Applicant v Respondent

58 On the basis of these provisions it is said that as the description of a parcel of land that was contracted to be conveyed was certain the effect of Special Condition 25.4.2 is that the vendor agreed to convey to the purchaser the lot bearing the same number as on the unregistered plan of subdivision or, if there was a renumbering, occupying the same or approximately the same position on the registered plan of subdivision, as the land described as Lot 421 on the unregistered plan. For these reasons it is said that the contract of sale was valid and enforceable and that there was no impediment at law preventing the vendor from contractually binding itself to deliver the as‑yet non‑existent title to a parcel of land whose boundaries had not yet been precisely defined. The fact that the vendor could not comply with the obligation to deliver title at the time of entry into the contract did not, it is said, prevent it from contracting to so comply once title came into existence as a result of the registration of the plan of subdivision, hence the definition of the parcel of land to be conveyed.

59 For these reasons the Applicant says that it must follow that there was no impediment at law preventing a purchaser from contractually binding itself to take possession of land whose boundaries had not yet been precisely defined. Pursuant to Special Condition 25.4.2, the Purchaser bound itself by the Possession Clause to take possession of Lot 421 on the registered plan or, if the lots were renumbered, the land occupying the same or approximately the same position on the registered plan of subdivision, the Applicant contends. Moreover, it is said that the fact that the purchaser could not comply with the obligation to take possession at the time of entry into the contract did not prevent it from contractually binding itself to do so once the boundaries of the land sold were precisely defined as a result of the registration of the plan of subdivision. Consequently, contrary to the Tribunal's findings, the Applicant submits that:

(a) it is possible for a purchaser to take action in relation to land which is the subject of an unregistered plan of subdivision, prior to registration of the plan of subdivision - and, specifically to bind itself to take possession of the corresponding lot on the registered plan, immediately upon registration;

(b) a purchaser who undertakes a binding obligation to take possession of land the subject of an unregistered plan of subdivision upon registration of the plan of subdivision will take action that results in taking possession of land for purposes of s 16(1)(a) of the LTA immediately upon registration of the plan; and

(c) s 16(1)(a) of the LTA can be satisfied if the purchaser's actions that cause it to take possession of land on or after the registration date are the direct result of actions taken prior to the registration of the plan of subdivision - namely, entry into a contract of sale pursuant to which the purchaser bound itself to take possession upon registration.[69]

Thus the Applicant contends that it follows that the effect of the Possession Clause was to cause the purchaser of Lot 421 to unequivocally take possession of the purchased land upon registration of the plan of subdivision on 24 November 2014[70] - which was, of course, prior to 31 December 2014.

60 Some particular criticisms were made of the Tribunal's observations as to the impossibility of a purchaser taking possession prior to registration of the plan of subdivision and thus the obligation to take possession only crystallising on this event. In any event, for the reasons which follow, the entry into an obligation by a purchaser to take possession at a future time does not constitute a taking of possession in the presently relevant sense. Moreover, there is no error in the Tribunal observations in the paragraph to which the Applicant refers.[71] Rather, I entirely agree with these observations.

61 The Applicant's concluding submission in this respect is that courts and tribunals should strive to uphold contractual provisions rather than let them fail for uncertainty. Effectively, it is said, the Tribunal held that the Possession Clause must fail for uncertainty, because "prior to the registration of the plan of subdivision the exact identity of the land is uncertain".[72] This, it is said, is at odds with the position as stated by Barwick CJ in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd:[73]

So long as the language employed by the parties, to use Lord Wright's words in Scammell (G.) & Nephew Ltd v Ouston (1941) AC 521 is not "so obscure and incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.

