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D W Tolson Management Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 113

Date of judgement 9 June 2016 Proceeding No. 1510548
Judge(s) Senior Member N S Isenberg
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Aboriginal Land Rights Act 1983

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Land Tax Management Act 1956

Taxation Administration Act 1996
Catchwords ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - application made out of time - land tax - application for extension of time - exercise of discretion
Cases cited B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481

Caruana v Chief Commissioner of State Revenue [2011] NSWADT 183

Codlea Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 136

Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

Daoud v Chief Commissioner of State Revenue [2015] NSWCATAD 53

Ferella v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 45

Jackson v Land and Housing Corporation [2014] NSWCATAP 22

Leda Manorstead v Chief Commissioner [2010] NSWSC 867

Leda Manorstead v Chief Commissioner [2011] NSWCA 366

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48

St Pier v Chief Commissioner of State Revenue [2002] NSWADT 112

Touma v Chief Commissioner of State Revenue [2012] NSWADT 2

Background

The Applicant, D W Tolson Management Pty Ltd, filed an application on 11 September 2015 (“Substantive Application”) to review land tax assessments following a decision of the Chief Commissioner of State Revenue disallowing its objection to a land assessment notice issued in respect of property situated at Londonderry for the 2011 to 2015 land tax years. The Applicant stated that it was notified of the Chief Commissioner’s disallowance on 4 May 2015, and conceded that the Substantive Application was lodged outside the time allowed under the relevant legislation.

The Applicant sought an extension of time to file its Substantive Application pursuant to s. 41 of the Civil and Administrative Tribunal Act 2013 (“CAT Act”) (“the Application”). The Chief Commissioner neither consented nor opposed the Application.

Case Law

The Tribunal referred approvingly to the decision of Senior Member Wass in Daoud v Chief Commissioner of State Revenue [2015] NSWCATAD 53 (“Daoud”). In Daoud, Senior Member Wass observed that the discretion in s. 41 of the CAT Act does not operate automatically; the discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. Further, Senior Member Wass stated at [16]:

“Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted.”

The Tribunal also referred to the decision in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [19] and [22] which set out the following matters as being relevant in determining whether to grant an extension of time:

  • the length of the delay,

  • the reason for the delay,

  • the applicant’s prospects of success (in particular, whether the applicant has a fairly arguable case), and

  • the extent of any prejudice suffered by the respondent to the appeal.

Decision

In accordance with the above case law, the Tribunal made the following findings:

  • Length of the delay: the Substantive Application was filed 70 days after the expiry of the statutory period of 60 days.

  • Reason for the delay: the Applicant submitted that the reasons for their delay were that its Accountant’s practice was merging with another practice, and the Applicant’s representative was on holiday. However, there was no explanation as to the extended delays after the Applicant returned from holiday, and between the signing of the Substantive Application and its filing. The Tribunal determined that the Applicant, through its accountants, was aware from 4 May 2015 that the review process required an application to be filed in either the Tribunal or Supreme Court. Accordingly, Senior Member Isenberg found that the explanation for the delay was less than satisfactory.

  • Amount in dispute: The amount in dispute was not insubstantial, being $238,000.

  • Applicant’s prospects of success: the onus is on the Applicant to prove the dominant use of the property in each relevant tax year was for the propagation for sale of mushrooms. There was no evidence that any mushrooms were propagated on the property, rather, the Applicant submitted that the cattle on the property were used to consume the mushroom stems (the waste from the mushroom operation). The Tribunal stated that an intention to use the Property for primary production was not a use sufficient to satisfy s 10AA. However, if the Applicant could produce evidence that the consumption by cattle of mushroom stems is an integral part of the operations of a mushroom farm, it is fairly arguable that the property was used for primary production. The Tribunal also considered that the Applicant has not had the benefit of legal advice in respect of any issues.

  • Extent of prejudice suffered by the Respondent: there was no evidence or any submissions that the Chief Commissioner has or will suffer any prejudice if the Application is granted. The Chief Commissioner did not oppose or consent the Application.

Orders

Having regard to the above findings, the Tribunal ordered that the time for filing the application for administrative review is extended to 11 September 2015 (being the date on which the Substantive Application was lodged with the Tribunal).

Link to decision

D W Tolson Management Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 113

Last updated: 16 May 2017