Stringer v Glennan & anor [2005] NSWADT 11

Stringer v Glennan & anor [2005] NSWADT 11

The landlords bore the onus of proving on the balance of probabilities that Judy Baxter's financial resources were inferior to those of the tenant. The evidence did not permit a definite comparison and required significant speculation about both Judy Baxter's and the tenant's respective interests in jointly held assets. Because it was not established that Judy Baxter had financial resources inferior to those of the tenant, the landlords were not entitled to withhold consent and the lease was assigned to Judy Baxter.

Jurisdiction
Australia
Judgment Date
24 January 2005
Procedural Posture
Retail Lease Application for Declaration That Lessor Not Entitled to Withhold Consent to Assignment of Lease and for Assignment of Rights Under a Lease / Principal Matter
Outcome
Application granted; declaration made that the landlords were not entitled to withhold consent, and the lease was assigned to Judy Baxter.
Legal Topics
['assignment of Retail Lease' 'lessor Consent to Assignment' 'inferior Financial Resources of Proposed Assignee' 'onus of Proof Under S39 of the Retail Leases Act 1994']
['retail Leases' 'property Law'] ['assignment of Retail Lease' 'lessor Consent to Assignment' 'inferior Financial Resources of Proposed Assignee' 'onus of Proof Under S39 of the Retail Leases Act 1994']

Case Brief

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Procedural Posture

Retail Lease Application for Declaration That Lessor Not Entitled to Withhold Consent to Assignment of Lease and for Assignment of Rights Under a Lease / Principal Matter

Legal Issues

  1. 1 ['Whether the landlords were entitled under s39(1)(b) of the Retail Leases Act 1994 to withhold consent to assignment of the lease to Judy Baxter on the basis that she had financial resources inferior to those of the tenant.' "Whether the comparison of financial resources should be made at the current time or by reference to the tenant's financial resources when she commenced as lessee." 'Which party bore the onus of establishing that the proposed assignee had inferior financial resources.']

Ratio Decidendi

The landlords bore the onus of proving on the balance of probabilities that Judy Baxter's financial resources were inferior to those of the tenant. The evidence did not permit a definite comparison and required significant speculation about both Judy Baxter's and the tenant's respective interests in jointly held assets. Because it was not established that Judy Baxter had financial resources inferior to those of the tenant, the landlords were not entitled to withhold consent and the lease was assigned to Judy Baxter.

Court Disposition

Application granted; declaration made that the landlords were not entitled to withhold consent, and the lease was assigned to Judy Baxter.

Orders

  • ['I declare that the landlords are not entitled to withhold consent to assignment of the lease of the premises to Judy Baxter.' 'The lease of the premises is hereby assigned to Judy Baxter as lessee.' 'I give liberty to either party to file and serve written submissions in relation to costs within 21 days, and in...