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[2002] ACTSC 92
defendant. The plaintiff’s claim was dismissed. The Court declared that the ten-year lease was subject to the Tenancy Tribunal Act 1994 and that item 8 of Annexure A and covenant 10.2 of Annexure B were...
The Court treated the lease as a retail-premises lease because the premises were predominantly used for a business that included retail sales, even though most sales were to tradespeople. The retail sales to non-tradespeople were not negligible. Because the Code applied, a rent formula that selected whichever was greater, market rent or a 2% increase, was a prohibited multiple rent review clause and was void. The landlord’s claim was dismissed. Its evidence did not establish a basis for rectifying the lease, and the Court considered the Code’s operation depended on the premises’ use rather than the parties’ misunderstanding of the lease.
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1,987 words · generated 29/09/2026
Actionco Pty Limited leased land in Fyshwick, Canberra, to Pioneer Plasterboard Pty Limited for a ten-year term beginning on 1 April 1996 ([2]). The permitted use was linked to the purpose clause in the Crown lease and, in a marginal note, described a Pioneer Plastamasta Centre, including an office showroom and warehouse for selling plasterboard and related products ([3]–[5]).
2 cited instruments linked from this judgment.
The dispute focused on two questions: whether the lease was governed by the Commercial and Retail Leases Code of Practice, and whether the lease’s rent review arrangements were invalid under that Code ([6]). The business conducted at the premises mostly sold plasterboard and related products to tradespeople. Sales to non-tradespeople represented 2%–10% of the total value of sales. The parties accepted those sales were neither predominant nor de minimis ([13]).
The lease’s rent review provision stated “Market or 2%, whichever is the greater” for the initial term, with a similar formula for further lease periods ([8]–[9]). Actionco sought rectification, declaratory relief and/or damages for alleged failure to pay rent under the lease ([1]). Pioneer argued that the Code applied and sought a declaration that the relevant rent review provisions were void ([10], [25]).
Crispin J dismissed Actionco’s claim. The Court declared that the lease was subject to the Tenancy Tribunal Act 1994 and that item 8 of Annexure A and covenant 10.2 of Annexure B were multiple rent review clauses, and therefore void under the Code ([Order], [26]–[27]). The order left costs and any further orders for later consideration ([Order]).
The first issue was the statutory meaning of “retail premises”. Section 75 of the Tenancy Tribunal Act made the Code applicable to retail-premises leases. Section 3 of the Act and cl 2 of the Code defined retail premises as premises used, or intended to be used, wholly or predominantly for carrying on a business “involving” retail sales or retail services ([11]–[12]).
Actionco argued that the business itself had to be predominantly retail and that sales to tradespeople could not be retail sales ([14]). Crispin J rejected the proposed reading of the definition. In his construction, “predominantly” qualified how the premises were used, while “involving” was not qualified in the same way. Accordingly, the premises had to be predominantly used for carrying on a business, but that business did not itself need to be predominantly retail ([17]).
The Court also relied on the accepted fact that sales to non-tradespeople, although a minority, were not de minimis. The judge concluded that the premises were predominantly used for carrying on a business involving retail sales, so the Code applied ([19]). This conclusion did not require a determination of whether plasterers buying the products were ultimate consumers. The judge considered the evidence insufficient to resolve that question and, in any event, unnecessary given his construction of the definition ([18]).
The rent review issue followed from the Code’s definition of a multiple rent review clause. Clause 44 made such a provision void. Clause 2 included a provision that selected whichever of two or more methods of calculating a rent change resulted in the higher rent ([25]). The words “Market or 2%, whichever is the greater” fell within that definition. The relevant clauses were therefore void ([26]).
