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[2012] NSWADT 193
plaintiff. Declaration that the parties are not bound by the valuation of David Bird dated 29 March 2011 as it is not a valuation for the purposes of s 31; interim appointment of Richard Wood confirmed;...
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Tenants who exercised an option to renew their post-office lease could not agree rent with the landlord. The landlord's valuer produced a report that looked at rents in the shopping centre and at various suburban shops but never explained what rent a vacant post office would command or how the statutory factors affected the final figure. The Tribunal held the report was not a valid valuation under s 31 because it ignored the 'unoccupied same-use' test and gave no reasons linking the listed factors to the outcome. A new valuer was appointed and the landlord was ordered to pay the tenants' costs because it had ignored the tenants' pre-hearing warnings.
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Casaran Pty Ltd leased shop 22 in Bangor Shopping Centre to operators of a licensed post office. The registered lease ran from 12 March 2009 to 11 March 2011 and contained an option for a further five-year term. Clause 37 of the lease required any disputed current market rent to be determined on the same basis later codified in s 31(1)(a) of the Retail Leases Act 1994: an arm's-length transaction between a willing lessor and willing lessee on an effective-rent basis, having regard to the lease provisions, the hypothetical unoccupied letting for the same or substantially similar use, gross rent less outgoings payable by the lessee, and rent concessions or benefits typically offered.
The lease was assigned to Robert, Susan and Stephen Hunt. When the option was exercised the parties could not agree on rent. Casaran appointed David Bird of Kohler Bird, who produced a valuation dated 29 March 2011 assessing current market rent at $23,030 gross per annum plus GST (or $490 per square metre). The Hunts considered the report defective. They commenced two applications in the Administrative Decisions Tribunal: one seeking appointment of a specialist retail valuer under s 31(1A) and the other seeking a declaration that Mr Bird's report was not a valuation for the purposes of s 31.
An interim appointment of Richard Wood was made on 3 November 2011 subject to objection. The matters were heard together on 29 February 2012 before Judicial Member D R Bluth. The parties sensibly agreed that if the Tribunal found Mr Bird's valuation invalid the appointment of Mr Wood would be confirmed. After reviewing the report against the statutory checklist the Tribunal held that it failed to address, with any reasoned explanation, the hypothetical rent for an unoccupied shop let for the same or substantially similar use. No comparable post-office lettings were analysed and the "Approach to Valuation" section simply asserted that regard had been had to concessions without linking that assertion to the statutory factors. The Tribunal therefore declared that the parties were not bound by the Bird valuation, confirmed Mr Wood's appointment, and ordered Casaran to pay the Hunts' costs on the ordinary party-and-party basis.
Judicial Member Bluth began by noting that clause 37 of the lease mirrored the language of s 31(1)(a) and that there was therefore no inconsistency between the contractual and statutory tests. He then examined the three earlier Tribunal decisions that had considered the sufficiency of specialist retail valuations.
He recorded Molloy JM's view in Perri v Exego Pty Limited [2009] NSWADT 170 that a valuation that adopted the API definition rather than the statutory effective-rent basis, omitted any reference to unoccupied similar-use lettings, and failed to address rent concessions could not satisfy the statutory imperative in s 31(1)(c). He contrasted that with Fox JM's view in Richardson v Lockevo Pty Ltd [2010] NSWADT 305 that s 31(1)(a) is not an exclusive code and that a valuer, acting as an expert, may have regard to additional matters provided the statutory factors are considered and any additional matters are clearly explained.
The most recent and, in Bluth JM's view, compelling analysis was that of Molony JM in Eastpoint Shopping Village Pty Ltd v Grayson Pty Ltd [2011] NSWADT 68. Molony JM had held that while a valuer is not confined to the four statutory matters, the valuer must still address each of them with reasons that explain how they feed into the final figure. An assessment of sufficiency looks at the document as a whole, not with an eye "keenly attuned to a perception of error". The reasons must show that the valuer turned his or her mind to the statutory hypotheses.
Applying that framework, Bluth JM examined the Bird report section by section. Sections 1-4 contained an executive summary, locality description, building description and a recital of the lease. Section 5 offered general market commentary noting that the centre was fully let, that recent renewals had produced higher rents, and that the post office attracted specific trades. Section 6 set out a table of five leases within Bangor Shopping Centre (none of them post offices) and a further list of ten suburban retail premises ranging from a bank to a gourmet butcher, pizza shop, café, massage parlour and bakery. None of the comparables was analysed for similarity of use to a licensed post office.
