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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249 Hearing dates: 1 August 2012 Decision date: 10 August 2012 Before: Campbell JA (at [1]); Meagher JA (at [2]); Barrett JA (at [3]) Decision: 1. Appeal allowed. 2. Set aside the orders made in the Equity Division on 15 June 2012. 3. 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 respondent consented to such transfer. 4. Order that the first respondent pay the costs of the appellant and the second respondent of the appeal and of the proceedings below. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LANDLORD AND TENANT - retail and commercial tenancies legislation - Retail Leases Act 1994 - retail shop lease - lease forbids assignment without the lessor's consent - proposed assignment by two joint tenant lessees to one of them - whether proviso in Conveyancing Act s 133B(1)(a) applies - whether consent deemed given under Retail Leases Act s 41(d) and corresponding lease provision - where five separate requests for consent made - whether they should be viewed separately or as part of an ongoing negotiation - where lessor required information about the proposed assignee's financial standing - whether requirement within scope allowed by Retail Leases Act s 41(a) and corresponding lease provision - statutory condition in s 41(b) that lessee "furnish" to proposed assignee a particular document in the possession of the lessee - impossible for two persons having joint possession to "furnish" to one of them - condition inoperative Legislation Cited: Conveyancing Act 1919, s 133B(1)(a) Retail Leases Act 1994, ss 7, 39, 41, 43 Cases Cited: Burton v Camden London Borough Council [2000] 2 AC 399 Indian Taj Pty Ltd v Gilany [2004] NSWSC 1249 Lockrey v Historic Houses Trust of New South Wales [2012] NSWSC 654 Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 222: (2010) 243 FLR 177 Official Trustee in Bankruptcy v Kioussis [2000] NSWSC 248; (2000) 10 BPR 18,021 Opera House Investment Pty Ltd v Devon Buildings Pty Ltd [1936] HCA 14; (1936) 55 CLR 110 R v Justices of Leicestershire (1850) 15 QB 88; 117 ER 391 Re RHD Power Services Pty Ltd (1990) 3 ACSR 261 Re Trim Perfect Australia Pty Ltd; National Australia Bank Ltd [2005] NSWSC 972; (2005) 55 ACSR 237 Category: Principal judgment Parties: Paul Douglas Lockrey - Appellant Historic Houses Trust of New South Wales - First Respondent Ramy Joseph Shelhot - Second Respondent Representation: M A Robinson SC/P F Folino-Gallo - Appellant P R Whitford SC/J Darams - First Respondent Sydney Law Practice - Appellant Eakin McCaffery Cox - First Respondent Bartier Perry - Second Respondent File Number(s): 2012/204300 Decision under appeal Citation: Lockrey v Historic Houses Trust of New South Wales [2012] NSWSC 654 Date of Decision: 2012-06-15 00:00:00 Before: Stevenson J File Number(s): 2012/75059