Meredith v Fitzgerald

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.