Moreton Bay Regional Council v Mekpine Pty Ltd
[2013] QLAC 5
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- Moreton Bay Regional Council v Mekpine Pty Ltd[2013] QLAC 5
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Moreton Bay Regional Council v Mekpine Pty Ltd[2013] QLAC 5
Moreton Bay Regional Council v Mekpine Pty Ltd[2013] QLAC 5
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Moreton Bay Regional Council v Mekpine Pty Ltd & Anor [2013] QLAC 5 |
PARTIES: | Moreton Bay Regional Council (appellant) v. Mekpine Pty Ltd (LAC009-12) (respondent) Zacsam Pty Ltd (LAC010-12) (respondent) |
FILE Nos: | LAC009-12 LAC010-12 |
DIVISION: | Land Appeal Court |
PROCEEDING: | Appeal from the Land Court |
ORIGINATING COURT: | Land Court of Queensland |
DELIVERED ON: | 25 October 2013 |
DELIVERED AT: | Brisbane |
HEARD ON: | 5 and 6 December 2012 Submissions closed 8 April 2013 |
HEARD AT: | Brisbane |
THE COURT: | Peter Lyons J CAC MacDonald PA Smith |
ORDER: |
|
CATCHWORDS: | COMPULSORY ACQUISITION – claim for compensation by tenants in a retail shopping centre – whether the land resumed was part of the “common areas” of the tenant’s leases – the effect of the definition of “common areas” in the Retail Shop Leases Act 1994 – whether s 43 of the Retail Shop Leases Act 1994 creates an “interest” in relation to land – whether the tenants have an “interest” in the land resumed by virtue of their leases or the Retail Shop Leases Act 1994 – meaning of “interest” in s 12(5) of the Acquisition of Land Act 1967 Acquisition of Land Act 1967 Acts Interpretation Act 1954 Land Title Act 1994 Retail Shop Leases Act 1994 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1971) 124 CLR 73 Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 LGM Enterprises Pty Ltd v Brisbane City Council (2008) 29 QLCR 176 Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads (2007) 2 Qd R 373 |
COUNSEL: | Mr A Skoien of Counsel for the appellant Mr G Gibson QC and Mr DM Stevenson of Counsel for the respondents |
SOLICITORS: | Moreton Bay Regional Council, Legal Services Department for the appellant Hillhouse Burrough McKeown for the respondents |
THE COURT:
- [1]These are appeals against a decision of the Land Court on a preliminary point as to whether the respondents have an “interest” in land for the purposes of claiming compensation under the Acquisition of Land Act 1967 (“ALA”).[1] The Land Court decided that each respondent did have an “interest” in the land resumed pursuant to the ALA and Moreton Bay Regional Council (the appellant) has appealed the decision to this Court.
Background
- [2]On 14 November 2008, the appellant resumed 418 m² of land for road purposes from the southern side of the intersection of Dohles Rocks Road and Ogg Road, located in Murrumba Downs. The resumed area formed part of the land described as Lot 1 on SP 184746 (“Lot 1”).
- [3]At the date of resumption, Lot 1 was owned by Janleon Pty Ltd (“Janleon”) and Beaches of 1770 Pty Ltd (“Beaches”) as tenants in common. Janleon and Beaches initiated proceedings in the Land Court for compensation under the ALA, but the proceedings were subsequently discontinued when a settlement was reached.
- [4]The matters before this Court relate to claims for compensation under the ALA by certain lessees of retail shops situated in a retail shopping centre established on Lot 1. The shopping centre, known as the Castle Hill Shopping Court, is occupied by a number of tenants, including the respondents. The first respondent, Mekpine Pty Ltd (“Mekpine”), is the lessee of the grocery store trading as the Castle Hill IGA and the second respondent, Zacsam Pty Ltd (“Zacsam”), is the lessee of the pizza shop trading as Eagle Boys Pizza.
- [5]The shopping centre was originally established in a smaller form on land described as Lot 6 on RP 809722 (“Lot 6”). Lot 6 was an L-shaped block which fronted Dohles Rocks Road and extended behind an adjacent residential property to gain access to Ogg Road. The adjacent residential property, described as Lot 1 on RP 847798 (“the original Lot 1”), was located on the corner of Dohles Rocks Road and Ogg Road.
- [6]On 1 March 1999, Mekpine entered into a 10-year lease with Janleon and Beaches (“the Mekpine lease”) at the time when the shopping centre was established only on Lot 6. The land the subject of the lease is identified in the lease as Lot 6 and Mekpine’s leased premises are located entirely within the area of Lot 6.
- [7]In or about 2004, Janleon and Beaches purchased the original Lot 1 and applied for a development approval for a material change of use in respect of Lot 6 and the original Lot 1 for the purposes of extending the shopping centre over both lots. In 2006, the development was approved subject to various conditions including, relevantly, a condition that the two lots be amalgamated into one lot and a condition that a “land requirement” be excluded from the proposed development and kept clear of permanent structures or improvements associated with the development. The “land requirement” was shown on a sketch plan attached to the development approval as an area on the corner of Dohles Rocks Road and Ogg Road.
