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Vikpro Pty Ltd v Wyuna Court Pty Ltd

 

[2016] QCA 225

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Vikpro Pty Ltd v Wyuna Court Pty Ltd [2016] QCA 225

PARTIES:

VIKPRO PTY LTD
ACN 154 015 237
(appellant)
v
WYUNA COURT PTY LTD ATF WYUNA COURT UNIT TRUST
ACN 602 269 250
(respondent)

FILE NO/S:

Appeal No 8669 of 2015

SC No 3672 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 216

DELIVERED ON:

6 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2016

JUDGES:

Holmes CJ and Philippides and Philip McMurdo JJA

Separate reasons for judgment of each member of the Court, Holmes CJ and Philip McMurdo JA concurring as to the order made, Philippides JA dissenting

ORDER:

The appeal is dismissed with costs.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – where the appellant was the lessee and the respondent the lessor under a sub-lease of a property – where the head lease required the lessee to pay all taxes and rates in respect of the demised land – where at the time the lease was entered, s 44A of the Land Tax Act 1915 (“the 1915 Act”) rendered such a provision unenforceable in respect of land tax imposed under that Act – where s 44A of the 1915 Act was repealed in 2009 – where a transitional provision preserved its effect – where the 1915 Act was subsequently repealed and replaced by the Land Tax Act 2010 (“the 2010 Act”) – whether the transitional provision continued to preserve the operation of s 44A of the 1915 Act after the repeal of that Act – whether if the operation of s 44A were preserved it could have any application in respect of land tax imposed under the 2010 Act

Acts Interpretation Act 1954 (Qld), s 4, s 20(2), s 32A

Land Tax Act 1915 (Qld), s 44A, s 69, s 76

Land Tax Act 2010 (Qld), s 86, s 88, s 89, s 93

Revenue and Other Legislation Amendment Act 2009 (Qld), s 52

Ametex Fabrics Inc v C & F Fabrics Pty Ltd (1992) 38 FCR 415; (1992) 111 ALR 565; [1992] FCA 529, considered

BBC Enterprises Ltd v Hi-Tech Xtravision Ltd (1989) 20 IPR 368, cited

Bradlaugh v Clarke (1883) 8 App Cas 354, cited

Chang v Laidley Shire Council (2007) 234 CLR 1; [2007] HCA 37, cited

Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388; [2007] NSWCA 190, cited

Doro v Victorian Railways Commissioners [1960] VR 84; [1960] VicRp 12, considered

Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162; [1996] QCA 87, cited

North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38; (2015) 326 ALR 16; [2015] HCA 41, cited

Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291; [1996] QCA 441, cited

Sifam Electrical Instrument Co Ltd v Sangamo Weston Ltd [1971] 2 All ER 1074, considered

COUNSEL:

P Dunning QC SG, with S Richardson, for the appellant

G D Beacham QC for the respondent

SOLICITORS:

GM Lawyers for the appellant

Holding Redlich for the respondent

[1] HOLMES CJ:  The appellant was the lessee, and the respondent the lessor, under a sub-lease of a property at Hemmant entered in August 2006 for a 70 year term.  Clause 11.2 of the head lease required the lessee to pay, inter alia, all taxes and rates in respect of the demised land, but at the time the lease was entered, s 44A of the Land Tax Act 1915 (“the 1915 Act”) rendered such a provision unenforceable in respect of land tax imposed under that Act.  That continued to be the position after the repeal of s 44A in 2009, by virtue of a transitional provision which preserved the section’s effect.  The question for the primary judge was whether, after the repeal of the 1915 Act and its replacement by the Land Tax Act 2010 (“the 2010 Act”), a transitional provision in the latter Act continued to preserve the operation of s 44A.  Her Honour concluded that the transitional provision did not have that effect and made a declaration that the lessee was liable to pay land tax levied on the lessor.

The position before enactment of the Land Tax Act 2010

[2] Section 44A(1) was inserted in the 1915 Act in 1991, and remained in force when the lease was entered.  It provided:

44AProvision to pay land tax etc. unenforceable

(1)A provision in a lease entered into after 1 January 1992 requiring a lessee to –

(a)pay land tax; or

(b)reimburse the lessor for land tax;

is unenforceable.

…”

[3] Section 44A was repealed in 2009 when the 1915 Act was amended by the Revenue and Other Legislation Amendment Act 2009.  That Act inserted a transitional provision of general application:

69Application of previous provisions to particular liabilities etc.