Section 7, "Approach to Valuation", asserted that the valuer had had regard to rent concessions because the original lease had included a three-month rent-free period and that a hypothetical new tenant might expect the same. The report then converted that concession into a 5 per cent annual discount but immediately qualified it by noting that the most recent lettings in the centre had involved no incentives. The report concluded that $490 per square metre gross was reasonable.
Bluth JM could find "no meaningful discussion" of the s 31(1)(a)(ii) factor. There was no analysis of what rent would be offered for an empty shop marketed specifically as suitable for a licensed post office. The comparables were of entirely different retail categories. The reasons did not explain how the statutory factors had been weighed or why the post-office-specific attributes (or the absence of outgoings recovery) produced the adopted rate. That failure meant the report did not satisfy the duty imposed by s 31(1)(c) and (e) to "contain detailed reasons for the specialist retail valuer's determination and to specify the matters to which the valuer had regard".
Because the valuation was not one made "for the purposes of" s 31, the parties were not bound by it. The interim appointment of Mr Wood was therefore confirmed by consent. On costs, the Tribunal relied on the three pre-hearing letters from the applicants' solicitor that had set out the precise statutory deficiencies and had invited dialogue. The absence of any reply was treated as a relevant matter under s 88(1A)(e) of the Administrative Decisions Tribunal Act 1997, making it fair that the respondent bear the applicants' costs.
Before Hunt v Casaran the Tribunal had two competing lines of authority. Perri treated the statutory list in s 19(1)(a) (and by extension s 31(1)(a)) as a code; any departure or omission rendered the valuation invalid. Richardson treated the list as a mandatory but non-exclusive set of considerations; additional expert matters could be taken into account provided they were disclosed and explained. Eastpoint reconciled the tension by holding that the subsection is not a code but that each listed factor must nevertheless be addressed with reasoned explanation. Bluth JM expressly adopted the Eastpoint synthesis at paragraph 30 of his reasons. That position has become the orthodox view in the Tribunal.
After Hunt it is clear that a valuation that recites the statutory language, lists rents from dissimilar uses, and contains only a conclusory assertion that regard has been had to concessions will not pass muster. The decision emphasises that the reasons must show how each statutory hypothesis influenced the final figure. The obligation is not satisfied by general market commentary or by a table of raw rental evidence. The decision also illustrates that the Tribunal will look at the valuation as a whole but will not rescue a report that simply omits any analysis of the "unoccupied same or substantially similar use" limb.
The costs aspect reinforces that a party who receives a detailed written critique of a valuation and chooses to maintain the position that the valuation is valid does so at the risk of an adverse costs order if the Tribunal ultimately agrees with the critique.
Paragraph 30: "sections 19 and 31 set out the basis upon which current market rent valuations are to be made. Whilst the requirements in sections 19 and 31 are not codes as such and a valuer can take into account other matters, the valuer must have regard to the matters in subsection 31(1)(a)(i)-(iv)."
Plain English: The Act does not handcuff the valuer to only four things, but the valuer must still talk about each of those four things and show that they were taken into account.
Paragraph 31: "On reviewing the Valuation, the Tribunal cannot find any meaningful discussion by the valuer on the matters to be considered under s 31(1)(a)(ii) (iv), in particular s 31(1)(a)(ii). ... There were no comparable premises mentioned in Section 6 at all, the premises referred to were a butcher, a bakery, pizza shop and a café to name but a few. Nothing like a Post Office."
Plain English: The valuer never explained what rent an empty post office would fetch if it were offered on the open market. All the comparison shops were for completely different businesses. That silence is fatal.
Paragraph 42 of Eastpoint (adopted at para 23): "Each of the factors set out in that sub section should be addressed by the valuer, and reasons given for the conclusions reached about them. Those conclusions should explain how each of those matters is taken into account in arriving at the valuation."
Plain English: It is not enough to say "I looked at everything." The report must show the intellectual workings that connect each statutory factor to the final rent figure.
Paragraph 35 (costs): "The Tribunal considers these letters are relevant in the context of consideration of costs pursuant to s88(1A)(e) and just as relevant that there was no reply from the Respondents. They clearly spell out the intentions of the Applicant and invited discussion. With no response the Applicants were faced with no choice but to proceed."
Plain English: If you ignore a detailed warning that your valuation is defective, you may have to pay the other side's legal bill even though costs orders are rare in the Tribunal.
Hunt v Casaran is triggered whenever a party challenges a specialist retail valuer's report on the ground that the report fails to demonstrate, with reasons, that each of the four s 31(1)(a) matters was considered. The most common trigger is the absence of any analysis of the hypothetical rent for an unoccupied shop let for the same or substantially similar use. A valuation that relies solely on rents achieved by butchers, cafés or other dissimilar retail categories in the same centre or suburb is vulnerable.
