Zeller's Ltd. v. St. John's (City), (1973) 5 Nfld. & P.E.I.R. 213 (NFCA)

JudgeFurlong, C.J., Puddester and Mifflin, JJ.
CourtNewfoundland Court of Appeal
Case DateApril 17, 1973
JurisdictionNewfoundland and Labrador
Citations(1973), 5 Nfld. & P.E.I.R. 213 (NFCA)

Zeller's Ltd. v. St. John's (1973), 5 Nfld. & P.E.I.R. 213 (NFCA)

MLB headnote and full text

Zeller's Limited v. City of St. John's

Indexed As: Zeller's Ltd. v. St. John's (City)

Newfoundland Supreme Court

On Appeal

Furlong, C.J., Puddester and Mifflin, JJ.

August 9, 1973.

Summary:

This appeal arose out of the assessment of the plaintiff for business tax purposes under the City of St. John's Act, R.S. Nfld. 1952, c. 87, s. 221(1). The plaintiff leased business premises from the owner of a shopping centre. The lease contained a covenant to pay $106,375.00 annual rent and a covenant to pay all taxes with regard to the rented premises. The rent provided was accurately related to the space rented. The plaintiff paid a City Tax under s. 211(1) of the City of St. John's Act in the amount of $36,025. 37. The assessors treated the tax payment as rent in determining the rental value of the plaintiff's premises for purposes of business tax under s. 215 of the City of St. John's Act. The plaintiff appealed to the Court of Revision, which affirmed the assessors' appraisal. The plaintiff appealed to the appeal court. The appeal court allowed the appeal.

The appeal court held that the covenant to pay tax was a collateral agreement and was to be distinguished from the covenant to pay rent.

Real Property Tax - Topic 3577

Valuation - Business property - Rental or income value - What constitutes rent - Whether payment of tax obligation of owner by tenant was rent for the purpose of determining "rental value" under the City of St. John's Act, R.S. Nfld. 1952, c. 87, s. 215 - Tenant covenanted separately in lease to pay rent and taxes - Newfoundland Court of Appeal held that the payment of tax is not rent within the meaning of the Act.

Cases Noticed:

Finch v. Gilray (1889), 16 O.A.R. 484, appld. [para. 28].

Boone v. Martin (1920), 47 O.L.R. 205, folld. [para. 28].

C.J. Burland Properties Limited v. Minister of National Revenue, [1967] C.T.C. 432, appld. [para. 28].

Berube v. Cameron, [1946] 1 D.L.R. 561, dist. [para. 28].

Davis v. MacKinnon (1871), 31 U.C.Q.B. 564, dist. [para. 28].

East v. Clarke (1915), 33 O.L.R. 624, dist. [para. 29].

Sullivan v. Sweeny (1908), 4 E.L.R. 492, dist. [para. 29].

Harvey & Company Ltd. v. St. John's Municipal Council, [1941-46] N.L.R. 259, dist. [para. 29].

A.H. Murray & Co. Ltd. v. St. John's Municipal Council, [1936-40] N.L.R. 362, dist. [para. 29].

Garner v. Hannah, 6 Duer (N.Y.) 262, folld. [para. 37].

Re MacMillan Bloedel Ltd. et al. v. City of Port Alberni, 28 D.L.R.(3d) 688, folld. [para. 55].

Statutes Noticed:

City of St. John's Act, R.S. Nfld. 1952, c. 87, sect. 211(1), sect. 215, sect. 221(1), sect. 232.

Counsel:

Paul Althouse, for the appellant;

Gerald F. Lang, Q.C., for the respondent.

This case was heard on April 17, 1973. Judgment wad delivered on April 15, 1974.

To continue reading

FREE SIGN UP