The Court also addressed the landlord’s rectification and estoppel positions. The lease was prepared by Actionco’s solicitors; references to the Code were included in the first draft and remained through a lengthy negotiation. The evidence of Actionco’s director showed, at most, that he may not have understood that the lease could permit rent to fall if market rents fell ([21]). Drawing on Bacchus Marsh Concentrated Milk Co Ltd (in Liquidation) v Joseph Nathan & Co, the judge distinguished a mistake in the words used from a mistake about their legal effect. The evidence did not establish a basis for rectification ([21]).
As to estoppel, there was no evidence that Pioneer took advantage of Actionco’s mistake or knew of it ([22]). More broadly, the Code applied because of the premises’ use or intended use, not because of the parties’ contractual description or understanding. Clauses 11 and 12 of the Code provided that it prevailed over inconsistent lease terms and that a lease was to be read as including provisions required by the Code ([23]).
This judgment applied the statutory definition and Code provisions as they stood in the dispute before Crispin J in 2002. The judgment does not set out a comprehensive account of the law before enactment of the Tenancy Tribunal Act 1994 or describe subsequent legislative changes. Its contribution, on the materials provided, is its application of the statutory language to a commercial lease involving both wholesale-looking trade sales and a smaller amount of sales to non-tradespeople.
Before the decision, the parties advanced competing readings of “predominantly”. Actionco’s interpretation would have required the business to be predominantly retail. The Court instead read the grammar of the definition as making the predominant-use requirement apply to the premises’ use, while the business merely had to involve retail sales or services ([14], [17]). This gave practical significance to the word “involving”: a mixed business could fall within the definition even if retail sales were not the main component, provided the premises were predominantly used to carry on that business and the retail element was not de minimis on the facts considered ([17]–[19]).
The judgment also applied a direct statutory consequence to the rent review mechanism. It did not treat the choice between market rent and a 2% increase as simply a matter of contractual interpretation. Because the formula selected the higher result, it fell within the Code’s definition of a multiple rent review clause and was void under cl 44 ([25]–[26]).
The judgment does not establish a broad rule that every sale to a trade customer is a retail sale. Crispin J expressly left open whether plasterers were ultimate consumers of the goods in particular transactions, because that factual question was unnecessary to the outcome ([18]). The decision’s reasoning on the lease’s coverage instead turned on the statutory wording and the accepted non-de-minimis sales to non-tradespeople ([17]–[19]).
At [17], Crispin J said: “the adverb ‘predominantly’ relates to the use of the premises and the word ‘involving’ is not similarly qualified.” In plain English, the premises must mainly be used for a business, but the business does not have to make most of its income from retail activity. It is enough, for this aspect of the definition, that the business includes retail sales or services.
At [19], the judge said it was “inescapable” that the premises were used predominantly for carrying on a business involving retail sales. That conclusion depended on the agreed evidence that there were sales to non-tradespeople, and that those sales were more than negligible. It did not depend on treating the tradespeople as retail consumers ([13], [18]–[19]).
At [26], the judge held that the relevant terms “do constitute multiple review clauses and are accordingly void.” In ordinary language, the rent formula’s comparison of market rent against a 2% increase, with the higher result applying, was the type of clause the Code prohibited.
At [21], the judge relied on the distinction between putting the wrong words into a document and misunderstanding the legal effect of words that are there. The evidence showed the latter at most. It did not show that the lease’s wording failed to record the parties’ agreement because of a relevant drafting mistake.
The reasoning is most directly relevant to a lease where premises are used predominantly for a business that includes some retail sales or services, even if retail activity is not the business’s dominant feature. A key factual marker here was that the retail sales to non-tradespeople were not de minimis ([13], [17]–[19]). The judgment does not set a numerical threshold for when retail activity becomes more than de minimis, and it does not decide how the definition applies where the only sales are to trade customers.
The decision is also directly relevant to lease wording that compares two rent-review methods and selects the higher rent. The example before the Court was “Market or 2%, whichever is the greater” ([8]–[9], [26]). The judgment’s application of cl 2 and cl 44 would be relevant to assessing whether a similar formula falls within the Code’s definition, subject to the applicable legislation and the actual terms of the lease.
