Rowindon Pty Ltd v Ward & Anor trading as Robbo’s Spare Parts [2007] NSWADT 66

CITATION: Rowindon Pty Ltd v Ward & Anor trading as Robbo's Spare Parts [2007] NSWADT 66

DIVISION: Retail Leases Division

APPLICANT PARTIES: Rowindon Pty Ltd RESPONDENT Geffery Roy Ward and Kathleen Therese Ward trading as Robbo's Spare Parts

FILE NUMBER: 065103

HEARING DATES: 19 February 2007

SUBMISSIONS CLOSED: 19 February 2007

DATE OF DECISION: 28 March 2007

BEFORE: Hole M - Judicial Member

CATCHWORDS: Claim for declaration of rights, obligations and liabilities under a lease

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Retail Leases Act 1994

Commonwealth of Australia v Wawbe Pty ltd & Pinebark Park Pty Ltd [1998] VSC 82 (25 September 1998) CASES CITED: Holt v Cox (1997) 23 ACSR 590 Kanivah Holdings Pty Limited v Holdsworth Properties Pty Limited & Ors [2002] NSWCA 180 R & A Dalley & Co Pty Ltd v Giex Pty Ltd (1990) NSW Conv R 55549

APPLICANT I Pike, Barrister REPRESENTATION: RESPONDENT F Levy, Solicitor

ORDERS: 1. The determination prepared by Mr P G Dupre dated 8 September 2004 is set aside; 2. The time for filing of an application under Section 32A of the Retail Leases Act 1994 is not extended; 3. Each party to pay its own costs.

