McEvoy Food Company Pty Limited v Miziner and Finch [2016] NSWCATCD 99

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McEvoy Food Company Pty Limited v Miziner and Finch [2016] NSWCATCD 99 Hearing dates: 17 November 2016 Date of orders: 17 November 2016 Decision date: 29 December 2016 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1. The respondents are not entitled to withhold consent to the assignment of lease to WOW Music Pty Ltd. Catchwords: Consent to Assignment of Lease, ss39 and 41 of Retail Leases Act 1994 Legislation Cited: Retail Leases Act 1994 Cases Cited: Harbourside Catering Pty Ltd v TMG Developments Pty Ltd [2007] NSWSC 1375 Lockrey v Historic Houses Trust of New South Wales (2012) NSWCA 249 Category: Principal judgment Parties: McEvoy Food Company Pty Limited (Applicant) Michael Miziner and Rachael Anne Finch (Respondents) Representation: Counsel: Mr L Byrne (Respondent) Solicitors: Stephen Wawn & Associates (Applicant) Abrahams & Associates (Respondents) File Number(s): COM 16/34098 Publication restriction: Nil

REASONS FOR DECISION 1. This is a retail dispute regarding consent to an assignment of lease. The applicant is McEvoy Food Company Pty Ltd (the applicant) who is the lessee under a lease from the respondents Mr Michael Miziner and Ms Rachael Finch (the respondents) in respect of premises at 88 McEvoy Street, Alexandria (the Lease). 2. The applicant has requested the respondents to consent to a proposed assignment of the Lease to WoW Music Pty Ltd (the proposed assignee) (the proposed assignment). 3. The dispute came on for hearing before me on Thursday 17 November 2016. Mr A Vainauskas of Stephen Wawn & Associates represented the applicant and Mr L Byrne of Counsel, instructed by Abrahams & Associates, represented the respondents. 4. The parties prepared a joint statement of agreed facts and issues. The agreed issues in dispute are: 1. Does the proposed assignee have financial resources that are inferior to the applicant? 2. Does the proposed assignee have retailing skills that are inferior to the applicant? 1. Has the applicant complied with clause 10.3 of the Lease and s 41A of the Retail Leases Act 1994 (RLA) by providing the respondents with such information as the respondents reasonably require concerning the financial standing and business experience of the proposed assignee? 1. Does the proposed assignee propose to change the use to which the leased premises are put? 2. Are the respondents prevented from withholding consent to the proposed assignment on the basis that they are deemed to have consented to the proposed assignment pursuant to clause 10.5 of the Lease and s 41(d) of the RLA and does this issue properly arise? 3. Have the respondents withheld consent to the proposed assignment without due grounds? 4. If the respondents have withheld consent of the proposed assignment without due grounds: 1. did such withholding of consent constitute a breach of the terms of the Lease? and 2. to what extent did such breach cause the applicant to suffer damage? 1. The parties agree that clause 10.4 of the Lease and s 41(b) of the RLA do not apply in respect of the matters raised in these proceedings.