Meredith v Fitzgerald [1948] HCA 11

High Court of Australia Latham C.J. Rich, Starke, Dixon and Williams JJ. Meredith v Fitzgerald [1948] HCA 11

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 18 Latham C.J.

Section 19 of the Licensing Acts 1928-1946 as amended in 1931 by Act No. 4001, s. 2, provides for the payment of an annual licence fee in the case of a licensed victualler of four per cent of the gross amount paid or payable for all liquor which, during the twelve months ended on the last day of June preceding the date of application for the grant or refusal of the licence, was purchased for the premises.

Section 19 (3) (a) is as follows:—"Notwithstanding anything to the contrary in any agreement whether made before or after the coming into operation of this Act—(a) any licensed victualler who holds a victualler's licence for any premises of which he is not the owner and who pays the annual licence fee for such licence fixed on a percentage basis may without suffering any penalty imposed by any such agreement deduct from any rent payable by him for the premises for any year in respect of which such fee is paid a sum equal to three-eighths of the amount of such fee or may recover the said sum in any court of competent jurisdiction from the owner of the premises."

The plaintiff in this action (the appellant) was the tenant of the Village Belle Hotel, St. Kilda. The respondent is the owner of the hotel and was the landlord of the appellant. The lease provided, firstly, for the payment of a yearly rent of £4,953 12s., and:—"Secondly by way of further rent an annual sum payable on the thirty-first day of December in each year during the said term equal to an amount computed at the rate of one pound ten shillings for every one hundred pounds or fraction thereof of the gross amount (including any duties thereon) paid or payable for all wines spirits ale beer porter stout cider perry or other spirituous or fermented liquors of an intoxicating nature which during each period of twelve months ending the thirtieth day of June immediately preceding the thirty-first day of December in each year during the said term were purchased for the said hotel and premises by the lessee or other the holder for the time being of the victualler's licence appertaining thereto." Section 19 (3) of the Licensing Act provides that the tenant may deduct or recover three-eighths of the licence fee from the landlord. The licence fee is £4 per cent.—£1 10s. is three-eighths of £4. Thus the further rent would be the same sum as the licence fee except that a sum of £1 10s. would be payable as rent in respect of a fraction of £100 over even figures of hundreds of pounds, whereas the licence fee payments would be calculated on the actual purchase of liquor.