Indian Taj v Gilany [2004] NSWSC 1249

Indian Taj v Gilany [2004] NSWSC 1249

The plaintiff was not entitled to deemed consent under section 41(d) because it did not prove compliance with section 41(b) or an exemption under section 41(c), and it did not comply with section 41(a) by failing to provide financial information reasonably required by the lessors, namely requested accounts and tax returns. Although the lessors' conditional correspondence did not amount to a notice withholding consent under section 41(d), the statutory preconditions for deemed consent were not met. Because the lessee had not complied with section 41, section 39(1)(c) entitled the lessors to withhold consent, and the pleaded declarations and consequential relief failed.

Jurisdiction
Australia
Judgment Date
16 December 2004
Procedural Posture
Equity Proceeding Concerning Consent to Assignment of a Retail Shop Lease / Final Hearing of Claims for Relief in Paragraphs 7 to 10 of an Amended Summons Filed on 2 December 2004
Outcome
Claims for relief dismissed.
Legal Topics
['consent to Assignment of Lease' 'retail Leases Act 1994' 'disclosure Statement Requirements' 'deemed Consent to Assignment' 'withholding Consent to Assignment' 'reasonable Requirements for Assignee Financial Information']
['conveyancing' 'retail Leases' 'equity'] ['consent to Assignment of Lease' 'retail Leases Act 1994' 'disclosure Statement Requirements' 'deemed Consent to Assignment' 'withholding Consent to Assignment' 'reasonable Requirements for Assignee Financial Information']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Consent to Assignment of a Retail Shop Lease / Final Hearing of Claims for Relief in Paragraphs 7 to 10 of an Amended Summons Filed on 2 December 2004

Legal Issues

  1. 1 ['Whether the defendants were deemed to have consented to assignment of the Unit 1 lease to Win Win pursuant to section 41(d) of the Retail Leases Act 1994.' 'Whether the plaintiff was excused from complying with section 41(b) by reason of section 41(c) after requesting a disclosure statement from the lessors.' 'Whether the plaintiff complied with section 41(a) by providing information reasonably required concerning the financial standing and business experience of the proposed assignee.' 'Whether correspondence stating that the lessors would not consent unless matters were clarified or rectified was a notice in writing withholding consent within section 41(d).' 'Whether the defendants wrongfully or unreasonably refused consent to the assignment in breach of section 39(1) of the Retail Leases Act 1994.']

Ratio Decidendi

The plaintiff was not entitled to deemed consent under section 41(d) because it did not prove compliance with section 41(b) or an exemption under section 41(c), and it did not comply with section 41(a) by failing to provide financial information reasonably required by the lessors, namely requested accounts and tax returns. Although the lessors' conditional correspondence did not amount to a notice withholding consent under section 41(d), the statutory preconditions for deemed consent were not met. Because the lessee had not complied with section 41, section 39(1)(c) entitled the lessors to withhold consent, and the pleaded declarations and consequential relief failed.

Court Disposition

Claims for relief dismissed.

Orders

  • ['Dismiss the claims for relief in paragraphs 7, 8, 9 and 10 of the amended summons.' 'Direct the parties to make, on or before Friday 4 February 2005, an appointment with my Associate for a date upon which argument concerning costs, and any other incidental matters which might need to be cleared up, can occur.']