Du Aus Pty Ltd v Riviera Cove Pty Ltd [2010] NSWADT 228

Du Aus Pty Ltd v Riviera Cove Pty Ltd [2010] NSWADT 228

Although the Deed was a retail shop lease because it was an agreement to enter into a lease, it did not provide for rent to be changed to current market rent. The payments required before the valuer's determination were payments on account of rent not yet determined, and Mr Preston's valuation set the initial rent rather than changing an existing rent. Because s19 was not engaged, s32A had no operation and the Tribunal had no jurisdiction to appoint two specialist retail valuers.

Jurisdiction
Australia
Judgment Date
15 September 2010
Procedural Posture
Retail Lease Application Concerning Appointment of Specialist Retail Valuers Under S32 a of the Retail Leases Act 1994 / Interlocutory Jurisdiction Application
Outcome
Application dismissed for want of jurisdiction.
Legal Topics
['tribunal Jurisdiction' 'current Market Rent' 'appointment of Specialist Retail Valuers' 'agreement for Lease as Retail Shop Lease' 'initial Rent Versus Change in Rent']
['retail Leases' 'commercial Leasing' 'administrative Law'] ['tribunal Jurisdiction' 'current Market Rent' 'appointment of Specialist Retail Valuers' 'agreement for Lease as Retail Shop Lease' 'initial Rent Versus Change in Rent']

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Procedural Posture

Retail Lease Application Concerning Appointment of Specialist Retail Valuers Under S32 a of the Retail Leases Act 1994 / Interlocutory Jurisdiction Application

Legal Issues

  1. 1 ['Whether the Deed was a retail shop lease for the purposes of the Retail Leases Act 1994.' 'Whether the Deed provided for rent to be changed to current market rent so as to engage s19 of the Retail Leases Act 1994.' 'Whether s32A of the Retail Leases Act 1994 gave the Tribunal jurisdiction to appoint two specialist retail valuers to review the valuation made by the jointly appointed valuer.']

Ratio Decidendi

Although the Deed was a retail shop lease because it was an agreement to enter into a lease, it did not provide for rent to be changed to current market rent. The payments required before the valuer's determination were payments on account of rent not yet determined, and Mr Preston's valuation set the initial rent rather than changing an existing rent. Because s19 was not engaged, s32A had no operation and the Tribunal had no jurisdiction to appoint two specialist retail valuers.

Court Disposition

Application dismissed for want of jurisdiction.

Orders

  • ['Application for appointment of two specialist retail valuers pursuant to s32A of the Retail Leases is dismissed; the Tribunal has no jurisdiction.' "There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 14 days. In such...