62 As indicated previously, the Applicant's submission with respect to the Tribunal's position or decision on the Possession Clause is a gloss on the Tribunal reasons which is inaccurate and provides no basis for this submission.[74] On this basis, it is contended that if there were any uncertainty as to the operation of the Possession Clause the Tribunal erred in failing to resolve that uncertainty by construing the clause in light of SC 25.4.2 in circumstances where it is said the clear intention of the parties was that the purchaser should take possession of the land to be conveyed upon registration of the plan of subdivision. For the preceding reasons this does not, however, address the application and operation of s 16(1)(a) of the LTA insofar as those provisions require that possession be "taken".

63 The Applicant's further submissions in reply as to the nature and acquisition of possession seek to address matters from a somewhat different perspective. In so doing it is sought to equate the signing of a document and a physical act when possession is "taken". It is not clear though whether the document signed purports to grant possession or is the entering into an obligation to take or accept possession at some future time. These further submissions also emphasise "control" as an aspect or indicia of possession. In any event, the Applicant submits:[75]

1. The nub of the issue is whether there is a material difference between possession that is "taken" by the act of signing a document, and possession that is "taken" by a physical act. Can it be said that possession was not "taken" because the purchasers' sole physical act was its signing of a document?
2. It is trite that interests in land are transferred by the mere act of signing a document. This is not just true in the case of instruments that transfer legal interests, such as a Lease or Transfer of Land. By execution of a contract which does no more than bind the purchaser to pay a settlement sum at a future date, the purchaser acquires a beneficial interest in the land under a resulting trust[76] and thereby "takes" an equitable interest in the land.
3. Can possession be acquired by the mere act of signing a document? In Mabo v Queensland[77] Toohey J said:

Possession is notoriously difficult to define[78] but for present purposes it may be said to be a conclusion of law defining the nature and status of a particular relationship of control by a person over land.[79]

1. In the scholarly work cited above by Toohey J, AES Tay develops the proposition that "possession" is a relation that centres on the concept of control.[80] Tay proposes a definition of possession, as a fundamental and general concept in law: "Possession is the present control of a thing, on one's own behalf and to the exclusion of all others".[81]

2. Possession of land is thus a relationship of control by the possessor over that land. In this case, the contracts of sale compelled the vendor to grant, and the purchasers to take, control of the subject land - either immediately or upon registration of the plan of subdivision. By their act of signing the contract the purchasers took immediate or delayed control over the land.

3. The Commissioner's insistence on physical control as a precondition or defining characteristic of possession is misconceived. As Tay explains:

The crucial thing here is the emphasis on power and control. Possession is not mere physical detention - such detention in pristine form rarely confronts the law (people do not keep their belongings chained to their wrists): such detinue readily shades off into forms of control ('detaining' in one's house or one's office, for instance) and is practically useless as a fundamental concept on which to build a structure of rights and duties. Possession, one might say, is the present physical power to use, enjoy or deal with a thing, on one's own behalf and to the exclusion of all others.[82]

1. While the above passage focusses on possession of chattels, it requires little imagination to extend it to real property: the power to control rather than physical presence is the touchstone.
2. The purchasers' act of taking possession - that is, taking control - of the land was no mere formality. It had repercussions, whether or not the purchasers took any physical step in relation to the land.
3. Clauses 35.3 and 35.4 of the contracts of sale[83] provide for two categories of release and indemnity - one in respect of losses or claims arising merely from the use of the land, and one arising from possession of it. If the subject land was, for example, flooded while it was unoccupied, as a result of causes the vendor could have prevented by taking physical actions on the, the vendor was liable so long as it had possession, and the purchasers became liable once they took possession. In the latter case, by taking possession of the land, the purchasers took control of it and were henceforth in a position to prevent such flooding.
4. More generally, the purchasers acquired for themselves the power to exclude all persons, subject to contractually specified exceptions,[84] from the land, from the moment of registration of the plan of subdivision. That power was real, and the question of whether it was physically exercised is irrelevant to that reality.