REASONS FOR DECISION 1 The applicant has applied for the following Orders: "1. A declaration that the valuation prepared by Pierre G Dupre of Egan National Valuers (NSW) dated 8 September 2004 be set aside. Alternatively, that the valuation prepared by Pierre G Dupre of Egan National Valuers (NSW) dated 8 September 2004 is of no effect and is not binding on the parties. Alternatively, an order: (a) Extending the time for the filing of an application under section 32A of the Retail Leases Act; and (b) Under section 32A of the Retail Leases Act appointing two independent valuers to determine the market rent. 4. The respondent to pay the applicant's costs." This application is made pursuant to the Retail Leases Act 1994 ("the Act"). 2 The applicant's representative sought enforcement of a summons to produce a wide spectrum of the valuer's files; this was refused on the basis of relevance. 3 On 18th October 2006 Mr Paul Byrne swore an affidavit to which was annexed a 'Valuation report and critique', the respondent's representative sought to have this excluded from the affidavit. The objection was overruled. Facts 4 The applicant is the registered proprietor of a property at Campsie ("the property") and the respondents trading under a trade name are the lessees of part of the property from the applicant. 5 A lease was entered into for part of the property on 1 March 2000. This lease provided that the commencement date was 15 October 1999 with a terminating date of 14 October 2009. There are two further periods of five (5) year options. 6 The lease provides that the rent be reviewed at a particular time. Clause H of the lease sets out the review required at the particular time which is the subject of this application. Clause H is as follows: "H. The Lessor and the Lessee agree that the annual rental payable for the fifth year of the original term of the Lease shall be as agreed between the Lessor and the Lessee as being the market value of such rent and in the event that the Lessor and the Lessee can not so agree within six (6) weeks from the date of commencement of the fifth year of the term of the Lease then the rental shall be determined by a valuer appointed (on the application of either party) by the President for the time being of the Australian Property Institute New South Wales Division or its successor and such valuer shall act as an expert and not as an arbitrator and the decision of such valuer shall be final and binding upon both the Lessor and the Lessee and it is agreed between the Lessor and the Lessee that any costs incurred in obtaining such valuation shall be borne in equal shares by the Lessor and the Lessee. Such further Lease shall contain the same covenants and conditions mutatis mutandis as in this Lease with the exception of this clause H." 7 The applicant and the respondents engaged in negotiations concerning market rent and it became apparent that they could not agree on the market rent which would be payable pursuant to the review required by Clause H. Evidence 8 Various items of correspondence were annexed to the affidavit of Mr Paul Byrne dated 18 October 2006 and an affidavit of Mr P G Dupree ("the valuer") dated 29 January 2007. These items set out the history of the matter between the parties and the valuer. 9 The property manager for the applicant who is an employee of L J Hooker Commercial – Bankstown ("the property manager") forwarded a letter dated 11 February 2004 to the respondents advising that they had assessed the market rent payable as an amount of $235.00 per m2 effective 15 October 2003. This letter indicated that the invoices for the rent payable from March 2004 would disclose the new rental and that there were rental arrears of five (5) months payable from October 2003 to March 2004. 10 The respondents replied on 16 February 2004 to the property manager's letter advising that they were prepared to continue to pay $181.59 per m2 and that they were not willing to pay the rent as reviewed by the property manager. 11 In accordance with the terms of the lease the applicant then forwarded a letter dated 24 February 2004 to the President of the Australian Property Institute New South Wales ("Institute") in accordance with the terms of Clause H of the lease requesting that a valuer be appointed to determine the appropriate rental for the property. 12 On 4 March 2004 the Executive Officer of the Institute forwarded a letter to the valuer noting that the President of the NSW Division of the Institute offered an appointment to the valuer to determine the rental of the subject property. There was no reference to the review date included in that letter. There was a reference in the letter to the inclusion of the lease, although the valuer gave evidence that he believed it was not enclosed with this letter, he did obtain a copy of the lease at a later date. 13 On 20 April 2004 the valuer, who had been appointed by the President of the New South Wales division of the Institute, Mr P G Dupre, forwarded a letter to both the applicant and the respondents in their capacities as lessor and lessee. This letter noted that he had been appointed by the Institute to review the rental as at the relevant review date of 14 October 2004 in the heading and this date was also referred to in the body of the letter. The letter further set out the timing of the valuation and other matters. The letter also noted that the valuer would take into consideration the written submissions provided by the lessor and the lessee as to their assessment of current market rental. 