The final comments made by the Court in the Primary RE case related to the potential liability of Primary RE to a claim for damages for breach of the lease that accrued prior to its appointment as replacement RE. This argument appears to arise out of the operation of s 601FS (discussed in more detail […]

Another issue in the Primary RE case was whether a replacement RE can seek relief from forfeiture of part only of a terminated lease. Primary RE was appointed as replacement RE for only the 2007 scheme.  However, some of the leased land was used for other schemes as well.   Consequently, Primary RE would be able […]

In the Primary RE case, the Court held that relief from forfeiture would not have been granted in any event. The Court (see para [196]): did not accept that the financial prospects of a restructured scheme is a significant factor in the exercise of the Court’s discretion;  and accepted that the interests of the investors […]

The Federal Government recently published a discussion paper on Managed Investment Schemes. The discussion paper arises out of recent high profile collapsed managed investment schemes and raises issues in relation to the transfer of a viable MIS, restructuring a potentially viable MIS and winding up a non-viable MIS. A copy of the discussion paper is […]

In the Primary RE case, the new RE sought relief from forfeiture of leases terminated following breaches of the lease by the former RE. The landlord argued that the former RE would have been estopped from seeking relief from forfeiture because it had failed to make an application for relief from forfeiture following service of […]

Primary RE replaced the old Great Southern RE of the schemes in this litigation. Under s 601FS of the Corporations Act: If the responsible entity of a registered scheme changes, the rights, obligations and liabilities of the former responsible entity in relation to the scheme become rights, obligations and liabilities of the new responsible entity.  […]

In a recent Queensland Court of Appeal decision, the tenant had purported to exercise its option out of time. The Court upheld the primary judge’s finding that: the purported exercise of an option out of time constituted an offer by the tenant to enter a new lease on the same terms as the option;  and […]

Primary RE argued that a landlord was required to serve notice under s 146 of the PLA on sub-tenants (in this case, the Growers) because the definition of lessee in s 146(5) of the PLA includes a derivative under-lessee and the persons deriving title under a lessee. The Court found that, in the absence of […]

Section 146 of the PLA states that (emphasis added): (1) A right of re-entry or forfeiture under any proviso or stipulation in a lease or otherwise arising by operation of law for a breach of any covenant or condition in the lease, including a breach amounting to repudiation, shall not be enforceable, by action or […]

My good friend Robert Hay has just started a property law blog here. If you follow my blog, you may also find Robert’s interesting.