- [8]On 27 September 2007, the amalgamation of the two lots was effected by the registration of Survey Plan No. 184746. Lot 6 and the original Lot 1 were cancelled and became Lot 1 on SP 184746. At the same time, the Mekpine lease was registered as an interest on the title to the new Lot 1.
- [9]Construction of the extension of the shopping centre then took place and was completed in or about March 2008.
- [10]On 17 March 2008, Zacsam entered into a 10-year lease with Janleon and Beaches (“the Zacsam lease”). The land the subject of the lease is identified in the lease as Lot 1 on SP 184746. Zacsam’s leased premises are located on that part of the land referable to the original Lot 1.
- [11]The resumption occurred on 14 November 2008 and involved taking a small strip of vacant land from the south-west corner of Lot 1, along the frontage of Dohles Rocks Road and Ogg Road.[2] The resumed land was taken from the area of the original Lot 1 and was essentially the same land that was the subject of the “land requirement” shown in the sketch plan which formed part of the development approval.[3]
- [12]In 2009, Mekpine entered into a further lease with Janleon and Beaches pursuant to an option to renew in the principal lease. The lease was in the same terms as the original lease and continued to refer to Lot 6 as the land the subject of the lease.
The Preliminary Point
- [13]Prior to the hearing of the claims in the Land Court, the learned Member ordered that a preliminary point be determined as to whether, at the date of resumption, Mekpine and Zacsam had an estate or interest in the resumed land pursuant to the ALA.[4]
- [14]Section 12(5) of the ALA provides that, on and from the date of the publication of the gazette resumption notice, the (resumed) land shall be vested in the constructing authority:
“…and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act…”
- [15]The appellant contended that the respondents did not have an “interest” in the resumed land for the purposes of s 12(5) of the ALA. Mekpine and Zacsam contended that they did have an “interest” in the land by virtue of the terms of their leases and certain provisions of the Retail Shop Leases Act 1994.
- [16]The term “interest” is not defined in the ALA. In Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads,[5] the Court of Appeal held that the word “interest” in s 12(5) of the ALA must be given the meaning provided by s 36 of the Acts Interpretation Act 1954. Section 36 of the Acts Interpretation Act sets out the meaning of commonly used words and expressions and includes the following definition of “interest”:
“interest, in relation to land … means –
a legal or equitable estate in the land …; or
a right, power or privilege over, or in relation to, the land …”
- [17]The Land Court concluded that both Mekpine and Zacsam had an “interest” in the resumed land for the purposes of the ALA, but for different reasons. Accordingly, for these appeals to succeed, it must be demonstrated that Mekpine and Zacsam did not have any right, power or privilege over, or in relation to, the resumed land.
Decision of the Land Court
Mekpine
- [18]With regard to Mekpine, the learned Member found that the lease conferred contractual rights on Mekpine in relation to the “Common Areas” and the “Car Parking Area” as defined in the lease. However, he determined that the resumed land was not part of the “Common Areas” or “Car Parking Area” of the lease on the basis that the lease only applied to the area of the former Lot 6 and the resumed land was “never within the boundaries of this allotment”.[6]
- [19]The learned Member considered the following provisions of the lease:
“Land” means the lot described in Item 2 of the Form 7 in this lease.
Item 2 of the Form 7 identifies the “Land” as Lot 6 on RP 809722.
“Common Areas” means those areas of the Building or Land which have not been leased or licensed by the Lessor;
6.8 Use of Common Areas – The Lessee and the Lessee’s Employees may use the Common Areas but must obey all reasonable directions and rules given by the Lessor relating to their use. The Lessee must not obstruct the Common Areas or Car Park.
“Lessee’s Employees” means each of the Lessee’s employees, contractors, agents, customers, sub-lessees, licensees or others (with or without invitation) who may be on the Premises, the Building or the Land;
“Building” means the building of which the Premises forms part;
“Premises” means the premises described in item 3 of the Reference Schedule and includes the Lessor’s Property in the Premises;
Item 3 of the Reference Schedule is in the following terms:
Premises: Shop 1 at Castle Hill Shopping Court, Corner Dohles Rocks Road and Ogg Road, Murrumba Downs, Queensland 4503.
- [20]Based on these provisions, the learned Member concluded that the lessee’s customers or “others” who may be on the land may use the common areas of Lot 6 on RP 809722. The land resumed, however, was not part of Lot 6. At the time the lease was entered into, the land resumed was then part of Lot 1 on RP 847798, the adjoining residential property which was later incorporated in the shopping centre.
- [21]Lot 6 was cancelled and amalgamated with Lot 1 on RP 847798 to create new Lot 1 on SP 184746. The lease was registered over the new Lot 1. However, the learned Member noted that there was no activity between the lessor and lessee to vary the description of the land from Lot 6 to Lot 1 on SP 184746. He considered that the lease could have been amended to reflect the new property description pursuant to s 67 of the Land Title Act 1994 (LTA).
