Peterson v Kelly [1918] HCA 24

H. C. or A. 1918. Sw

Horsrati v. Commis- SIONER OF

HIGH COURT

T agree with the order proposed by Barton J.

Appeal allowed. Question answered as above.

«

H.C. or A, Local Government—Rates—Apportionment between lessor and lessee—Oovenant to

1918. a Sypyey,

April 9, 25.

Bartoa, Gavan Duity and Rich JJ.

for Victoria.

(HIGH COURT OF AUSTRALIA.]

PETERSON . - 2 ¢ Bg She " . APPELLA DEFENDANT, AND KELLY AND OTHERS . 3 F é . Responpen' ParntIFes, 7

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

pay "municipal or city rates""—Sydney Corporation Act 1902 (N.S.W.) (. 35 of 1902), secs. 110, 120—Sydney Corporation (Amendment) Act 1908 (N.S.W.) (Wo. 27 of 1908), secs. 4, 44, 11, 12—Sydney Corporation (Amendment) (No. 2) Act 1916 (N.S.W.) (No. 12 of 1916), secs. 5, 7—Sydney Corporation (Dec atory) Act 1918 (N.S.W.) (No. 6 of 1918), sec. 2—Local Government Act 1 (W.S.W.) (No. 56 of 1906), sec. 144 (5).

See. 110 of the Sydney Corporation Act 1902 (N.S.W.) directs the Co property " according to the fair average annual value of such property,"

sec. 120 directs them on the assessment so made to cause a rate to be me which is to be designated the " city rate." E

Sec. 4 of the Sydney Corporation (Amendment) Act 1908 (passed on 22 December 1908) provides that the Council shall, for the year 1909 and

OF AUSTRALIA.

_ in the pound upon the unimproved capital value of all ratable property in the City. Such rate shall be in addition to any rate under the Principal Act _ or any other rate under this Act." Sec. 12 provides that certain sections of the Local Government Act 1906 are to apply to rates under the Act, among them sec. 144 (5), which provides that " Nothing in this Act shall . . . affect any private agreement with respect to the ultimate liability to pay any "specified rates or arrears of rates."

Sec. 5 of the Sydney Corporation (Amendment) (No. 2) Act 1916 provides for the insertion after sec. 4 of the Sydney Corporation (Amendment) Act 1908 'of a section which is as follows :—" 4a. The Council may in and for any year 'make and levy a general rate upon the unimproved capital value of all ratable "property in the City not exceeding sixpence in the pound on such value. Where __ any such rate is so made, no other general rate on the unimproved capital value 'under sec. 4 of this Act and no city rate shall be made." Sec. 7 of the Act of 1916 provides for the insertion after sec. 11 of the Act of 1908 of a ection which is as follows :—"'11a. In any year in which the Council makes 'and levies a rate on the unimproved capital value of land under section 44 this Act, the method to be adopted in ascertaining the several amounts payable as between lessor and lessee in respect of such rate in cases where e lease was made after the first day of November, one thousand nine hundred nd eight, and before the passing of this Act, and in such lease the lessee has covenanted to pay municipal or city rates, shall be as follows :—The amount of such rate on the unimproved capital value in excess of three halfpence not exceeding fourpence one farthing in the pound shall be considered nd taken to be for the purposes of adjustment and interpretation of such