JB Northbridge Pty Ltd v Winners Circle Group Pty Ltd [2014] NSWSC 950

JB Northbridge Pty Ltd v Winners Circle Group Pty Ltd [2014] NSWSC 950

On the fair construction of clause 4, its references to requesting the Lessor's consent, withholding consent, providing financial and business information, allowing further information to be required, and requiring the Lessor to deal expeditiously with the request meant that the Lessor's positive consent was required before assignment. Clause 4.6.1 permitted assignment only if its conditions were met and none of the grounds for refusal in clause 4.6.2 applied; the absence of the word "only" did not prevent clause 4.6.2 from being exhaustive. By concession, and in the Court's view correctly, the provision allowing the Lessor to require a personal guarantee or bank guarantee was a...

Jurisdiction
Australia
Judgment Date
17 July 2014
Procedural Posture
Equity Division Proceedings Concerning Construction of a Commercial Lease and Consent to Assignment; Commenced as an Application by the Lessor for Extension of a Caveat / Principal Judgment on Agreed Construction Issues in the Expedition List
Outcome
The Court answered yes to each of the three agreed construction questions and indicated it would hear the parties on the form of declarations and costs.
Legal Topics
['assignment of Lease' 'consent to Assignment' 'refusal of Consent' 'preconditions to Assignment' 'construction of Lease']
['equity' 'leases'] ['assignment of Lease' 'consent to Assignment' 'refusal of Consent' 'preconditions to Assignment' 'construction of Lease']

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Procedural Posture

Equity Division Proceedings Concerning Construction of a Commercial Lease and Consent to Assignment; Commenced as an Application by the Lessor for Extension of a Caveat / Principal Judgment on Agreed Construction Issues in the Expedition List

Legal Issues

  1. 1 ["Whether the Lessor's positive consent is required by clause 4 of the lease" 'Whether clause 4.6.2 sets out the only reasons which would permit the Lessor to refuse consent' 'Whether a requirement by the Lessor that the assignee provide a personal guarantee or bank guarantee as specified in clauses 19 and 20 of the lease is a precondition to assignment of the lease']

Ratio Decidendi

On the fair construction of clause 4, its references to requesting the Lessor's consent, withholding consent, providing financial and business information, allowing further information to be required, and requiring the Lessor to deal expeditiously with the request meant that the Lessor's positive consent was required before assignment. Clause 4.6.1 permitted assignment only if its conditions were met and none of the grounds for refusal in clause 4.6.2 applied; the absence of the word "only" did not prevent clause 4.6.2 from being exhaustive. By concession, and in the Court's view correctly, the provision allowing the Lessor to require a personal guarantee or bank guarantee was a...

Court Disposition

The Court answered yes to each of the three agreed construction questions and indicated it would hear the parties on the form of declarations and costs.

Orders

  • ["The Lessor's positive consent is required by clause 4 of the lease." 'Clause 4.6.2 sets out the only reasons which would permit the Lessor to refuse consent.' 'A requirement by the Lessor that the assignee provide a personal guarantee or bank guarantee as specified in clauses 19 and 20 of the lease is a...