14 The letter from the valuer to the parties requested that they sign a copy of the letter and return it to the valuer by way of acceptance. It also noted that the acceptance of the matters set out in the letter would operate to hold harmless and release the valuer from and against any and all claims, liabilities, costs, expenses or damages made or brought against the valuer other than claims for gross negligence or intentional misconduct. 15 The letter required acceptance by both parties to be received by the valuer before 11 May 2004 on the following basis: "If the preceding is acceptable please sign one copy of this letter and either fax it to the writer on …….... or by mail". 16 On or about 6 May 2004 the respondent faxed acceptance of the conditions referred to in the valuer's letter to the valuer. On 13 July 2004 the property manager forwarded a letter to the valuer accepting the conditions referred to in the valuer's letter purportedly on behalf of both the lessor and lessee. The acceptances so provided did not correct the relevant date to 15 October 2003. Both acceptances are held in the valuer's file, in evidence. 17 The respondents forwarded a letter dated 31 May 2004 to the property manager for the lessor, noting that the lessee was prepared to pay half of the valuation fee and requesting various other matters concerning the rental of the lease. 18 On 9 June 2004 the property manager for the lessor forwarded a letter to the valuer noting that he had written approval from the lessee for the share of the costs and noting that he expected to have instructions from his client in the 3rd week of June as his client was overseas. 19 On 8 July 2004 the property manager for the lessor forwarded a letter to the respondents noting that the lessor had agreed to pay half of the costs of the valuer and that a letter had been forwarded to the valuer requesting that the valuer proceed with the valuation. 20 On 13 July 2004 the property manager for the lessor forwarded a letter to the valuer noting that both the lessor and the lessee had agreed to the appointment and enclosed a signed acceptance of the appointment. 21 On 5 August 2004 the property manager for the lessor forwarded a further letter to the valuer confirming the appointment of the valuer to undertake the valuation. 22 On 12 August 2004 the property manager for the lessor forwarded a letter to the President of the Institute noting the appointment of the valuer by letter dated 4 March 2004. A copy of correspondence to the valuer dated 13 July 2004 and 5 August 2004 was enclosed with the letter. The Institute was requested to make enquiries as to when the valuer would complete the valuation. 23 On 13 August 2004 the valuer forwarded a letter to the property manager for the lessor advising that the property had been inspected and the valuation should be completed shortly thereafter. The valuer also asked that he be advised "if you hold any submission from the lessor or as to their assessment of the current market rent". 24 On 3 September 2004 the valuer forwarded a letter to the property manager for the lessor requesting payment in accordance with the letter of acceptance and noting that the assessment would not be issued until payment was received. 25 The valuer gave evidence that he had waited for a reply to his letter dated 13 August 2004 prior to completing his valuation. When no response was received he completed the valuation which noted it was as at the relevant date of 14 October 2004. The hand written draft of the Current Market Rental Determination held in the valuer's file also shows the date as 14 October 2004. 26 On 8 September 2004 the valuer forwarded the valuation to the applicant and the respondents. This valuation noted the 'effective' date as 14 October 2004. The Determination was: "DETERMINATION: Having regard to the comments contained herein, I am of the opinion that the current gross annual market rental, pursuant to Clause H within reference schedule "1" of the lease document as at 2 August 2004 and to be effective from the commencement date of the review (ie 14 October 2004) is …… plus Goods and Services Tax. I confirm that this determination is confidential to the parties to whom it is addressed and under the provisions of clause H and the decision of such valuer shall be final and binding upon both the Lessor and Lessee. Subsequently, no discussions will be entered into on the issue of this determination." 27 On 14 September 2004 the property manager for the lessor forwarded a letter to the valuer enclosing cheques in payment of the fee. This letter also noted "Our correspondence regarding the appointment of valuer is dated 13 July 2004. May I respectfully request the full report be forwarded to us by the close of business on Wednesday 22 September 2004?" 28 On 20 September 2004 the respondents forwarded a letter to the property manager for the lessor noting that the rental determination had been received from the valuer and advising that the rent would be adjusted accordingly to date as and from 14 October 2004. In the letter the respondents also requested a refund for the period back to 16 October 2003. 29 On 18 October 2004 the managing director of L J Hooker Commercial, Mr Paul Byrne, forwarded a letter to the valuer setting out concerns in respect of the valuation. Apart from other material included in that letter attention was drawn to the wrong date having been used for assessing the rent as being 14 October 2004 and not 15 October 2003 as per the lease. This is the first reference in the correspondence to the correct date as being 15 October 2003. 30 On 17 January 2005 the valuer forwarded a letter to the managing director of L J Hooker Commercial Bankstown in response to the letter dated 18 October 2004, the valuer noted that the reference by the managing director to the wrong date was a typographical error and the assessment was confirmed to be at 14 October 2003. 31 On 17 January 2005 the valuer forwarded a letter to Mr Paul Byrne the managing director of L J Hooker Commercial Bankstown commenting that: - "Your comments have been taken into account and reply as follows: My rental assessment did not include electricity and was an assessment for the real estate only, therefore any charges for electricity is not included in this assessment. In regard to Point 7. This was a typographic error and the assessment is confirmed to be at 14 October 2003. The assessment was carried out having regard to relevant evidence as well as the overall condition of the property at the time of determination. The rental assessment provided for the subject property is considered to be fair and reasonable." 32 Mr Paul Byrne, managing director of L J Hooker Commercial Bankstown gave evidence. His evidence was based on his affidavit dated 18 October 2006 to which was annexed the letters referred to in paragraphs 9, 10, 11, 13 to 20 inclusive, 24, 26, 27 and 28. Mr Byrne was cross examined in respect of a refund of rental having been made on 8 November 2004 being a sum equivalent to the period October 2003 to October 2004. When asked why the refund occurred, Mr Byrne responded that: "Mr Ward asked for it and despite he being unhappy about it Mr Chung had made a decision to refund it and to fight elsewhere if we can, for the moment refund it." Mr Chung is a principal of the lessor. Mr Byrne was asked in cross examination if a reply was sent to the letter dated 13 August 2004 forwarded to the property manager at his office by the valuer and Mr Byrne responded that no reply was sent. 33 Mr Dupre gave evidence and relied on his affidavit dated 29 January, 2007 to which was annexed a copy of the letters referred to in paragraphs 12, 21, 22 and 25. He handed up to the Tribunal his file in relation to the valuation. 34 In cross examination Mr Dupre agreed that when calculating the rent review date in accordance with clause H of the lease it was possible that he had added five (5) years to the commencement date, and that this may have resulted in his calculating the relevant date as 14 October 2004 and that he had shown this date on the valuation determination. He agreed that it did not look like a typographical error. Applicant's submissions 35 The applicant's representative submitted that the valuation by Mr Dupre was not binding on the parties and should be set aside because: "3.1.1 The Dupre report calculated market rental for the Premises as at 2 August 2004 to be effective from 14 October 2004 when Clause H of the Lease required the valuer to determine the market value of the rent payable for the fifth year in the Lease, that is, for the period from 15 October 2003 to 15 October 2004. Section 7 of the Act implies into all retail shop leases certain provisions of the Act, including section 19 of the Act. Section 19(1)(c) of the Act requires a valuer in the position of Dupre to take into account the matters set out in section 19(1)(a) of the Act. The Dupre report fails to refer to or take into account the matters set out in section 19(1)(a) of the Act. Section 19(1)(a)(iv) of the Act requires the valuer to have regard to rent concessions and other benefits that are frequently or generally offered to lessees of unoccupied retail shops. The Dupre report fails to make reference to the benefit the lessee received by virtue of the fact that the lessor paid for the consumption of the electricity. Section 19(2) of the Act provides that the valuer must make a valuation of a current market rent no later than one month after accepting the appointment to make the valuation. Dupre accepted the appointment to make the valuation on 20 April 2004 but did not make a valuation until 8 September 2004." It was submitted that the application should consequently be granted and an extension of time be given to file an application under Section 32A of the Act. 36 The valuer had admitted that the date was incorrect, it was not a typographical error, and that the valuation was as at 14 October 2004. 37 While Clause H states that the decision of the valuer shall be final and binding on both parties, the legal consequence of a factual error is that the valuation must in certain circumstances be set aside. This principle is restated in Kanivah Holdings Pty Limited v Holdsworth Properties Pty Limited & Ors [2002] NSWCA 180 ("Kanivah") at paragraphs 45 and 46 where Stein JA comments: - "45 It is well to start with an often quoted statement of principle. In Legal & General Life of Australia v A Hudson Pty Limited McHugh JA stated: It will be difficult, and usually impossible, however, to imply a term that a valuation can be set aside on the ground of the valuer's mistake or because the valuation is unreasonable. The terms of the contract usually provide, as the lease in the present case does, that the decision of the valuer is "final and binding on the parties". By referring the decision to a valuer, the parties agree to accept his honest and impartial decision as to the appropriate amount of the valuation. They rely on his skill and judgment and agree to be found by his decision. 