The precedent also applies where the report contains only a bare assertion that "regard has been had" to rent concessions or effective rent without showing how those matters altered the adopted rate. Because the Hunts' lease contained a clause that mirrored the statutory language, the case is directly on point for any lease that incorporates or is deemed to incorporate the s 31 formula. It is equally applicable to s 19 rent reviews during the term.
The costs aspect is engaged when a party has been given clear written notice of the statutory deficiencies before the hearing and elects to defend the valuation without answering the critique.
Although the judgment is from the former Administrative Decisions Tribunal, its reasoning has been treated as persuasive in the Civil and Administrative Tribunal of New South Wales. Subsequent decisions have cited Hunt for the proposition that a valuation must contain "meaningful discussion" of each statutory factor and that the absence of any analysis of the same-use hypothetical is fatal. The synthesis that s 31(1)(a) is not a code but still requires explicit reasoned engagement with each listed matter has been followed rather than distinguished.
The case has been referred to in decisions concerning the adequacy of reasons in valuations of shopping-centre kiosks and suburban retail premises where the valuer relied on broad market evidence without tying that evidence back to the statutory hypotheses. No later decision has criticised or limited Hunt; instead it is routinely grouped with Perri, Richardson and Eastpoint as part of the settled line of authority on the minimum content of a compliant s 31 valuation. The costs reasoning has also been applied in retail lease disputes where one party has ignored pre-hearing correspondence that squarely raised statutory non-compliance.
The judgment leaves open precisely how much detail is required when the valuer concludes that no directly comparable same-use unoccupied lettings exist. Is a reasoned explanation that "no post-office premises have been let in the last two years and therefore reliance is placed on adjusted evidence from similar service retail" sufficient, or must the valuer go further and construct a hypothetical leasing scenario? Hunt does not answer that question because the Bird report contained no such explanation at all.
Another open question is the interplay with s 31(1B), which requires the valuer to consider written submissions from the parties. If a party supplies a submission that expressly directs the valuer to the same-use issue and the valuer still fails to address it, does that strengthen the case for setting the valuation aside? Hunt did not have to decide the point.
Finally, the decision assumes that the valuation must be read as a whole and that minor omissions may be overlooked, yet it treats the complete absence of any discussion of one statutory integer as decisive. Later cases will need to calibrate where the line is drawn between "undue attention to minutiae" and a wholesale failure to engage with a mandatory statutory hypothesis. Until that line is drawn with greater precision, valuers and their instructing solicitors must ensure that every statutory factor receives its own heading or paragraph containing both analysis and a clear explanation of its influence on the final rent.
REASONS FOR DECISION 1Casaran Pty Ltd (the Respondent) leased retail shop premises shop 22 Bangor Shopping Centre (the Premises) originally to the Lessee named in the Lease under a registered Lease which commenced on 12 March 2009 until 11 March 2011 (the Lease). The Lease contained an option for renewal for five years from 12 March 2011. 2The premises were to be used as a Licensed Post Office. The commencing rent was $16,363.64 per annum plus GST. The Lease was assigned to Robert Hunt, Susan Hunt and Stephen Hunt, (the Applicants). 3The lease made provision for annual CPI increases of rent. On exercise of the option, if the rent payable for the first year of the new lease was not agreed between the parties then pursuant to Clause 32(a) of the Lease the rent was to be the then current market rent determined in accordance with Clause 37. 4Clause 37(a) of the Lease provides: "The current market rent of the demised premises is the rent that would be reasonably be expected to be paid for the property, determined on an effective rent basis, having regard to the following matters: (i) the provisions of this lease; (ii) the rent that would reasonably be expected to be paid for the property if it were unoccupied and offered for renting for the same or substantially similar use to which the property may be put under this lease; (iii) the gross rent, less the landlords outgoing payable by the tenant; (iv) rent concessions and other benefits that are frequently or generally offered to prospective tenants of unoccupied retail shops. The current market rent is not to take into account the value of goodwill created by the lessee's occupation the value of the lessee's fixtures and fittings on the demised premises." 5When the time came for the rent to be reviewed on a current market rent basis the parties were unable to agree as to a new rent, and a valuer Mr David Bird of Kohler Bird was appointed to conduct the valuation to determine the rent (the Valuation). 6Mr Bird prepared a rental valuation, dated 29 March 2011, which determined that the current market rental of the premises at 28 March 2011 was $23,030 gross per annum plus GST. 7On 20 September 2011 the Applicant filed in No 115131 an Application for Original Decision seeking the appointment of a Specialist Retail Valuer pursuant to s31 of the Retail Leases Act [RLA]. On 3 November 2011 the Tribunal made an Interim Notice of Appointment of Richard Wood, Specialist Retail Valuer, subject to objections. The Tribunal understands that the Application was made on the basis that the valuation of Mr Bird did not comply with the RLA in the opinion of the Applicant. The Respondent made an objection. 8On 21 December 2011 the Applicants filed a Retail Tenancy Claim in which they sought a declaration that the Valuation was not a valuation for the purposes of s 19 of the RLA (query whether the application should have been for the purposes of s 31). The two applications were listed for hearing before me on 29 February 2012. At the conclusion of the hearing I reserved my decision. It was agreed that should I find that the Valuation was a valuation of current market rent under s 31, then the dispute between the parties came to an end. However, if I found that the Valuation was not a valuation of current market rent for the purposes of s 31, then there was agreement that I should make orders confirming the appointment of the new valuer, Richard Wood to perform a valuation under s 31.
