In the matter of Bar Machiavelli Pty Ltd (Administrator Appointed) [2018] NSWSC 1395

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Bar Machiavelli Pty Ltd (Administrator Appointed) [2018] NSWSC 1395 Hearing dates: 6 September 2018 Date of orders: 10 September 2018 Decision date: 10 September 2018 Jurisdiction: Equity - Corporations List Before: Brereton JA Decision: (1) Declares that the first defendant WFM Motors Pty Ltd is not entitled to withhold its consent to the assignment of the Lease by Bar Machiavelli Pty Ltd to Bicher & Son Pty Ltd.

(2) Orders that the first defendant consent to the assignment by Bar Machiavelli Pty Ltd to Bicher & Son Pty Ltd.

(3) Reserves liberty to apply in the event of any difficulty arising in the implementation of these orders.

(4) Orders that the first defendant pay the plaintiffs' costs of the proceedings. Catchwords: LANDLORD AND TENANT – retail shop lease - assignment, severance and sublease - assignment of lease – whether landlord entitled to withhold consent – whether the proposed assignee has financial resources and retailing skills that are not inferior to those of the proposed insolvent assignor – whether lessee has complied with prescribed procedure for obtaining consent – requirements of prescribed procedure Legislation Cited: (CTH) Corporations Act 2001, s 436A (NSW) Retail Leases Act 1994, s 39, s 41 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 McEvoy Food Company Pty Limited v Miziner and Finch [2016] NSWCATCD 99 Category: Principal judgment Parties: Bicher & Son Pty Ltd (1P) Bicher Truco Pty Ltd (2P) Pelltruco Pty Ltd (3P) WFM Motors Pty Ltd (1D) David Hurst as administrator of Bar Machiavelli Pty Ltd (2D) Bar Machiavelli Pty Ltd (administrator appointed) (3D) Paola Toppi (4D) Representation: Counsel: J.M. Ireland (solr) (P) A. Fernon (1D) J. Scarcella (solr) (2&3D) J. Johnson (4D)