Subject to section 72, despite their amendment or repeal by the amending Act, the previous provisions of this Act continue to apply in relation to—

(a)a pre-commencement liability; and

(b)a pre-commencement act or omission.”

By s 67 of the amended Act, “pre-commencement liability” was defined as meaning a liability for land tax arising before the commencement of the transitional provisions and “pre-commencement act or omission” as meaning an act or omission done for the Act before their commencement.

[4] A second transitional provision applied specifically to s 44A:

76Application of previous s 44A

(1)This section applies to—

(a)a lease (the pre-existing lease) to which previous section 44A applied immediately before the commencement; and

(b)a lease that arises from—

(i)a renewal under an option to renew contained in the pre-existing lease; or

(ii)an assignment or transfer of the pre-existing lease.

(2)Previous section 44A applies to the pre-existing lease and a lease mentioned in subsection (1)(b) despite its repeal by the amending Act, section 19.”

The Explanatory Note to the Revenue and Other Legislation Bill 2009 explained that it was proposed to remove the prohibition on landlords’ passing on land tax “for new leases entered into after the amendment is made”[1] and explained the effect of s 76 as confirming that the prohibition would continue to apply to leases which existed immediately before the commencement of the Act.[2]  There was no dispute at first instance, or here, that the amended Act preserved the s 44A prohibition on the lessor’s requiring the lessee to meet the land tax levied.  The argument was as to whether section 76 continued to have any, and if so what, effect after the enactment of the 2010 Act.

The enactment of the Land Tax Act 2010

[5] The issue was at first instance, and is on appeal, as to the effect of changes to the legislation when the 1915 Act was repealed and replaced by the 2010 Act, which, according to the Explanatory Notes for the Land Tax Bill, was designed to make the legislation clearer and simpler.  Part 10 of the 2010 Act contained transitional provisions, including these:

88Application of this Act

(1) This Act applies to—

(a)a post-commencement liability; and

(b)an act or omission done or omitted to be done for this Act on or after 30 June 2010.

(2)This section applies subject to section 93.”

(Section 93 provided, inter alia, that references to unpaid land tax in part 7 of the Act, which deals with the recovery of land tax, included pre-commencement liabilities.)

89Continued application of repealed Act

Despite its repeal, the repealed Act continues to apply to—

(a)a pre-commencement liability; and

(b)an act or omission done or omitted to be done for the repealed Act before 30 June 2010.”

“Post-commencement liability” was defined in s 86 as meaning “a liability for land tax arising on or after 30 June 2010; “pre-commencement liability” as meaning “a liability for land tax, within the meaning of the repealed Act, arising before 30 June 2010.”

[6] The appellant relied before the primary judge and here on s 89(b), contending that the entry of the lease containing cl 11.2 in 2006 was an “act…done…for the repealed Act before 30 June 2010”, so that the 1915 Act continued to apply.  In the alternative, it relied on s 20(2) of the Acts Interpretation Act 1954, s-s (b) and (c) of which provide:

“(2)The repeal or amendment of an Act does not—

(b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or

(c)affect a right, privilege or liability acquired, accrued or incurred under the Act …”

The primary judge’s conclusions

[7] The primary judge rejected the s 89(b) argument on two bases.  The first was that, assuming the provision was meant to read “an act done for the purposes of the repealed Act”, an expression which her Honour regarded as “less precise than, say ‘an act done pursuant to the repealed Act’”, the lessor’s entry into the lease could not properly be regarded as an act done for the purposes of the 1915 Act.  The second was that the legislature had, in the 2010 Act, omitted any specific provision preserving s 44A.  While s 89(b) was roughly equivalent to s 69, the general transitional provision in the 1915 Act, there was no equivalent of s 76 to preserve the operation of s 44A of the earlier Act.  That indicated a legislative intent that s 44A had no further application.  As to the Acts Interpretation Act argument, s 4 of that Act provides that its application may be displaced by a contrary intention appearing in an Act.  Her Honour considered that the repeal of the 1915 Act and the failure to re-enact a transitional provision equivalent to s 76 of the amended Act showed a clear legislative intention to end the prohibition imposed by s 44A, displacing the application of s 20(2).

