Blinoff v Simmons

The appeal concerned a dispute arising from the sale of a business, where the purchasers, Blinoff and Ors, sought to appeal a decision concerning the lessors' consent to the transfer of the retail lease. The respondents were Simmons and Ors, the vendors of the business. The primary legal question revolved around the obligations of the lessees as vendors of the business in relation to obtaining the lessors' consent to the transfer of the lease, particularly in light of sections 39 and 41 of the *Retail Leases Act 1994* (NSW).

The court was required to determine whether the vendors had breached their obligations under the contract of sale by failing to secure the lessors' consent to the assignment of the lease. This involved an examination of the interplay between the contractual terms and the statutory requirements imposed by the *Retail Leases Act 1994*. Specifically, the court considered the extent of the vendors' duty to take reasonable steps to obtain such consent and whether their actions, or inactions, constituted a repudiation of the contract.

The court found that the vendors had not breached their contractual obligations. It was held that the vendors had taken all reasonable steps available to them to obtain the lessors' consent, and that the lessors' refusal to consent was not attributable to any failure on the part of the vendors. The court applied the principles of contract law concerning the duty to obtain third-party consent, emphasizing that a party is not generally required to take steps that are futile or that are beyond their reasonable control. The statutory provisions of the *Retail Leases Act 1994* were interpreted in a manner that did not impose an absolute obligation on the vendors to secure consent in circumstances where it was unreasonably withheld by the lessors.

The summons for leave to appeal was dismissed with costs.