NSW Caselaw
Reported Decision : (2007) NSW Conv R 56-188
New South Wales Supreme Court
CITATION : Adwell Holdings Pty Ltd v Bourne [2007] NSWSC 730
HEARING DATE(S) : 25/06/07 JURISDICTION : Equity Division
JUDGMENT OF : Young CJ in Eq
EX TEMPORE JUDGMENT DATE : 25 June 2007
DECISION : Reasons given as to why valuer's report defective.
CATCHWORDS : LANDLORD & TENANT [51]- Rent- Rent review clauses- Reference to valuer- Valulation to be and to be set out in accordance with s 19 of Retail Leases Act 1994- Not mandatory that valuation be provided within one month of reference to valuer- Valuation flawed due to absence of detailed reasons.
Civil Procedure Act 2005, s 56 LEGISLATION CITED : Retail Leases Act 1994, ss 6(1)(b), 19, 19A, 32A Supreme Court Act 1970, s 63
Commonwealth of Australia v Wawbe Pty Ltd (1999) ANZ ConvR 597 CASES CITED : Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd (2001) 10 BPR 18,825; affirmed (2002) 11 BPR 20,201 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904
PARTIES : Adwell Holdings Pty Ltd (P) Robert James Thomas Bourne (D)
FILE NUMBER(S) : SC 3767/06
COUNSEL : B Sharpe (P) A Hatzis (D)
SOLICITORS : Gary Cleary & Associates (P) Thorntons Lawyers (D)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
YOUNG CJ in EQ
Monday 25 June 2007
3767/06 – ADWELL HOLDINGS PTY LTD v BOURNE JUDGMENT 1 HIS HONOUR: This is a dispute between landlord and tenant over the rent review provisions of leases in respect of the Henry Kendall Family Bistro and Tavern at West Gosford. There are two registered leases that I have to consider, each is in identical form, apart from amounts as to rent. One bears date 1 July 2000 and is in respect of shops 35-40 of the relevant shopping centre. The other bears date 1 April 2001, and is in respect of shops 41-42. Shops 35-42 are used as one commercial enterprise by the lessee. 2 Clause 2(a) of annexure "B" to both leases provides that rent is to be payable in accordance with the First Schedule. The relevant parts of the First Schedule - and I am looking at page 65 of PX02, that is, the lease of 1 July 2000 (the other lease is identical except as to figures) - provides, inter alia, as follows: "The amount of rent payable by the Lessee pursuant to Clause 2 of the Lease shall be calculated and payable as follows:
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