The appellant’s contentions on appeal

[8] The appellant contended that both the primary judge’s conclusions were errors.  Her Honour should have found that by virtue of s 89(b), s 76 remained in effect, in turn preserving the s 44A prohibition.  The preposition “for” was a relational term, to be regarded, subject to context, as having a broad import.  In Deputy Commissioner of Taxation v Dick,[3] Santow JA had considered the effect of the term as used in the phrase “proceeding…for negligence, default, breach of trust or breach of duty…”  His Honour concluded that it was “used in the broader sense as equivalent to ‘in respect of’, taking its meaning from its statutory context”.[4]  Similarly in the present case, the appellant contended, the statutory context reinforced the breadth of the application of the word “for”, because it could properly be assumed that when Parliament repealed a revenue statute, it was alive to the fact that individuals would have organized their affairs on the existing state of the law.  Thus, it would have intended the preservation of the existing law here for “an act…done…for the repealed Act” to have a wide embrace.  As used in s 89(b), “for” should be read as a compendious form of “for the purposes of”.  Entry into the lease was done for the purposes of s 44A, because the lease contained a clause which engaged that provision.  It was a mistake for her Honour to regard the omission of an equivalent of s 76 in the 2010 Act as indicating that s 44A was no longer to have any effect, because if s 89(b) were to be regarded as preserving the existing law for leases under the 1915 Act, a repetition of s 76 would have been redundant; that provision was part of the 1915 Act.

[9] To reinforce that argument, the appellant submitted that the 2009 amendments to the 1915 Act were clearly designed to change the law only for new leases, while preserving the prohibition for existing leases.  It was plain from the Explanatory Notes to the Land Tax Bill 2010 that the 2010 Act was intended to replace the 1915 Act in a clearer form, not to change its substance.  The Notes contained the following passage:

“The Bill rewrites the existing legislation by use of restructuring and plain English.  The changes made will benefit taxpayers by promoting clarity and transparency in the legislation and its administration.  However, as there are no changes to tax rates, exemptions or concessions, or significant policy changes proposed in the rewrite, the rewrite will retain Queensland’s current land tax revenue base.”[5]

The appellant argued that a cessation of the prohibition on collection of land tax from lessees who had hitherto been protected would involve both a change to an “exemption” and a “significant policy change”; which, the passage cited made clear, was not the intention of the 2010 Act.

[10] In any case, the appellant submitted, the effect of the Acts Interpretation Act provisions, s 20(2)(b) and (c), was to preserve the operation of s 76, notwithstanding its repeal.  The effect of the Act’s previous operation was to render cl. 11.2 unenforceable, and by virtue of s 20(2)(b), the repeal of the Act did not affect that operation.  For the purposes of s 20(2)(c), the appellant had a right, which had accrued when the lease was entered, to resist enforcement of the contractual clause requiring it to reimburse the respondent for land tax.  McPherson JA’s observation in Resort Management Services Ltd v Noosa Shire Council[6] was relevant:

“The primary purpose of s 20(1)(c) is to prevent rights which have been created or conferred by statutes from being casually, or it may be unintentionally, destroyed by repeal of the statute and without any further or other specific indication of a legislative intention to do so going beyond the fact of the repeal itself’.[7]

[11] By notice of contention, the respondent asserted that the primary judge’s decision should be affirmed on the ground that s 44A had only applied to a clause insofar as it required a lessee to pay land tax payable under the 1915 Act.  “Land tax” was defined in s 3 of that Act as meaning “the land tax imposed as such by and assessed under this Act”.  Consequently, s 44A had no relevance to any requirement in respect of land tax payable under the 2010 Act (which by Schedule 4 defined “land tax” as “land tax levied under section 6”; that section imposed land tax under the Act).  Section 44A did not make unenforceable a clause which required a lessee to pay land tax levied under the 2010 Act, and none of the other provisions relied on – s 76, s 89(b) or the Acts Interpretation Act provisions – gave s 44A any application in respect of tax payable under the 2010 Act.

[12] In answer to the notice of contention, the appellant argued that if s 89(b) preserved the protection of s 44A, it could only be construed as preserving that protection against the collection of land tax generally under the 2010 Act, as well as the 1915 Act. Otherwise read, it would be pointless.  Reliance was placed on s 32A of the Acts Interpretation Act, which provides,

“Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires”.

Because the 2010 Act dealt with identical subject matter to the 1915 Act, its definition of land tax should be regarded as sufficiently broad to capture land tax under both pieces of legislation.  The appellant pointed to the fact that Part 7 of the 2010 Act, which dealt with recovery of land tax, did not distinguish between land tax payable under the 1915 Act and land tax under the 2010 Act.  (That submission was readily countered by the respondent: there is no need for a distinction in that Part because s 93 of the 2010 Act extends a reference in Part 7 to “unpaid land tax” to pre-commencement liabilities.)

