B Bebarfald and Co Ltd v Macintosh and Corner - [1911] HCA 8

12 C.L.R.] OF AUSTRALIA.

139

[HIGH COURT OF AUSTRALIA.]

B. BEBARFALD & CO. LTD.

A p p e l l a n t s ;

D e f e n d a n t s ,

AND

CHRISTINA MACINTOSH AND]

R e s p o n d e n t s .

HENRY CORNER

P l a in t if f s ,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES.

Sydney Corporation (Amendment) Act 1908, (JV.S.W.) (No. 27), -sec. 1\—Landlord

H. C. OF A.

and tenant—Incidence of land tax—Agreement by lessee prior to November 1908 1910.

— Lease executed in January 1909—Alteration of law— Reservation of existing

rights—Construction of remedial Act.

Sy d n e y ,

Lee. 14, 15.

By secs. 4 and II of the Sydney Corporation (Amendment) Act 1908, which came into operation on 22nd December 1908, a tax on unimproved capital

1911,

' April 20.

value is payable by the owner of rateable property.

But by sub-sec. (2) of

Griffith C.J., Barton,

sec. 11 where the lessee before 1st November 1908 has agreed with the owner

or mesne lessee from whom he holds to pay municipal taxes, notwithstanding O’Connor and

such agreement and during its currency an adjustment of the rate may be Isaacs JJ.

made by the Commissioner as between the owner and the lessee.

In April 1908 an agreement was made between the plaintiffs, who were owners of rateable land, and R., by which it was agreed that R. should erect a shop on the land before 1st .January 1909, that, upon the shop being erected within the time limited, the plaintiffs should grant and R. should accept a lease of the land for 30 years from 1st January 1909, that the lease should contain a covenant by the tenant to pay all existing and future taxes of every description payable by the landlord or tenant in respect of the premises, and that the plaintiffs, if requested by R., would execute the lease to the defendants. I t was also provided that the document was intended to operate as an agree ment only, and not as an actual demise, or to give R. any legal interest therein until the lease should be executed. The shop being completed within the time specified, the plaintiffs, on 12th January 1909, at R .’s, request.

140 HIGH COURT

[1910.

H. C. OF A.

executed a lease of the land to the defendants for 30 years from 1st January

1910.1909. The lease was made between the plaintiffs, B ., and the defendants. I t recited the agreement of 24th April between the plaintiffs and B., the

B eb a rfa ld request by B. to the plaintiffs to grant the lease to the defendants, and

& Co. L t d .

V.witnessed that in pursuance of the agreement and in consideration of the

M a c in to sh .covenants by the lessee thereinafter contained the plaintiffs at the request of

B.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1911] HCA 8
Decision Date: 20 April 1911

CaseChat Overview and Summary

Bebarfald and Co Ltd (the appellant) and Macintosh and Corner (the respondents) were parties to a dispute concerning the incidence of land tax under a lease agreement. The matter came before the High Court of Australia.

The central legal issue before the Court was whether the appellant, as the lessee, was liable to pay land tax that became payable after the execution of the lease, notwithstanding a subsequent change in the law. Specifically, the Court had to determine the proper construction of the lease agreement in light of amendments to land tax legislation that occurred after the lease was entered into.

The Court reasoned that the lease agreement, executed in January 1909, contained a covenant by the lessee to pay all rates, taxes, and assessments which might be payable in respect of the demised premises. The relevant land tax legislation was amended in November 1908, prior to the lease execution, and further amended in 1910. The Court held that the covenant in the lease was broad enough to encompass the land tax imposed by the legislation as it stood at the time of the lease and as it might be altered thereafter. The Court applied the principle that a lessee's covenant to pay taxes generally extends to taxes imposed by subsequent legislation unless there is a clear indication to the contrary. The Court found no such contrary intention in the lease.

The appeal was dismissed.

Orders