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ARTICLE · 19 AUGUST 2012

Assignment of Retail Lease – points to note

Makinson d'Apice Lawyers
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This article covers some points which should be noted by landlords and tenants when dealing with assignment of a lease.

AustraliaReal Estate and Construction
Chris Drayton
Chris Drayton

In our blog " Consent to Assignment: necessary and may be withheld" of 4 July 2012, we discussed a Supreme Court of NSW decision dealing with the transfer of a lease which was caught by the provisions of the Retail Leases Act 1994 (NSW) ("Act").

Some aspects of the decision of the Supreme Court were appealed by the proposed assignee. The Court of Appeal ("COA") allowed the appeal.

There are a number of points to note from the COA decision which should be kept in mind by landlords and tenants under leases caught by the Act when dealing with assignment of the lease.

  1. No requirement of reasonableness - The provisions of the Act do not refer to the reasonableness or unreasonableness of the withholding of consent to assignment by a landlord. If one or more of the circumstances specified in the Act entitling a landlord to withhold consent exist then the landlord is entitled to withhold consent.

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