REVIEWING THE REVIEWERS: ARBITRATORS V. VALUERS

Abstract

Surprisingly, for all its practical importance very little has been written upon the vexed question of rental review clauses where the mechanism stipulated is arbitration or valuation, although there have been a number of significant decisions upon these clauses both here and in the United Kingdom. Rental fixing is such a fundamental matter to both parties that it should not be open to the doubts and ambiguities which many such clauses present. In truth, no really standard clause has emerged and a variety of different clauses pervade the scene. The following is an attempt to examine some of the basic concepts involved in the interpretation of these clauses and to suggest some means by which there could be a more equitable balance between the parties involved, without greater expense,inconvenience and uncertainty.The unsatisfactory resolution of differences between lessor and lessee in Queensland led recently to the enactment of the Retail Shop Leases Act 1984 (Qld). Some say this Act was unnecessary, and they may well be right. However, an examination of the cases upon the subject reveals the difficulties that can arise from what should really be a very simple matter. It may be that terms such as 'market rental' are difficult to define or that no two parties, lessor or lessee, could in any event agree on the amount involved if such a term were properly defined.