64 The submissions do not, however, go beyond a discussion of indicia and concepts of possession and the rights and obligations that may, in particular circumstances, flow from possession. Again, they do not address the issue in the context of the provisions of s 16(1)(a) of the LTA which require that possession be "taken", save for the general assertion that the mere signing of a document, which I take in this context to be the signing of the contracts, is sufficient. As discussed further in these reasons this is not a proposition which flows from the provisions of the LTA or the authorities as they now stand.

65 In many respects the introduction or emphasis of "control" as a feature of possession illustrates these points. Rhetorically, how can it be said that the mere entry into a contract to enter into or to take possession at some time in the future can be said to be a taking of control - hence, as the Applicant would have it, a taking of possession? Even further doubt is cast on this proposition having regard to the position, in the present circumstances and as emphasised by the Respondent, that the future event upon which possession or control depends - the registration of the plan of subdivision - is unknown both as to timing and also the fact of its registration which will happen within the Land Titles Office administratively outside the public domain at the point of time. Clearly the purchaser obligor is not in possession or control until the obligation is fulfilled and some objective step taken to take possession or control, however the emphasis on these terms is sought to be placed.

66 Ground 2 in the Further Amended Notice of Appeal is that the Tribunal erred in finding that the purchaser of Lot 421 had not taken possession of the land upon registration of the plan of subdivision for the purposes of s 16(1) of the LTA. The Applicant contends that three steps in the reasoning of the Tribunal are specific errors. Moreover, although Ground 2 is only directed at Lot 421, as the Respondent observes, the issue arises in respect of all of the Clyde North Properties. The Tribunal found that the Possession Clause did not pass de facto possession to the purchaser of Lot 421, meaning that s 16(1)(a) of the LTA was not satisfied and the discretion in s 16(3) could not be exercised. As the Tribunal appreciated, this issue arose in respect of the other Clyde North Properties in the event the Tribunal had been wrong on the issue of the timing of the registration of the plans of subdivision.[85] Since the Possession Clause was in the same form for each Lot, the Tribunal's conclusion on this issue is a further reason why the Applicant could not succeed in respect of Lots 615, 618 and 672. It follows that even if the Applicant were successful in this Court on Ground 1, the appeal in respect of the Clyde North Properties would still be dismissed unless it also succeeded on Ground 2.

67 There are, as the Respondent submits, a number of authorities relevant to the meaning of "taken possession" in s 16(1)(a) of the LTA. They begin with the decision of the High Court in Highlands Ltd v Deputy Federal Commissioner of Taxes (SA),[86] which concerned s 37 of the Land Tax Assessment Act 1910‑1926 (Cth), the equivalent of s 16 of the LTA. Subsection (1) provided:[87]

Where, before or after the commencement of this Act, an agreement has been made for the sale of land, whether the agreement has been completed by conveyance or not -

(a) the buyer shall be deemed to be the owner of the land (though not to the exclusion of the liability of any other person) so soon as he has obtained possession of the land; and

(b) the seller shall be deemed to remain the owner of the land (though not to the exclusion of the liability of any other person) until possession of the land has been delivered to the purchaser and at least fifteen per centum of the purchase‑money has been paid.

68 As the Respondent submits, the issue in Highlands was whether the buyer had "obtained possession"; however, by contrast, under the LTA, the critical issue is whether the purchaser has "taken possession". The difference between those two concepts is said to be critical; as, in my view, the authorities indicate and emphasise.

The material portion of sec 37 requires that, where an agreement has been made for the sale of land, the buyer shall be deemed to be the owner of the land so soon as he has obtained possession of the land. This appears to me to mean possession as purchaser obtained in intended execution of the agreement of sale, performance of which may, of course, be affected by agreed variations of its terms and by waiver, including the acceptance of substituted terms and modes of performance. The provision is, no doubt, intended to include cases where the vendor has been in possession by himself, and cases where he has been in possession by his tenants. Accordingly, it includes not only cases in which the buyer obtains vacant possession, but cases in which he is put in receipt of the rents and profits. Further, "by possession is meant possession of that character of which the thing is capable" (per Lord Fitzgerald, Lord Advocate and North British Railway Co v Young).

