Living and Leisure Australia Ltd v Commissioner of State Revenue

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Living and Leisure Australia Ltd, sought to appeal a decision of the Court of Appeal of Victoria concerning the nature of an instrument granting rights to use land. The dispute centred on whether the reservations within the instrument were so extensive as to prevent it from granting a right of exclusive possession, and therefore whether it constituted a lease at law.

The legal issues before the High Court were whether the authorities were sufficiently developed and clear regarding the degree of qualification permissible in a grant of exclusive possession before it ceases to be considered a lease, and what approach or considerations apply to determining whether this line has been crossed in a given case. Specifically, the applicant argued that a reservation allowing free liberty and authority for all members of the public, including hikers and mountain bike riders, to enter, use, and enjoy the demised land, went markedly beyond the ambit of customers or potential customers and was antithetical to the exclusivity of possession that denotes a lease.

The applicant contended that the reservation in clause 2.1(k) of the instrument was as wide as, or wider than, reservations considered in previous High Court decisions such as *Brown* and *Ward*, which had led to findings that no right of exclusive possession was granted. The applicant argued that the Court of Appeal below had erred by first concluding the document looked like a lease and then considering whether the reservations were sufficient to displace that conclusion, rather than first analysing what was granted and what was reserved. The applicant submitted that the reservation in clause 2.1(k) was a general grant of public access, not merely a qualification for the conduct of the business, and therefore the instrument did not create an interest in land sufficient to support a lease.

The High Court refused the application for special leave to appeal. The Court determined that the appeal did not have sufficient prospects of success to warrant the grant of special leave. Consequently, the application was refused with costs.