Dang & Nguyen Pty Ltd v Chief Commissioner of State Revenue [2020] NSWCATAD 120

Background

The proceedings concerned the Chief Commissioner’s decision to issue assessments in respect of two parking spaces in premises owned by the applicant (“Parking Spaces”). The Assessments were of levies imposed by s. 8 of the Parking Space Levy Act 2009 (NSW) (“PSL Act”). The primary issue for determination was whether the Parking Spaces were set aside exclusively for a specified purpose and therefore exempt from the levy.

The applicant owned a strata title lot (“Premises”) located in the Millennium Tower in Sussex Street Sydney.  The applicant entered into a lease with Fayad Group Pty Ltd (“Lessee”), which operated a convenience store in part of the Premises, at street level.  The Parking Spaces were within the Premises, on parking level 5 of the Millennium Tower, which required security access. The Parking Spaces comprised of a larger parking space and a smaller parking space, each within a wire cage and with a lockable garage door at its entrance.

On 1 September 2017, the applicant lodged with the Chief Commissioner a Parking Space Levy Annual Return for the 2016/17 financial year, which claimed that each parking Space was exempt under cl. 7(1)(d) of the Parking Space Levy Regulation 2009 (NSW) (“PSL Regulation”). In support of this claim, a director of the applicant, Mr Dang, explained that the spaces were used only for loading and unloading goods for the convenience store.

Following an audit, the Chief Commissioner determined that exemptions did not apply and on 27 June 2019, assessments for the financial years ended 30 June 2018 and 30 June 2019 were issued.

On 16 August 2019, the applicant objected to the assessments on the basis that the Parking Spaces were exempt under cll. 7(1)(d) and (h) of the Parking Space Levy Regulation 2009, which provided exemptions for:

(d)  the parking of motor vehicles for the purpose of loading or unloading goods or passengers, but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded,

(h)  the parking (without charge) of a motor vehicle used only for the carrying out of deliveries or the provision of services, but only if:

(i)  the parking space is the one used for garaging the vehicle overnight, and

(ii)  the owner of the vehicle is also the owner or occupier of the premises.

Submissions

The applicant submitted that during the relevant period, the Parking Spaces were exempt parking spaces by reason of the operation of cll. 7(1)(d) and 7(1)(h), with the effect that the levy was not payable. It submitted that:

1. no person other than the applicant had permission to use the Parking Spaces either legally, as the Parking Spaces were not subject to any lease or other arrangement, or factually, due to the physical barriers to access the Parking Spaces;
2. the Parking Spaces were “made available to the Lessee on the basis they are used for loading and unloading on an ad hoc basis”;
3. the Lessee was exclusively engaged in the purchase and sale of retail goods and material handling; and
4. the Chief Commissioner, to succeed, needed to establish that a reasonable person would infer that permission had been granted to park in the Parking Spaces when those space were not being used for materials handling.

The Chief Commissioner submitted that on the day an inspection was conducted:

• there was no signposting around the Parking Spaces indicating that they were only to be used for loading and unloading;
• a Toyota Prado, registered in the name of a Mr Fayad, was parked in the larger Parking Space and no loading or unloading into or out of the Toyota Prado was observed;
• grease and oil marks indicated vehicles were parked for extended periods.

Decision

1. Cl. 7(1)(d) - only used for loading or unloading

   The Tribunal found that there was no evidence of any intention to set aside the Parking Spaces for the requisite purpose of loading and unloading vehicles, or of any act taken to achieve that purpose (at [58]). There was also no evidence supporting the applicant’s second submission that the Parking Spaces were made available to the Lessee for loading and unloading on an ad hoc basis.  The Applicant’s objection provided that “inventory items… are stored, delivered or located within the [enclosed Parking Space] on a regular basis”, which indicated that the Parking Spaces were being used for purposes other than loading and unloading, namely the storage of goods.

   The Tribunal also concluded that the applicant had not proven that vehicles were not permitted to park in the Parking Spaces otherwise than while goods or passengers were being loaded or unloaded, finding that:

   • The lease was not clear as to whether the “property leased” excluded the Parking Spaces, but Mr Dang’s email of 5 September 2017, stating that “[t]he garages are included in the retail lease” pointed to the “property leased” including the Parking Spaces. This suggested that the Lessee had a legal right to use the parking spaces without restriction (at [69]–[72]).
   • There was no evidence to support the applicant’s submission that the Parking Spaces were made available to the lessee on the basis that they were used for loading and unloading on an ad hoc basis, and that parking for other purposes was not allowed (at [73] and [74]).
   • From the field audit, the observation that the Toyota Prado parked in the larger Parking Space with no loading or unloading taking place indicated that the Parking Space was being used in a manner inconsistent with there being an absence of permission to park there (at [76]).
   • The grease and oil marks found near the front of the smaller Parking Space indicated that vehicles had been parked for extended periods of time in a position where the rear of the vehicle was furthest from the garage door. Such a parking position was considered inconsistent with the purpose of loading and unloading goods (at [77]).
2. Cl. 7(1)(h) – use by owner/occupier for overnight parking

The Tribunal found that there was simply no evidence that the Parking Spaces were set aside exclusively for the parking of a vehicle owned by the owner or occupier of the Premises, or that the vehicle was used only for the carrying out of deliveries or the provision of services (at [79]).

Orders

The Assessments were confirmed.

https://www.caselaw.nsw.gov.au/decision/5eab4db7e4b0f66047ed8e6e