For the Record

For the record. Normally the New South Wales ADT demonstrates the most common sense, with decisions that are both clear-cut and fair and equitable. Not so in Eastpoint vs Grayson (matter 105212) [since dismissed by Judicial Member Molony, who then decided that the lease which clearly intended to and was operating under the NSW legislation, fell outside the legislation. The lease in total 30 years long]. The landlord sought to appeal the outcome of the rent determined (by a senior highly respected expert) in a dysfunctional neighbourhood centre.

The lease says the determination will be final and binding. The relevant authority in this suggests that the parties (landlord and tenant) have agreed to “accept his impartial decision as to the appropriate amount of the valuation. They rely on his skill and judgement and agree to be bound by his decision.” – McHugh JA in Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 and 335 – 336.

Even if the valuer has made a mistake, it may still stand, as long as it has been made in terms of the agreement, and the valuation was not obtained by fraud or collusion – ref “Rental Determinations: Determining Valuers Accepting Submissions and the Roles of Experts and Advocates” – Alan Hyam OAM Barrister-at-Law 2000. It is very surprising that any judge/judicial member would seek to reverse/overturn a properly constructed expert’s opinion that was not a product of fraud. While JM Molony’s commentary and thinking is sound and logical, his conclusion and decision did not follow his reasoning and logic. Where angels fear to tread.