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| Date of judgement | 10 October 2011 |
| Proceeding number | 119005 |
| Judge(s) | D Patten, Deputy President R Perrignon, Judicial Member C Bennett, Non Judicial Member |
| Court or Tribunal | Administrative Decisions Tribunal Appeal Panel |
Costs - No question of principle
On 12 August 2011, the Administrative Decisions Tribunal Appeal Panel ("the Appeal Panel") delivered a judgement dismissing the application and affirming the decision at first instance to refuse the applicant an exemption from land tax for the 2004 – 2009 land tax years under the principal place of residence exemption in Schedule 1A of the Land Tax Management Act 1956 ("the Act").
Both parties were invited to apply for their costs and both chose to do so. The appellant was ordered to pay the Chief Commissioner's costs of the appeal as agreed upon or assessed.
The applicant had appealed on a question of law from a decision of the Tribunal on 27 January 2011 and also sought leave to have the appeal extended to the merits. The Tribunal at first instance had confirmed the Chief Commissioner’s assessment, but refused applications from both parties for costs.
The Appeal Panel found no error of law by the Tribunal at first instance and refused to grant leave to extend the appeal to the merits. The application was dismissed and the parties were invited to apply for their costs of the appeal.
Both the Chief Commissioner and the applicant applied for costs, although the applicant was not represented by a solicitor or a professional agent but by her husband. The costs applications were heard on the papers.
The Appeal Panel noted that the making of a costs order in the Administrative Decisions Tribunal is governed by s.88 of the Administrative Decisions Tribunal Act 1997.
The Appeal Panel held that as a matter of clear law, the appeal was bound to fail, a factor to be taken into account under s.88(1A)(c). That section provides that the Tribunal may award costs in relation to proceedings before it only if it is satisfied that it is fair to do so having regard to a number of factors, including:
The Appeal Panel found that it is relevant to take into account the fact that the appellant failed at first instance on the same preliminary point as it did before the Appeal Panel, that is, that the land was not "residential land" under the Act because it was being rented out.
In light of s.88(1A)(c), the Appeal Panel was satisfied that it was fair to award costs of the appeal to the Chief Commissioner, either as agreed between the parties or (if agreement is not reached) as assessed.
Haddad v Commissioner of State Revenue (RD) [2011] NSWADTAP 46