- [22]However, as the lease was not amended in any way, the learned Member concluded that the “Common Areas” over which the lessee gained contractual rights pursuant to the lease remained those within what was once Lot 6 and only that, not the extended “Common Areas” within Lot 1 on SP 184746.
- [23]In the alternative, the learned Member found that if the lease did apply to Lot 1 on SP 184746 (which he did not accept), the land resumed would be part of the “Common Areas” of the lease but it would not be an area which the lease allowed to be used for parking. This was because the resumed land was not a “Car Parking Area” as defined in the lease. Even though, as a matter of construction of the lease, the learned Member was satisfied that a “Car Parking Area” may be a subset of and within the meaning of “Common Areas”, “Common Areas” and “Car Parking Area” are separately defined and separately treated under the lease. Use of common areas is regulated by clause 6.8 of the lease (reproduced above) and use of car parking areas is regulated by clauses 6.13 and 6.14 which provide as follows:
6.13Car Parking - The Lessee must not park or permit the Lessee's Employees to park motor vehicles in the Car Parking Area other than in areas set aside by the Lessor for staff parking. If required by the Lessor, the Lessee will give the Lessor a list of particulars of motor vehicles used by the Lessee or the Lessee's Employees. The Lessee must pay the Lessor, upon demand, an amount of one hundred dollars ($100.00) for each daily usage by each motor vehicle of the Lessee or the Lessee's Employees which is parked in areas of the Car Parking Area not set aside for staff parking, that amount being by way of liquidated damages for breach.
6.14Parking Charges - The Lessor will not impose parking charges for the use of or entrance to the Car Parking Area except if it is required by law to do so or if it becomes necessary to prevent the use of the Car Parking Area by persons other than bona fide customers of Lessees of the Building. The Lessee's customers, in common with the customers of other Lessees, while doing business in the Building, may use the Car Parking Area subject to the Lessor's right under this sub-clause to impose parking charges.
- [24]“Car Parking Area” is defined in clause 1.2 of the lease as “that part of the Land sealed, marked and set aside for the prime purpose of the parking of cars”.
- [25]The learned Member found that the land resumed is grassed with a concrete footpath running along its length between it and Dohles Rock Road. It was not an area “marked and set aside for the prime purpose of the parking of cars”. On that basis, the learned Member concluded that, should the lease be held to apply to Lot 1, the lease did not give Mekpine any contractual rights over the resumed land as a “Car Parking Area” but it would otherwise have conferred rights upon Mekpine referable to the area being a “Common Area” of the lease.
- [26]Ultimately, however, the Member did not accept that the Mekpine lease applied to Lot 1 or more specifically, the resumed land, and he therefore concluded that the lease could not confer on Mekpine any rights in respect of the resumed land.
- [27]Instead, the learned Member found in favour of Mekpine based on certain provisions in the Retail Shop Leases Act 1994 (“RSLA”) and the effect of the Land Appeal Court’s decision in LGM Enterprises Pty Ltd v Brisbane City Council (“LGM”).[7]
- [28]The learned Member determined that the resumed land was a common area of the Mekpine lease by virtue of the operation of the RSLA. The learned Member said that the RSLA had the effect of amending the lease in accordance with the extended definition of “common areas” in the Act. “Common areas” is defined in the RSLA as follows:
"6 Meaning of common areas
- (1)Common areas of a retail shopping centre are areas in or adjacent to the centre that are used, or intended for use –
by the public; or
in common by the lessees of premises in the centre in relation to the conduct of businesses in premises in the centre.
- (2)Common areas include –
stairways, escalators and elevators; and
malls and walkways; and
parking areas; and
toilets and rest rooms; and
gardens and fountains; and
information, entertainment, community and leisure facilities.
- (3)However, common areas do not include leased areas."
- [29]The learned Member also considered the following sections of the RSLA:
"18 Act’s provisions implied in leases
If, under this Act, a duty is imposed or an entitlement is conferred on a lessor or lessee under a retail shop lease, the duty or entitlement is taken to be included in the lease.
19 Contracting out of Act prohibited
A provision of a retail shop lease is void if it purports to exclude the application of a provision of this Act that applies to the lease.
20 Act prevails over inconsistent leases
If a provision of this Act is inconsistent with a provision of a retail shop lease, the provision of this Act prevails and the provision of the lease is void to the extent of the inconsistency."
- [30]The learned Member considered that the definition of “common areas” in s 6 of the RSLA was inconsistent with the lease insofar as the lease defines common areas as “those areas of the Building or the Land which have not been leased or licensed by the Lessor” whereas the RSLA refers to areas in or adjacent to the shopping centre that are used or are intended for use by the public. He then went on to say:[8]
“Section 19 protects the application of the RSLA’s definition from being excluded and the entitlement to the benefit of the extended definition is, by s.18, taken to be included in the Lease. This has effectively done what the lessor alone could not do and has had the effect of amending the Lease in accordance with the definition in s.6.”
