MR JACKSON: Your Honours, I was dealing with the terms of the lease and I have dealt with the terms to which I wish to refer other than the provisions about rent. May I come to those now. They commence at volume 3 page 615 and clause 1. What I am seeking to do is to deal with the relationship between clauses 1 and 4 and in particular with the functions to be performed by the several parts of those two clauses. This is a matter dealt with in our written submissions commencing in paragraph 12.

Could I go to page 615. Your Honours will see that what clause 1 first does is to fix the rent for the first three years of the term at a yearly rent of $2,000. That is about line 35. The second thing is that it then divides up the remaining term of the lease into 15 three‑year periods and a final two‑year period. That is immediately following. In respect of the periods other than the first three years, it provides that the rent is to be a yearly rent, and your Honours will see that at about line 45. One then sees that the lessor, the trustees, as it is there put, is to determine in respect of each three‑year or the last two‑year period a yearly rent.

Now, your Honours, the lessor, in making that determination is obliged – and your Honours will see the words – to do so in accordance with clause 4(b). Your Honours will see that from the words:

which shall be determined . . . as is hereinafter in Clause 4(b) provided –

May I pass over the last provision on that page in clause 1 and come back to it in combination with clause 4 in just a moment. May I take your Honours then to clause 4(b) which your Honours will see clause 4 commencing on page 620. If one goes to clause 4(b) on page 621, the first thing one sees is that it provides for the determination of the yearly rent for each ensuing period. Your Honours will see the words:

the yearly rent payable . . . may be determined by the Trustees at the commencement –

et cetera. Now, it indicates that the rent so determined is payable for each of the three years in question. Your Honours will see the words:

and the yearly rent so determined shall be payable during and in respect of the then succeeding three years of the…

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 Royal Botanic Gardens & Domain Trust v South Sydney City Cou...

Details

AGLC: Royal Botanic Gardens & Domain Trust v South Sydney City Council [2001] HCATrans 315
Case: [2001] HCATrans 315
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the Royal Botanic Gardens & Domain Trust and the South Sydney City Council concerning the Council's power to levy rates on land vested in the Trust. The Trust argued that the land, being dedicated to public recreation and enjoyment, was exempt from Council rates. The Council contended that the Trust's use of the land for commercial purposes, such as leasing space for cafes and kiosks, rendered it liable for rates.

The central legal issue before the High Court was whether the land vested in the Royal Botanic Gardens & Domain Trust was subject to general rating by the South Sydney City Council, notwithstanding its dedication for public purposes. This required the Court to interpret the relevant provisions of the *Local Government Act 1993* (NSW) and the *Royal Botanic Gardens and Domain Trust Act 1980* (NSW), particularly concerning the definition of "land liable to be rated" and any exemptions that might apply to land vested in a public trust for public purposes.

The High Court, by majority, held that the land vested in the Trust was not exempt from rating. The Court reasoned that the *Local Government Act* provided a comprehensive scheme for rating, and the specific exemptions within that Act did not extend to land vested in a statutory trust for public purposes, even if those purposes included public recreation. The Court found that the Trust's activities, including the leasing of land for commercial purposes, did not alter the fundamental nature of the land as being vested in the Trust for public purposes, but rather that the *Local Government Act* did not provide an exemption for such land. The Court emphasised that the purpose for which land is held is distinct from whether it is liable to be rated under the general rating provisions of the *Local Government Act*.

The appeal was dismissed, and the orders of the Supreme Court of New South Wales were affirmed.

Orders