Lockrey v Historic Houses Trust of New South Wales [2012] NSWSC 654

Lockrey v Historic Houses Trust of New South Wales [2012] NSWSC 654

The Transfer changed the identity of the lessees from Mr Lockrey and Mr Shelhot jointly to Mr Lockrey alone and was an assignment requiring HHT's written consent. HHT reasonably required verifiable information concerning Mr Lockrey's financial standing, particularly in light of substantial rental arrears, and that request was never withdrawn, abandoned, or complied with. Because Mr Lockrey did not comply with s 41(a) of the Retail Leases Act 1994 and clause 3.8(c) of the Lease, no deemed consent arose and HHT was entitled to withhold consent under s 39(1)(c) and clause 3.8(b)(iii). Consent was therefore not unreasonably withheld.

Jurisdiction
Australia
Judgment Date
15 June 2012
Procedural Posture
Equity Division Commercial List Proceedings Concerning Transfer of a Retail Lease / Principal Judgment After Hearing
Outcome
Consent to assignment was not unreasonably withheld; the Amended Summons was dismissed with costs.
Legal Topics
['assignment of Lease' 'joint Tenancy' 'lessor Consent to Assignment' 'withholding Consent' 'financial Standing of Proposed Assignee' 'deemed Consent Under Retail Leases Act 1994']
['landlord and Tenant' 'retail Leases' 'commercial Tenancies'] ['assignment of Lease' 'joint Tenancy' 'lessor Consent to Assignment' 'withholding Consent' 'financial Standing of Proposed Assignee' 'deemed Consent Under Retail Leases Act 1994']

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Procedural Posture

Equity Division Commercial List Proceedings Concerning Transfer of a Retail Lease / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Transfer from Mr Shelhot and Mr Lockrey as joint tenants to Mr Lockrey alone constituted an assignment or transfer requiring HHT's written consent." 'Whether HHT was entitled to withhold consent to the assignment under s 39 of the Retail Leases Act 1994 and clause 3.8 of the Lease.' "Whether HHT reasonably required information concerning Mr Lockrey's financial standing and whether Mr Lockrey complied with that request." "Whether HHT abandoned its request for information concerning Mr Lockrey's financial standing." 'Whether deemed consent arose under s 41(d) of the Retail Leases Act 1994 or clause 3.8(d) of the Lease.']

Ratio Decidendi

The Transfer changed the identity of the lessees from Mr Lockrey and Mr Shelhot jointly to Mr Lockrey alone and was an assignment requiring HHT's written consent. HHT reasonably required verifiable information concerning Mr Lockrey's financial standing, particularly in light of substantial rental arrears, and that request was never withdrawn, abandoned, or complied with. Because Mr Lockrey did not comply with s 41(a) of the Retail Leases Act 1994 and clause 3.8(c) of the Lease, no deemed consent arose and HHT was entitled to withhold consent under s 39(1)(c) and clause 3.8(b)(iii). Consent was therefore not unreasonably withheld.

Court Disposition

Consent to assignment was not unreasonably withheld; the Amended Summons was dismissed with costs.

Orders

  • ['The Amended Summons should be dismissed with costs.']