Atma Investments Pty Ltd -v- The Astor [2003] NSWADT 102

Atma Investments Pty Ltd -v- The Astor [2003] NSWADT 102

The Tribunal found that, on 15 August 2001, the applicant properly invoked the request for assignment under clause 6.5 and s 41(d) of the Retail Leases Act 1994. Deemed consent to assignment then arose on expiry of the statutory period, and consent was not unreasonably withheld. The respondent's conduct, while...

Source-derived case information.

Parties
Applicant: Atma Investments Pty Ltd; Respondent: The Astor
Jurisdiction
Australia
Judgment Date
16 May 2003
Procedural Posture
Claim for Orders Regarding Assignment of Lease and Declarations Under Lease / Principal Matter; Set Aside by Appeal on 6/11/2003
Outcome
Respondent to refund balance of security bond (after deduction of any unpaid rent) to applicant; all material supplied on subpoena to be returned; other substantive relief refused; set aside by appeal.
Legal Topics
Lease Assignment, Consent to Assignment of Lease, Damages Under Lease, Use of Leased Premises, Security Bond, Tribunal Jurisdiction
Retail Leases Property Law Lease Assignment Consent to Assignment of Lease Damages Under Lease Use of Leased Premises Security Bond Tribunal Jurisdiction

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Parties

Atma Investments Pty Ltd

Applicant

The Astor

Respondent

Procedural Posture

Claim for Orders Regarding Assignment of Lease and Declarations Under Lease / Principal Matter; Set Aside by Appeal on 6/11/2003

Legal Issues

  1. 1 Whether the lessor (respondent) was entitled to withhold consent to an assignment of lease
  2. 2 Whether applicant was entitled to damages for breach of lease
  3. 3 What was the proper use of the premises under the lease

Ratio Decidendi

The Tribunal found that, on 15 August 2001, the applicant properly invoked the request for assignment under clause 6.5 and s 41(d) of the Retail Leases Act 1994. Deemed consent to assignment then arose on expiry of the statutory period, and consent was not unreasonably withheld. The respondent's conduct, while cavalier, did not cause the alleged loss as there was no exchanged contract with the prospective purchaser, and the applicant's own actions contributed to cessation of the business. Damages were not available as loss was not proved. Only the balance of the security bond (after deduction for any unpaid rent) was refundable.

Court Disposition

Respondent to refund balance of security bond (after deduction of any unpaid rent) to applicant; all material supplied on subpoena to be returned; other substantive relief refused; set aside by appeal.

Orders

  • The Respondent to refund the balance of the security bond after deduction of the amount of any unpaid rent (if any) to the Applicant within 28 days of the date hereof.
  • All material supplied on subpoena be returned.