Total & Universal Pty Ltd v Kingsway Property Investments (No. 2) Pty Ltd [2006] NSWSC 1388

Total & Universal Pty Ltd v Kingsway Property Investments (No. 2) Pty Ltd [2006] NSWSC 1388

The rent had not been reviewed or determined in accordance with the lease because post-1981 land value valuations under the Valuation of Land Act 1916 were not determinations of Unimproved Value, there had been no arbitration, and the defendant's payment of RailCorp's demanded rent did not objectively amount to an agreement on Unimproved Value under the lease. Consequently no adjustment reducing the purchase price below $900,000 had occurred, but the contractual time for any further payment to the plaintiff had also not arrived because clause 13.5 required the rent to be determined in accordance with the lease. The plaintiff's claims therefore failed. The cross-claim also failed because...

Jurisdiction
Australia
Judgment Date
15 December 2006
Procedural Posture
Equity Proceedings Concerning Assignment of a Long Term Lease, Rent Review, and Cross Claim / Final Judgment After Hearing
Outcome
Plaintiff's claims dismissed. Cross-claimant's claims dismissed.
Legal Topics
['rent Review Clause' 'unimproved Value' 'land Value' 'valuation of Land Act 1916' 'assignment of Lease' 'implied Obligation of Good Faith' 'misrepresentation Cross Claim' 'arbitration Clause']
['landlord and Tenant' 'contract Law' 'real Property' 'valuation Law' 'equity'] ['rent Review Clause' 'unimproved Value' 'land Value' 'valuation of Land Act 1916' 'assignment of Lease' 'implied Obligation of Good Faith' 'misrepresentation Cross Claim' 'arbitration Clause']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Assignment of a Long Term Lease, Rent Review, and Cross Claim / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether rent under the lease had been effectively reviewed or determined in accordance with the lease so as to adjust the purchase price payable for the assignment of the lease.' 'Whether valuations or certificates stating land value under the Valuation of Land Act 1916 were valuations of Unimproved Value for the purposes of the rent review clause.' 'Whether the defendant, by paying rent demanded by RailCorp, agreed with RailCorp on the Unimproved Value of the demised premises under the lease.' 'Whether the plaintiff was entitled to further payment, interest, damages for breach of implied obligations, rectification, or relief for unconscionable conduct.' "Whether the defendant's cross-claim against RailCorp for misrepresentation, misleading and deceptive conduct, negligent misrepresentation, or referral to arbitration should succeed."]

Ratio Decidendi

The rent had not been reviewed or determined in accordance with the lease because post-1981 land value valuations under the Valuation of Land Act 1916 were not determinations of Unimproved Value, there had been no arbitration, and the defendant's payment of RailCorp's demanded rent did not objectively amount to an agreement on Unimproved Value under the lease. Consequently no adjustment reducing the purchase price below $900,000 had occurred, but the contractual time for any further payment to the plaintiff had also not arrived because clause 13.5 required the rent to be determined in accordance with the lease. The plaintiff's claims therefore failed. The cross-claim also failed because...

Court Disposition

Plaintiff's claims dismissed. Cross-claimant's claims dismissed.

Orders

  • ["All the plaintiff's claims for relief are dismissed." "All the cross-claimant's claims for relief are dismissed." 'If the parties are unable to agree on costs, they are directed within 14 court sitting days of delivery of the reasons to make an appointment with the Associate for argument on costs.']