- [31]In relation to car parking areas, the learned Member considered there was no conflict or inconsistency between the definition of “Car Parking Area” in the lease and the specific reference to “parking areas” in s 6(2)(c) of the RSLA. Although the development approval required the resumed land to be kept clear of any permanent structures such that some things set out in s 6(2) of the RSLA could not be put there, ie. sealed parking areas, the types of common areas set out in s 6(2) of the RSLA are inclusive only so that there is scope for other sorts of common areas to fit within the meaning of subsection (1). There was therefore no conflict with s 6(2)(c) the RSLA and the RSLA did not affect the definition of “Car Parking Area” in the lease.
- [32]In terms of the use of the resumed land, the evidence accepted by the learned Member was that customers would park on that area and walk into the shopping centre. Some parked on the opposite side of Dohles Rocks Road and walked across the resumed land into the shopping centre. Based on that evidence, the learned Member found that the resumed land was an area in or adjacent to the centre that was used by the public in relation to the conduct of business in premises in the centre. It was therefore a “Common Area” and could lawfully be used by potential customers for walking into the shopping centre.
- [33]However, as a result of the Member’s earlier finding that the resumed land was not a “Car Parking Area” under the lease since it was not an area “marked and set aside for the prime purpose of the parking of cars”, the Member determined that the resumed land could not lawfully be used for parking. He found it unnecessary to determine the implications of certain Road Rules making it an offence to drive on a footpath or on nature strips.
- [34]The learned Member also took into account the Land Appeal Court’s decision in LGM. His reasons contain a concise summary of the facts of that case in the following terms:[9]
“… the Brisbane City Council had resumed 36 m2 from the corner frontage of a small shopping centre at the corner of Appleby and Rode Roads, Stafford Heights. The appellant had a tenancy and operated a video store. People started taking shortcuts through the shrubs in the garden between the car parking area and the footpath. The centre owner placed some pavers at the points being used so as to facilitate access and protect the garden beds. A number of these access points were located within the area resumed.”
The learned Member went on to say that the issue before the Land Appeal Court was whether the appellant, as a tenant, had an interest in the resumed land sufficient to entitle it to compensation under the ALA. The Member then noted the Land Appeal Court’s conclusion that the walkways were part of the common areas of the shopping centre and that LGM had a right or privilege in respect of the land resumed.
- [35]For these reasons, the learned Member concluded that Mekpine had an “interest” in the resumed land pursuant to the ALA.
Zacsam
- [36]As regards Zacsam, the learned Member found that the land resumed was part of “the Common Areas” of the lease and was available for use by invitees of Zacsam, but it was not part of the “the Car Park” for the purposes of the lease.
- [37]The land the subject of Zacsam’s lease is defined in the lease as Lot 1 on SP 184746. Lot 1 includes the resumed land. The Member then considered the following provisions of the lease:
- “2.1 (5) “the Car Park” means those parts of the Complex from time to time allocated by the Landlord to the parking of cars and includes the driveways to and from those parts.
- (6) “the Common Areas” means all those parts of the Complex, not demised or intended to be demised to any tenant, which may from time to time be set aside by the Landlord or be available for use by the tenants of the Complex their servants agents licensees and invitees including, for example, the malls walkways passageways circulation areas staircases escalators ramps and lifts service roads loading bays forecourts and toilets.
- (7) “the Complex” means the Land and all other parcels of land adjacent or near the Land acquired or leased by the Landlord and incorporated into and used principally for the purpose of an office complex, shopping centre and car park together with the Building and the fixtures fittings and plant and the other structures facilities and improvements erected or to be erected on those other parcels (excluding any buildings or structures the Landlord in its absolute discretion determines will not form part of the Complex) including, for example, the Car Park and the Common Areas."
- [38]The resumed land was not “allocated by the Landlord to the parking of cars” so was not part of “the Car Park” for the purposes of the lease.
- [39]The definition of “the Complex” takes in “the Land” so “the Common Areas” means all those parts of “the Land” available for use by the invitees of the tenants, including those of Zacsam. The evidence before the Member showed that the land was in fact used or able to be used by Zacsam and its invitees.
- [40]As to the effect of the RSLA, the learned Member said there was no inconsistency between the lease and the RSLA such that s 20 of the RSLA would apply to force a conclusion in favour of the definition of common areas in the RSLA, but if there were, he said the results would be the same, ie. the resumed land is a common area.
- [41]The learned Member then also said “[t]he decision of the Land Appeal Court in LGM makes inevitable a finding by this Court that the rights in respect of access over the resumed land are an interest in land within the meaning of s 12(5) of the Act”.[10]
- [42]The learned Member concluded that Zacsam had an estate or interest in the resumed land pursuant to the ALA.
The Appeal Issues
- [43]The appellant contends that neither Mekpine nor Zacsam have an “interest” in the resumed land for the purposes of claiming compensation under the ALA.
- [44]In relation to Mekpine, the appellant contends that the Land Court erred in determining that the resumed land was a common area of a retail shopping centre under the RSLA. In the alternative, the appellant contends that the Land Court erred in determining that identification of the resumed land as a common area under the RSLA gave rise to an estate or interest held by Mekpine in the resumed land.
