Moorabbin Shire v Abbott [1914] HCA 18

17 C.L.R.J OF AUSTRALIA.

is so fixed these elements are extraneous to the rent itself. See, H.C. or A.

for instance, Cox v. Harper (1).

Besides the straining of the words which would be necessary to include such elements, it is clear that repairs, which connote improvements, and rates and taxes, which depend to some extent upon them, cannot be the subject of simple addition to rent for unimproved land.

1914. ~~ APPERLY v. FEDERAL Commis- SIONER OF Lanp Tax.

Isaacs J.

Then a further contention was raised, that in arriving at the Gavan Duty J.

immediate result of unimproved value of the leasehold, these elements should be borne in mind. Rates and taxes, so far as the possessor for such a term would be liable in respect of unimproved land, should be taken into account as already mentioned. Repairs are ex vi termini outside the ambit of the problem.

So far it comes to this: that the net value of the leasehold as already deseribed is, in the ordinary course of things, the amount to be deducted from the total unimproved value of the land for the purpose of relieving the freeholder pro tanto of taxable liability, and of charging the lessee with it.

When we say "the ordinary course of things," we mean that the legislature, regarding the matter from a business aspect, recognizes that rent is ordinarily fixed upon what are sometimes conveniently called "usual conditions," or, at all events, upon terms and conditions which may fairly be regarded as compensa- tion for the interest granted to the tenant.

In Hampshire v. Wickens (2) Jessel M.R., adopting Davidson's "usual covenants," which include payment of taxes except those expressly payable by the landlord and also repairs.

We do not say that only those technically "usual covenants" are to be included as equivalent for rent within the intention of the legislature, because the proviso, which makes allowance for special circumstances, states expressly to what obligations they are to apply, and we have no power to extend them.