70 Cam & Sons[89] concerned s 23 of the Land Management Act 1956‑61 (NSW), which was in materially identical terms to the provision considered in Highlands. A term of the relevant contract provided that the purchaser was entitled to all rents and profits and liable for all rates and outgoings from the date of the contract. A further term was an attornment clause which, in effect, involved the purchaser paying rent to the vendor. The attornment clause in particular persuaded the Court that the purchasers had obtained possession as it would have served no purpose otherwise. Kitto, Taylor and Owen JJ quoted with approval the following statement made by Sugerman J in the Full Court of the Supreme Court of New South Wales:[90]

When the vendor, himself retaining no vestige of possession, has done all that is necessary for him to do to enable the purchaser to assume actual occupation of the land or receipt of its rents and profits, and when, there being no obstacle in the way such as adverse occupation by a third party, it rests solely with the purchaser to decide whether and when he will do so. ... When and whether he chooses to enjoy its profitable use or its returns are matters entirely for him. He has "obtained possession", and the vendor has "delivered possession" to him, in the intended senses of those expressions.

71 In Victoria, s 48 of the Land Tax Act 1958 was in similar terms to the provisions considered in Highlands and Cam & Sons: it provided that a purchaser was deemed to be the owner of land so soon as they had "obtained possession". This changed with the passage of the LTA in 2005, when this language was replaced with the expression "taken possession". The Explanatory Memorandum to the 2005 Act does not assist in understanding the reason for this change.

72 The meaning of "taken possession" was considered by Ginnane J in Oakbee.[91] His Honour quoted[92] from the decision of Sugerman J in the Full Court in Commissioner of Land Tax v Cam & Sons Pty Ltd .[93] As well as citing the passage quoted with approval by the High Court, his Honour quoted the one immediately preceding it:[94]

The words of paras (a) and (b) of s 26(1) are "obtained possession of the land", and "possession of the land has been delivered to the purchaser." It is not in terms required by the paragraphs that the purchaser should have taken or entered into possession or that the vendor should have put him physically into possession, but that possession should have been "delivered" on the one hand, and "obtained" on the other. One takes or enters into possession solely by one's own act, but one "obtains" it in this context by the act of another "in delivering it". These 2 expressions, "obtain" and "deliver", refer to the same acts and their consequences, since it is not to be taken that, in cases where more than 15 per cent of the purchase money had been paid, the legislature contemplated a lacuna between the vendor's being deemed to be the taxable owner and the purchaser's being so deemed ...

73 Justice Ginnane then referred to what the other Judges in the Full Court had said before noting the appeal to the High Court. His Honour then continued:[95]

The observations of Sugerman J in [Commissioner of Land Tax v Cam & Sons Pty Ltd [1965] NSWR 589] point to a distinction between obtaining possession and taking possession and suggest that a person takes possession by their act. That construction adopts one of the many meanings of the verb "to take". Many of the dictionary definitions of the word "take" use some active word such as to seize, grasp, capture or catch. Amongst the many definitions of the verb "take" given in the Oxford English Dictionary are:

15(a) To transfer by one's own direct act (a thing) into one's possession or keeping; to appropriate; to enter into possession or use of.

(b) absol. To take possession; spec in Law, to enter into actual possession.

In my opinion, the definitions of the word "take" that I have referred to and set out in the previous paragraph, convey the sense in which the word "taken" is used in the phrase that "the purchaser has taken possession" that is contained in s 16(1)(a) of the Land Tax Act 2005 (Vic). Where a conveyance of the vendor's estate in the land to the purchaser has not occurred, some action by the purchaser in relation to the land is required to support a finding that the purchaser has taken possession of it.

Support for the conclusion that I have reached is found in other provisions of the Land Tax Act 2005 (Vic). The words "taken possession" are used in s 16A and the words "takes possession" in s 30. In both instances, the context suggests that the provision requires some action by the acquirer of the land in relation to the land.