- [45]In relation to Zacsam, the appellant contends that the Land Court erred in determining that the resumed land was a common area, both under the lease held by Zacsam and under the RSLA. In the alternative, the appellant contends that the Land Court erred in determining that identification of the resumed land as a common area under the lease and under the RSLA gave rise to an estate or interest held by Zacsam in the resumed land.
- [46]Mekpine has also filed a Notice of Contention contending that the decision of the Land Court should be affirmed on a ground other than a ground relied upon by the Court. In particular, Mekpine says that the Land Court erred in the following respects:
- (a)firstly, in holding that the Mekpine lease did not include the resumed land. Mekpine contends that on a proper construction of s 182 of the Land Title Act 1994, in consequence of the cancellation of Lot 6 on RP 809772 and Lot 1 on RP 847798 and the amalgamation of those lots by the registration of SP 184746, the land the subject of the Mekpine lease did include the resumed land; and
- (b)secondly, in holding that on the proper construction of the Mekpine lease, Mekpine did not have a contractual right to use the resumed land for car parking by its customers. It is contended that Mekpine’s lease conferred on Mekpine both a contractual right to use the resumed land for car parking by its customers and an “estate or interest” (as that terms appears in the ALA) in the resumed land.
- (a)
Discussion
Mekpine
- [47]We will deal first with the issues raised in Mekpine’s Notice of Contention and then the appellant’s grounds of appeal.
Mekpine’s Lease
- [48]The first issue requiring determination is whether the land resumed is included in Mekpine’s lease. The argument seemed to be that the reference to Lot 6 in the definition of “Land” should be replaced by a reference to Lot 1 on SP 184746, so that common areas (as defined) extended beyond the boundary of Lot 6. The learned Member held that it did not because the “Land” the subject of the lease is identified in Item 2 of the lease instrument as Lot 6 and the land resumed was “never within the boundaries of this allotment”.[11] Further, the learned Member relied upon the fact that there had never been any amendment to the lease and he did not accept that lodging Survey Plan No. 184746 had the effect of amending the lease as if it referred to Lot 1 on that plan.[12]
- [49]Mekpine contends that the learned Member wrongly decided this point by not considering s 182 of the LTA.[13] Section 182 of the LTA provides as follows:
“182 Effect of registration on interest
On registration of an instrument that is expressed to transfer or create an interest in a lot, the interest –
- (a)is transferred or created in accordance with the instrument; and
- (b)is registered; and
- (c)vests in the person identified in the instrument as the person entitled to the interest.”
- [50]Counsel for Mekpine submitted that by virtue of, or in consequence of, the registration of the survey plan, the “Land” described in Item 2 of the lease instrument became a reference to the new Lot 1.[14] In effect, Lot 1 was substituted for Lot 6 in the lease instrument upon registration. Counsel further submitted that on and from the date of registration of the survey plan (which included with it registration of the lease), Mekpine had an interest as lessee in the new Lot 1.[15] Its registered interest was, by operation of law, created in the new Lot 1 and the contractual rights conferred by the lease, followed.[16]
- [51]
- “5.The Appellant submits that such a proposition is erroneous because, on the express terms of section 182 of the Land Title Act 1994, the registration of the Mekpine Lease over Lot 1 would only create an interest in Lot 1 “in accordance with the instrument”: that is, in accordance with the Mekpine Lease. The Mekpine Lease only conferred a leasehold interest over that part of Lot 1 that was formerly Lot 6 – that is, not including the Resumed Land.”
- [52]Counsel for the appellant submitted that after registration of the survey plan, the definition of the “Land” in Item 2 of the lease instrument remained as Lot 6 even though Lot 6 no longer existed.[18] The lease is registered over the whole of new Lot 1, but what is leased, it was submitted, is that part of Lot 1 which is shown on the plan attached to the lease.[19] The notation of the lease on the plan of survey does nothing more than to note that there is a registered lease in respect of Lot 1. In order to determine the leasehold interest, and the rights and entitlements under the lease, Counsel submitted that one refers to the lease instrument itself which is consistent with the terms of s 182(a) of the LTA - that is, the interest created is “in accordance with the instrument”.[20] In this case, the area that constitutes the leasehold interest is shown on the plan attached to the lease as the area within the boundaries of Lot 6.
- [53]We agree with the appellant’s submissions. Whilst Mekpine’s interests under its lease were registered on the title to Lot 1, those interests remain interests in accordance with the terms of the lease. One must refer to the terms of the lease instrument in order to determine the nature and scope of Mekpine’s interests over Lot 1.
- [54]
“It seems to me that it was not intended that the certificate of title alone should provide a purchaser dealing with the registered proprietor with all the information necessary to be known to comprehend the extent or state of that proprietor’s title to the land. The dealings once registered became themselves part of the Register Book.”
- [55]In other words, the lease instrument forms part of the register with respect to Lot 1. Section 175 of the LTA also supports this conclusion. Section 175 of the LTA reads:
"175 Time from when instrument forms part of register etc.
A registered instrument forms part of the freehold land register from when it is lodged."
