ROPART PTY LTD v KERN CORPORATION LTD AND SUPERANNUATION FUND INVESTMENT TRUST [1991] NSWCA 239

ROPART PTY LID v KERN CORPORATION LTD AND SUPERANNUATION FUND INVESTMENT TRUST

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, CLARKE JA and HOPE AJA 8 August 1991, 8 August 1991 [1991] NSWCA 239

LEASE — rent review construction of clause containing citeria for review — held: Appeal allowed in part. LEASE — Construction — Rent review. LEASE — Provision for review of rental — Criteria to be applied by order specified in lease — Construction of clause containing criteria — Meaning of words "then being paid or payable to a lessee."

Hope AJA May 1989 the plaintiff as sub-lessee and the defendants Kern Corporation Limited and Superannuation Fund Investment Trust as sub-lessors entered into a registered sub-lease for the whole of level 43 Grosvenor Place, Sydney. The initial term of the lease was eight years from 6 June 1988. The plaintiff had options to renew for two further terms each of five years.

The sub-lease provided for a review of the minimum rent which it fixed, and in the event of there being no agreement between the parties as to the current annual rental value to be used in the review, a valuer was to be appointed to determine that value. The valuer was to act as an expert and to comply with CL3.6(b)(iv), and subject to CL3.6(c)(ii) was to consider representations in writing submitted in accordance with CL3.6(b)(iv) by the lessor and the lessee as to the current annual rental value of the demised premises at the relevant review date.

There is no issue that all things have happened which duly brought about the appointment of the valuer to carry out a rent review.

The dispute between the parties is essentially as to the matters to which the valuer was to have regard or was not to have regard in determining the current annual rental value.

The clause of the lease which gives rise to the dispute is in these terms: