BBC Hardware Ltd v Payce Properties Ltd [2000] NSWCA 262

Reported Decision : (2000) 50 NSWLR 66

New South Wales Court of Appeal

CITATION : BBC Hardware Ltd v Payce Properties Ltd [2000] NSWCA 262 FILE NUMBER(S) : CA 40813/99 HEARING DATE(S) : 13 September 2000 JUDGMENT DATE : 9 October 2000

PARTIES : BBC Hardware Ltd - Appellant Payce Properties Pty Ltd - Respondent JUDGMENT OF : Stein JA at 1; Giles JA at 8; Fitzgerald JA at 35

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 50033/99 FILE NUMBER(S) : LOWER COURT Einstein J JUDICIAL OFFICER :

COUNSEL : F M Douglas QC & T G R Parker - Appellant M Tobias QC & D J Hammerschlag - Respondent SOLICITORS : Allen Allen and Hemsley - Appellant Morgan Lewis Alter - Respondent CATCHWORDS : LEASE - rent review clause - valuations of premises "for rental purposes as determined by the Valuer General at any time during" particular years - valuations made after the years and on highest and best use basis - whether valuations within the rent review clause. HELD: (1) The time was the time as at which the valuations were to be made, not when the valuer was to make them. (2) (By majority) The words "for rental purposes" meant that the valuer was to determine value for rental purposes under the use or uses permitted by the lease: valuations on a highest and best use basis were not as required by the rent review clause. D DECISION : Appeal allowed with costs. Orders below set aside and declarations requested in the Notice of Appeal made. Respondent to pay appellant's costs of the proceedings in the Equity Division.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40813/99 ED 50033/99