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High Court, in landlord and tenant proceedings concerning a landlord who withheld its consent in respect of a tenant's proposal to assign its interest under the lease to a third party, and on appeal from the Circuit Court which dispensed with the landlord's consent, allows the appeal and sets aside the order of the Circuit Court, on the grounds, inter alia, that: (1) the tenant failed to discharge the onus upon it to establish that the landlord acted unreasonably in withholding its consent to the proposed assignment; and (2) the tenant failed to substantiate its allegation that the refusal of consent was for the purposes of the landlord obtaining possession of the premises by way of a surrender at an undervalue.
Landlord and tenant dispute - Circuit Court appeal - multi-unit shopping centre - tenant seeking to assign its interest under the lease to a third party - landlord withholding consent - on the grounds of good estate management - landlord opposes in particular the assignee's intended use as a community centre - that it would be dead frontage and unsuitable for shopping centre - tenant seeking declaration that landlord is acting unreasonably in withholding consent - tenant further contends landlord withholding consent to facilitate obtain possession of demised premises by way of surrender at an undervalue - Circuit Court made order dispensing with landlord's consent - factual background - application for consent to assignment - legal framework - restriction on alienation under Clause 15 of the Lease - section 66 of the Landlord and Tenant (Amendment) Act 1980 - provides covenant in lease which tries to restrict alienation shall have effect as if it were a covenant restricting such alienation without the licence or consent of the lessor - consideration evidence - good estate management - mix of retail uses and avoiding dead frontage - court ultimately satisfied on balance of probabilities that expert evidence establishes importance of good mix of retail uses - further satisfied proposed community centre use is dead frontage - court considers whether conflict of interest of expert witness - pecuniary interest - whether tenant's witness is independent witness - existence emerged of pecuniary interest of expert witness - court finds tenant failed to substantiate allegation that refusal of consent was motivated by ulterior motive - tenant failed to discharge onus upon it to establish that landlord acted unreasonably - appeal allowed - order of Circuit Court set aside.
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