that the development application was rejected and notified to the lessor at times material to the leases, or that any rejection made the lessor's representation false or misleading to its knowledge. A council rejection alone would not necessarily show that the lessor had no genuine or reasonable intention to build the development. The Appeal Panel therefore correctly set aside the Judicial Member's decision on a question of law for lack of evidentiary basis for liability under Retail Leases Act 1994 s.10, and Newman AJ erred in overturning the Appeal Panel.

Jurisdiction
Australia
Judgment Date
04 June 2004
Procedural Posture
Appeal Concerning Retail Lease Compensation for Alleged Pre Lease Misrepresentations Under the Retail Leases Act 1994 / Court of Appeal Appeal From Orders of Newman AJ in the Supreme Court; Cross Appeal Dismissed
Outcome
Appeal allowed with costs; orders of Newman AJ set aside; appeal from the Appeal Panel dismissed with costs; cross-appeal dismissed with costs.
Legal Topics
['retail Leases Act 1994 S.10 Compensation' 'pre Lease Disclosure Statements' 'representations as to Future Matters' 'appeals Limited to Questions of Law' 'fresh Evidence on Appeal']
['retail Leases' 'administrative Law' 'appellate Procedure' 'misrepresentation'] ['retail Leases Act 1994 S.10 Compensation' 'pre Lease Disclosure Statements' 'representations as to Future Matters' 'appeals Limited to Questions of Law' 'fresh Evidence on Appeal']

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Procedural Posture

Appeal Concerning Retail Lease Compensation for Alleged Pre Lease Misrepresentations Under the Retail Leases Act 1994 / Court of Appeal Appeal From Orders of Newman AJ in the Supreme Court; Cross Appeal Dismissed

Legal Issues

  1. 1 ["Whether the Judicial Member's findings supported liability for compensation under Retail Leases Act 1994 s.10 for representations that a residential tower development would be built at the shopping centre." "Whether there was evidence that the development application had been rejected and notified to the lessor at a material time, making the representation false or misleading to the lessor's knowledge." 'Whether the Appeal Panel acted on a question of law rather than impermissibly overturning findings of fact.' 'Whether further evidence about the development application and council determination could be admitted on an appeal limited to a question of law.']

Ratio Decidendi

The lessees did not present evidence capable of supporting findings that the development application was rejected and notified to the lessor at times material to the leases, or that any rejection made the lessor's representation false or misleading to its knowledge. A council rejection alone would not necessarily show that the lessor had no genuine or reasonable intention to build the development. The Appeal Panel therefore correctly set aside the Judicial Member's decision on a question of law for lack of evidentiary basis for liability under Retail Leases Act 1994 s.10, and Newman AJ erred in overturning the Appeal Panel.

Court Disposition

Appeal allowed with costs; orders of Newman AJ set aside; appeal from the Appeal Panel dismissed with costs; cross-appeal dismissed with costs.

Orders

  • ['Appeal allowed with costs.' 'Orders of Newman AJ of 15 August 2003 set aside and in lieu thereof order that the appeal from the decision of the Appeal Panel of the Administrative Decisions Tribunal dated 29 November 2002 be dismissed with costs.' 'Cross appeal dismissed with costs.']