[13] In addition, the appellant submitted, it could rely on the presumption against alteration of rights, which had equal application to statutory rights.  That presumption had been restated by the High Court in a number of instances, including this passage from North Australian Aboriginal Justice Agency Ltd v Northern Territory:[8]

“…the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law”.[9]

These were, in the appellant’s submission, three separate concepts, only the first of which required characterisation as “fundamental” and only the third of which was concerned with common law rights.  The statutory protection from the obligation to pay land tax was a “right”.

[14] Finally, the appellant relied on the precept of statutory construction that the same words used in statutes “in pari materia” should be construed similarly.  Reference was made to this passage from the judgment of Lord Blackburn in Bradlaugh v Clarke,[10] quoted in the judgment of Beldam LJ in BBC Enterprises Ltd v Hi-Tech Xtravision Ltd:[11]

“…where a statute was passed for the purpose of repealing and, in part, re-enacting former statutes, all the statutes in pari materia are to be considered, in order to see what it was that the Legislature intended to enact in lieu of the repealed enactments.”[12]

The 1915 Act and the 2010 Act should be regarded as a single system, so that it was to be expected they would operate in the same way, including in relation to any reference to land tax.

The respondent’s contentions on appeal

[15] The respondent relied once more on the fact that when the legislature inserted s 89, the equivalent of s 69 of the repealed Act, in the 2010 Act, it did not replace s 76; indicating that it did not intend to continue the operation of s 44A.  Section 89(b) was instead concerned with acts done for the purposes of the repealed Act, such as the furnishing of returns, valuations and assessments.  Clause 11.2 was not entered for the purposes of the 1915 Act; it was a general clause designed to cover all rates and taxes.  In any event, the appellant was not in fact seeking to have s 44A apply to an act done before 30 June 2010.  It had identified as the relevant act the entry of the lease, but in reality it sought to have the prohibition on recovery applied to attempts to enforce the lease clause after 30 June 2010.

[16] Section 20 of the Acts Interpretation Act was, by virtue of s 4 of that Act, subject to a contrary intention which could be implied from the transitional provisions of the 2010 Act.  Sections 88 and 89 of the 2010 Act covered the field in dealing with what was to be preserved.  They were, consequently, inconsistent with the Acts Interpretation Act’s effecting any further preservation of the operation of the 1915 Act.  In any case, s 20(2)(b) did no more than preserve the past operation of s 44A; it did not continue that operation.  There was no right to which s 20(2)(c) could apply. The statement of Adam J in Doro v Victorian Railways Commissioners[13] was apposite:

“The interest of a person in a statute remaining unchanged until the time prescribed for its operation is …quite a different thing from an accrued right.  No person can have in the relevant sense an accrued right in the law remaining unchanged for his benefit.”[14]

[17] In support of the notice of contention, it was submitted that if the intention were to preserve the prohibition against the charging of land tax, it was necessary not only that the 2010 Act continue s 44A in effect, but that it expand that effect so that it applied to land tax payable under that Act.  The 2010 Act distinguished between a “pre-commencement liability”, which was a liability arising under the 1915 Act, and a “post-commencement liability”, which was a liability arising on or after 30 June 2010; that is to say, a liability under the 2010 Act (which commenced on 30 June 2010[15]).  That distinction was inconsistent with the notion that the transitional provisions were concerned with land tax under either Act.

[18] Section 32A of the Acts Interpretation Act had no application because there was nothing in the context or subject matter in the 1915 Act to indicate or require that s 44A apply to land tax payable under future legislation, and the 2010 Act could not constitute context or subject matter for the purposes of the 1915 Act.  The presumption against alterations applied to fundamental rights, freedoms and immunities; s 44A did not confer any such benefit.  The “in pari materia” principle did not assist so as to make the meaning of “land tax” in the 2010 Act relevant to the meaning of the same expression in the 1915 Act.  The two Acts contained different definitions of the term.  Section 86 of the 2010 Act drew a distinction between “land tax” and “land tax within the meaning of [the 1915 Act]”,  while ss 88 and 89 of the 2010 Act defined separate areas of operation for the two different Acts.

