A vexing issue in the retail tenancies list at VCAT has been whether and when a landlord can sue a retail tenant’s guarantor at the Tribunal. This issue was addressed by the Cavanough J in Tucci v Victorian Civil and Administrative Tribunal & Anor [2010] VSC 425, in which the Court held that a landlord could sue a tenant’s […]

  A few solicitors have asked whether, in light of the High Court’s decision in Willmott last week (discussed here), tenants still need to insist on the consent of their landlord’s mortgagee before taking a lease. The answer is ‘yes‘. The High Court’s decision in Willmott recognises that a landlord’s liquidator has the power to extinguish a lease.  It does not […]

  The High Court today found that Liquidators of a landlord company can use the disclaimer power in the Corporations Act to extinguish leases granted by that company. A summary of the decision is available here. The decision upholds a decision of the Victorian Court of Appeal that has created significant consternation among those acting for […]

In an interesting recent decision from the Supreme Court,[1] Croft J held that an arbitration clause in a retail leases does not oust the Tribunal’s jurisdiction. A detailed discussion of this issue can be found on Robert Hay’s blog here and here. The Court also referred to a finding at first instance that the franchisee’s […]

Last Friday, 9 August 2013, the High Court heard an appeal against the Victorian Court of Appeal’s decision in Willmott Forests Ltd (Receivers and Managers appointed)(in liquidation) v Willmott Growers Group Inc and Willmott Action Group Inc [2012] VSCA 202. For those following the development of the case, the transcript of the hearing can be […]

The High Court yesterday granted special leave to appeal the Court of Appeal’s decision in Willmott Forests Ltd (Receivers and Managers appointed)(in liquidation) v Willmott Growers Group Inc and Willmott Action Group Inc [2012] VSCA 202. In a decision that has prompted a flurry of online discussions, the Court of Appeal held that a liquidator appointed […]

The Victorian Supreme Court has recently confirmed that landlords cannot be restrained from calling on a tenant’s bank guarantee unless the tenant can show an arguable case that the landlord is acting: fraudulently; unconscionably in breach of consumer protection statutes;  or in breach of a contractual promise not to call on the security. In a […]

In an interesting recent decision, Garde J in the Victorian Supreme Court: confirmed that distress for rent remains abolished in Victoria, despite the repeal of the Landlord and Tenant Act 1958 (Vic); and found that a lien in a lease over goods left behind by a tenant is effective, provided that it crystallised after re-entry and […]

For those interested in the Court of Appeal’s recent decision in the Willmott case, the decision was referred to recently by Beach J in the Victorian Supreme Court decision of Grant v Harlgate Pty Ltd & Anor [2012] VSC 464 (9 October 2012). The decision is also relevant to conveyancing lawyers faced with an insolvent […]

The Australian Financial Review today published an article reporting that an application for special leave to appeal the Court of Appeal’s recent decision in the Willmott case was filed last week. The Court of Appeal held that a liquidator of a land owning company can use the disclaimer power in the Corporations Act to disclaim […]