...

The nature of the conduct by a purchaser that will suffice to permit the finding that it has taken possession of land will depend on a range of matters. These will include the terms of the contract of sale and the nature of the land. In an appropriate case, something less than a purchaser taking physical possession of the land may satisfy the requirement that the purchaser "has taken possession of the land".

A right to possession that a vendor confers on a purchaser pursuant to a term of a contract might well satisfy a requirement that possession be delivered or obtained. However, in the circumstances of this case, it does not satisfy the requirement contained in the Land Tax Act 2005 (Vic) that the purchaser has taken possession of the land.

In the present case, the purchasers had paid a small part of the purchase prices, settlements had not occurred, the purchasers had a contractual right to possession, but had not exercised it, and they still owed the balance of the purchase prices.

I do not consider that this case is to be decided by considering whether the Land Tax Act 2005 (Vic) differs from the Land Tax Act 1958 (Vic). Rather I apply the ordinary meaning of the words "take possession," which I have attempted to identify previously in this judgment.

In my opinion, neither purchaser had engaged in any conduct which could be described as "taking possession" of the land.

The purchasers had the right to take possession, but were still obliged to pay the balance of the purchase price. They had not exercised that right to possession by taking any action in connection with the land on or prior to 31 December 2008.

The tribunal correctly concluded that the purchasers had not taken possession of the land by the relevant date and, therefore correctly rejected the contention filed by Oakbee.

74 The final decision said by the Respondent to be relevant to the construction of s 16 of the LTA is that of the Court of Appeal in Kameel Pty Ltd v Commissioner of State Revenue.[96] There the plurality said that Highlands "stands for the two‑limbed proposition that a buyer will have taken possession of land for the purposes of s 15 of the [LTA] when the buyer has de facto possession and when it is in that position in intended execution of the agreement for sale of the land."[97] The plurality continued:[98]

It is the second limb of the test that is contentious. We do not agree [with Whelan JA] that it is irrelevant whether it can be said that the particular actions taken are properly to be seen as pursuant to the provisions of the agreement for the sale of land, or that it does not matter, and it is unnecessary to resolve the question, of what might be the contractual consequences of what has in fact occurred.

The critical question is: what is it for the purchaser to take possession in intended execution of an agreement for the sale of land?

In our view, it is not sufficient to satisfy the second limb of the Highlands test that ... a contract of sale remains on foot and is executory, and the purchaser has not purported to repudiate. It is necessary to tie the parties' conduct to the contract. It may be that a contract taken as a whole makes no sense unless a clause can be construed as implicitly conferring a right to early possession. Alternatively, the parties' conduct may reveal that the vendor has waived a pre‑condition to a purchaser's entitlement to access, and to control, the land. The parties may have revealed, by their conduct, that they have agreed to a variation of the contract, by the tender and acceptance of substituted performance. When Dixon J remarked in Highlands that it was "immaterial" which of these alternative analyses one adopted, he was not suggesting that the contract had become immaterial or no longer governed the legal relationship between the parties. On the contrary, he was remarking that a literal interpretation of all the provisions of the contract made no sense and, to give the agreement a sensible operation, it was necessary to construe the contractual arrangements between the parties differently, including, of course, potentially, by an agreed variation of the terms of the contract.

...

... when considering whether a purchaser has acted in intended execution of the agreement for sale it is necessary to ask the following question: Is the conclusion that the purchaser has taken possession consistent with the parties' contractual arrangements for the sale of the land, as they have evolved? It may be that, as in the circumstances of Highlands, the conduct of the parties is so clearly consistent with a number of alternative analyses of the contractual arrangements for the sale of land, as they evolved over time, that it is unnecessary to resolve which particular analysis properly applies so long as one can conclude that the parties had the relevant contractual intention at a time when the purchaser also enjoyed de facto possession. It remains the case, even where no particular analysis needs to be chosen as the correct one, that a court should ask, as the Court in Highlands did ask, whether the particular actions taken are properly to be seen as derived from the contractual arrangements between the parties rather than as revealing an entirely separate arrangement, that is, an arrangement "standing right outside" the contract for the sale of land.

