Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd & Ors

[2003] WASCA 11

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Landlord and Tenant
2. › Leases
3. › Covenants against assignment
4. › Whether covenant not to assign applies to equitable assignment
5. › Construction of covenant
6. › Meaning of 'assign' in lease covenant
1. Landlord and Tenant
2. › Leases
3. › Assignment
4. › Consent to assignment
5. › Whether refusal to consent unreasonable
6. › Relevance of financial position of assignee
7. › Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 10
1. Landlord and Tenant
2. › Leases
3. › Alterations to premises
4. › Whether lessor consented to alterations
5. › Admissibility of without prejudice communications on issue of consent
1. Landlord and Tenant
2. › Leases
3. › Forfeiture
4. › Relief from forfeiture
5. › Standing of assignee to seek relief
6. › Whether wilful breach and financial precariousness preclude relief

Quick Take

A covenant against assignment in a lease, even one prohibiting assignment of 'any estate or interest' in the lease, will prima facie apply only to legal assignments and not to equitable assignments, unless the language of the covenant indicates a contrary intention. After a legal assignment of a leasehold estate (even one in breach of covenant), the assignee — not the assignor — is the proper party to seek relief from forfeiture. Under s 10 of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), the landlord need not specify grounds for withholding consent and is not confined to grounds actually specified; the onus remains on the lessee to establish unreasonableness.