For rectification, the relevant fact pattern is a party asserting that a lease should be corrected because it did not understand the legal effect of wording that was included in the executed document. In this case, the lease had been drafted by the plaintiff’s solicitors, the Code references remained through negotiations, and the evidence did not establish a mistaken inclusion or omission of words ([21]). The judgment does not decide what the result would be where evidence establishes that the written instrument failed to record an actual common intention.
The judgment supplied here contains no decisions from later courts and gives no account of subsequent judicial treatment of Actionco v Pioneer Plasterboard. On the supplied source alone, it is not possible to state that later courts followed, distinguished, limited or overruled this decision.
Within its own reasoning, Crispin J considered several earlier authorities. He referred to Turpin v Assessment Committee for Middlesbrough Assessment Area and 536 Swanston Street Pty Ltd v Harbrut Pty Ltd when explaining a formulation of retail premises as a place the public could visit to have wants supplied or services rendered ([15]). He also considered Collector of Customs v Chemark Services Pty Ltd on the meaning of retail sales and the possibility that professionals may be ultimate consumers ([15], [17]–[18]).
The Court distinguished the relevance of Sorbara & Ors v DJ and AJ McCallum Pty Ltd to the particular statutory question before it. Crispin J noted that the remarks relied on from that decision did not appear to resolve whether a business involving retail sales had to be predominantly retail, and that any such view would have been obiter ([16]). For the rectification issue, the judge applied the principle quoted from Bacchus Marsh Concentrated Milk Co Ltd (in Liquidation) v Joseph Nathan & Co ([21]). These references explain the authorities used in this judgment; they do not establish later treatment of Actionco.
Several matters were expressly left unresolved. First, the Court did not decide whether plasterers buying plasterboard were ultimate consumers. It said that the answer could depend on the goods, the purpose of purchase and the transaction with the customer, and that the evidence did not permit an adequate examination of those issues ([18]).
Second, the judgment does not define a general threshold for deciding when retail sales are de minimis. It applied the parties’ agreement that the 2%–10% of sales to non-tradespeople could not be dismissed as de minimis in this case ([13], [19]). It does not state how different sales proportions, patterns of use or types of retail transaction would be treated.
Third, the Court did not decide what consequences would have followed if the Code applied only because it had been incorporated into the lease rather than by operation of law. The lease contained an express Code reference, but the judge found it unnecessary to resolve Actionco’s argument about the consequences of contractual incorporation ([20]).
Finally, although the Court discussed the Building Act 1972 certificate allegation, Pioneer did not press that claim. The judgment’s discussion of the lease and occupancy certificate therefore did not form part of the necessary basis for the principal declarations ([24]). The reasons also left costs and any further orders open for later consideration ([Order], [28]).
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2. it be declared that the lease between the parties of the land described at Section 13, Block 4, Plan 40, Vol 56, Folio 5503, Fyshwick ACT for a period of 10 years from 1 April 1996 is a lease to which the Tenancy Tribunal Act 1994 applies;
3. it be declared that item 8 of Annexure A and covenant 10.2 of Annexure B of the lease constitute multiple rent review clauses within the meaning of the Commercial and Retail Leases Code of Practice made under s 75 of the Tenancy Tribunal Act 1994 and are accordingly void; and
4. the parties have liberty to bring into Court short minutes of any further orders that may be required including orders as to costs or, in default of agreement, to apply for further further orders on seven days notice.
1. This is an action for rectification of a lease, declaratory relief as to its terms and/or damages for failure to pay rent as required by its covenants.
2. The lease provided for the defendant to lease land described as Section 13, Block 4, Plan 40, Volume 56, Folio 5503, Fyshwick, ACT ("the land") from the plaintiff for a term of 10 years from 1 April 1996.
