Case: GR Mailman &amp; Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80
Outcome: discussed
In GR Mailman &amp; Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80 (" Mailman "), the rent review clause, art 2.02(a), was in the following terms: "Within sixty days (60) prior to the expiration of each period specified ... the Lessor may give in writing, in the form set out hereunder, to the Lessee increasing the yearly rental to an amount which the Lessor considers will be the current market rent of the Demised Premises as at the Review Date and until the following Review Date or the expiration of the term as the case may be ... having regard to all matters then relevant to the determination of such rent including the terms and conditions of this Lease and in particular the fact that the Lessee is obliged to pay to the Lessor the Outgoings provided in Article 3 thereof." 86 In that case, Gleeson CJ stated, at 89: "The lease also (in art 2.02(d)) states the consequences of the failure of the lessee to serve a counter-notice within the specified time. The lessee is deemed to have agreed upon the current market rent for the next review period. ... Moreover, the rent that is deemed to be the current market rent may be quite different from the actual market rent, at least so long as the lessor subjectively holds the belief referred to in art 2.02(a) ." (emphasis added) 156 In my view, clause 3.2.2 did not require the lessor to stipulate a "reasonable" or "non-excessive" sum. I reject the applicant's contention that the rent review clause in Mailman was not comparable to that at issue in this proceeding. Mailman required the lessor to give notice of what it considered was the "current market rent", having regard to certain matters. Clause 3.2.2 requires a statement of "the sum which the Lessor assesses to be the proper rent", taking into account certain assumptions and having regard to certain matters. Consistent with Gleeson CJ's statement in Mailman , as long as Mr Allen subjectively held the belief that this sum was the "proper rent", the requirements of clause 3.2.2 would have been satisfied. I am not prepared, on the basis of the evidence before me, to infer that Mr Allen did not hold such a belief. 157 The applicant's case in relation to breach of an implied term of good faith proceeded upon the assumption that the notice was found to be valid, and that therefore, clause 3.2.2 gave the first respondent the type of wide powers that would invoke the implication of the term. As I have found that the notice was invalid, the issue does not strictly arise. I do not propose therefore to say anything further about this aspect of the proceeding. 158 Much the same could be said about the applicant's claim under s 51AA of the Trade Practices Act . However, I do wish to make some brief comments about one element of that claim. Section 51AA requires one party in a transaction to be under some sort of special disadvantage which the other party unconscientiously takes advantage of. As previously indicated, the special disadvantage in this case was said to be the fact that Mr Bertrand spoke English as a second language. 159 Mr Bertrand was cross-examined in English and was able to communicate clearly and effectively during that process. He was taken to various documents and had no trouble understanding them. At the time of the events relevant to this application, Mr Bertrand was the General Manager of a sizeable commercial operation in Australia. Consequently, the applicant would have fallen well short of establishing that Mr Bertrand had a special disadvantage capable of invoking the operation of s 51AA. 160 As I have found the notice to be invalid, the claim against the second respondent for misleading or deceptive conduct under s 52 of the Trade Practices Act is moot. As the notice is invalid, the applicant cannot be said to have suffered loss or damage by virtue of the representations in the Colliers letter. Accordingly, the application against the second respondent is dismissed.