Disclaimer of onerous property.Disclaimer of onerous property.

### Disclaimer of onerous property. Tas., ss. 22, 23. E.B.A., s. 54. N.S.W., s. 62. Vic., s. 155. S.A., ss. 130–134. W.A., s. 52. Q., s. 130. 104.—(1.) Where any part of the property of the bankrupt consists of— (a) land of any tenure burdened with onerous covenants; or (b) shares or stock in companies; or (c) unprofitable contracts; or (d) any other property that is unsaleable, or not readily saleable, by reason of its binding the owner thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, may, subject to the provisions of this section, by writing signed by him, at any time within twelve months after the first appointment of a trustee, or within such further time as the Court allows disclaim the property: Provided that where any such property has not come to the knowledge of the trustee within one month after such appointment, he may disclaim the property at any time within twelve months after he first became aware thereof. (2.) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests, and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person. (3.) Except as prescribed, a trustee shall not be entitled to disclaim a lease without the leave of the Court, and the Court may, before or on granting such leave, require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such orders with respect to fixtures, tenant’s improvements, and other matters arising out of the tenancy, as the Court thinks just. Q., s. 131. (4.) The trustee shall not be entitled to disclaim any property in pursuance of this section in any case where— (a) an application in writing has been made to the trustee by any person interested in the property requiring him to decide whether he will disclaim or not, and (b) he has, for a period of twenty-eight days after the receipt of the application, or such extended period as is allowed by the Court, declined or neglected to give notice whether he disclaims the property or not. In the case of a contract, if the trustee, after the application, does not, within that period or extended period, disclaim it, he shall be deemed to have adopted it. (5.) The Court may, on the application of any person who is, as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as the Court thinks just, and any damages payable under the order to any such person may be proved by him as a debt in the bankruptcy. (6.) The Court may, on application by any person either claiming any interest in, or being under any liability not discharged by this Act in respect of, any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or delivery thereof to any person entitled thereto, or to whom it seems just that it should be delivered by way of compensation for that liability, or a trustee for him, and on such terms as the Court thinks just. (7.) On any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without (unless otherwise prescribed) any conveyance, transfer, or assignment for the purpose. (8.) Where the property disclaimed is of a leasehold nature, the Court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as mortgagee by demise, except upon the terms of making that person— (a) subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the petition was filed, or (b) subject to the same liabilities and obligations as if the lease had been assigned to him at the date when the petition was filed; and in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order. (9.) Any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and if there is no person claiming under the bankrupt who is willing to accept an order upon such terms, the Court shall have power to vest the bankrupt’s estate and interest in the property in any person liable either personally or in a representative character, and either alone or jointly with the bankrupt, to perform the lessee’s covenants in the lease, freed and discharged from all estates, encumbrances, and interests created therein by the bankrupt.