Discussion

[19] In my view, the appellant’s submission as to the effect of s 89(b) in continuing the operation of s 76 and hence s 44A of the 1915 Act, must be rejected.  To begin with, I am unconvinced that there is anything in the statutory context to support a reading of the word “for” as broad as that for which the appellant contends.  While the legislature might reasonably be taken to be cognisant of the fact that people would have arranged their affairs in accordance with the 1915 legislation, Part 10, Division 3 of the 2010 Act in ss 88-96 contains detailed provision for treatment of matters relating to valuation, exemption and liability which suggests that the division was intended to deal comprehensively with those aspects of the existing regime which required preservation.  Protection of lessees against contractual liability for payment of land tax was not among them.  Indeed, the s 44A context provides a poor example of an instance in which affairs were arranged on the strength of the existing law, given that the leases to which s 44A applied expressly provided for the lessor to be liable.  The inclusion of a clause such as 11.2 in a lease could only be consistent with the parties’ contemplating that should s 44A cease to have effect, the lessor would be able to recover from the lessee; hardly indicative of an expectation of the protection’s continuing for the life of the lease.

[20] But assuming that the use of the preposition “for” does indicate that the sub-section’s operation extends to things which engage the Act, as opposed to (more narrowly) things which are required to be done pursuant to it, that engagement must  nonetheless be predicated on an act or an omission to do an act.  (In that respect, s 89(b) is to be contrasted with s 76, which did not stipulate any act or omission but simply applied to leases).  The appellant identified the entry into the lease containing cl 11.2 as the relevant act, but in no sense was that act of any significance for the purposes of the Act; the Act had nothing to say about the entering of leases.  Section 44A operated to negate the effect of the clause, not the process by which the clause came into existence so as to have that effect.  And it is the continuing existence of cl 11.2 to which the appellant would have the repealed Act continue to apply.  I do not consider that the existence of the clause or the lease containing it, which is what engaged, in turn, s 44A and s 76, can, on any rational reading, be characterized as “an act or omission done or omitted to be done for the repealed Act before 30 June 2010”.

[21] The Explanatory Notes do not lead to a contrary view, notwithstanding the reference to there being “no changes to…exemptions … or significant policy changes”.  As to the latter, I doubt that the removal of a protection for pre-existing leases really amounts to a “significant” policy change when there has already been an abandonment of the same protection for all other leases.  With regard to the former, I note that the Explanatory Notes for the Revenue and Other Legislation Amendment Bill 2009 similarly asserted that the revenue amendments in that Bill changed no exemptions,[16] notwithstanding that it removed the prohibition on the passing on of land tax to lessees under leases entered thereafter.  That is unsurprising: to stipulate that the person liable for a tax may not recover it from a particular source is hardly to create an exemption in respect of the tax itself.  As to s 89(b) in particular, the Explanatory Notes for the Land Tax Bill 2010 say only this:

Clause 89 provides for the continued application of this appealed Act to pre-commencement liabilities, ie, the financial years up to and including 2009-10.”[17]

The Notes, then, appear to deal only with the proposed effect of s 89(a); but the absence of reference to s 89(b) does nothing to indicate that the legislature contemplated that lessees’ relief from liability should continue under the 2010 Act.

[22] Nor do I accept the argument that s 20(2)(b) of the Acts Interpretation Act has the effect that the repeal of the 1915 Act does not affect the continuing operation of s 76, so that the s 44A prohibition remains in force.  Section 20(2)(b) preserves only the previous operation of the 1915 Act, up to the point of its repeal;[18] that is, preventing the lessor from recovering from the lessee the land tax for which the lessor was liable prior to the repeal of the 1915 Act.  It cannot avail the appellant here.

[23] Section 20(2)(c), were it to apply, would not continue s 76 in operation, but would preserve any right which the lessee had acquired or accrued under the repealed Act to immunity from liability; subject, of course, to displacement of the repealed legislation’s application by the appearance of a contrary intention in either the repealed or the repealing Act.  The identification of the right said to be acquired or accrued is not to be approached in any technical way.[19]  But it is significant that s 44A did not render void any clause which imposed liability for land tax on lessees.  What s 44A did was to leave such clauses in effect but create a state of affairs which would continue for the life of the section: that the lessor could not enforce the relevant clause, and the lessee had a right to resist any attempt to do so.

[24] This case, in which the appellant was given immunity from enforcement of its contractual liability to pay the land tax, has something in common with the circumstances in Sifam Electrical Instrument Co Ltd v Sangamo Weston Ltd.[20]  Section 10 of the Copyright Act 1956 (Eng) deprived the owner of copyright for an unregistered design of any remedy for its infringement by industrial application.  That section was later amended to protect copyright whether or not the design was registered.  The defendants argued that since they had infringed the copyright under s 10 in its original form in respect of an unregistered design, they had acquired a continuing right to do so, and by virtue of a provision equivalent to s 20(2)(c), that right remained unaffected by the subsequent amendment of s 10.

