What the Wyuna Court decision means to landlords and
In Wyuna Court Pty Ltd v Vikpro Pty
Ltd,1 a single judge of the Supreme Court of
Queensland has determined a landlord under a lease entered into
before 30 June 2009 may require a tenant to reimburse land tax
imposed on or after 30 June 2010.
The decision is important to landlords and tenants because it
means that where:
a commercial lease is entered into before 30 June 2009;
the lease (or a renewal, assignment or transfer of the lease)
includes an obligation for the tenant to pay or reimburse tax (even
if land tax is not specifically mentioned),
the landlord may require the tenant to pay land tax imposed on
or after 30 June 2010.
It is possible the decision may be reversed on appeal or
government may legislate to overcome its effects. However, in the
meantime, landlords may want to take a closer look at the outgoings
provisions in their existing portfolio of older long term leases
entered into before 30 June 2009. Despite the position under
earlier legislation, the door seems to have opened for landlords to
recover land tax imposed on or after 30 June 2010 under some of
those leases (including any renewal, assignment or transfer of
Background and the tenant's
In Wyuna Court, a registered sublease obliged the
tenant to pay all rates, taxes and other outgoings
relating to the leased premises.
Despite this clause, the tenant asserted it wasn't liable to
pay land tax because section 44A of the repealed Land Tax Act
1915 (Qld) (1915 Act), which provided a
provision in a lease requiring a tenant to pay land tax is
unenforceable, continued to apply to leases entered before 30 June
2009 (and any renewal, assignment or transfer of those leases).
In line with the view of many legal commentators, the tenant
asserted the provision continued to apply to these leases because
of sections 20(2)(b) and (c) of the Acts Interpretation Act
1954 (Qld). These sections provide, among other things, the
repeal of an Act does not affect its previous operation or anything
done or begun under the Act.
History of section 44A and related
The table below provides a brief history of section 44A of the
1915 Act and its replacing Act – the Land Tax Act
2010 (Qld) (2010 Act).
21 Nov 1991
Section 44A is inserted in the 1915 Act. The section provides a
provision included in a lease entered into after 1 January 1992
which requires a tenant to pay land tax is unenforceable.
30 Jun 2009
Section 44A is repealed by amendments to the 1915 Act
included in the Revenue and Other Legislation Act
2009 (Qld). However, transitional provisions provide section
44A continues to apply to leases entered into before 30 June 2009
(and any renewal, assignment or transfer of those leases).
30 Jun 2010
The 1915 Act, as amended in 2009, is repealed and replaced with
the 2010 Act.2
The 2010 Act allows a landlord to require tenants to pay land
tax and does not include express provisions providing previous
section 44A continues to apply to leases entered into before 30
The Judge's reasoning
In Dalton J's view, the fact the legislature didn't
include a specific provision preserving section 44A of the 1915 Act
in the 2010 Act, when only a year before it had included such a
provision, strongly indicated the legislature intended section 44A
should no longer apply.
In relation to sections 20(2)(b) and (c) of the Acts
Interpretation Act 1954 (Qld), Dalton J noted under section 4
of that Act, the Act may be 'displaced, wholly or partly, by a
contrary intention...'. Dalton J considered the repeal of the
1915 Act together with the deliberate failure to include in the
2010 Act a specific provision preserving section 44A, show a clear
intention to displace section 20(2) of the Acts Interpretation
Act 1954 (Qld).
The result – the enactment of the 2010 Act removed the
previous bar on enforceability for provisions in leases obliging
tenants to pay land tax. However, it only allows recovery of land
tax imposed on or after 30 June 2010 if the lease allows the
landlord to recover land tax.
No impact on residential or retail leases
The decision does not affect the existing restrictions on
landlord's recovering land tax under residential or retail
1 QSC 216. 2Sections 1–2 of the 2010 Act commenced on the
date of assent (21 April 2010). The remaining provisions commenced
on 30 June 2010.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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