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Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 20
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ADMINISTRATIVE DECISIONS TRIBUNAL PRACTICE NOTE NO. 20 Retail Leases Division: Appointment of a specialist retail valuer 1. This Practice Note applies to applications by a party to a retail shop lease for the appointment of a specialist retail valuer to determine the current market rent of leased premises under s 19(1A) or s 31(1A) of the Retail Leases Act 1994 (RLA). It does not apply to (a) applications under s 32A(1) of the RLA for the appointment of two specialist retail valuers to conduct the review of a determination made by such a valuer, or to (b) applications under s 32A(12) of the RLA for an order setting aside a decision made on such a review. 2. The aim of this Practice Note is to set out a procedure under which appointments of a specialist retail valuer may be made quickly and cheaply and, so far as possible, without it being necessary for the parties to attend any hearings at the Tribunal. 3. An application to the Tribunal for the appointment of a specialist retail valuer may only be made if the lease of the premises involved is governed by the RLA. The party to the lease who intends to apply should endeavour to make sure of this before approaching the Tribunal. 4. The Applicant should complete and file the form headed ‘Application for Original Decision – Retail Leases Act 1994 – Appointment of a Specialist Retail Valuer’, designating the other party to the lease as the Respondent. 5. In the section of the form headed ‘Particulars’, the following information should be entered in the appropriate spaces:- · The names of the lessor(s) and the lessee(s). · The dates of commencement and termination of the lease. · The following matters relating to the premises leased: the address, the area, the permitted use under the lease, and whether or not they are in a retail shopping centre. · The rent initially stipulated in the lease and the current rent. · The number of the clause in the lease providing (as the case may be) for the rent to be changed to current market rent, or providing an option to renew or extend the lease at current market rent. · If the Respondent consents to the making of the application to the Tribunal, a signed statement by the Respondent to this effect. · If either the Applicant or the Respondent objects to the appointment of one or more specialist retail valuers, the name of the valuer or valuers concerned. 6. The Applicant should also file a sworn statement to the effect that the parties to the lease have not reached agreement as to who should be appointed as the specialist retail valuer. This is required because the Tribunal may only appoint a valuer if the parties have failed to reach agreement on this matter. 7. A copy of the lease should be filed with the application form. 8. After filing these documents, the Applicant should serve a copy of the application and the sworn statement on the Respondent. 9. The Registry will send a notice to both parties advising as follows:- · The application will be considered by a Judicial Member of the Retail Leases Division on a specified day, not less than 10 days after it was filed. · Before this day, the Respondent should notify the Registry of the name of any valuer(s) to whom he/she objects, unless notice to this effect has been given in the application. · Before this day, the parties are encouraged to make a further attempt to agree on a specialist retail valuer, who will be appointed by the Tribunal. This valuer must be one of those appearing on the separate lists maintained by the Presidents of the Australian Property Institute and the Real Estate Institute. These lists (‘the Institutes’ lists’) may be viewed on the following web-sites: · When making initial contact with any valuer on the Institutes’ lists for this purpose, a party must provide to the valuer particulars of the application that has been made to the Tribunal. · If the parties agree in this way on a valuer to be suggested to the Tribunal, they should separately give notice to this effect to the Registry before the day specified in the Registry’s notice. · If they do not agree on a valuer to be suggested, each of them may separately notify the Registry of any valuer or valuers, appearing on the Institutes’ lists, whose appointment they would favour. 10. On the day specified in the Registry’s notice, a Judicial Member of the Retail Leases Division will examine all the documents filed. 11. If the parties have agreed upon a valuer to be suggested to the Tribunal and communicated his/her name to the Registry, the Member will appoint this person as the valuer and the Registry will issue a Final Notice of Appointment to the parties. 12. If the parties have not communicated the name of an agreed valuer to the Registry, the Member will seek expressions of interest from one or more appropriately qualified valuers whose names are on the Institutes’ lists. Having examined the response(s) received, the Member will then direct the Registry to issue an Interim Notice of Appointment. This Notice will identify a specialist retail valuer whom the Member has provisionally selected, indicate the amount or the range of fees that the valuer has stipulated and state that, unless within 12 days a party files and serves an objection to the appointment, stating reasons, the appointment will be confirmed. 13. If no objection is filed within that time, the Judicial Member will confirm the appointment and direct the Registry to issue a Final Notice of Appointment to the parties and to the appointed valuer. 14. If an objection is filed by a party, the Judicial Member will either:- · determine the matter without a hearing, under s 76 of the Administrative Decisions Tribunal Act 1997, having first given the other party an opportunity to make submissions in response; or · set the case down for directions, with a view to conducting a hearing on the matter. Issued 6 July 2006 Judge KEVIN O’CONNOR President |
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