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

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 is a relevant consideration.

However, the Court found that the most persuasive considerations against the grant of relief were:

• the conduct of the former RE, including its failure to seek relief an other factors relied on by the landlords to support their estoppel claim;
• the potential for reduced rent paid to the landlords (the rent was a percentage of yield and the failure to maintain may affect that yield);
• Primary RE’s proposal to restructure the schemes with only the viable plantations being maintained, which would also impact on the rent;
• that more plantations may be abandoned;
• that the landlord is shackled with a tenant not of its own choosing and a very different scheme structure; and
• that there may now be less investors and less land under management.