46 And: … as between the parties to the main agreement the valuation can stand even though it was made negligently. While mistake or error on the part of the valuer is not by itself sufficient to invalidate the decision or the certificate of valuation, nevertheless, the mistake may be of a kind which shows that the valuation is not in accordance with the contract. A mistake concerning the identity of the premises to be valued could seldom, if ever, comply with the terms of the agreement between the parties. But a valuation which is the result of the mistaken application of the principles of valuation may still be made in accordance with the terms of the agreement. In each case the critical question must always be: Was the valuation made in accordance with the terms of a contract? If it is, it is nothing to the point that the valuation may have proceeded on the basis of error or that it constitutes a gross over or under value. Nor is it relevant that the valuer has taken into consideration matters which he should not have taken into account or has failed to take into account matters which he should have taken into account. The question is not whether there is an error in the discretionary judgment of the valuer. It is whether the valuation complies with the terms of the contract." And then at paragraphs 49 and 50: "49 Mason P said: A close reading of McHugh JA's judgment in Legal & General indicates that his Honour was not propounding the view that a valuation will stand regardless of error. Rather he was making the point that mistake is not itself a ground of vitiation: see also Wamo Pty Ltd v Jewel Food Stores Pty Ltd (1983) ANZ Conv R 50. A valuation may contain factual error or embody consideration of matters which should not have been taken into account, but it does not follow that the result is outside that which the contract contemplated would be within the realm of determination by the valuer. As McHugh JA makes plain, "in each case the critical question must always be: Was the valuation made in accordance with the terms of [the] contract? If it is, it is nothing to the point that the valuation may have proceeded on the basis of error or that it constitutes a gross over or under value" (emphasis added). 50 As McHugh JA observed in Hudson, by providing that the decision of the valuer be final and binding, the parties agree to accept the valuer's honest and impartial valuation. They rely on his skill and judgment. The valuation stands even if made negligently. A mistake by the valuer will only matter if it shows that the valuation was not made in accordance with the contract. His Honour made the point that even if a valuation proceeded on the basis of error, or was a gross under or over value, it matters not. Further, a failure to take account of relevant matters (or the converse) is not a vitiating mistake." 38 The applicant's representative submitted that in these circumstances the valuation has the relevant date as 14 October 2004 rather than the date envisaged in Clause H of the lease which when calculated is 15 October 2003. Therefore this is a vitiating error which has the effect that the valuation should be set aside. The valuation considered in R & A Dalley & Co Pty Ltd v Giex Pty Ltd (1990) NSW Conv R 55549 ("R & A Dalley") was found not to be binding on the parties, as the valuation was subject to a condition that repairs be carried out rather that as at the date required under the relevant lease, the applicant's representative submitted that this was similar to the situation in this case where the incorrect date was used. The comments by McHugh JA in Kanivah were also referred to in R & A Dalley. 39 As a subsidiary submission the applicant's representative noted that the valuer failed to have regard to the requirements of the lease to pay electricity. This was a reference to the requirement in Clause D(16) of the lease. The submission was that the valuer was required to take this into account in accordance with Section 19(1)(iv) of the Act. That the valuer was a "specialist retail valuer" for the purposes of Section 19(1)(b) and the valuer would therefore be required to comply with Section 19(2). Further that the valuer had exceeded the time limit to provide the valuation as prescribed in Section 19(2). Respondent's submissions 40 The respondent's representative sought to distinguish R & A Dalley as not being relevant to the issues in this matter as it was a different situation in that the difference in the value in R & A Dalley would equal the difference in the cost of repairs. 41 The respondent's representative also submitted that the valuation should not be set aside and drew attention to Kanivah particularly on the basis of points 1) and 2) of the decision of the Court, being:- "1) The decision of the valuer is final and binding. The valuation stands even if made negligently. A mistake by the valuer will only matter if it shows that the valuation was not made in accordance with the contract. A failure to take account of relevant matters (or the converse) is not a vitiating mistake. 2) Palmer J was correct in finding that there is no vitiating error in the determination of Mr Norris. Once Norris had found the highest and best use as a retail/commercial site, he was not obliged to carry out a detailed feasibility study. He was not required to envisage with precision what building could be constructed on the site on an economically viable basis." 42 The respondent's representative referred to an article by Peter Butt in Australian Law Journal Volume 71 at pages 220 and 221, being a discussion on Kanivah, which noted that when considering the extent to which a valuer's rent determination can be gone behind: "Of course, the evidence is not admissible merely to "correct" an error in the reasoning; it must be directed at showing the valuation was not made as required by the contract of lease." Attention was also drawn to an article by Mr Logan Campbell entitled "Final and Binding expert determination and the discretion to stay proceedings". 