3. It was a term of the lease that the defendant would use the land only for the purpose set out in item 11 of the Schedule comprising Annexure A. That contained the description "Permitted use: In accordance with the purposes clause in the Crown Lease*". However, a further description was added by a marginal note in the following terms:
*And in particular while the tenant or any Franchisee or Sub-Lessee of the Tenant is in occupation, for use as a Pioneer Plastamasta Centre including using parts of the premises as an office showroom and warehouse for the sale of plasterboard and other associated products.
4. The relevant clause in the Crown Lease ("the purpose clause") provided that the land should be used "only for the purpose of an industry or industries (other than a noxious trade) and for any purpose subsidiary to such industry or industries provided that not more than any one residence shall be enacted on the lands".
5. It was not disputed that the demised property was used for the conduct of a business consistent with that described in the marginal note quoted. Nor was it disputed that the sale of plasterboard and associated products could properly be regarded as subsidiary to an industry as required by the purpose clause.
6. The real issue between the parties was whether the lease was subject to the Commercial and Retail Leases Code of Practice ("the Code") approved under s 75 of the Tenancy Tribunal Act 1994 and whether, as a consequence, the provisions relating to reviews of rent were ineffective.
7. Covenant 10 of Annexure B of the lease was in the following terms:
Rent Review Dates
10.1 The rent is to be reviewed during the initial period of this lease on the dates set out in Item 8 of the Schedule and during any further lease period on the dates set out in Item 10 of the Schedule.
Rent Review Method
10.2 The method for fixing the new rent on a rent review date during the initial period of this lease is stated in Item 8 of the Schedule and during any further lease period of the dates stated in Item 10 of the Schedule.
Fixed amount or percentage Rent Review
10.3 If this method of rent review is stated in Items 8 or 10 of the Schedule, the rent from the rent review date will be the fixed amount or will be increased by the percentage.
Consumer Price Index ("CPI") Rent Review
10.4 If CPI adjustment dates are stated in Items 8 or 10 of the Schedule, then the rent from and including each of the rent review dates is the rent payable immediately before the date multiplied by the Consumer Price Index (Canberra All Groups) number for the last quarter before that date divided by that index number for the same quarter ending 12 months before that date.
Market Rent Review
10.5 If market review dates are set out in Items 8 or 10 of the Schedule either you or we, not more than 4 months before the rent review date, may give the other a notice stating the amount which is the current market rent for the property. If agreement is reached, that amount will be the new rent from the rent review date.
10.6 If agreement is not reached within 28 days after the notice is given, then either we or you may refer the matter to the Registrar of the Tenancy Tribunal for mediation.
10.7 If mediation does not achieve agreement, then the market rent is to be determined by a valuer agreed upon by us and you in accordance with the principles contained in Schedule 3 of the Code, or, failing agreement, appointed by the Registrar of the Tenancy Tribunal in consultation with the President of the ACT Division of the Australian Institute of Valuers and Land Economists.
Rent review dates and Method of rent review:
Rent review date: Method of rent review:
1 April 1999 Market or 2%, whichever is the greater and thereafter every three years.
Rent review dates and Method of Review of new lease/s:
Rent review date: Method of rent review:
Every three years Market or 2%, whichever is the greater
10. Mr Thomas, who appeared for the plaintiff, conceded that there might be some measure of inconsistency in these provisions but maintained that, no matter what their overall effect, the provisions nonetheless governed the rights and obligations of the parties in relation to any variation of the rent payable under the lease. On the other hand, Mr Erskine, who appeared for the defendant, submitted that the code applied.
11. As Mr Erskine pointed out, s 75 of the Tenancy Tribunal Act provides that the Code applies to the lease of "retail premises".
12. The term "retail premises" is defined both by s 3 of that Act and by cl 2 of the Code to mean:
[P]remises that are used, or are intended to be used, wholly or predominantly for carrying on a business involving -
(a) the sale or hire of goods by retail; or
(b) the provision of services by retail.
