Haxglow Pty Ltd v Mirvac Retail Sub SPV Pty Ltd [2020] NSWSC 233

Supreme Court New South Wales

Medium Neutral Citation: Haxglow Pty Ltd v Mirvac Retail Sub SPV Pty Ltd [2020] NSWSC 233 Hearing dates: 4 March 2020 Date of orders: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Equity Before: Darke J Decision: Valuer's determination of current market rent held to be final and binding. Plaintiff entitled to recover over payment of rent. Defendants' cross-claim is dismissed. Catchwords: VALUATION – expert determination – valuer appointed pursuant to lease to determine current market rent – whether determination carried out in accordance with the terms of the lease – adequacy of reasons given by valuer – whether valuer required to comply with code of professional conduct – whether valuer failed to comply with code – whether valuer failed to disregard goodwill of lessee's business – whether valuer failed to have regard to incentives given to lessees of comparable premises – not shown that determination was not carried out in accordance with the provisions of the lease – determination held to be final and binding on the parties

LAND LAW – leases – rent – provision for review of rent – valuer appointed as expert to determine current market rent – whether determination carried out in accordance with the terms of the lease – adequacy of reasons given by valuer – whether valuer required to comply with code of professional conduct – whether valuer failed to comply with code – whether valuer failed to disregard goodwill of lessee's business – whether valuer failed to have regard to incentives given to lessees of comparable premises – not shown that determination was not carried out in accordance with the provisions of the lease – determination held to be final and binding on the parties Cases Cited: AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367; [2015] NSWCA 275 Data Base Corporate Pty Ltd v Strike Australia Pty Ltd [2019] NSWSC 271 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; 2017 HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Halifax Life Ltd v Equitable Life Assurance Society [2007] 1 Lloyd's Rep 528 Holt v Cox (1997) 23 ACSR 590 Kavinah Holdings Pty Ltd v Holdsworth Properties Pty Ltd (2001) 10 BPR 18,825; [2001] NSWSC 405 Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd (2002) 11 BPR 20,201; [2002] NSWCA 180 Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 576 Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; [2011] HCA 38 Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 Category: Principal judgment Parties: Haxglow Pty Ltd (Plaintiff/Cross-Defendant) Mirvac Retail Sub SPV Pty Ltd (First Defendant/First Cross-Claimant) Perron Investments Pty Ltd (Second Defendant/Second Cross-Claimant) Representation: Counsel: Mr A P Coleman SC with Mr J S Burnett (Plaintiff/Cross-Defendant) Mr A Fernon (Defendants/Cross-Claimants)