Since my post about Willmott on 13 September 2012, the High Court has granted special leave to appeal from the Victorian Court of Appeal's decision made in August 2012.
Later this year, the Full Court of the High Court will hear the appeal and hopefully clarify whether a liquidator can disclaim an onerous lease under the provisions of the Corporations Act which allow liquidators to disclaim onerous contracts.
In my opinion, the Victorian Supreme Court and Court of Appeal decisions both require clarification about whether the proprietary interest that is granted to tenants in a lease can also be disclaimed as a part of the disclaimer of the contractual aspects of the lease; that seems to be an issue not confronted by the Victorian courts in their judgments.
I look forward to the High Court's decision with great interest!
W G Stark
Hayden Starke Chambers