Victorian Civil and Administrative Tribunal|2017-12-15

For the reasons given above I accept the landlord's arguments in preference to the tenant's, and find the Valuer:
1. incorrectly assumed that, except for fair wear and tear, the tenant was required to keep the premises properly cleaned and maintained;
2. failed to have regard to the term implied into the lease by s 52(2) of the Act; and
3. in so doing, failed to have regard to the terms of the lease as required by s 37(2)(a) of the Act.
I now turn to the remaining further and alternative issue.

Did the Valuer fail to provide sufficient reasons with respect to his consideration of the tenant's and the landlord's repair and maintenance obligations?

Finding regarding the issue of whether the Valuer gave adequate reasons

Applying the test articulated by Croft J in Higgins Nine Group Pty Ltd v Ladro Greville St Pty Ltd,[42] the Valuer must disclose the steps of his reasoning. For the reasons given above, I find there has been a failure by the Valuer to give "sufficient" reasons in respect of his consideration of the tenant's and the landlord's repair and maintenance obligations.
The nature of these errors is such that I am satisfied that the Valuer did not discharge the contract he had made with the parties to apply the terms of the lease, including all the terms implied by the RLA. Accordingly, applying the law as set out by McHugh J in Legal and General,[43] and the other authorities referred to, I find that the lease is vitiated.
I will make orders accordingly.
There is a residual issue as to whether I should order the Valuer to conduct any further valuation. I will give the parties leave to make an application about that matter.
Costs, and reimbursement of fees under s 115B of the Victorian Civil and Administrative Tribunal Act 1998, will be reserved.

[15] Landlord's submissions paragraph 9.

[30] Landlord's submissions, sub-paragraphs 13(e) and (f).

[34] Determination paragraph 6.2 (TB 38).

[39] Landlord's submissions paragraph 14(g).

[41] Small Business Commissioner Reference for advisory opinion [2015] VCAT 478.

Civil and Administrative Tribunal Act 1998

Josephine Ung Pty Ltd v Jagjit Associates Pty Ltd (Building and Property) [2017] VCAT 2111 (15 December 2017)

Josephine Ung Pty Ltd v Jagjit Associates Pty Ltd

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Josephine Ung Pty Ltd v Jagjit Associates Pty Ltd (Building and Property) [2017] VCAT 2111 (15 December 2017)