Acgrew Pty Ltd v Lartopi Pty Ltd [2014] NSWCATCD 94

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Acgrew Pty Ltd v Lartopi Pty Ltd [2014] NSWCATCD 94 Hearing dates: 27 May 2014 Decision date: 03 June 2014 Before: G Mullane, Senior Member Decision: 1.The application filed by Acgrew Pty Ltd on 31 March 2014 is incompetent and is dismissed (see s 32A of the Act) Catchwords: Retail Lease - Review of market rental by Specialist Retail Valuer - Party applies for Tribunal to revise valuation - no jurisdiction - proper remedy is Review under s 32A by two Specialist Retail Valuers Legislation Cited: Retail Leases Act 1994 Cases Cited: nil Texts Cited: nil Category: Principal judgment Parties: Acgrew Pty Ltd (applicant) Lartopi Pty Ltd (respondent) Representation: n/a n/a File Number(s): COM14/18216 Publication restriction: Nil

reasons for decision

INTRODUCTION 1By order of 29 April 2014 these proceedings were adjourned for a determination on the papers filed of the following issues: "a) Why the market rental determination of MJ Davis Reality Appraisals dated 31 January 2014 should not be binding on the parties pursuant to s.31 and 32 of the Retail Leases Act, 1994; and b) Why the application should not therefore be dismissed"

THE EVIDENCE 2The evidence comprised: (1)The Lease (2)The Application (3)A letter from Mr Furney of 11 April 2014 (4)Submissions by Leverage Solicitors of 17 April 2014 (5)The Tribunal's letter of 29 April 2014 with orders (6)H E Beaumont Submissions of 9 May 2014 (7)Further Submissions by Mr Furney dated 13 May 2014.

OTHER FACTS 3Mr R Goddard a registered Valuer and Specialists Retail Valuer, of the firm M J Davis Realty Appraisals, provided the parties with a review of the market rental value of the subject retail shop, being Shop 5, 78 Glenhaven Road, Glenhaven, as at 31 January 2014. 4This review was pursuant to s 32 of the Retail Leases Act 1994 ("the Act"). 5On 31 March 2014 the landlord, Acgrew Pty Ltd, being dissatisfied with Mr Goddard's figure, filed this application seeking that the Tribunal appoint another Specialist Retail Valuer to do a Review. The application was made on the basis that Mr Goddard's report contained errors and the Lessor and the Lessee could not agree on a market rental. 6Acgrew Pty Ltd relies on the opinions of a Mr Seroban, that the review of Mr Goddard has various alleged defects but also on opinions of Registered Valuer Robert Furney. 7There is no evidence that Mr Seroban is a Valuer. 8The instruction of Mr Goddard was made by the Lessor and Lessee by agreement.