[25] Graham J, rejecting that argument, said this:

“…the giving of a defence by a statute in particular circumstances, the effect of which is that the plaintiff cannot exert his rights in those circumstances, does not mean in the absence of express words that those rights are forever destroyed and cannot ever be revived by an amending statute.  As a matter of construction, it seems to me that the provision of the ‘shield’ by the words of unamended s 10 is a method by which the legislation shows its intention to protect the defendant for the time being while the statute is in force without giving him any right which extends beyond the expiry of the statute.  If the latter had been the intention, it would have been very simple to have said so.  The provision of such a defence does not, in my judgment, enable the defendants to acquire a right within the meaning of [the equivalent of s 20(2)(c)]…”[21]

The copyright-owner’s rights had been in suspense as long as s 10 was in effect, but became enforceable once more as soon as the provision was repealed.

[26] In Ametex Fabrics Inc v C & F Fabrics Pty Ltd,[22] Wilcox J considered a provision in the Copyright Act 1968 (Cth) very similar to s 10 of the English Act.  It too provided that it was not an infringement of copyright to reproduce a design by industrial application where it had not been registered; the question in that case was as to the effect of an amendment of the provision which limited the designs to which it applied.  The design reproduced in that case had fallen within the original provision, but not the provision as amended.  The defendant argued that the original provision permanently excluded copyright protection, relying not on an accrued right but instead on s 8(a)[23] of the Acts Interpretation Act (Cth) which provided that the repeal of an Act did not, in the absence of any contrary intention, revive anything not in force at the time of the repeal.  The amended legislation had not contained any transitional provision.  Wilcox J held that the copyright owner’s interest had not been lost; there was merely a restriction on its enforcement.  He said of the legislation:

“In my opinion, the reason why it was thought unnecessary to insert a transitional provision in the [amending] Act is that infringement of copyright is a day-to-day phenomenon.  While legislation stating that it is not an infringement to do certain actions is in force, the person doing those actions is protected.  If that legislation is repealed, the protection remains in respect of actions done while the legislation was in place because no cause of action arose out of the actions.  But there is no protection in relation to future actions because, as from the moment of repeal, the immunity is lost; a cause of action may arise out of those actions.”[24]

Citing the passage from Sifam which I have set out above, he noted that his conclusion was consistent with Graham J’s approach in that case.

[27] Here, the respondent’s right of recovery under cl 11.2 was suspended for the period of operation of s 44A; but the clause itself remained in the lease as part of the agreed bargain between the parties.  I differ from the reasoning of Graham J in Sifam to this extent; I think that the right to resist recovery under cl 11.2 can properly be described as a right acquired under the 1915 Act.  Unlike the benefit of the jurisdictional limit being considered in Doro, it was a right which had practical effect before the repeal.  But as Graham J observed of the provision in Sifam, s 44A conferred a protection only “for the time being”.  The 1915 Act, by suspending enforcement rights rather than invalidating the clause, showed its intention to protect the appellant only while s 44A was in force, without giving it any right which extended beyond the expiry of the provision.

[28] The repeal of s 76, the provision which had extended its life in the short-term did not entail some casual or unintentional destruction of rights.  The form which s 44A took made it apparent that this was precisely what was meant to happen: the section’s protection would end with it; as occurred when s 76 was repealed.  In addition, that repeal took place in a context in which the transitional provisions of the 2010 Act made detailed provision for its application to dispensations and liabilities which had existed under the 1915 Act.  The clear implication from those transitional provisions and the readily reversible effect of s 44A is that it was intended that lessees’ immunity from recovery would, and did, end with the repeal.

