Meredith v Fitzgerald - [1948] HCA 11

FITZGERALD

RESPONDENT. DEFENDANT, Liquor-Licensing-Licence fee-Right of licensee who is not owner of licensed

premises to recover proportion of fee from owner notwithstanding agreement " to the contrary "-Fixed annual rent reserved by lease-Covenant for " further rent "-Amount of further rent equal to owner's proportion of licence fee Licens- MELBOURNE, ing Acts 1928-1946 (No. 3717-No. 5197) (Vict.), S. 19-Licensing (Fees) Act June 15, 16; 1931 (No. 4001) (Vict.), S. 2.

The Licensing Act 1928 (Vict.) provided, by S. 19 (1) (a) (as amended by the Licensing (Fees) Act 1931, S. 2), that the annual fee for a victualler's licence shall be equal to the sum of four per centum of the gross amount (including any duties thereon) paid or payable for all liquor which during the twelve months ended on the last day of June preceding the date of the application for the grant or renewal of the licence was purchased for the premises" in respect of which the licence was granted; and, by S. 19 (3):

Notwithstanding anything to the contrary in any agreement any licensed victualler who holds a victualler's licence for any premises of which he is not the owner and who pays the annual licence fee for such licence fixed on a percentage basis may without suffering any penalty imposed by any such agreement deduct from any rent payable by him for the premises for any year in respect of which such fee is paid a sum equal to three-eighths of the amount of such fee or may recover the said sum in any court of competent jurisdiction from the owner of the premises

The holder of a victualler's licence under the Act held the licensed premises under a lease from the owner by which the lessee covenanted to pay, firstly, a fixed annual rent and, secondly, by way of further rent, an annual sum

77 CLR 162

payable on 31st December in each year equal to an amount computed at the rate of £1 10s. for every £100 or fraction thereof of the gross amount (including any duties thereon) paid payable for all liquors which during each period of twelve months ending 30th June immediately preceding 31st December in each year of the term were purchased for the premises. The lessee claimed that the provision for further rent was void as being an agreement " to the contrary" within the meaning of S. 19 (3) (a) of the Act because it provided for payment to the lessor of an amount equal to the proportion of the licence fee which should be borne by him.

Held, by Latham C.J., Rich, Starke and Williams JJ. (Dixon J. dissenting), that the provision for further rent was not an agreement " to the contrary" within the meaning of the section.

Decision of the Supreme Court of Victoria (Full Court): Meredith V. Fitzgerald, (1948) V.L.R. 161, affirmed.

APPEAL from the Supreme Court…

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.

Continue reading Meredith v Fitzgerald

Details

AGLC: Meredith v Fitzgerald [1948] HCA 11
Case: [1948] HCA 11
Decision Date: 18 August 1948

CaseChat Overview and Summary

The case of *Meredith v Fitzgerald* concerned a dispute between a licensed victualler, Adelaide Agnes Henrietta Meredith (the appellant), and the owner of the licensed premises, John Desmond Fitzgerald (the respondent). Meredith held the premises under a lease from Fitzgerald, which stipulated a fixed annual rent and a "further rent" calculated as a percentage of the liquor purchased for the premises. Meredith had paid the annual licence fee and sought to recover three-eighths of this fee from Fitzgerald, as permitted by section 19(3)(a) of the *Licensing Act 1928* (Vic). Fitzgerald, however, sought to set off the unpaid "further rent" against Meredith's claim. The High Court of Australia was asked to determine whether the provision for "further rent" in the lease constituted an agreement "to the contrary" within the meaning of section 19(3)(a) of the Act, thereby rendering it void and preventing Fitzgerald from relying on it as a set-off.

The central legal issue before the High Court was the interpretation of section 19(3)(a) of the *Licensing Act 1928* (Vic). This section provided that a licensed victualler, who is not the owner of the premises and pays the annual licence fee, may, notwithstanding any agreement to the contrary, deduct a sum equal to three-eighths of the fee from any rent payable or recover it from the owner. The court had to decide whether the lease's provision for "further rent," calculated in a manner similar to the licence fee, was an agreement "to the contrary" that would invalidate Fitzgerald's claim to set off the unpaid further rent.

A majority of the High Court, comprising Latham C.J., Rich, Starke, and Williams JJ., held that the provision for "further rent" was not an agreement "to the contrary" within the meaning of section 19(3)(a). Their reasoning was that the section conferred specific rights on the tenant to deduct or recover a portion of the licence fee, and an "agreement to the contrary" would be one that directly denied these statutory rights. The lease, in this instance, did not prevent Meredith from exercising her right to deduct or recover the three-eighths of the licence fee. The "further rent" was payable independently of the actual licence fee paid and was calculated based on liquor purchases, not directly on the licence fee itself. Therefore, the provision for further rent did not interfere with Meredith's statutory rights.

Consequently, the High Court dismissed the appeal. While Meredith was entitled to recover the three-eighths of the licence fee from Fitzgerald, Fitzgerald was entitled to set off the unpaid "further rent" against this claim. The court affirmed the decision of the Supreme Court of Victoria, which had allowed Fitzgerald to set off the further rent. Dixon J. dissented, finding that the provision for further rent was indeed an agreement to the contrary.

Orders