Commercial landlords are exposed to a range of risks from the economic and social consequences of the COVID-19 pandemic. One new risk to be confronted will come from the increased prevalence of rental deferrals and interaction with the Australian insolvency regime over ‘unfair preferences’.

Why is rent ‘protected’ in normal trading conditions?

The Coronavirus Act 2020 came into force on 20 March 2020 and, under section 82, created a moratorium on commercial landlords forfeiting business leases for non-payment of rent, which remains in place.

On 23 April 2020, the government announced additional temporary restrictions on commercial landlords, referring to:

“High street shops and other companies under strain [being] protected from aggressive rent collection”.

In this series, we look at how various payment rights are treated in bankruptcy. A summary like this could not possibly address every right that might arise in any given bankruptcy case. We have omitted several of the Bankruptcy Code’s more esoteric legal protections and exceptions that arise in specific kinds of bankruptcy cases. When bankruptcy strikes, creditors should always consult a bankruptcy lawyer to understand what actions they need to take to preserve their rights and maximize their recovery.

The Basic Concept of a “Claim”

The COVID-19 pandemic has triggered unprecedented levels of business disruption and forced numerous companies into bankruptcy in an effort to preserve dwindling liquidity and postpone creditor demands. Retailers, whose brick-and-mortar locations were already struggling to adapt to an increasingly online marketplace, have been among the hardest hit. A number of bankruptcy judges, faced with the prospect of an avalanche of forced liquidations, have thrown these debtors a lifeline by approving requests to suspend lease payments.

A case this week in New South Wales involving a dispute between the residents of a retirement village and the operator of a retirement village reminded us of some of the issues that can arise when a village goes into liquidation.  

In the recent Court of Appeal decision of Re Willmott Forests Ltd [2012] VSC 29, the Court held that a lessee’s leasehold interest can be extinguished by a liquidator appointed to a lessor company using the disclaimer power in s 568 of the Corporations Act 2001 (Act). 

Facts

A liquidator of a landlord company who disclaims a lease under section 568(1) of the Corporations Act 2001 (Cth), a section largely similar to section 269 of the Companies Act 1993 (NZ), does so with full effect, leaving the land unencumbered by the interests of tenants.

Key Points:

There are various issues of which a secured creditor must be aware in seeking to either comply with its obligations or take steps to enforce a mortgage under the Act.

Victoria's new Farm Debt Mediation Act 2011 (Vic) commenced operation on 1 December 2011 and is largely modelled on the equivalent New South Wales legislation, the Farm Debt Mediation Act 1994 (NSW).

Key Points:

The decision will give liquidators the certainty of knowing that disclaimer of a lease means that a tenant no longer has any interest in the land.

A recent decision of the Victorian Court of Appeal has confirmed that a liquidator of a landlord can disclaim a lease with full effect, so that the land is no longer encumbered by a tenant's interest.

The recent decision of the Victorian Court of Appeal in Re Willmott Forests Limited (Receivers and Managers appointed) (in liquidation) [2012] VSCA 202 gives liquidators comfort when disclaiming leases (as the liquidator of a landlord) pursuant to s 568(1) of the Corporations Act 2001 (Cth) (‘the Act’).