The notice of contention

[29] Given my view that the 1915 Act’s repeal ended the appellant’s immunity from recovery under cl 11.2, it is not strictly necessary for me to deal with the notice of contention.  Had I reached a construction of s 89(b) sufficiently broad to embrace s 76 within its coverage, so that the latter section continued to apply to the lease after the enactment of the 2010 Act, I would have upheld the primary judge’s decision on the basis advanced in the notice of contention, rejecting the appellant’s arguments for the following reasons.  Firstly, although it can reasonably be said that to continue s 76 in operation would be an empty benefit if it had no application to land tax under the 2010 Act, s 89(b) was not primarily concerned with the application of that section or its effect.  It plainly had work to perform unconnected with provisions in leases concerning liability for land tax.  Secondly, the subject matter of the 2010 Act does not give any indication that the definition of land tax in that Act is not to apply.  To the contrary, the 2010 Act delineates, in ss 88 and 89, between the treatment of land tax arising under that Act and the former Act, while making an exception to that delineation in s 93; plainly recognising the distinction to be drawn between land tax as imposed by the 1915 Act and as imposed by the 2010 Act.  Thirdly, the presumption against alteration of rights has, in my view, no relevance here.  Assuming, for present purposes, that the presumption can apply to statutory rights, as it does to common law rights,[25] I do not consider the right to resist recovery conferred here was a right of such significance as to attract the presumption.[26]  Indeed, although it is unnecessary to explore this question any further, one might argue that it is the lessor’s contractual rights which should not be defeated in the absence of clear language.

Conclusion

[30] The primary judge’s conclusion that the enactment of the 2010 Act removed the bar on enforceability of cl 11.2 was correct.  I would dismiss the appeal with costs.

[31] PHILIPPIDES JA:  I have had the advantage of reading the reasons of the Chief Justice for dismissing the appeal.  I have also read the judgment of Philip McMurdo JA, who joins with the Chief Justice in concluding that the appeal should be dismissed.  The primary basis for the Chief Justice’s dismissal of the appeal is that the appellant has failed to demonstrate error in the primary judge’s conclusion that the enactment of the Land Tax Act 2010 (Qld) (the 2010 Act) removed the bar in s 44 of the Land Tax Act 1915 (Qld) (the 1915 Act) on the enforceability of cl 11.2 of the lease before the Court.  I also note the further reasons of Philip McMurdo JA that the “essential difficulty” for the appellant concerned the point raised by the respondent in its Notice of Contention.

[32] I gratefully adopt the exposition of the legislation and submissions by the Chief Justice in her Honour’s reasons.  That permits me to state briefly why I consider the appeal should be allowed.

[33] It may be accepted that the term “for” in s 89(b) of the 2010 Act is attended with some ambiguity.  However, in my view, the appellant’s submissions that a broad meaning is to be given to the meaning of the word “for” in s 89 of the 2010 Act (as “for the purpose of”) should be accepted.  That approach is supported by reference to the Explanatory Notes to the Land Tax Bill 2010 (Qld) (the Explanatory Notes), which favour the maintenance of the same broad interpretation of that term as in Div 5 of Pt 6 of the 1915 Act.  In my opinion, the entry into the lease in 2006 was a relevant act done for the repealed 1915 Act, before 30 June 2010, for the purposes of s 89(b) of the 2010 Act.

[34] Furthermore, I do not consider that the omission in the 2010 Act, of a specific provision preserving s 44A as existed in s 76 of the 1915 Act, has the consequences asserted by the respondent and accepted by the Chief Justice.  The conclusion at [28] of the Chief Justice’s reasons does not, in my view, give adequate consideration to the explicit statement in the Explanatory Notes that the legislative object in replacing the 1915 Act was to “rewrite” the provisions of the 1915 Act (as from 30 June 2010) because, as stated in the “Reasons for the Bill”, the 1915 Act reflected inconsistent and outdated drafting practices, lacked coherent structure and was difficult for tax payers to understand.  These deficiencies were intended to be overcome by replacing the 1915 Act with legislation that was in “plain English” so that the changes promoted “clarity and transparency in the legislation and its administration” and that no “significant policy changes” were “proposed in the rewrite”.

[35] In my view, the respondent’s submissions accord the 2010 Act a deliberation that does not have proper regard to s 14C of the Acts Interpretation Act (the AIA).  Section 14C of the AIA supports the appellant’s argument that the “rewrite” of the 1915 Act into so called “plain English” by the 2010 Act should not be construed as effecting an alteration to the regime in place under the 1915 Act which safeguarded the s 44A immunity.  The s 44A immunity was not discarded by the 2010 Act.

[36] Nor am I persuaded that the point raised in the Notice of Contention is made out by the respondent.  The contractual provision in a lease which the landlord is prohibited by s 44A of the 1915 Act from enforcing is one which requires the lessee to pay land tax per se or one seeking reimbursement for land tax per se (not one to pay land tax under a specified Act).  The 2010 Act land tax definition is broad enough to capture land tax under both that Act and the 1915 Act.

[37] PHILIP McMURDO JA:  I agree with the Chief Justice that the appeal should be dismissed and I agree with her Honour’s reasons for rejecting the grounds of appeal.  I wish to add some remarks on one of the issues.