- [56]In this case, the “Land” the subject of the lease is identified in the lease instrument as Lot 6. There is nothing in the registration process which changes that lot description. It is a lease in relation to that part of Lot 1 that was formerly Lot 6, and the area of Lot 6 is clearly ascertainable by reference to the plan attached to the lease. Other rights of Mekpine under the lease, such as those relating to the use of common areas and car parks, remain identified by reference to land within Lot 6, and do not extend to the whole of Lot 1.
- [57]We therefore conclude that Mekpine’s lease does not give it rights in relation to the resumed land. Mekpine’s lease applies only to the area of what was once Lot 6, which does not include the resumed land. Any rights conferred by the lease are confined to the area of the former Lot 6. It therefore follows that, in answer to the remaining issues raised by Mekpine in its Notice of Contention, the lease does not confer any contractual rights on Mekpine to use the resumed land for car parking by its customers and the lease does not confer on Mekpine any “estate or interest” in the resumed land.
The effect of the RSLA and the LGM Decision
- [58]The appellant, by its grounds of appeal, contends that the Land Court erred in determining with respect to Mekpine that the resumed land was a common area of a retail shopping centre under the RSLA. Alternatively it submitted that, if the resumed land formed part of the common areas as defined in the RSLA, that did not have the consequence that Mekpine had an interest in the resumed land.
- [59]The findings made by the learned Member about the use of the resumed land by customers are sufficient to demonstrate that the resumed land formed part of the “common areas” as that expression is defined in the RSLA. There is no reason to overturn those factual findings.
- [60]The learned Member considered that the RSLA had the effect of amending Mekpine’s lease by substituting the definition of “common areas” in s 6 of the RSLA for the definition of “Common Areas” in the lease. He said this was because the definitions were inconsistent and by virtue of ss 18, 19 and 20 of the RSLA, the definition in the Act prevails.
- [61]It is not disputed that the shopping centre is a retail shopping centre under the RSLA. The Member made findings of fact that the resumed land was being used by persons to park on and/or walk across to access the centre. The resumed land therefore meets the definition of “common areas” in the Act on the basis that it is an area, in or adjacent to the centre, that is used by the public.
- [62]Notwithstanding this conclusion, we consider that neither the lease nor the Act confer on Mekpine any rights or entitlements in respect of the resumed land by virtue of its identification as a common area under the RSLA. In other words, nothing turns on this finding and we must respectfully disagree with the learned Member’s reasons in relation to the operation of the RSLA. In our view, ss 18, 19 and 20 of the Act do not have the effect of importing the statutory definition of “common areas” into the lease and effectively amending the lease to include, or create rights over, the resumed land.
- [63]The only function of the statutory definition is to assist in the interpretation of the RSLA wherever that term is used in the Act. Further, following the principle identified in Gibb v Federal Commissioner of Taxation,[22] the definition does not in itself, have substantive operation. Section 18 of the RSLA includes in the lease, a duty or entitlement created by the RSLA. The definition of “common areas” in the RSLA creates neither. Section 19 makes void a provision of a lease which excludes the application of a provision of the RSLA. A difference in the definition of a term found in both the lease and the RSLA does not, of itself, have that effect; and no provision of the lease was identified which might be said to exclude the application of a provision of the RSLA. Section 20 operates when there is inconsistency between a provision of the RSLA and a provision of the lease; and provides that the provision of the Act prevails, the provision of the lease being void to the extent of the inconsistency. The effect of a definition in the Act is simply that where a defined term is used in the Act, it has the meaning found in the definition (subject to contextual considerations).[23] A definition in a lease similarly identifies the meaning of a term when used in the lease. The fact that the same expression is defined differently in the RSLA and in the lease does not result in inconsistency.
- [64]The definition of “common areas” in the RSLA does not and cannot have the effect of amending the lease to include land which is not the subject of the lease, in the common areas for that lease. The expression is used in the RSLA as an element of the definition of “retail shopping centre”.[24] It would be a surprising result if the definition of an expression, included as an element of the definition of another expression, were to result in changes to rights and obligations created under the lease, regardless of the content of those rights and obligations. As we have discussed, the rights and entitlements conferred by the lease are confined to the area of the former Lot 6 which does not include the resumed land. Moreover, the RSLA does not appear to contain any provisions which confer rights or entitlements on lessees (or any obligations on lessors) in respect of common areas under the Act.
- [65]The only right relevantly granted to lessees by the RSLA is a right to damages pursuant to s 43 if a lessor substantially restricts or alters access to the leased shop or the flow of customers past the shop.
