Nissim & anor -v- Marino [2001] NSWADT 191

Nissim & anor -v- Marino [2001] NSWADT 191

The applicants' refusal of consent to assignment was improper. After the 1 October agreement, the proposed assignees attempted to comply with agreed requirements, but the applicants reinstated demands for personal guarantees and onerous control over fixtures, fittings and equipment that exceeded their rights, including under Section 39(1)(b) of the Retail Leases Act 1994. Those unreasonable conditions caused the proposed purchasers to withdraw, so the applicants' rent claim failed and they were liable to compensate the respondent for the lost bargain, reduced by the amount recovered on sale of the fixtures, fittings and equipment.

Jurisdiction
Australia
Judgment Date
15 November 2001
Procedural Posture
Retail Lease Dispute Involving a Claim for Assignment of Rights Under a Lease, a Declaration That the Lessor Was Not Entitled to Withhold Consent, Money Claims, and a Cross Claim for Relief and Compensation / Principal Matter After Hearing
Outcome
Applicants' application dismissed; respondent succeeded on the cross-claim and was awarded damages, interest and limited costs.
Legal Topics
['assignment of Retail Shop Lease' 'withholding Consent to Assignment' 'inferior Financial Resources of Proposed Assignee' 'fixtures, Fittings and Equipment' 'disclosure Statement Discrepancies' 'damages for Failure to Consent to Assignment' 'costs and Interest']
['retail Leases' 'property Law' 'contract Law' 'administrative Tribunal Procedure'] ['assignment of Retail Shop Lease' 'withholding Consent to Assignment' 'inferior Financial Resources of Proposed Assignee' 'fixtures, Fittings and Equipment' 'disclosure Statement Discrepancies' 'damages for Failure to Consent to Assignment' 'costs and Interest']

Case Brief

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Procedural Posture

Retail Lease Dispute Involving a Claim for Assignment of Rights Under a Lease, a Declaration That the Lessor Was Not Entitled to Withhold Consent, Money Claims, and a Cross Claim for Relief and Compensation / Principal Matter After Hearing

Legal Issues

  1. 1 ['Whether the applicants were entitled to withhold consent to assignment of the retail shop lease to the proposed assignee.' "Whether the applicants' conditions, including personal guarantees and control over fixtures, fittings and equipment, exceeded their rights under the Retail Leases Act 1994." 'Whether the respondent was liable for unpaid rent and loss after vacating the premises, or was entitled to compensation for the lost sale of the business.' 'Whether discrepancies between the disclosure statement and lease concerning fixtures, fittings and equipment gave the respondent a right to compensation or rescission.' 'Whether costs should be awarded despite the limitations in Section 88 of the Administrative Decisions Tribunal Act 1997.']

Ratio Decidendi

The applicants' refusal of consent to assignment was improper. After the 1 October agreement, the proposed assignees attempted to comply with agreed requirements, but the applicants reinstated demands for personal guarantees and onerous control over fixtures, fittings and equipment that exceeded their rights, including under Section 39(1)(b) of the Retail Leases Act 1994. Those unreasonable conditions caused the proposed purchasers to withdraw, so the applicants' rent claim failed and they were liable to compensate the respondent for the lost bargain, reduced by the amount recovered on sale of the fixtures, fittings and equipment.

Court Disposition

Applicants' application dismissed; respondent succeeded on the cross-claim and was awarded damages, interest and limited costs.

Orders

  • ["Applicant's application dismissed." "On Respondent's cross claim: Applicant to pay Respondent $27,500.00 damages." 'Interest at prescribed Local Court rate from 1 November 1999.' "Applicant to pay Respondent's costs, as assessed or agreed, of the second day's hearing, and the cost of preparing for that second day...