The Legislation 9Section 31 of the Retail Leases Act 1994 provides: 31 Reviews of current market rent (1) A retail shop lease that provides an option to renew or extend the Lease to current market rent is taken to include provision to the following effect: (a) The current market rent is the rent that would reasonably be expected to be paid for the shop, as between a willing lessor and a willing lessee in an arm's length transaction (where the parties are each acting knowledgeably, prudently and without compulsion), determined on an effective rent basis, having regard to the following matters: (i) the provisions of the lease, (ii) the rent that would reasonably be expected to be paid for the shop if it were unoccupied and offered for renting for the same or a substantially similar use to which the shop may be put under the lease, (iii) the gross rent, less the lessor's outgoings payable by the lessee, (iv) rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied retail shops. The current market rent is not to take into account the value of goodwill created by the lessee's occupation or the value of the lessee's fixtures and fittings on the retail shop premises. (b) If the lessor and the lessee do not agree as to what the actual amount of that rent is to be, the amount of the rent is to be determined by valuation carried out by a specialist retail valuer appointed by agreement of the parties to the lease, or failing agreement, by the Tribunal. (c) The matters set out in paragraph (a) are to be taken into account by a specialist retail valuer appointed under paragraph (b) in determining the amount of the rent. (d) The lessor must, not later than 14 days after being requested to do so by a specialist retail valuer appointed under paragraph (b), supply the valuer with information (where reasonably available to the lessor) requested in a list provided by the valuer to assist the valuer to determine the current market value, including the following information about leases for comparable retail shops in the same building or retail shopping centre: (i) current rental for each lease, (ii) rent free periods or any other form of incentive, (iii) recent or proposed variations of any lease, (iv) outgoings for each lease, and including any other information prescribed by the regulations. (e) A valuation for the purposes of paragraph (b) is to be in writing, to contain detailed reasons for the specialist retail valuer's determination and to specify the matters to which the valuer had regard for the purposes of making his or her determination. (f) The parties to the lease are to pay the costs of a valuation by a specialist retail valuer appointed under paragraph (b) in equal shares. Note. The procedure provided by this section can be avoided if the parties can come to an agreement as to what the rent is to be. (IA) A party to a lease may apply to the Tribunal for the appointment of a specialist retail valuer for the purposes of subsection (1) (b). (1B) A party to a lease may make written submissions to a specialist retail valuer to assist in the valuer's consideration of the valuation, and the valuer must consider any such written submissions. (2) A specialist retail valuer must make a valuation of a current market rent for the purposes referred to in this section not laterthan 1 month after receiving the information referred to in subsection (1)(d). (3) A specialist retail valuer may apply to the Tribunal under Part 8 for an order that a lessor comply with a request referred to in subsection (1)(d) to supply relevant information about leases for retail shops situated in the same building or retail shopping centre to assist the valuer to determine the rent. (4) The reasons and matters included in a valuation as referred to in subsection (1) (e) must not be set out in a way that discloses information identifying other leases or parties to other leases or relating to the business of parties to other leases. This subsection does not apply to leases between the parties to the lease for which the valuation is made or to leases whose parties consent to the disclosure of the information. 10It should be noted that the provisions of clause 37(a) require the current market rent to be determined on the same basis as s31(1)(a). There is no inconsistency between clause 37(a) of the Lease and s31 of the RLA.