- [66]Section s 43(1) of the RSLA relevantly provides:
"43 When compensation is payable by lessor
- (1)The lessor is liable to pay to the lessee reasonable compensation for loss or damage suffered by the lessee because the lessor, or a person acting under the lessor’s authority -
- (a)substantially restricts the lessee’s access to the leased shop; or
- (b)takes action (other than action under a lawful requirement) that substantially restricts, or alters -
(i) access by customers to the leased shop; or
(ii) the flow of potential customers past the shop; or
- (c)causes significant disruption to the lessee’s trading in the leased shop or does not take all reasonable steps to prevent or stop significant disruption within the lessor’s control; or
- (d)…
- (e)…
- (f)…"
- [67]Section 43 does no more than to create a right to damages, in certain circumstances. Each of those circumstances is an action by the lessor, which has a particular result. While in many cases the action might occur on the land owned by the lessor, part of which is subject to the shopping centre lease, other actions of the landlord might give rise to a right to damages under the section. For example, if the lessor failed to pay accounts for services such as electricity or water, resulting in disconnection of the supply, and consequent disruption of the lessee’s trading, that would appear to give rise to a right to damages.[25] We do not consider that s 43 creates, either expressly or by implication, a right which could be characterised as a right in relation to land. It might be observed that paragraph (a) assumes a right which a lessee will generally have under a lease, either expressly or by implication.[26] This supports the view that the section does not create a right in relation to land, but provides a remedy which cannot be modified by the provisions of the lease.
- [68]In LGM, it was held that a lessee had an interest in certain walkways in a shopping centre, which were external to the leased premises. In reaching that conclusion, the Land Appeal Court referred to “the combination of the terms of the lease, the provisions of the RSLA and the uncontested evidence of the de facto recognition by the landlord of the areas of land on the gardens as walkways to the businesses in the shopping centre”, as suggesting that “the interest is not qualitatively different and, by no means, in the ‘absurd’ category”.[27] The provisions of the RSLA which the Court had in mind included s 43. It is not clear whether the Court found that s 43 was sufficient to give to a lessee in a retail shopping centre, an interest in land beyond the leased area. If that were a finding of the Court, we would not be prepared to follow it.
Conclusions
- [69]The appeal in respect of the Mekpine lease is allowed on the basis that the Member erred in determining that identification of the resumed land as a common area under the RSLA gave rise to an estate or interest held by Mekpine in the resumed land. We find that Mekpine did not have any “interest” in land for the purposes of s 12(5) of the ALA either by virtue of its lease or the operation of the RSLA.
Zacsam
- [70]The appellant contends that the Land Court erred in determining that the resumed land was a common area under the lease and under the RSLA. In the alternative, it is contended that even if the resumed land is a common area under the lease or under the RSLA, this does not give rise to an estate or interest in the land.
- [71]In our view, the learned Member was correct in concluding that the resumed land was part of the common areas of the lease by virtue of the relevant definitions in the lease. It was a part of the Complex - meaning Lot 1 - which is not demised or intended to be demised to any tenant. It was available for use by Zacsam and its customers.
- [72]The fact that the development approval for the shopping centre extension required the land to be excluded from the proposed development and kept clear of permanent structures or improvements does not alter that conclusion. It was open to the lessors to exclude the “land requirement” from the areas set aside by them or available for use by Zacsam and its customers, and they did not do so.
- [73]Unlike Mekpine’s lease which contained an express clause conferring a right to use the common areas, there is no such clause in Zacsam’s lease. However, there are various clauses in Zacsam’s lease which, although not referred to by the Member, we consider support the conclusion that the lease conferred rights on Zacsam and its customers to use parts of the common areas of the lease where relevant for access to and from the leased premises. For example:
11.3 Tenant to Have Access
The Landlord will permit the Tenant its servants agents licensees and invitees at all times during the term of this Lease to have access (in common with the Landlord and all other persons to whom the Landlord grants the like right) to and from the Premises through the various entrances and exits of the Building as may be necessary or convenient for the purposes of the Tenant's business but not for any other purpose.
…
14.11 Obstruction of Passageways
The Tenant will not obstruct or permit to be obstructed by its servants agents licensees invitees or others over whom it may have control any part of the Common Areas (and in particular the vestibules entrances passageways and stairways) by leaving or placing any article or thing or by any meeting of persons.
14.12 Exclusion of Trespassers
Notwithstanding anything contained or implied in this Lease to the contrary the Landlord may at any time and from time to time and for so long as it thinks fit exclude and restrain any person or persons from entering upon any part of the Complex or from using or occupying any part of the Common Areas other than the genuine customers patrons delivery men or service suppliers employees licensees and invitees of the Tenant or of the other tenants of the Building who make use of the Complex in accordance with the rules and regulations of the Landlord. Without in any way limiting the meaning of the term “genuine” any person who has entered upon the Building or made use of the Common Areas in breach of the Rules and Regulations and who having been notified of the breach commits a further breach of the Rules and Regulations (whether of the like nature or not) will for the purpose of this clause be deemed not be genuine.
14.13 Revocation of Licence to Enter
The Tenant will whenever requested so to do by the Landlord give notice in writing to any person who purports to enter upon any part of the Complex or make use of the Common Areas as a customer client licensee or invitee of the Tenant and who does not observe the Rules and Regulations or who is deemed not to be genuine revoking the licence of that person to enter upon any part of the Complex.
