Australia: Landlords under leases entered into before 30 June 2009 can recover land tax payable from 30 June 2010 -- at least for now

What the Wyuna Court decision means to landlords and tenants

In Wyuna Court Pty Ltd v Vikpro Pty Ltd,¹ a single judge of the Supreme Court of Queensland has determined a landlord under a lease entered into before 30 June 2009 may require a tenant to reimburse land tax imposed on or after 30 June 2010.

The decision is important to landlords and tenants because it means that where:

• a commercial lease is entered into before 30 June 2009; and
• the lease (or a renewal, assignment or transfer of the lease) includes an obligation for the tenant to pay or reimburse tax (even if land tax is not specifically mentioned),

the landlord may require the tenant to pay land tax imposed on or after 30 June 2010.

It is possible the decision may be reversed on appeal or government may legislate to overcome its effects. However, in the meantime, landlords may want to take a closer look at the outgoings provisions in their existing portfolio of older long term leases entered into before 30 June 2009. Despite the position under earlier legislation, the door seems to have opened for landlords to recover land tax imposed on or after 30 June 2010 under some of those leases (including any renewal, assignment or transfer of those leases).

Background and the tenant's assertions

In Wyuna Court, a registered sublease obliged the tenant to pay all rates, taxes and other outgoings relating to the leased premises.

Despite this clause, the tenant asserted it wasn't liable to pay land tax because section 44A of the repealed Land Tax Act 1915 (Qld) (1915 Act), which provided a provision in a lease requiring a tenant to pay land tax is unenforceable, continued to apply to leases entered before 30 June 2009 (and any renewal, assignment or transfer of those leases).

In line with the view of many legal commentators, the tenant asserted the provision continued to apply to these leases because of sections 20(2)(b) and (c) of the Acts Interpretation Act 1954 (Qld). These sections provide, among other things, the repeal of an Act does not affect its previous operation or anything done or begun under the Act.

History of section 44A and related provisions

The table below provides a brief history of section 44A of the 1915 Act and its replacing Act – the Land Tax Act 2010 (Qld) (2010 Act).

The Judge's reasoning

In Dalton J's view, the fact the legislature didn't include a specific provision preserving section 44A of the 1915 Act in the 2010 Act, when only a year before it had included such a provision, strongly indicated the legislature intended section 44A should no longer apply.

In relation to sections 20(2)(b) and (c) of the Acts Interpretation Act 1954 (Qld), Dalton J noted under section 4 of that Act, the Act may be 'displaced, wholly or partly, by a contrary intention...'. Dalton J considered the repeal of the 1915 Act together with the deliberate failure to include in the 2010 Act a specific provision preserving section 44A, show a clear intention to displace section 20(2) of the Acts Interpretation Act 1954 (Qld).

The result – the enactment of the 2010 Act removed the previous bar on enforceability for provisions in leases obliging tenants to pay land tax. However, it only allows recovery of land tax imposed on or after 30 June 2010 if the lease allows the landlord to recover land tax.

No impact on residential or retail leases

The decision does not affect the existing restrictions on landlord's recovering land tax under residential or retail leases.

Footnotes

¹[2015] QSC 216.
²Sections 1–2 of the 2010 Act commenced on the date of assent (21 April 2010). The remaining provisions commenced on 30 June 2010.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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