13. It was common ground that the business carried on from the premises consisted mostly of the sale of plasterboard and related products to tradespeople, and that sales to other "non-tradespeople" amounted to only 2%-10% of the total value of sales. It was also common ground that this volume of sales to people other than tradespeople could neither be described as predominant nor dismissed as de minimis.
14. Mr Thomas argued that the definition in s 3 of the Tenancy Tribunal Act should be construed so that the term "retail premises" applied only to premises used by businesses trading in such a manner that the predominant value of sales were retail sales. He also argued that sales to tradespeople could not be so described.
15. In support of these contentions Mr Thomas relied upon a number of authorities including 222 Pty Ltd v St George Bank Ltd (unreported, ACT Tenancy Tribunal, President Somes, 20 September 1995). In that case, however, the Tribunal cited the decision of the House of Lords in Turpin v Assessment Committee for Middlesbrough Assessment Area [1931] AC 470 and adopted the formulation suggested by Viscount Dunedin at 144 that retail premises were premises "to which the public can resort for the purposes of having particular wants supplied and services rendered therein". This formulation was also adopted by Kaye J in 536 Swanston Street Pty Ltd v Harbrut Pty Ltd (1988) Vic Conv Rep 54-323. See also Redfern, M, "The Retail Tenancies Act - An Update", Law Institute Journal, October 1990, 943. The Tribunal also referred to the decision of the Full Court of the Federal Court of Australia in Collector of Customs v Chemark Services Pty Ltd [1993] FCA 291; (1993) 114 ALR 531 in which Spender, Einfield and Lee JJ stated that:
The weight of authorities seems to us to support a conclusion that the words "retail sale" have generally acquired a specialised meaning of a sale to an ultimate consumer. We do not think that the usage of the term limits such consumers to ordinary members of the public. The fact that in the present case almost all of the goods imported by the respondent were directly sold to professional horticulturalists and not ordinary gardeners as ultimate consumers is in our opinion irrelevant.
Professionals can still be described as ultimate consumers . . . Likewise, although more often than not a retail sale will be both a sale to the ultimate consumer and a sale of goods in a quantity not larger than necessary to satisfy the ordinary non-professional purchaser, some sales in larger quantities will also be retail.
16. More support for the first of Mr Thomas' contention can be found in the judgment of Phillips JA in Sorbara & Ors v DJ and AJ McCallum Pty Ltd [1998] VSCA 71; (1999) 2 VR 1 at 6 where, in the context of a definition of "retail premises" which was substantially identical to that contained in s 3 of the Tenancy Tribunal Act, his Honour said that "the test remains whether, `under the terms of the lease', the premises `are used, or are to be used, wholly or predominantly for the carrying on of' a retail business". After some discussion about the possibility of mixed use or discrete use in some physically separate portion of the premises, his Honour continued "it is the whole of the premises which are demised and which ex hypothesi . . . are used, or to be used, `wholly or predominantly for the carrying on of' a retail business". However, the issues raised in that case do not appear to have required the resolution of any question as to whether the concept of "a business involving the sale or hire of goods by retail or the retail provision of services" could be regarded as being co-extensive with the concept of a "retail business" and even if his Honour's remarks should be taken to reflect such an opinion they were obiter.
17. In any event, I am unable to accept that the phrases can be conflated in the manner Mr Thomas suggested. As the Full Court of the Federal Court of Australia confirmed in Collector of Customs v Chemark Services Pty Ltd, words in a statute should be given their ordinary and natural meaning unless that meaning leads to an absurdity or some repugnance or inconsistency with the rest of the Act. That principle has long been recognised. See also Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106; [1857] EngR 335; 10 ER 1216 at 1234 per Lord Wensleydale and Australian Boot Trade Employees Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311 at 341-2 per Higgins J. Despite Mr Thomas' argument that the Code was obviously directed only to businesses with a predominantly retail trade, I am unable to accept that the definition contained in the Tenancy Tribunal Act and the Code should be so interpreted. As Mr Erskine pointed out, the adverb "predominantly" relates to the use of the premises and the word "involving" is not similarly qualified. Hence, while the premises must be used predominantly for carrying on a business and the business must involve the sale or hire or goods by retail or the provision of services by retail, it is unnecessary for the business to be predominantly retail in nature. Furthermore, to return to the formulation adopted by the House of Lords in Turpin v Assessment Committee for Middlesborough Assessment Area, even if the bulk of the trade consisted of sales to plasterers, the premises were clearly "premises to which the public could resort for the purposes of having particular wants supplied and services rendered therein".
