Jewell Bay Pty Ltd v DPT Operator Pty Ltd [2009] NSWADT 225

CITATION: Jewell Bay Pty Ltd v DPT Operator Pty Ltd [2009] NSWADT 225

DIVISION: Retail Leases Division

APPLICANT Jewell Bay Pty Limited PARTIES: REPSONDENT DPT Operator Pty limited and DPPT Operator Pty Limited

FILE NUMBER: 095123

HEARING DATES: 31 July 2009

DATE OF DECISION: 25 August 2009

BEFORE: Fox R - Judicial Member

CATCHWORDS: Deemed consent to assignmentChange of use

LEGISLATION CITED : Retail Leases Act 1994 Conveyancing Act 1919

Mineaplenty Pty Limited v Trek Pty Limited [2006] NSWSC Ballas v Theophilos (No. 2) [HCA] 90; (1957) 98 CLR at 205 Quadling v Robinson [1976] HCA 31; (1976) 137 CLR at 201 CASES CITED: Prudential Assurance Co. Ltd v. Health Minders Pty Ltd (1987) 9 NSWLR 673 Castle Mall Fine Foods Pty Limited v Queensland Investment Corp [2003] NSWADT 207 Exxon Corporation v Exxon Insurance Consultants International Limited [1982] CH at 144 Manly Council v Malouf [2004] 61 NSWCR 394

APPLICANT Mr Sleight, solicitor REPRESENTATION: RESPONDENT Mr Vincent, solicitor

ORDERS: 1. Application dismissed 2. Costs reserved, Applicant to file Submissions on costs within 14 days, Respondent has 14 days to respond, papers then to be referred to me for decision on costs order, if no submissions filed, no order for costs.

REASONS FOR DECISION

1 This is an application by a lessee ("Jewell Bay") claiming an order pursuant to either s39 or s41(d) of the Retail Leases Act 1994 declaring that the Respondent lessor is not entitled to withhold consent to an assignment, or that a deemed assignment had occurred. The proposed assignment was still being negotiated between the Applicant and proposed assignee when it first came before the Tribunal as an Application for Urgent Interim Orders on 23 July 2009. Because of the obvious commercial urgency of the matter, being satisfied that a mediation would be unlikely to resolve the matter, I directed that the primary application be heard eight days later. Section 39:- " Grounds on which consent to assignment can be withheld (1) The lessor is entitled to withhold consent to the assignment of a retail shop lease in any of the following circumstances (and is not entitled to withhold that consent in any other circumstances): (a) if the proposed assignee proposes to change the use to which the shop is put, (b) if the proposed assignee has financial resources or retailing skills that are inferior to those of the proposed assignor, (c) if the lessee has not complied with section 41 (Procedure for obtaining consent to assignment), (d) the circumstances set out in section 80E. (2) This section does not preclude any right of the lessor to require payment of a reasonable sum in respect of any legal or other expenses incurred in connection with the consent, so long as the lessor has substantiated those expenses to the lessee at the request of the lessee."