Duncan v Aljayar Pty Ltd [2010] NSWADT 224

Duncan v Aljayar Pty Ltd [2010] NSWADT 224

The particulars alleged conduct capable, if proven, of being described as highly unethical: refusing consent to assignment on less than proper grounds, terminating the Applicants' lease, and then letting the premises to the same proposed assignees. Because those allegations had a reasonable prospect of satisfying the high threshold for unconscionability, the Applicants should not be denied the opportunity to pursue relief under s62B alongside the retail tenancy claim.

Jurisdiction
Australia
Judgment Date
13 September 2010
Procedural Posture
Combined Retail Tenancy and Unconscionable Conduct Claim / Preliminary Decision on the Papers as to Whether the Unconscionable Conduct Claim Should Proceed
Outcome
The matter is to proceed as a combined retail tenancy and unconscionable conduct claim.
Legal Topics
['refusal of Consent to Assignment of Lease' 'termination of Retail Lease' 'retail Tenancy Claim' 'particulars of Unconscionable Conduct' 'high Standard of Moral Obloquy']
['retail Leases' 'unconscionable Conduct'] ['refusal of Consent to Assignment of Lease' 'termination of Retail Lease' 'retail Tenancy Claim' 'particulars of Unconscionable Conduct' 'high Standard of Moral Obloquy']

Case Brief

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Procedural Posture

Combined Retail Tenancy and Unconscionable Conduct Claim / Preliminary Decision on the Papers as to Whether the Unconscionable Conduct Claim Should Proceed

Legal Issues

  1. 1 ["Whether the Applicants' particulars, if proven at their highest, could amount to unconscionable conduct proscribed by s 62B." 'Whether the alleged refusal of consent to assignment, termination of the lease, and letting to the proposed assignees should proceed as an unconscionable conduct claim as well as a retail tenancy claim.']

Ratio Decidendi

The particulars alleged conduct capable, if proven, of being described as highly unethical: refusing consent to assignment on less than proper grounds, terminating the Applicants' lease, and then letting the premises to the same proposed assignees. Because those allegations had a reasonable prospect of satisfying the high threshold for unconscionability, the Applicants should not be denied the opportunity to pursue relief under s62B alongside the retail tenancy claim.

Court Disposition

The matter is to proceed as a combined retail tenancy and unconscionable conduct claim.

Orders

  • ['Matter to proceed as Combined Retail Tenancy and Unconscionable Conduct Claim']