[38] In my view, the essential difficulty for the appellant’s case is that the effect of the protection given to a lessee under the Land Tax Act 1915 was limited to land tax payable under that Act, whereas the appellant seeks a like protection for a different tax, namely that payable under the Land Tax Act 2010.  This is the point raised by the respondent’s Notice of Contention.

[39] Section 44A of the 1915 Act applied to a provision in a lease requiring a lessee to pay “land tax” or reimburse the lessor for “land tax”.  Section 3 of the 1915 Act defined “land tax” to mean:

“… the land tax imposed as such by and assessed under this Act … assessed, collected, enforced, or recovered, or to be assessed, collected, enforced, or recovered under or pursuant to this Act …”.

(Emphasis added.)

Unambiguously, s 44A applied only to the extent that a lease required the payment or reimbursement of land tax imposed by and assessed under the 1915 Act.

[40] By its various arguments, the appellant ultimately sought to have s 44A continue to apply to its lease.  It was not suggested that any provision of the 2010 Act itself affects the enforcement of a term of a lease which would require the lessee to pay or reimburse the lessor an amount of land tax.  Rather the appellant claimed that the relevant term of its lease is unenforceable by an ongoing operation of s 44A of the 1915 Act, which was said to result from s 89 of the 2010 Act (by preserving the effect of s 76 of the 1915 Act and thereby, in turn, preserving the s 44A exemption), s 20(2)(b) and (c) of the Acts Interpretation Act 1954 (Qld) or a principle of statutory interpretation, derived from the general law, by which there is a rebuttable presumption that the legislative intention was not to alter existing rights.

[41] A sufficient answer to each of the appellant’s arguments is that none could result in an extension of the scope of s 44A, such that it would apply not only to land tax under the 1915 Act but also to any similar tax imposed by a later enactment.

[42] In response to the Notice of Contention, the appellant argued that the expression “land tax” in the 2010 Act should be interpreted as including land tax imposed by the 1915 Act.  That submission misunderstood the respondent’s contention.  The difficulty for the appellant comes from the meaning of land tax in the 1915 Act (and therefore in s 44A) rather than the meaning of land tax in the 2010 Act.  To accept some expanded meaning of land tax in the 2010 Act could not assist the appellant’s case in the absence of a provision in the 2010 Act which itself provides a like immunity for a lessee.

[43] I agree then with the orders proposed by the Chief Justice.

Footnotes

[1] At p 4.

[2] At pp 27-28.

[3] (2007) 226 FLR 388 at 405.

[4] At 405.

[5] At 3.

[6] [1997] 2 Qd R 291.

[7] At 298.

[8] (2015) 90 ALJR 38.

[9] At [11].

[10] (1883) 8 App Cas 354, 373.

[11] (1989) 20 IPR 368.

[12] At 377.

[13] [1960] VR 84.

[14] At 88.

[15] Land Tax Act 2010 s 2.

[16] At p 2.

[17] At p 25.

[18] Cf Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 at 166, 191.

[19] Chang v Laidley Shire Council (2007) 234 CLR 1 at 34.

[20] [1971] 2 All ER 1074.

[21] At 1079.

[22] (1992) 38 FCR 415.

[23] Now s 7(2)(a).

[24] At 424.

[25] Buck v Comcare (1996) 359 at 364 per Finn J applied in Australian Postal Corporation v Sinnaiah and Ors (2013) 213 FCR 449 at 458 in relation to compensation rights; see also DC Pearce and RS Geddes Statutory Interpretation in Australia 2014 8th Ed at 5.37, for the proposition that the same approach should be adopted to statutory as common law rights in considering whether they have been displaced by legislative provision.

[26] See Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 per McHugh J at 284 as to the relationship between the strength of the presumption and the nature of the right under consideration.

Close

Editorial Notes

  • Published Case Name:

    Vikpro Pty Ltd v Wyuna Court Pty Ltd

  • Shortened Case Name:

    Vikpro Pty Ltd v Wyuna Court Pty Ltd

  • MNC:

    [2016] QCA 225

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Philippides JA, McMurdo JA

  • Date:

    06 Sep 2016

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QSC 216 07 Aug 2015 -
Notice of Appeal Filed File Number: Appeal 8669/15 31 Aug 2015 -
Appeal Determined (QCA) [2016] QCA 225 06 Sep 2016 -

Appeal Status

{solid} Appeal Determined (QCA)