Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249

Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249

HHT's 12 August 2009 request for "verifiable information regarding Mr Lockrey's financial standing" lacked the specificity required to impose an obligation under clause 3.8(c) or Retail Leases Act 1994 s 41(a), and the other requested items concerned proposed future conduct rather than financial standing. Even if that request had been valid, HHT did not impose any financial-standing information requirement in response to the later requests of 25 May 2011 and 12 October 2011, instead identifying only payment-related matters or refusing consent on other grounds. Section 41(b) was inoperative because it was impossible for the joint lessees to furnish to Mr Lockrey alone a disclosure...

Jurisdiction
Australia
Judgment Date
10 August 2012
Procedural Posture
Appeal Concerning Assignment of a Retail Shop Lease / Appeal From Orders of the Equity Division Dismissing Declaratory Relief
Outcome
Appeal allowed.
Legal Topics
['assignment of Retail Shop Lease' 'lessor Consent to Assignment' 'deemed Consent' 'financial Standing of Proposed Assignee' 'retail Leases Act 1994 S 41' 'conveyancing Act 1919 S 133 B(1)(a)']
['landlord and Tenant' 'retail and Commercial Tenancies' 'property Law'] ['assignment of Retail Shop Lease' 'lessor Consent to Assignment' 'deemed Consent' 'financial Standing of Proposed Assignee' 'retail Leases Act 1994 S 41' 'conveyancing Act 1919 S 133 B(1)(a)']

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Procedural Posture

Appeal Concerning Assignment of a Retail Shop Lease / Appeal From Orders of the Equity Division Dismissing Declaratory Relief

Legal Issues

  1. 1 ["Whether the lessor's request for information regarding Mr Lockrey's financial standing was a reasonable requirement under the lease and Retail Leases Act 1994 s 41(a)." 'Whether any requirement for information concerning financial standing was withdrawn, abandoned, or not imposed in response to later requests for consent.' 'Whether consent to assignment was deemed to have been given under clause 3.8(d) of the lease and Retail Leases Act 1994 s 41(d).' 'Whether Conveyancing Act 1919 s 133B(1)(a) applied to the retail shop lease consent provision.' 'Whether compliance with Retail Leases Act 1994 s 41(b) was required where the lessees jointly possessed the disclosure statement and one joint lessee was the proposed assignee.']

Ratio Decidendi

HHT's 12 August 2009 request for "verifiable information regarding Mr Lockrey's financial standing" lacked the specificity required to impose an obligation under clause 3.8(c) or Retail Leases Act 1994 s 41(a), and the other requested items concerned proposed future conduct rather than financial standing. Even if that request had been valid, HHT did not impose any financial-standing information requirement in response to the later requests of 25 May 2011 and 12 October 2011, instead identifying only payment-related matters or refusing consent on other grounds. Section 41(b) was inoperative because it was impossible for the joint lessees to furnish to Mr Lockrey alone a disclosure...

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Set aside the orders made in the Equity Division on 15 June 2012.' 'Declare that the appellant and the second respondent are entitled to transfer to the appellant the lease dated 31 October 2007 registered number AD645948F notwithstanding that the first respondent has not by any act of the first...