14.14 Rules and Regulations
The Tenant and its concessionaries officers employees agents customers licensees and invitees will in the exercise of the rights conferred by this Lease comply with and abide the Rules and Regulations and the Tenant agrees to endeavour to ensure that its concessionaries licensees officers employees and agents conform to the Rules and Regulations and all amendments and additions to them. …
- [74]The Rules and Regulations referred to in clause 14.14 of the lease are set out in the Schedule to the lease. Relevantly, clause 1 of the Rules and Regulations states:
- The outside of the Premises the entrance halls passages and stairways of the Complex are under the absolute control of the Landlord and must not be obstructed by the Tenant or its employees agents clients invitees customers or used by them for any purposes except ingress and egress to and from the Premises.
- [75]In our view, these provisions support the conclusion that Zacsam and its servants, agents, licensees and invitees are entitled to use the common areas for the purposes of ingress to and egress from the premises. For example, clause 14.1 stipulates that the lessee must not obstruct or permit its servants, agents, licensees, invitees or other to obstruct the common areas. By clause 14.12, the landlord may exclude any person from using or occupying any part of the common areas other than genuine customers, patrons, delivery men, etc. By clause 14.13, the tenant will, at the request of the landlord, revoke the licence of any person who purports to make use of the common areas as a customer, client, licensee or invitee of the tenant and who does not observe the Rules and Regulations or who is deemed not to be genuine. The tenant and its customers must abide the Rules and Regulations, one of which is that the outside of the Premises, the entrance, halls, passages and stairways must not be obstructed by the tenant or its employees, agents, customers, etc. or be used by them for any purposes except ingress and egress to and from the premises.
- [76]By implication, these clauses entitle Zacsam and its customers to the use the common areas of the lease for access to and from the premises. The resumed land is part of the common areas of the lease and so may be used for access.
- [77]Although the right to use the resumed land for access is not as clear as in the case of Sorrento where the lessee was given an express licence pursuant to its contract with the lessor to use a car parking area, we consider that the clauses referred to above give rise to a right, power or privilege over the common areas of the lease which is sufficient to constitute an “interest” for the purposes of s 12(5) of the ALA.
The effect of the RSLA and the LGM Decision
- [78]Given our conclusion that Zacsam has an interest in the resumed land under its lease which is sufficient for the purposes of the ALA, it is not necessary to consider the impact of the RSLA or the decision in LGM. However, for the reasons given in relation to Mekpine, the RSLA would not give Zacsam any “interest” in the resumed land.
Conclusions
- [79]The appeal against the preliminary point decision as it relates to Zacsam is dismissed. We find that the learned Member was correct insofar as he decided that the resumed land was a common area under the lease and that Zacsam held an “interest” in the land within the meaning of s 12(5) of the ALA under the lease.
Conclusion
- [80]In light of our findings detailed above, the learned Land Court Member erred in finding that Mekpine had an estate or interest in the resumed land for the purposes of s 12(5) of the ALA. Accordingly, the appeal is allowed and the preliminary point is answered “No”.
- [81]As regards Zacsam, the learned Member was correct in concluding that Zacsam had an estate or interest in the resumed land pursuant to s 12(5) of the ALA. Accordingly, the appeal with respect to Zacsam is dismissed.
ORDERS
- The appeal in LAC010-12 is allowed and the preliminary point as to whether, at the date of resumption, Mekpine Pty Ltd had an estate or interest in the resumed land pursuant to the Acquisition of Land Act 1967 should be answered “No”.
- The appeal in LAC 010-12 is dismissed and the matter is remitted to the Land Court for the determination of the claim for compensation by Zacsam Pty Ltd.
PETER LYONS J
CAC MacDONALD
PRESIDENT OF THE LAND COURT
PA SMITH
MEMBER OF THE LAND COURT
Footnotes
[1] Whilst the respondents have lodged separate applications in the Land Court for compensation under the ALA, the claims are being heard together.
[2] The resumed land is now described as Lot 11 on SP 2150604 and the remaining land is now described as Lot 1 on SP 215604.
[3] The transition of the lots, including the land resumed, is clearly set out on three plans at AB 1/109-111.
[4] RJ [4]; AB 2/447.
[5] [2007] 2 Qd R 373.
[6] RJ [18].
[7] (2008) 29 QLCR 176.
[8] RJ [27].
[9] RJ [33].
[10] RJ [38].
[11] RJ [18].
[12] RJ [24].
[13] Respondent’s amended submissions, para 24.
[14] T2-3.
[15] T2-3 L39
[16] T2-5 L7-17.
[17] Appellant’s reply submissions, para 5.
[18] T2-26 L16-29.
[19] T2-26 L35-36.
[20] T2-27 L29-36.
[21] (1971) 124 CLR 73 at 77.
[22] (1966) 118 CLR 628.
[23] See s 5 of the RSLA; see also ss 32A and 32 AA of the Acts Interpretation Act 1954 (Qld).
[24] See s 8 of the RSLA.
[25] What may be another example is the claim for s 43 damages which was pleaded as an alternative to the successful claim in Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232. It was unnecessary for the Court to determine whether s 43 supported the alternative basis for the claim.
[26] Compare Karaggianis v Malltown Pty Ltd (1979) 21 SASR 381.
[27] At [29].