18. Mr Erskine also argued that sales to tradespeople might well fall within the concept of retail sales. He submitted that the fact that goods were sold to professional plasterers was of no more significance than the fact that the imported goods with which the Full Court of the Federal Court of Australia had been concerned in Collector of Customs v Chemark Services Pty Ltd had been sold to professional horticulturalists. Mr Thomas demurred, arguing that the principle recognised in that case was inapplicable because plasterers usually buy plasterboard products for subsequent resale to their customers. However, I do not think that I can safely act upon such an assumption. The question of whether a tradesperson is an ultimate consumer of particular goods may depend upon the nature of the article, the purpose for which it is acquired and, perhaps, the nature of the transaction with the customer. There is insufficient evidence to enable me to adequately explore any of these issues and I do not accept that the relevant trade custom and practice is so generally known that it may be the subject of judicial notice. In any event, since I have concluded that the definition contained in s 3 of the Tenancy Tribunal Act and cl 2 of the Code do not require that the sales of the business be predominantly retail, it is unnecessary for me to resolve this issue.
19. Since it is common ground that the retail sales made from demised premises even to non-tradespeople could not be dismissed as de minimus, it is in my opinion inescapable that the premises were used, and were intended to be used, wholly or predominantly for carrying on a business involving the sale of goods by retail. Accordingly, the Code applies to the lease.
20. Mr Erskine also submitted that even if the lease had not fallen within these definitions, the Code would nonetheless have applied because it had been expressly adopted by the lease itself. Covenant 1.2 of Annexure B to the lease provided that "this lease is subject to the Commercial and Retail Leases Code of Practice approved under s 5 of the Tenancy Tribunal Act 1994 ("the Code")". Furthermore, covenant 28 begins with the heading, in capital letters and bold type, "Compliance with Commercial and Retail Leases Code of Practice" and provides a number of acknowledgements from the defendants as to matters relevant to the application of the Code. In view of these provisions I would have had little doubt that the provisions of the Code had been effectively incorporated into the lease. However, as I have mentioned, I am satisfied that the Code applies to the lease by operation of law and it is unnecessary for me to consider Mr Thomas' contentions that different consequences might have ensued had the Code been applicable to the lease only by incorporation in that manner.
21. Mr Thomas did not pursue the claim for rectification and in my opinion there was no evidence to support such a claim. Mr Hales, a director of the plaintiff company, gave evidence to the effect that he had understood that the terms of the lease ensured that the rent could not be reduced and that he would never have agreed to a provision permitting such a reduction. However, the lease had been drafted by the plaintiff's solicitors and the references to the Code had been included in the first draft. Mr Hales had suggested various changes but those references had been maintained throughout a lengthy course of negotiation. His evidence revealed, at most, that he may have failed to appreciate that the terms of the lease might not have precluded a reduction in rent in the event of a fall in prevailing market rents. As Higgins J said in Bacchus Marsh Concentrated Milk Co Ltd (in Liquidation) v Joseph Nathan & Co [1919] HCA 18; (1919) 26 CLR 410 at 451:
If some words have been put into the instrument which were not meant to be put in, or if some words have been left out of the instrument which were meant to be there, equity relieves; but according to the cases, it does not relieve where the mistake is as to the legal effect of certain words that the instrument contains.
