BLINOFF v SIMMONS [2007] NSWCA 233

BLINOFF v SIMMONS [2007] NSWCA 233

Consent was granted by the lessor at the meeting, enabling the claimant to pursue assignment of the lease; no breach of contract existed by the defendants as only best endeavours could be implied, not absolute obligation; Retail Leases Act 1994 did not prevent validity of consent given; arguments for frustration were untenable as consent was established.

Parties
Claimant: Steven Edward Blinoff; Opponent: Harry Simmons; Opponent: Debbie Simmons
Jurisdiction
Australia
Judgment Date
23 August 2007
Procedural Posture
Leave to Appeal / Dismissal of Summons for Leave to Appeal
Outcome
summons for leave to appeal dismissed with costs
Legal Topics
Sale of Business, Assignment of Lease, Implied Terms, Frustration, Retail Leases
Contract Law Sale of Business Assignment of Lease Implied Terms Frustration Retail Leases

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Parties

Steven Edward Blinoff

Claimant

Harry Simmons

Opponent

Debbie Simmons

Opponent

Procedural Posture

Leave to Appeal / Dismissal of Summons for Leave to Appeal

Legal Issues

  1. 1 whether lessors consented to assignment of lease
  2. 2 whether contract included implied term to secure assignment
  3. 3 effect of Retail Leases Act 1994 (NSW) ss 39 and 41

Ratio Decidendi

Consent was granted by the lessor at the meeting, enabling the claimant to pursue assignment of the lease; no breach of contract existed by the defendants as only best endeavours could be implied, not absolute obligation; Retail Leases Act 1994 did not prevent validity of consent given; arguments for frustration were untenable as consent was established.

Court Disposition

summons for leave to appeal dismissed with costs

Orders

  • summons for leave to appeal dismissed with costs