Key Points

The High Court in Willmott Growers Group¹ has upheld a Victorian Court of Appeal decision that a lease can be disclaimed by the liquidator of a landlord. The decision will have very significant implications for tenants including:

In brief - High Court confirms that liquidators of landlord companies can disclaim leases, terminating lessees' rights

In a decision handed down earlier today, in Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers appointed) (in liquidation) [2013] HCA 51,  the majority of the High Court upheld the Victorian Court of Appeal’s conclusion that the liquidators of an insolvent landlord can disclaim a lease, thereby extinguishing the tenant’s leasehold interest.

Today the High Court of Australia handed down a decision which confirms a liquidator has the green light to disclaim leasehold interests in land (Willmott Growers Group Inc v Willmott Forests Limited (receivers and managers appointed)(in liquidation)).

Due to the way in which the case came before the Courts, the High Court did not consider the application of s568B of the Corporations Act 2001 (Cth) (Act). 

This section allows tenants to challenge in Court the liquidator’s disclaimer.

Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (In Liquidation) [2013] HCA 51

Overview

Section 568 of the Corporations Act 2001 (Cth) (Act) gives liquidators broad powers to disclaim onerous property.

Until the High Court’s decision, it was unclear whether this power entitled a liquidator of an insolvent landlord to disclaim a lease, such that the solvent tenant no longer has any proprietary interest in the land.

Summary 

In the recent decision of Re Willmott Forests Ltd,1the Victorian Court of Appeal held that a liquidator could disclaim a lease under the Corporations Act (Act).

Upon appointment, a liquidator will generally exercise control of as much of the company’s property as is available, so that it can be realised for the benefit of creditors.  However, in some cases, a liquidator may not wish to retain certain property if it is unlikely that such property will provide a return to the liquidation.

The Companies Act 2006 (Strategic Report and Directors' Report) Regulations 2013 (Regulations) to amend the structure of UK annual reports have been published and laid before Parliament.

The Personal Property Securities Act 2009 (Cth) (PPSA) came into effect on 30 January 2012 and has introduced major changes for businesses that lease or hire personal property. If you lease or hire personal property it is vital that you understand how the PPSA affects your business, including what additional steps you need to take to protect your property and the consequences for not doing so, especially as the PPSA’s transitional provisions will end shortly.

What does the PPSA mean for your business?

Later this year the High Court will hear an appeal from the decision of the Victorian Court of Appeal in Re Willmott Forests Limited (Receivers and Managers appointed) (in liquidation) [2012] VSCA 202.

The decisions of the Court of Appeal and the trial judge were considered in our earlier alert that can be accessed by clicking here.