New South Wales Consolidated Acts

RETAIL LEASES ACT 1994 - SECT 32A

32A Review of current market rent determinations

(1) Application for review A party to a lease may apply to the Tribunal for the appointment of two specialist retail valuers to conduct a review of a determination of the current market rent made by a specialist retail valuer made under section 19 or 31.

(2) The application for a review must be made within 21 days after the party first received a copy of the determination.

Note: Subsection (13) provides another opportunity to make an application for a review if the decision on the review is set aside.

(3) Review by and decision of valuers The specialist retail valuers may conduct the review and may jointly:

(a) affirm the reviewed determination, or

(b) vary the reviewed determination.

(4) Subject to this section, the provisions of sections 19 and 19A or sections 31 and 31A, as the case requires, apply (with any necessary adaptations) to and in respect of the specialist retail valuers in the same way as those provisions apply to and in respect of the original specialist retail valuer.

(5) Without limiting subsection (4), the specialist retail valuers jointly and severally have the powers and obligations of the original specialist retail valuer in connection with obtaining information under the provisions referred to in that subsection.

(6) The specialist retail valuers are to conduct the review and reach their decision not later than one month after they are notified of their appointment.

(7) If the specialist retail valuers are unable to agree by the end of the month referred to in subsection (6), the valuers are taken to have decided to affirm the determination.

(8) Access to original determination and information It is the duty of the specialist retail valuer (the "original valuer") who made the original determination, and of each party to the lease, to ensure that the specialist retail valuers reviewing the determination are given access to:

(a) the original determination, and

(b) information relating to the matters, specified in the original determination, to which the original valuer had regard to in making the original determination, to the extent that the information is available to the original valuer or party,

unless the specialist retail valuers indicate that they do not require access to the determination or information to be given to them under this subsection.

(9) Costs of review The following provisions apply to the costs of the review by the specialist retail valuers:

(a) the parties to the lease are to pay the costs of the review in equal shares, unless paragraph (b) applies,

(b) the party who applies for the appointment of the specialist retail valuers is to pay the costs of the review, if the current market value is jointly determined by the specialist retail valuers to be the same as or within 10 per cent of the amount specified in the original determination,

(c) section 88 of the Administrative Decisions Tribunal Act 1997 does not apply to the costs of the review.

(10) Effect, finality and setting aside of decision A varied determination has effect as if it were the original determination.

(11) Subject to subsection (12), the joint decision of the specialist retail valuers is final and binding on the parties to the lease.

(12) The Tribunal:

(a) may, on application made by a party to the lease within 21 days after the decision of the specialist retail valuers is given, order that the decision be set aside, if satisfied that the valuers have manifestly made a fundamental error warranting such an order, and

(b) may also order that the costs of the review are not payable by the parties or, if paid, are to be refunded.

The decision is not otherwise reviewable by or appellable to the Tribunal.

(13) If the decision is set aside, a party to the lease may make a fresh application to the Tribunal under subsection (1) in relation to the original determination within the period of 21 days after the date of the order setting it aside, and this section applies accordingly.