ABSTRACT
The liquidator may disclaim any property of the company which is onerous (s 178). Onerous property is defined as any unprofitable contract and any other property which is unsaleable or may give rise to a liability to pay money or perform any other onerous act on the part of the company (s 178(3)). The liquidator may disclaim notwithstanding that he has endeavoured to sell the property in question. There is no right to disclaim a contract affecting land simply because that contract is not beneficial without disclaiming the property itself. In order to disclaim, the liquidator must give a notice in the prescribed form (Form 4.53 in Sched 4 to the Rules), file at court the notice and serve the same on the party affected. A liquidator does not need leave of the court to disclaim. There is no time limit within which the liquidator can disclaim unless he has been served with notice by the person interested in the property requiring him to make a decision within 28 days (s 178(5)). If the liquidator disclaims a lease, the court can vest the property in any person claiming an interest in that property, the guarantor of any liability in respect of the property or, in the case of a dwelling-house, in the occupant (s 181). Disclaimer operates so as to determine the rights, interests and liabilities of the company in respect of a disclaimed property. Disclaimer does not affect the rights and liabilities of third parties except in so far as is necessary in releasing the company from any liability (s 178(4)). Guarantors of a lease disclaimed by the liquidator are no longer released (Hindcastle v Barbara Attenborough Associates [1996] 1 All ER 737, overruling Stacey v Hill [1901] 1 KB 660). See, also, para 2.12.1.