11There are two sections in the RLA dealing with rental determinations by a valuer, s19 being reviews of current market rent within the lease term and s31 reviews of current market rent where the lease provides an option to renew or extend the lease. The sections are for the purposes of these proceedings the same. 12In Perri v Exego Pty Limited [2009] NSWADT 170. Molloy JM found that the valuation under consideration was not a valuation for the purposes of s19 due to a number of defects. The valuation specifically did not refer to the RLA or to s19 at all and the valuer did not apply the statutory formula for the determination of current market rent. The Tribunal said of this, at [20]: "The failure of an appointed specialist retail valuer to refer to Section 19 and, more importantly, to apply Section 19 as the statutory method for determination of current market rent, is in my very respectful opinion, although perhaps not fatal to a valuation, certainly raises significant questions about the valuation and the methodology adopted by the valuer. It is certainly not helpful." 13Other problems with the valuation in Perri was that it did not take into account the current market rent between a willing lessor and willing lessee determined on an effective rent basis. The valuer applied the API definition of current market rent which did not require that the market rent be determined on an effective rent basis: see [31 32]. Further, the valuation did not take into account the rent that would be reasonably expected to be paid for the shop, if it were unoccupied and offered for renting for the same or substantially similar use to which the shop would be put under the lease (s 19(1)(a)(ii)). 14Consequently, as a result of adopting the API definition the valuer did not take into account "the gross rent, less the lessor's outgoings payable by the lessee": (s19(1)(a)(iii)), see [43],nor did the valuation did not take into account rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied premises as required by s19(1)(a)(iv). 15The Tribunal said, at [44 45]: 44 In the valuation the valuer gives chapter and verse to "market evidence", stating that he "had regard to rentals of comparable use premises within surrounding localities as well as rental evidence of other comparable premises within this locality", and then he refers to a number of premises and gives some details. The first example is a showroom and warehouse at Rockdale which is examined by the valuer, noting a cash incentive and "outgoing free period", and then specifies the "effective rental"; the second is a property at Liverpool where there is no reference to any incentives or even "effective rent"; the third is at Bankstown where again there is no reference to any incentives nor any reference to "effective rental"; and the fourth is a property at Campsie where there is no reference to any incentives but the valuer describes the result as "effective rental". 45 In my opinion the valuation fails the Section 19 test in this regard because there is little or no reference to "rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied retail shops". 16The Tribunal in Perri held, at [47 48]: 47 It may well be that the valuer in this case has carried out the valuation in accordance with the terms of the Lease and in accordance with the terms of the instructions that were given to him by the parties. As I endeavoured to point out above, there is little or no reference to the Retail Leases Act, the Tribunal or to Section 19. It may well be that the valuer has proceeded on a basis that was different from what the parties intended, but inadvertently so. Even so, in my opinion the parties and the valuer should all have recognised that the valuation, whatever the lease may say, must be carried out, as a matter of law, pursuant to and in compliance with s.19. 48 For the reasons that I have set out above, in my opinion the valuation does not comply with the statutory strictures of Section 19. That is not to say, of course, that a valuation that did so comply with have reached any other conclusion. But, for whatever reason the valuer did not apply the statutory requirements and as such I am driven to the conclusion that the valuation is not a rental determination pursuant to Section 19(1)(b), particularly bearing in mind that sub section (c) makes it a statutory imperative to take into account the matters in sub section (a). 17Molloy JM also held that: (xiv) Section 19(1)(a) is a code, or contractual term imposed by statute, and a valuation that takes into account matters not referred to in s19(1)(a) is not a complying s.19 valuation. There is no provision in s.19 that entitles a valuer to take into account matters other than as set out in s19(1)(a). 18Fox JM in Richardson v Lockevo Pty Ltd [2010] NSWADT 305 was of a different opinion. He referred to the above statement of principle made in Perri and said, at [10]: "I respectfully disagree with that interpretation. Clearly enough s19(1)(a) sets a guide which the appointed valuer must follow, but I do not read the section as setting out an exclusive code or set of matters to be included, or excluded. Admittedly the not so uncommon legislative words to the effect of "any other matter the valuer may consider relevant" do not appear, but neither does the word "only" appear in the last words of the ss(a) introduction. It does not say: "having regard only to the following matters". The valuer is appointed as an expert, and is expected to apply his skill and knowledge to establish a rental amount, and only he or she knows what is, and what is not relevant to that skilled exercise. I am of the view that as long as the valuer has considered all of the matters raised, and has not considered the identified matter excluded, he or she has complied with s19(1)(c) and are at liberty to have regard to other matters which they in their expert opinion consider to be relevant, (so long as, of course, they are clearly stated and their relevance explained)." 