Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296 Hearing dates: 14, 15 May 2013 Decision date: 05 September 2013 Before: Basten JA at [1]; Barrett JA at [110]; Bergin CJ in Eq at [111] Decision: (1) Appeal dismissed. (2) Appellants to pay the costs of the active respondents, being the first, second and third respondents [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: CONTRACT - construction - assignment of rights - whether party to contract (obligee) can grant charge over its contractual rights to third party without consent of other contracting party (obligor) - where contract stipulates that rights under the agreement "cannot be assigned, encumbered or otherwise dealt with... without the prior consent of the other parties (not to be unreasonably withheld)" - whether unreasonable withholding of consent constitutes breach of contract or affirmative grant of consent

CONTRACT - assignment of rights - whether refusal of obligor to consent to grant of charge over assignor's contractual rights unreasonable - obligor protected from suit by assignor by order barring further proceedings unless lump sum costs order paid - whether purported assignee willing to pay costs - whether assignee bound by barring order - whether identity and solvency of proposed assignee legitimate considerations - where contractual relationship continues only for purpose of resolving disputes under contract - respondents concerned with legal and financial status of purported assignee - whether these matters extraneous to agreement