Legal Research
Cases
CDLC Pty Ltd v Capital Estate Developments Pty Ltd

CDLC Pty Ltd v Capital Estate Developments Pty Ltd

Link copied

Case Copied 12 October 2023 41 min read

Contents

On this page

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	CDLC Pty Ltd v Capital Estate Developments Pty Ltd
Citation:	[2023] ACTSC 284
Hearing Date:	2 March 2023
DecisionDate:	12 October 2023
Before:	McWilliam J
Decision:	(1) Is the reasonableness of the first defendant’s refusal to consent to the sale of businesses pursuant to clause 2.6 of the Deed of Settlement to be determined by reference to: (i) Only information of which the first defendant was aware when it refused consent? Answer: *(a) Yes, if the ground relied upon for refusal at the time falls within s 100(2) of the Leases (Commercial and Retail) Act* 2001 (Leases Act); and (b) No, if the ground relied upon for refusal at the time concerns an objective fact or circumstance. (ii) Alternatively, the information in (i) and further information of which the first defendant was not aware when it refused consent, but which existed at that time? Answer: (a) No, if the ground relied upon for refusal at the time falls within s 100(2) of the Leases Act; and (b) Yes, if the ground relied upon for refusal at the time concerns an objective fact or circumstance within s 100(3) of the Leases Act. (iii) The information in (i) and (ii) and further information of which the first defendant was not aware when it refused consent and that did not exist at that time? Answer: No.** (2) Costs are reserved. (3) The parties are directed to confer and provide a list of available dates for hearing for the remainder of 2023.
Catchwords:	CONTRACT – LEASES – Consent to assignment – where consent refused – application of s 100 of the Leases (Commercial and Retail) Act 2001 (ACT) – whether reasonable in all the circumstances – to be determined subjectively or objectively – whether Court may take into account events that occurred or facts that became known after consent was sought and refused – answer depends on ground relied upon for refusal EVIDENCE – RELEVANCE – Ruling sought on scope of admissible documents – whether Court may take into account events that occurred or facts that became known after consent was sought and refused – relevance depends on the ground relied upon in s 100 of the Leases Act. PRACTICE AND PROCEDURE – SEPARATE QUESTION – rule 1521 of the Court Procedures Rules (2006) – whether separate question should be ordered – separate question ordered
Legislation Cited:	Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) r 1521 Leases (Commercial and Retail) Act 2001 (ACT) ss 12, 19, 95, 96, 99, 100 Legislation Act 2001 (ACT) s 140 Retail Leases Act 1994 (NSW) ss 39, 41
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Allmere v Burbank Trading Pty Ltd [2008] VSC 139 Ashworth Frazer Ltd v Gloucestor City Council [2001] UKHL 59; WLR 2180 Bates v Donaldson [1896] 2 QB 241 CIC Insurance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read CDLC Pty Ltd v Capital Estate Developments Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] ACTSC 284
Decision Date

CaseChat Overview and Summary

CDLC Pty Ltd and Pouring Pty Ltd, sublessees of premises owned by Capital Estate Developments Pty Ltd, sought to sell their businesses but required the landlord’s consent to assign the leases. Capital refused consent and sought to terminate the leases. The ultimate issue is the reasonableness of the landlord’s withholding of consent. The Court considered a preliminary issue concerning how to assess reasonableness and what material is relevant to that assessment. The plaintiffs argued that the evidence to be put before the Court was confined to the material facts that the landlord knew at the time. Capital argued that the admissible material was not so confined and that it could rely on other reasons to withhold consent than those given to the plaintiffs. The Court concluded that the answer depends on the ground relied upon for refusal. If the ground relied upon at the time falls within s 100(2) of the Leases (Commercial and Retail) Act 2001 (Leases Act), then the reasonableness of the refusal is to be determined by reference only to information of which the landlord was aware when it refused consent. If the ground relied upon for refusal at the time concerns an objective fact or circumstance, then the reasonableness of the refusal is to be determined by reference to information of which the landlord was aware when it refused consent, and further information of which the landlord was not aware when it refused consent, but which existed at that time. The Court does not take into account any fresh material that did not exist at the time. Costs are reserved, and the parties are directed to confer and provide a list of available dates for hearing for the remainder of 2023.

Orders