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Disclaimer of a lease by the landlord’s liquidator does not extinguish the tenant’s property

February 9, 2012

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  [ED – the decision in this case has been overturned by the Court of Appeal – see subsequent post here.] Her Honour Davies J in the Victorian Supreme Court has ruled that the liquidator appointed to a land owning company cannot use the disclaimer power under the Corporations Act to disclaim leases over that […]

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FEA decision – special leave application filed

October 18, 2011

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In earlier posts here and here I have discussed the FEA decisions about the whether the words ‘without any deduction whatsoever‘ in a rental covenant are sufficient to exclude an equitable set-off. An application for special leave to appeal from the decision of the Full Court of the Federal Court to the High Court of Australia has been filed […]

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New Greens List website with useful resources

September 21, 2011

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Greens List (my clerk) has just launched a new website with resources that followers of this blog might be interested in. Michael Green had this to say about the new site: Especially valuable to solicitors is the library with over 90 papers in it, many of which can have been filmed and can be viewed. There is […]

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Paying rent “without deduction” – the Full Court decision in Norman; re Forest Enterprises Limited v FEA Plantations Ltd [2011] FCAFC 99

August 9, 2011

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The Full Court of the Federal Court today handed down its decision in the FEA case.  A copy of the court’s reasons is available here. The case is discussed on an earlier post here. In summary, the Full Court: discussed the legal principles surrounding equitable set-off (paragraphs [135] to [163]); for reasons not relevant to […]

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Liability of replacement RE for damages for breach of the lease. Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

July 28, 2011

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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 […]

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Multi-scheme leases. Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

July 25, 2011

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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 […]

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Relief would not have been granted in any event – Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

July 20, 2011

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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 […]

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Managed Investment Scheme discussion paper

July 15, 2011

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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 […]

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Does the replacement RE take its claim subject to equities against the old RE? Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

July 12, 2011

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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 […]

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Does a right to seek relief from forfeiture transfer under ss 601FS and 601FT of the Corporations Act? Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

July 8, 2011

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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.  […]

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