19Richardson v Lockevo Pty Ltd is also an example of the valuation not complying with s19(1)(a). There the valuer did not have regard to the requirement of s19(1)(a)(ii) that the determination be made having regard to ' the rent that would reasonably be expected to be paid for the shop if it were unoccupied and offered for renting for the same or a substantially similar use to which the shop may be put under the lease.' The valuation in issue did not have regard to the same or similar use requirements. It also failed to clearly indicate a consideration of the impact of rent holidays and other concessions referred to in s19(1)(a)(iv). 20Eastpoint Shopping Village Pty Limited v Grayson Pty Limited [2011] NSWADT 68 is the most recent case dealing with the question of whether a valuation was a valuation for the purpose of the RLA. In that case Eastpoint submitted that in accordance with Perri v Exego Pty Limited the valuation was defective because there was the lack of reference to s19 of the RLA. Eastpoint further submitted that the valuer took into account factors which he was not required to take into account, namely demographic data, a trade area analysis, the tenancy mix and turnover at the shopping centre. 21Eastpoint also said that the valuer failed to take account the gross rent less outgoings payable by the lessee as required by s19(1)(a)(iii)and consequently the valuer failed to explain how, if at all, he had regard to the gross rent. This, it submitted, was a breach of the valuer's duty to give reasons: Adwell Holdings v Bourne (2007) NSWSC 17, (2007) NSW Conv R 56 188 per Young J. Eastpoint also submitted that the valuer failed to consider 'rent concessions and other benefits that are frequently or generally offered to prospective lessees of unoccupied retail shops." 22Molony JM first looked at the differing views expressed in the cases as to whether ss19 & 31 are codes as suggested by Molloy JM in Perri and countered as not being a code by Fox JM in Richardson v Lockevo. Malony found at [27-28 and 33]: 27. With respect to the issue of whether s19(1) is a code, the effect of which is to prohibit valuers from taking into account factors other than those specified in s19(1)(a), there are two conflicting decisions of the Tribunal. In my opinion the conclusion reached by Fox JM in Richardson v Lockevo Pty Ltd is compelling. The fact that a valuer is appointed as an expert compels the conclusion that, in addition to the factors to which s19(1)(a) says a valuer must have regard, a valuer may also have regard to matters that the valuer considers relevant to those factors, in the light of his or her expert skills, knowledge and expertise, and accepted valuation practices. The relevance of these matters has to be clearly stated and explained. 28. This is not to say that a valuer may make a valuation on a basis other than that authorised by s19(1)(a). Within the strictures of that sub section a valuer may have regard to other matters that the valuer considers relevant to a full consideration of the s19(1)(a) factors, in the light of his or her expert skills, knowledge and expertise, and accepted valuation practices. In my opinion, Perri is an example of a different situation in which the valuer, by adopting the API definition of market rental value, made his valuation on a different basis to that provided under s19(1)(a). 33. A valuation under s19(1)(a) is a complex document setting out an expert opinion on matters requiring expertise, knowledge and skill. It should set out set details as to how the valuer arrived at the determination, specify the matters to which the valuer had regard, and explain how those matters were considered in the process of making the valuation: Adwell Holdings v Bourne (2007) NSWSC 17, (2007) NSW Conv R 56 188 per Young J. An analysis of whether a valuation satisfies those requirement is to be made having regard to the valuation report as a whole, without undue attention to minutiae. It is ultimately an expert opinion, not a drafting exercise. An assessment of whether or not it is sufficient and addresses all the matters it is required to, can only be fairly made having regard to the document as a whole, and not with an eye "keenly attuned to a perception of error" (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6). 23Molony JM after critically examining the valuation held at [42]: 42 As a result I am persuaded that the valuation does not comply with the strictures of s19(1)(a)(iii) and (iv). That conclusion does not mean that the valuation was not a full and considered one, or that the conclusions reached are wrong. Section 19(1)(a) sets out the basis upon which current market rent valuations are to be made. Each of the factors set out in that sub section should be addressed by the valuer, and reasons given for the conclusions reached about them. Those conclusions should explain how each of those matters is taken into account in arriving at the valuation.
