Australia: Recovery of land tax under pre-2009 Leases – is it lawful after all?

Last Updated: 20 October 2015
Article by Robert Lyons

The recent Queensland Supreme Court decision in Wyuna Court Pty Ltd v Vikpro Pty Ltd [2015] QSC 216 has determined that it is lawful for landlords to recover land tax from commercial tenants from 30 June 2010 under certain leases entered into before 2009. This is despite a widely held belief amongst the property and legal professions, that Land Tax is not recoverable under existing commercial leases that were entered into before 30 June 2009.

Land Tax recovery – a recap

To appreciate the effect of the decision, it is necessary to recap on the recent history of land tax legislation in so far as it relates to recovery of Land Tax from tenants:

  • Section 44A of the Land Tax Act 1915 (the 1915 Act) provided that any obligation to pay land tax in a Lease entered into after 1 January 1992, was unenforceable.
  • In 2009, section 44A was repealed by the Revenue and Other Legislation Amendment Act 2009 (the 2009 Amending Act). The effect of the repeal was that from 30 June 2009, it was lawful for new commercial leases to contain a clause allowing for landlords to recovery Land Tax from tenants. Importantly however, the 2009 Amending Act inserted a transitional provision in the 1915 Act which provided that the prohibition on landlords recovering land tax from their tenants was preserved in Leases that were already in existence immediately before 30 June 2009 (and also for renewals of such leases).
  • In 2010, the Land Tax Act 2010 (the 2010 Act) was introduced, which repealed and replaced the 1915 Act. The 2010 Act came into force from 30 June 2010. The expressed intention of the 2010 Act was to modernise the law of land tax so as to comply with 'contemporary drafting practices.'
  • The 2010 Act did not contain any transitional provision which continued the prohibition on landlords recovering land tax from their tenants in Leases that were already in existence immediately before 30 June 2009.

Despite the 2010 Act not containing any transitional provision preserving the prohibition on recovering Land Tax under leases existing before 30 June 2009, it has been generally accepted that that prohibition remained as a result of the Acts Interpretation Act 1954 and principles of statutory interpretation. Specifically, section 20 of the Acts Interpretation Act relevantly provides that the repeal of an Act does not affect its previous operation or anything done or begun under the repealed Act (unless there is a clearly expressed legislative intention that the operation of the repealed Act is not to continue).

Applying that principle to the land tax legislation, even though there was no express transitional provision in the 2010 Act, the operation of the Amending Act which did include a transitional provision would not be affected by the repeal of the 1915 Act. However, in the case in question, the Supreme Court came to a different conclusion.

The case

The landlord in this case, under a lease commencing before 2009, sought to recover land tax from its commercial tenant, for the period of the lease arising after 30 June 2010.

The sole judge, found that section 4 of the Acts Interpretation Act overcame the effect of section 20 of that Act. Section 4 provides that the principles contained in the Acts Interpretation Act may be 'displaced, wholly or partly, by a contrary intention appearing in any Act.' The judge found that the repeal of the 1915 Act, together with the failure to include a transitional provision similar to that contained in the 2009 Amending Act, showed a clear parliamentary intention that the prohibition on recovery under pre-2009 Leases was not to continue under the 2010 Act. Therefore, section 20 did not have the effect of continuing the prohibition.

What Leases are affected by the case?

The decision will only affect commercial Leases which:

  • commenced before 30 June 2009 (including subsequent extensions/renewal of such Leases); and
  • contain a clause that says the Tenant must pay Land Tax.

The decision does not affect residential tenancies, or Leases governed by the Retail Shop Leases Act – recovery of Land Tax is under such Leases is unlawful in any circumstances.

What does the decision mean for landlords and tenants?

As the decision has been appealed, there is a possibility that is may be reversed. If the appeal is not successful, there also remains the possibility that the decision may be overturned by Parliament.

Landlords under affected leases who are considering now charging Land Tax to their tenants are advised to seek legal advice about their rights. In the case of recovering back charges, statutory limitation periods may apply. Depending on the specific circumstances, it may be preferable for such landlord to await the outcome of the appeal before seeking to charge tenants.

Similarly, tenants who find themselves being asked to commence payment of Land Tax should also seek legal advice.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Robert Lyons
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.