43 Attention was drawn to Commonwealth of Australia v Wawbe Pty Ltd & Pinebark Park Pty Ltd [1998] VSC 82 (25 September 1998) ("Wawbe") which related to whether a valuation is vitiated by mistake and therefore not binding on the parties. Gillard J found that: "102. In conclusion, I am not persuaded by the plaintiff that the umpire made any error of fact or law in making his determination pursuant to the terms of the lease. On the contrary, I am satisfied that the umpire performed his task in accordance with the terms of the lease." 44 The respondent's representative submitted that even if Mr Dupre was incorrect as to the relevant date that the parties had agreed on the final and binding nature of the referral and were therefore bound to rely on the final decision even if it was negligent. 45 The respondent's representative submitted that the requirements set out in Section 19 of the Act do not apply to the premises subject of the lease. That the applicant's agent was aware of the letter from the valuer dated 13 August 2004 and he chose to ignore it indicating that the applicant had declined the right to rely on Section 19(2) of the Act. Reasons for decision 46 The valuation to be made was to be in accordance with the terms of the contract, in this instance the terms were: "To determine the rental of the above property [ Unit A, 445 – 459 Canterbury Road, Campsie ] as required by the lease." The term of the lease which sets out the formula for calculation of the relevant (or effective) date as at which the valuation is to be made is Clause H of the lease. 47 The correspondence between the lessor and the lessee, between the Institute and the valuer and the valuer and the lessor and lessee up to the letter from the managing director of L J Hooker Commercial Bankstown to the valuer either does not refer to a relevant (or effective) date or refers to the incorrect date being 14 October 2004. 48 Both the lessees and the representative of the lessor signed their acceptance to the valuer's letter dated 20 April 2004 wherein the relevant (review) date is shown as 14 October 2004. 49 The valuer responded to the written query on behalf of the respondents by letter dated 17 January 2005 to the effect that: "This was a typographical error and the assessment is confirmed to be at 14 October 2003." The valuer conceded in cross examination that this was probably not so and that he had probably miscalculated the date as required by Clause H of the lease. 50 The property manager applied to the Institute for the appointment of a valuer on 24 February 2004, the valuer was nominated by the Institute on 4 March 2004, the valuer confirmed his appointment to the lessor and lessee on 20 April 2004. This confirmation was not accepted by the lessor until 13 July 2004. 51 In response to a written enquiry, the valuer forwarded a letter on 13 August 2004 to the property manager, that noted the property had been inspected and the determination should be completed shortly. This letter also requested advice as to whether the property manager held any submissions from the lessor as to the assessment of the current market rent. No response was forthcoming. 52 The property manager sought to hasten the receipt of the determination by a letter dated 12 August 2004 to the Institute. 53 Following a reminder being forwarded by the valuer to the property manager on 3 September 2004 that payment was to be received before issue of the determination, the fees were forwarded to the valuer on 14 September 2004 and the determination dated 18 September 2004 was issued to the parties. 54 On 18 October 2004 the managing director forwarded a letter to the valuer. Although there is reference in that letter to a telephone conversation between the valuer and the managing director, the first written reference to the date as being 14 October 2003 rather than 14 October 2004 is made. 55 Clause H of the lease provides, by way of a novel formula, that the correct review date is 15 October 2003. The evidence discloses that the valuer calculated the date erroneously and this error was not corrected by either party. The date that a review of rental is undertaken, where there is a gap of twelve (12) months between the correct date of review and the date at which the review was made, is a fundamental difference from the contract between the parties. In some situations this time difference may not affect the valuation. In this matter it apparently does. 56 Gillard J in Wawbe makes reference to the undesirability to attack a valuation where the interpretation of the contract gives him the authority to make the valuation and at paragraph 17 observes: "17. The reasons are obvious. The parties to a contract agree that the value is to be determined by an expert acting as such and using his own skill, judgement and experience. He is not a lawyer. His authority derives from the contract. The terms of the contract are to be considered by him. It would be contrary to the parties' common intention to expect the valuer to construe the contract and apply it as a court would. The parties have entrusted the task to an expert valuer, not a lawyer. They must be taken to accept the determination "warts and all" and subject to such deficiencies as one would expect in the circumstances. The parties put in place the procedure, they must accept the result unless it would be contrary to their common intention." 