Dentview Pty Ltd v Foremost Properties Pty Ltd (No 2) [2004] RSLT 32

[2004] RSLT 32 THE RETAIL SHOP LEASES ACT In the matter of Dispute 116/2003 DENTVIEW PTY LIMITED - Claimant and FOREMOST PROPERTIES PTY LIMITED - Respondent FURTHER DECISION (as to Stamp Duties) Given in Brisbane on 25 May 2004 -- 1 of 3 -- Dentview-v-Foremost Properties 2 Decision Pursuant to Order made at a Directions Hearing on 12 March, 2004, at which Hearing I as Legal Member informed the parties that I proposed to decide the Item numbered 6.1 in the Notice of Dispute dated 28/11/2003 on the submissions made pursuant to Orders 1, 2, 3 and 4 made on that date. Submissions have been made by the respective parties, as ordered. The relevant paragraph 6.1 reads as follows: - ”Lessee contends that lessor is not entitled to increase the rental pursuant to clause 15.01(a) of the lease (page 33) from the amount of $1,915.56 per month to the amount of $4,000.00 per month. Lessee contends that the submission by the lessor to the lessee of a tax invoice following the review date, i.e., 15 th June, 2002, in the same rental amount as the previous year, without the appointment of a specialist retail valuer, constituted a representation/agreement between the parties that the rent would not be reviewed. Therefore, the lessor is now precluded from purporting to review the rental some 12 months later.” The first difficulty that arises is that clause 15.01(a) of the lease has no application because it relates only to an option of renewal for the term of three years from 15 th June 1999 to 14th June 2000. The lease does not provide a review date on 15 th June, 2002. The second difficulty is that if a party to this dispute wishes to introduce into evidence the lease sealed by the original lessee on 13/2/96 and by the lessor on 5/3/96, that party must satisfy the Tribunal that the lease has been assessed for stamp duty and that any stamp duty payable has been paid. There is an endorsement on the photocopy of the lease filed which shows that duty was paid on 8/3/96, but also notes that the document is to be produced for further stamping on 7/2/2002. There is nothing in the material filed to show that the lease was ever produced for further stamping. The document relevant to rent for the year commencing 16th June 2002 is a Deed of Variation dated 8 th October 2001. However, the copy filed in the Registry is a photocopy of an unsealed, unsigned and unstamped deed. If the matter is to proceed, the party seeking to rely upon the deed must satisfy the Tribunal either that it has been executed and duly stamped or that it is exempt from stamp duty. The point is that under s.4A of the Stamp Act 1894 (“the Repealed Act”) a document which is required to be assessed for stamp duty cannot be admitted into evidence before any Court or Tribunal unless it has been submitted for assessment and all duty assessed has been paid. Of course, that extends to a requirement that a lease be produced for further stamping. Section 530 of the Duties Act 2001 (“the new Act”) continues the application of the Repealed Act to leases under defined circumstances, but s.513 of the new Act provides that the Repealed Act continues to apply in relation to instruments signed, and transactions entered into before the “commencement day.“ “The -- 2 of 3 -- Dentview-v-Foremost Properties 3 Decision commencement day” is 1 March, 2002. Thus the Repealed Act applies to all instruments and dealings involved in this Dispute. Section 4A provides that a party may give to a Court, Judge or Magistrate an undertaking to stamp; but does not extend to a Retail Shop Lease Tribunal. It is clear from the claimant’s submissions that the claimant does rely upon the abovementioned Deed of Variation. The respondent, in its submissions, does not make reference to the Deed of Variation. The Deed of Covenant whereby the respondent lessor granted consent to the assignment of the lessee’s interest to the present lessee is shown by the copy filed to have been produced and marked, “Exempt from Stamp Duty,” while the Deed of Assignment of Lease appears from the copy filed to have been produced and marked that the duty on the assignment has been accounted for on the relevant business contract. Thus the difficulty relates to the further stamping of the lease itself, and the stamping of the Deed of Variation. Until the Tribunal is satisfied that all relevant stamp duty has been assessed and paid, it cannot accept the lease and the Deed of Variation into evidence; with the obvious result that the point of law cannot be decided satisfactorily. It is of course too simplistic to rely upon the error contained in item 6.1 of the Notice of Dispute (referred to above) as a ground for dismissing the dispute entirely. While it appears from the submissions made by the respective parties that there is a possible dispute of facts – claimant’s first submission and respondent’s reply in its first submission – item 6.1 of the Dispute Notice makes no reference to the matter alleged in the claimant’s submission. Subject to my being satisfied by production of stamped copies or copies of documents marked to show stamp duty is not payable, I shall proceed to decide the point of law on the basis that, if there was any discussion such as alleged by the claimant, that discussion is irrelevant. The claimant is required to satisfy the Tribunal that all appropriate stamp duty has been assessed and paid, and to do so by 18 th June, 2004; and the respondent is hereby ordered to make available to the claimant by 31 st May 2004 any stamped copies of relevant documents under the control of the respondent or its solicitors for photocopying, such documents to be made available for inspection and photocopying at the office of the respondent’s solicitors by appointment during working hours. There will be a further Directions Hearing in this matter on Monday 28th June, 2004, 10.00 a.m., by teleconference. A.W. Couper Chairman. -- 3 of 3 --