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It has long been a vexed question whether a liquidator can disclaim a lease with the effect of extinguishing the tenant’s leasehold estate or interest in the land? In a major victory for tenants Justice Davies has answered that question with a resounding “no”. In In the Matter of Willmott Forests Ltd (in liquidation) [2012] VSC 29 the…
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I have had a number of queries about my last post in which I referred to N.C.Reid & Co v Pencarl Pty Ltd [2011] VCAT 2241 in which Judge O’Neill held that before re-entering leased premises the landlord did not have to serve a notice that complied with s.146 of the Property Law Act 1958. The lease permitted the landlord…
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Leases often provide that the landlord may re-enter premises and end the lease if a guarantor becomes bankrupt. In N.C.Reid & Co Pty Ltd v Pencarl Pty Ltd [2011] VCAT2241 the guarantor became bankrupt, the landlord re-entered the premises and leased the premises to a new tenant. The existing tenant sought relief against forfeiture and/or damages.…
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The High Court recently considered s37A of the Conveyancing Act 1919 (NSW) which is the New South Wales equivalent of s172(1) of the Property Law Act 1958. Section 172(1) provides that: “Save as provided in this section, every alienation of property made, whether before or after the commencement of this Act, with intent to defraud creditors,…
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Any practitioner who acts for vendors and purchasers of land should have a good understanding of what is and what is not a “terms contract” for the purpose of the Sale of Land Act 1962. The Act prohibits certain types of “terms contracts” and a purchaser can avoid contracts entered into in contravention of the…
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In Stone v Leonardis [2011] SASC 153 the Supreme Court of South Australia held at [36] that in principle a registered proprietor could lodge a caveat on title to protect its own interests. In Stone the registered proprietor lodged a caveat preventing a mortgagee of the land settling on a contract of sale. The registered proprietor’s…
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Division 6 of Part 5.3A of the Corporations Act 2001 provides for the imposition of a moratorium restraining parties from taking steps against a company under administration. According to s 435A the purpose of Part 5.3A is to provide for the business, property and affairs of an insolvent company to be administered in a way…
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It is trite law that a slight variation to a lease may effect a surrender and re-grant. See: Pascoe-Webbe v Nuguna Pty Ltd (1985) 3 BPR 97,231 (SC, NSW per Young J). In Richmond Football Club Limited v Verraty Pty Ltd [2011] VCAT 2104 a variation to a lease had major consequences for an unwitting…
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The termination of a lease automatically terminates any sublease. See: Bradbrook, Croft & Hay Commercial Tenancy Law, para 19.6. Where a landlord seeks to enforce a right of re-entry or forfeiture against a tenant the Court, on application of the sub-tenant, may vest the property in the head lease in a sub-tenant for the whole of the term…
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My previous post contended that the Ministerial Determination dated 29 April 2003 made pursuant to s. 5 of the Retail Leases Act 2003 (2003 Act) was made with power by reason of s.13(3) of the Interpretation of Legislation Act 1984. By the Determination the Minister excluded from the definition of “retail premises” in s.4 of the…
