Renmark Hotel Inc v Commissioner of Taxation

Renmark Hotel Inc v Commissioner of Taxation - [1949] HCA 7 - HCA 1949 case summary — Zoe

[5]

By The Licensed Victuallers Amendment Act 1891 S.A., s. 40, it was provided that no publican's licence or wine licence should be granted to any person in respect of premises situated in that portion of the province of South Australia comprised in the schedule to The Chaffey Brothers Irrigation Works Act 1887 S.A.. By s. 47 of The Licensed Victuallers Further Amendment Act 1896 S.A. a limited power to grant a licence in that area was conferred upon the Licensing Bench. A condition laid down by the section was that a petition should be presented to the Bench signed by not less than a majority of the householders resident within a mile of the site of the proposed licensed premises praying that the publican's licence should be granted. It was necessary that the petition should pray that it should be granted subject to certain conditions. Then the authority of the Bench arose to grant a licence if it thought fit in respect of premises for which the licence was applied for, but only under and subject to the conditions. The conditions required were (1) that the business should be vested in a committee in trust for the purposes set out in the petition and approved by the Treasurer; (2) that the business should be managed by a committee of management, the first members of which should be nominated by the householders in the petition aforesaid and the mode of appointing members subsequently should be set out in the petition. The licence when granted should not issue until the Treasurer of the province had been satisfied that the proper arrangements had been made for carrying the conditions into effect and until he had approved of the purpose to which any profits were to be applied. Pursuant to this provision, on 3rd March 1897 a licence was granted to one Jane Meissner of the premises on which the appellant's hotel now stands. The documents relating to the original licence were not put in evidence, but it is not in doubt that the conditions prevented the profits being applied otherwise than in acquiring the site of the hotel, improving, adding to and equipping the hotel and then for local purposes for the benefit of the whole irrigation settlement of Renmark and not for private profit.

[7]

The procedure for incorporation involved the filing in the Supreme Court of a memorial supported by an affidavit. Thereupon the Master of the Supreme Court might grant a certificate of incorporation which it was necessary to deposit in the office of the General Registry. When that was done the association became incorporated for purposes that are described as follows: - (1) for the purpose of using the name of the association, adding thereto the word "incorporated"; (2) for the purpose of having and using a common seal; (3) for the purpose of suing or being sued by the name of the corporation in respect of any claim by or upon the association, upon or by any person, whether interested in the association or not; (4) to purchase and hold lands, tenements and hereditaments in the name of the association; and (5) for the purposes of the association to let, sell &c. and otherwise deal with the same. The memorial was accordingly filed and a certificate of incorporation granted on 16th July 1904. The memorial states the name of the institution to be the Renmark Hotel which, with the addition of the word "incorporated", forms the appellant's name. The object or purpose of the institution was set out. It was stated in these words, "the carrying on of the business of a hotel or public house under a licence granted and issued pursuant to s. 47 of The Licensed Victuallers Further Amendment Act 1896 and in manner required in the said section, the net profits being applied in acquiring the unencumbered fee simple of the hotel premises and in improving, adding to and equipping the same and subject thereto for local purposes for the benefit of the whole of the irrigation settlement of Renmark in the promotion or encouragement of literature, science or art or for charitable or benevolent purposes." The names of five gentlemen were given as trustees. The memorial stated that the management of the institution is vested in such trustees as a Committee of Management, one of them being chairman, and was by means of written regulations which incorporated the conditions referred to in the said s. 47 and the arrangements for carrying the same into effect, and which regulations and the purpose to which any profits are to be applied have been approved by the Honourable the Treasurer prior to the issue of the licence. The licensing legislation of that date was consolidated in and superseded by The Licensing Act 1908, and in turn that has been replaced by the Licensing Act 1932-1936. Section 118 of the last-mentioned Act deals with licences at Renmark. Section 118 forbids the grant of a licence in the area unless the Governor has consented and unless a petition has been presented to the Licensing Court signed by a majority of the electors resident therein. The petition is to set forth the purposes for which the profits of the business are intended to be applied, nominate the first members of the Committee and state the mode of appointing subsequent members. The grant of the licence must be upon conditions that arrangements are to be made for the business being vested in and managed by a committee in trust to carry on the business and to apply the profits for the purposes set out in the petition and that the purposes be approved by the Treasurer. The Treasurer is empowered to change or vary the purposes to which the profits shall be applied.

[8]

Some doubt appears to have arisen as to the propriety of incorporating the appellant and other similar institutions under the Associations Incorporation Act and by s. 2 of the Community Hotels (Incorporation) Act 1938, it was enacted that the appellant and certain institutions shall be deemed to be and always to have been duly and lawfully incorporated under the provisions of the Associations Incorporation Act 1929-1935. Doubts then seem to have arisen as to the propriety of granting a licence to a body constituted under the Associations Incorporation Act. By the Community Hotels (Incorporation) Amendment Act 1944, s. 3, it was provided that licences under s. 118 of the Licensing Act might be granted to and held by the incorporated association known as the Renmark Hotel Incorporated and other similar institutions. The Renmark Hotel Incorporated is governed in pursuance of the foregoing requirements by certain regulations. These regulations provide for a Committee of Management elected by ballot by the residents of the district who are on the roll for Renmark. The election is to be conducted by a poll pursuant to the Electoral Act 1929. The Chief Officer of Police stationed at Renmark or, failing him, the Senior State Election Officer at Renmark is to be the Returning Officer. In July in every year a general meeting of the electors is to be convened, apparently for the purpose of dealing with the manner in which the business of the hotel is being conducted. The rule says that such business shall be brought forward as the chairman may allow. The regulations declare that the licence for the benefit of the business is vested in the committee pursuant to s. 47 of The Licensed Victuallers Further Amendment Act 1896 or any Acts amending the same in trust for the purposes stated in the rules, and that the management and conduct of the business shall be under the control of the committee. The regulations go on to provide that all moneys, credits and effects arising or accruing from the business shall be the property of the committee and shall be applied in the payment of current and working expenses, rent, interest, licence fees and the expense of obtaining the present and every future licence of the premises and that any surplus shall be applied in the first place in or towards acquiring the unencumbered fee simple of the premises in which the business is carried on and in improving, adding to or equipping the hotel premises and thereafter for such local purposes for the benefit of the whole of the irrigation settlement of Renmark in the promotion or encouragement of literature, science or art or for charitable purposes or otherwise as the committee shall decide and the Treasurer shall approve. There is a proviso that the committee with the consent in writing of the Treasurer may from time to time apply such surplus or any part thereof in any other manner in and towards any other object which they may think fit. Another regulation provides that the Treasurer may withdraw or cancel the whole or any one or more of the regulations and may prescribe any new regulation or regulations. Finally, it is provided that the Treasurer may upon breach of any of the regulations revoke and cancel the licence of the premises and thereupon the licence shall be void.

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Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Cited By (3)