Most Read Contributor in Australia, September 2016
On 6 September 2016 the Queensland Court of Appeal in Vikpro
Pty Ltd v Wyuna Court Pty Ltd  QCA 225 dismissed an
appeal and upheld the original findings of the Supreme Court in
Wyuna Court Pty Ltd v Vikpro Pty Ltd  QSC 216.
Why is this decision important to landlords and tenants?
A landlord under a commercial lease entered into before 30 June
2009 may now be able to require a tenant to pay or reimburse land
tax imposed on or after 30 June 2010. At the time those leases were
entered into, recovery of land tax from tenants was unenforceable
by operation of the now repealed Land Tax Act 1915 (Qld)
Facts of the case
A sublease required the tenant to pay "all rates taxes
and other outgoings relating to the lease premises".
Despite this clause in the sublease, the tenant was not liable
to pay land tax due to the operation of section 44A of the 1915
Act; which rendered such clauses unenforceable.
After an amendment to the 1915 Act in 2009, section 44A
continued to apply to leases entered into before 30 June 2009
(including any renewal, assignment or transfer of those
The 1915 Act was ultimately repealed and replaced in 2010 by
the Land Tax Act 2010 (Qld) ("2010
The 2010 Act:
allows a landlord to require tenants to pay land tax;
does not include an express provision that section 44A of the
1915 Act continues to apply to leases entered into before 30 June
The landlord asserted that because the 2010 Act was silent about
whether or not section 44A of the 1915 Act continued to apply to
leases entered into before 30 June 2009, the landlord could seek to
require the tenant to pay land tax.
The tenant asserted that section 44A of the 1915 Act continued
to apply to the sublease even under the 'silent' 2010
The Supreme Court in Wyuna Court Pty Ltd v Vikpro Pty
Ltd  QSC 216 rejected the tenant's argument and
found that the legislature deliberately excluded a specific
provision preserving the application of section 44A of the 1915 Act
to leases entered into before 30 June 2009. The Court of Appeal
upheld that decision in Vikpro Pty Ltd v Wyuna Court Pty
Ltd  QCA 225.
What does this mean for pre-30 June 2009 commercial
A landlord may now require the tenant to pay land tax imposed on
or after 30 June 2010 provided:
The lease is a commercial lease (i.e. not a retail or
residential lease) entered into before 30 June 2009; and
The lease includes a clause requiring the tenant to pay or
reimburse taxes (even if land tax is not specifically
This is a landmark decision that should have landlords reaching
to review commercial leases entered into before 30 June 2009.
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