22. Mr Thomas was also unable to pursue any claim based upon estoppel. There was no evidence to suggest that the defendant had taken advantage of the fact that the plaintiff had been acting under some mistaken view as to the effect of the contract or even that it had been aware of any such mistake.
23. In any event, the application of the Code is dependent upon the use or intended use of the premises and not upon the terms of the lease. Indeed, cl 11 of the Code provides that "except as otherwise provided in the Code, where there is an inconsistency between a provision of [the] Code and a provision of a lease or an agreement to a lease, the Code shall prevail". Clause 12 adds that "[n]otwithstanding that a lease may not include provisions required by the Code to be included in the lease, the lease shall be read as though those provisions were included in the lease". In these circumstances it is difficult to see how any rectification of the lease could have avoided the operation of the Code or how such a consequence could have been avoided by any application of the principles of estoppel.
24. I should, perhaps, mention that the Further Amended Defence and Counter Claim includes an allegation that the lease is void or, alternatively, unenforceable because at the commencement of the term a Certificate under s 53 of the Building Act 1972 was not in force in relation to the buildings on the premises and the lease, or alternatively, the occupation of the premises in accordance with the lease, was prohibited by s 54 of that Act. Perhaps understandably, Mr Erskine did not press this claim. The lease granted the defendant exclusive possession of the whole of the demised property. It did not purport to authorise or permit occupancy of the building or part of the building in the absence of a Certificate of Occupancy. Indeed, covenant 12.2 provided that the defendant "must prior to occupying the property, obtain from the proper authority a certificate of fitness for occupancy and use with respect to [the defendant's] fitout of the property and deliver this certificate to [the plaintiff]". Section 54 does not preclude leases of property prior to the issue of occupancy certificates for any buildings. In fact, virtually all houses in Canberra have been constructed on vacant land leased from the Crown and it would have been surprising if, in the face of that widespread practice, the legislature had intended to preclude the grant of any lease until buildings had been completed and occupancy certificates issued.
25. Mr Erskine did, however, seek declaratory relief in relation to the provisions of item 8 of Annexure A and covenant 10.2 of Annexure B of the lease. He relied upon cl 44 of the Code which provides that "[a] provision of a lease relating to a rent review which is a multiple rent review clause or a ratchet clause is void". The term "multiple rent review clause" is defined by cl 2 of the Code to mean a provision in a lease that:
(a) has the effect of reserving to a party a discretion as to which of 2 or more methods of calculating a change to rent is to apply; or
(b) provides for rent to change in accordance with whichever of 2 or more methods of calculating the change would result in the higher or highest rent;
whether generally, or on a particular occasion.
26. In my opinion the provisions contained in item 8 of Annexure A and covenant 10.2 of Annexure B clearly purport to have the effect referred to in paragraph (b) of this definition. Hence, they do constitute multiple review clauses and are accordingly void.
27. For these reasons the plaintiff's claim must be dismissed and the defendant is entitled to the relief sought in the counter-claim.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Actionco Pty Ltd
Pioneer Plasterboard Pty Ltd [2002] ACTSC 92
(1993) 114 ALR 531
(1999) 2 VR 1
(1910) 11 CLR 311
(1919) 26 CLR 410
The plaintiff’s claim was dismissed. The Court declared that the ten-year lease was subject to the Tenancy Tribunal Act 1994 and that item 8 of Annexure A and covenant 10.2 of Annexure B were multiple rent review clauses within the meaning of the Code and therefore void. The parties had liberty to bring in further short minutes, including as to costs ([Order]).
10.8 Whatever amount the valuer decides on is the rent from and including the relevant market review date.
10.9 Until the new rent is determined, you must continue to pay to us the amount of rent payable immediately before the rent review date.
10.10 On the next rent day after the new rent is determined, you must pay us, or we must credit you with, the difference between what you have paid as rent and what you should have paid as rent from and including the rent review date.