Creer v P & O Lines of Australia Pty Ltd [1971] HCA 65

Creer v P & O Lines of Australia Pty Ltd [1971] HCA 65

The offer-to-surrender part of the lease covenant validly operated as a condition to be fulfilled before the lessees could assign or sublet and before the question of the lessor's consent under the assignment covenant arose. Because the appellants had not made the required offer to surrender, the respondent was not in breach of the lease and had not unreasonably withheld consent under s. 133B (1) of the Conveyancing Act, 1919-1969 NSW.

Jurisdiction
Australia
Procedural Posture
Appeal Concerning Declarations as to a Lessee's Right to Assign a Lease / Appeal to the High Court From a Decision of the Supreme Court of New South Wales in Equity on an Originating Summons
Outcome
Appeal dismissed with costs.
Legal Topics
['lease Assignment' 'covenant Against Assignment Without Consent' 'offer to Surrender Lease' 'unreasonable Withholding of Consent' 'construction of Lease Covenant']
['property Law' 'landlord and Tenant' 'contract Law'] ['lease Assignment' 'covenant Against Assignment Without Consent' 'offer to Surrender Lease' 'unreasonable Withholding of Consent' 'construction of Lease Covenant']

Case Brief

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Procedural Posture

Appeal Concerning Declarations as to a Lessee's Right to Assign a Lease / Appeal to the High Court From a Decision of the Supreme Court of New South Wales in Equity on an Originating Summons

Legal Issues

  1. 1 ['Whether the lessor unreasonably withheld consent to an assignment where the lessees had not first offered to surrender the lease as required by the lease covenant.' 'Whether s. 133B (1) of the Conveyancing Act, 1919-1969 NSW invalidated or prevented operation of a lease provision requiring the lessee to offer surrender before assigning or subletting.' 'Whether Adler v Upper Grosvenor Street Investment Ltd. should be followed in construing a covenant in the same terms.']

Ratio Decidendi

The offer-to-surrender part of the lease covenant validly operated as a condition to be fulfilled before the lessees could assign or sublet and before the question of the lessor's consent under the assignment covenant arose. Because the appellants had not made the required offer to surrender, the respondent was not in breach of the lease and had not unreasonably withheld consent under s. 133B (1) of the Conveyancing Act, 1919-1969 NSW.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']