Adwell Holdings Pty Ltd v Bourne (No 2) [2007] NSWSC 1151

Adwell Holdings Pty Ltd v Bourne (No 2) [2007] NSWSC 1151

The further reasons showed that the valuer treated the exercise as unique, made exhaustive investigations, spoke to hotel brokers and valuers, considered figures normally used for assessing rent of premises involving liquor, gaming and outside seating, and applied his skill and experience. That was sufficient to state the detailed reasons and matters considered for the contractual valuation adopting Retail Leases Act 1994, s 19; the valuer was not required to identify those consulted, and alleged factual errors did not invalidate a valuation made in accordance with the contract.

Jurisdiction
Australia
Judgment Date
12 October 2007
Procedural Posture
Landlord and Tenant Dispute Concerning Rent Review Valuation Under Leases / Ex Tempore Judgment After Valuer Provided Further Reasons
Outcome
Proceedings dismissed as from 15 November 2007 with no order as to costs.
Legal Topics
['rent Review Clauses' 'specialist Retail Valuation' 'detailed Reasons for Valuation' 'retail Leases Act 1994, S 19' 'costs']
['landlord and Tenant' 'equity'] ['rent Review Clauses' 'specialist Retail Valuation' 'detailed Reasons for Valuation' 'retail Leases Act 1994, S 19' 'costs']

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Procedural Posture

Landlord and Tenant Dispute Concerning Rent Review Valuation Under Leases / Ex Tempore Judgment After Valuer Provided Further Reasons

Legal Issues

  1. 1 ["Whether the specialist retail valuer's further reasons complied with the contractual requirement, adopting Retail Leases Act 1994, s 19, to contain detailed reasons and specify the matters to which he had regard." 'Whether the valuer was required to identify the persons consulted and provide particulars of their qualifications or data sources.' 'Whether alleged mistakes of fact in the valuation invalidated the valuation.' 'How the costs of the proceedings should be borne.']

Ratio Decidendi

The further reasons showed that the valuer treated the exercise as unique, made exhaustive investigations, spoke to hotel brokers and valuers, considered figures normally used for assessing rent of premises involving liquor, gaming and outside seating, and applied his skill and experience. That was sufficient to state the detailed reasons and matters considered for the contractual valuation adopting Retail Leases Act 1994, s 19; the valuer was not required to identify those consulted, and alleged factual errors did not invalidate a valuation made in accordance with the contract.

Court Disposition

Proceedings dismissed as from 15 November 2007 with no order as to costs.

Orders

  • ['The proceedings should be dismissed as of 15 November 2007 with no order as to costs.' 'The exhibits are to be returned.' 'The matter is stood over to 15 November 2007 at 9.30 am for mention before Young CJ in Eq.']