24The Valuation is by David Bird of Kohler Bird who in his introduction says that he has been asked to assess the current market value of the premises as at 28 March 2011. The valuation is divided into sections. Section 1 is headed Executive Summary. It sets out a summary of the valuation coming to an assessment of current market rental of $23,030.00 gross per annum exclusive of GST. Section 2 is headed the Locality & Land and is a description of the area in which Bangor Shopping Centre is situated together with title references and site characteristics. Section 3 is headed Improvements and is a full description of the actual shopping centre including internal description and building areas. Section 4 is headed Tenancy Particulars and describes the Lease. 25Section 5 is headed Commentary and Analysis. Under this section the valuer makes general market comments such as: "The Retail space of the shopping centre appears fully let, with the only recently vacated shop advised as having a negotiated lease commenced in January 2011, with no incentives offered. The centre appears to trade well, with increases in rentals generally seen as leases have come up for renewal, and the majority of tenants staying on. The subject as the Bangor Post Office attracts specific trades to the centre. Rental under the leases is on gross basis with no outgoings recoverable, other than contributions to centre promotional levy. Rental rates within the centre range from a low of around $360.00 per square metre gross, through a more typical $400.00 - $570.00 per square metre gross, with the most recent negotiations resulting in rates of $600.00 - $670.00 per square metre gross, though these higher rates are typically for prime small area shop fronts." 26Section 6 is titled Rental Evidence. This is a critical section under challenge by the Applicants. Here the valuer provides an analysis of rent in the Bangor Shopping Centre in a table form. He refers to five leases in the Centre describes their use, the area, the term, whether there is an option, the gross rent per annum, the rent per square metre and then provides comments such as "larger premises adjacent to subject, some side window frontage exposure". Further within Section 6 is a page entitled "Retail Rental Evidence - Sydney Suburbs". Here the valuer describes 10 retail premises that have been recently negotiated throughout Sydney. The premises are in the areas Beecroft, Sutherland, Sydney, Walsh Bay, Stanmore, Waverton, Bonnyrigg, Chatswood and Ultimo. The areas of the premises vary from 46.5 square metres in Beecroft (close to the subject premises) through to 271 square metres in Sutherland, and 508 square metres in Stanmore. The uses vary from a bank, gourmet butcher, pizza shop, café, massage and bakery. 27Item 7 is headed Approach to Valuation. Here the valuer states: "Having taken into account the rental evidence scheduled above, together with the typical characteristics of the subject property including its size, floor plan layout, location, position within the centre, its exposure and access, I have assessed the below current market rental. In terms of the specifics set out in the lease agreement with regard to assessment of current market rent under take up of the option, I have had regard to consideration of rent concessions or other benefits frequently or generally offered to prospective lessees of unoccupied retail shops. It is noted that at the commencement of the subject's current lease, a three month rent free period was included. Following the above condition, there is the consideration that a three month rent free period will again be offered and accepted by a potential lessee of the subject premises if vacant. Mitigating against this is the factor that the most recent leasing in the centre did not include any rent free incentives, though this was for a smaller area of premium space and there are no vacancies nor opportunities apparently arising for the space. Over a five year lease period, three months rent free would equate to a discount of 5% per annum (3 months out of 60 months) or if actual figures are used $500.00 per square metre would be discounted to $475.00 per square metre per annum. Recent renewals and leases within the centre appear to be indicating a strengthening market situation, whilst my overall opinion on retail business trends across Sydney is that the market is steady to stable, after some optimism in late 2009 - early 2010, however trading conditions in 2010 and early 2011 perhaps fell short of these heightened expectations. Upon overall consideration of all aspects of the subject shop and the retail rental market, rental rates within the Bangor shopping centre, retail rentals across comparable suburban locations in Sydney, and the specific conditions set out in the lease, I have reached the conclusion a Current Market Rental for the subject under exercise of the option in the lease is reasonably set at $490.00 per square metre gross.
Submissions by the Applicant 28Mr Van Ede made the following submissions regarding the deficiencies of the Valuation: (a) In accordance with Molony JM at [42] in Eastpoint each of the factors set out in s 31(1)(a)(i)-(iv) should be addressed by the valuer and reasons given for the conclusions reached about them. Those conclusions should explain how each of those matters is taken into account in arriving at the valuation. (b) The Valuation is critically deficient in its failure to address properly the factor in s 31(1)(a)(ii) namely "the rent that would reasonably be expected to be paid for the shop if it were unoccupied and offered for renting for the same or a substantially similar use to which the shop may be put under the Lease". (c) The Respondent suggested that this aspect is dealt with in the valuation in section 4, Tenancy Particulars. (d) The material in Section 4 is nothing more than extracted material from the Lease and a summary of Clause 37 dealing with rent valuations which repeats ss19/31 of the RLA. (e) The Rental Evidence in Section 6 does not contain one comparable shop for "the same or substantially similar use to which the shop may be put under the same lease". The actual uses referred to by the valuer are as diverse as a butcher in Beecroft, a café in Ultimo, a showroom at Stanmore and fast food outlets in Bonnyrigg of comparable premises. (f) Finally in Section 7 under Approach to Valuation, the valuer does not "address each of the factors in s 31(1)(a)(i)-(iv) and in particular fails to address sub paragraph (ii). 29The Respondent as mentioned by Mr Van Ede at subparagraph (c) above submitted that the valuation sufficiently makes reference to the provisions of s 31(a)(i) (iv) as substantially and materially reproduced in clause 37(a) of the Lease".