57 Gillard J further opines at paragraph 39 after considering the principles set out by McHugh JA in Legal & General Life that: "39. In my respectful opinion, what his Honour has written states the law. I respectfully agree that in the end it is a question whether the valuation complies with the terms of the contract." 58 Gillard J then sets out at paragraph 45 three questions to be considered where there is a mistake: "45. In my opinion it follows that the court should consider three questions – (i) What did the parties agree to remit to the expert? (ii) Did the valuer make a mistake and if so what was the nature of the mistake? Is the mistake of such a kind which demonstrates that the valuation was not made in accordance with the terms of the contract and accordingly does not bind the parties? The valuer's authority?" 59 In this matter the parties had agreed to submit the determination of the rental of the property as required by the lease to the valuer (expert) to be appointed by Institute. The valuer accepted the appointment and this was confirmed by written acceptance from both parties, he then proceeded on the basis of a mistake as to the date as at which date the valuation was to be made. The mistake was one which did not allow him to perform his task as required by the terms of the lease. The mistake was of such a kind that demonstrates that the valuation was not made in accordance with the terms of the lease and therefore does not bind the parties. The valuer obtains his authority from the agreement between the parties to obtain a determination in respect of the reviewed rent in accordance with Clause H of the lease. 60 When considering the judgment in Kanivah there is reference to the affirmation of the lower court's decision where Palmer J found that there was no vitiating error to be found in the valuation. The comments of McHugh JA as referred to by Mason P in Holt v Cox (1997) 23 ACSR 590 at 595 correctly, in my opinion, apply to the circumstances in this case in that the critical question that must always be asked is: "Was the valuation made in accordance with the terms of [the] contract?" The terms of the contract in this matter are as set out in the lease, particularly as prescribed in Clause H of that lease. The calculation of the date for the review of the rent must be in accordance with that clause. The calculation of the date at a day twelve (12) months post the correct date is a fundamental error and must be considered to be a vitiating error. In coming to this conclusion there has been no need to have regard to the substance of the valuation (determination) of the valuer. 61 The valuer gave forthright evidence under oath as to the gathering of comparable evidence. Apart from rentals of comparable premises quoted in the determination the valuer referred to a further property in his file. Each of the rentals of the comparable premises disclosed in the determination was in respect of rentals struck after January 2004 and before October 2004. 62 The valuer was appointed pursuant to the terms of the lease and accordingly was not appointed pursuant to Section 19(1)(b) of the Act. Accordingly Section 19(2) is not applicable. In any event the property manager did not provide any submissions to the valuer to draw attention to either the provisions of Clause D(16) of the lease or Section 19(1)(b) of the Act. 63 Taking into account the fact that the incorrect date was used as the rent review date it is clear that the valuation must be set aside. Both parties accepted the appointment of the valuer to determine the rent review in accordance with the lease. This appointment was made by the Institute and notwithstanding the apparent miscalculation of the date for review, the valuer has been deemed by the Institute and the parties to be capable of providing the determination. The parties should now require the determination to be made at the correct date. 64 Both parties have contributed to the valuation being undertaken as at the incorrect date, although it would appear that this was not intentional. Therefore the valuer having incorrectly calculated the date is in a position to now prepare the determination as at the correct date. 65 The appointment by the Institute has not been discharged as the valuation was not in accordance with the contract. The appointment was made on 4 March 2004 and it is not limited in time. The considerable correspondence between the parties prior to 13 July 2004 did not permit the valuer to proceed to undertake the determination until after that date and then there was no indication to the valuer as to the erroneous calculation of the rental review date. 66 Between 8 September 2004 and the lodgement of this application on 7 July 2006 there has been some correspondence between the parties and the valuer, however this is a delay of some twenty two (22) months. This delay is beyond what would be a reasonable amount for considering the extension of time to permit an application to be filed under Section 32A of the Act. 67 As both parties signed the acceptance of the terms set out in the letter from the valuer dated 20 April 2004 which clearly disclosed the incorrect date and in view of the correspondence between the parties as placed in evidence before the Tribunal the circumstances are such that no order as to costs should be made. 68 The following orders are made. ORDERS 1. The determination prepared by Mr P G Dupre dated 8 September 2004 is set aside. 2. The time for filing of an application under Section 32A of the Retail Leases Act 1994 is not extended. 3. Each party to pay its own costs.