Consideration of the Valuation 30As Molony JM in his decision in Eastpoint held [at 42] sections 19 and 31 set out the basis upon which current market rent valuations are to be made. Whilst the requirements in sections 19 and 31 are not codes as such and a valuer can take into account other matters, the valuer must have regard to the matters in subsection 31(1)(a)(i)-(iv). The Tribunal is in agreement with this analysis. Section s 31(c) states the valuation is to be in writing, to contain detailed reasons for the specialist retail valuer's determination and to specify the matters to which the valuer had reason for the purposes of making the determination. Consequently the obligations of the valuer are clearly spelled out. 31On reviewing the Valuation, the Tribunal cannot find any meaningful discussion by the valuer on the matters to be considered under s 31(1)(a)(ii) (iv), in particular s 31(1)(a)(ii). In the valuation there is no discussion in Section 5 Commentary and Analysis. There is no discussion in Section 6, Rental Evidence. There is no indication that the valuer considered the relevant factors in the subsection and no details of reasons or explanation of how the valuer looked at comparable premises. 32One might have thought that the discussion and/or detailed reasons would be in Section 7 headed "Approach to Valuation". Again there was nothing within that part of the Valuation which relates to s 31(1)(a)(ii) and the factor of renting premises for the same or substantially similar use. There were no comparable premises mentioned in Section 6 at all, the premises referred to were a butcher, a bakery, pizza shop and a café to name but a few. Nothing like a Post Office. The Tribunal therefore cannot see how the valuer discharged his duty under s 31(1)(c) to consider the factors and provide reasons for the conclusions reached as described by Molony JM in Eastpoint at para [42].
33The power to award costs is contained in Section 88 of the Administrative Decisions Tribunal Act. The section provides that, except as provided in it, each party is to bear its own costs. Sub section (2) permits the Tribunal to award costs if it is satisfied that it is fair to do so, having regard to a number of listed factors. The factors are listed in subsection (1A). Most of the factors have no bearing on this matter, other than (e) "in any other matter that the Tribunal considers relevant". 34Mr Van Ede provided to the Tribunal copies of three letters he wrote to the lawyers for the Respondent indicating that the Applicants were of the opinion that the valuation conducted by Mr Bird did comply with the RLA because the valuer failed to properly consider the factors required in s31(1)(a)(i)-(ii) and provide reasons. Mr Van Ede in his first letter of 1 December 2011 foreshadowed the application to the Tribunal and sent two follow up letters. No response was received. 35The Tribunal considers these letters are relevant in the context of consideration of costs pursuant to s88(1A)(e) and just as relevant that there was no reply from the Respondents. They clearly spell out the intentions of the Applicant and invited discussion. With no response the Applicants were faced with no choice but to proceed. The Respondent should pay the costs of the Applicants.
Conclusion 36The Tribunal finds that the Valuation does not comply with s 31(1)(a)(ii) and s 31(1)(c) of the RLA. Consequently there is no valuation. 37Pursuant to File 115131 the Applicants sought the appointment of a Specialist Retail Valuer under s 31. On 3 November 2011 the Tribunal made an Interim Notice of Appointment of Richard Wood. I note that should the Tribunal find that there is no valuation then the parties have agreed to that appointment. There appears to have been no objection filed to that appointment, the only objection it seems was that there was a Valuation already, that is the valuation the subject of these proceedings. Accordingly, I confirm the appointment of Richard Wood Specialist Retail Valuer and the terms of his appointment are set out in to the Interim Notice signed by the Registrar on 8 November 2011. 38I order that the Respondents pay the Applicant's costs of the proceedings on a party and party basis as agreed or in default of agreement as assessed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2012
Hunt
Casaran Pty Ltd
Declaration that the parties are not bound by the valuation of David Bird dated 29 March 2011 as it is not a valuation for the purposes of s 31; interim appointment of Richard Wood confirmed; respondent ordered to pay the applicants' costs on a party and party basis.