To ask whether the parties' conduct is consistent with their contractual arrangements for the sale of land, as evolved, invites attention to exactly what it is both parties have done and the legal effect of what they have done. Close attention may reveal that the conduct of the parties does not support the view that there has been an agreed variation to the contract. A feature of the circumstances may also preclude the inference of waiver on behalf of the vendor. It is only by being alert to the contractual consequences of what has in fact occurred between the parties that a court is in a position to determine whether the arrangements for the sale of land between the de facto possession enjoyed by the purchaser is consistent with the contractual arrangements for the sale of land between the parties, as they have evolved over time. In our view, in circumstances where there is no consistency, a court could not conclude that the purchaser is in possession within the meaning of s 15.

76 Thus the Court of Appeal in Kameel recognised the important distinction between having a contractual entitlement to possession (or even a contractual obligation in this respect), and actually taking possession.[100] After all, parties do not always act in accordance with their contracts. The Tribunal was, accordingly, correct to focus on what the parties did, rather than merely on what they had agreed to do. In my view, having regard to the context of this issue which lies in sub‑s 16(1) of the LTA, critically the use of the word "taken" with respect to "possession", this must be correct. Something more needs to be done than merely agreeing to take possession at some time in the future. This is an event which may never occur, even though its non‑occurrence may expose the promisor to the consequences of a breach of a contracted obligation. Nevertheless this is not a matter of consequence in relation to the operation of the LTA provisions.

77 The Tribunal accepted the submission of the Applicant that in Oakbee, Ginnane J left open the possibility that something other than the taking of physical possession would suffice to establish the taking of de facto possession.[101] The Member accepted that the something other than physical possession was not necessarily limited to a right to rent and profits.[102] He did not, however, accept that a purchaser entering into a sale contract that included the Possession Clause was sufficient to establish that de facto possession had been taken by the purchaser, since some further action was required.[103] He recognised that such further action would be particularly difficult to establish for those lots where the plan of subdivision had not been registered: prior to registration, the exact identity of the land is uncertain and thus "even if it were possible to take some intangible action to assert the right to possession, it would be ineffective".[104]

78 In light of these authorities the Respondent contends that, when reduced to essentials, the Applicant's argument on Ground 2 has three elements. In my view the Respondent's submissions with respect to the Applicant's argument on Ground 2 do properly identify the essential elements relied upon. As to those elements the Respondent submits there are significant flaws, flaws which mean that Ground 2 of the appeal must fail. I now turn to those matters.

79 First, Cam & Sons was concerned with different statutory language - "obtained possession" rather than "taken possession" - and subsequent authority has established that these have different meanings. Cam & Sons does not assist in construing s 16 of the LTA except to the extent that subsequent decisions have relied on it to explain the meaning of the current provision.

80 Secondly, the reason why the Tribunal found that the purchaser of Lot 421 had not taken possession was that the mere entry into of the sale contract, including the Possession Clause, was insufficient.[105] As indicated previously, the observation that demonstrating that further action is "seemingly impossible" until a plan of subdivision is registered is just that: an observation. Moreover, I accept that it is an observation that the Applicant takes further than the Member did.[106] The Member did not find, contrary to what is said in the Applicant's Written Outline of Submissions,[107] that a purchaser cannot bind itself to take possession of land when the subdivision is registered.[108] The Tribunal's observation was limited to the time between entry into the sale contract and registration of the plan of subdivision. The Tribunal said nothing about what might be the case after registration. In the case of Lot 421, the plan of subdivision was registered on 24 November 2014, prior to the relevant assessment date, 31 December 2014. There is nothing in the Tribunal's reasons to suggest that if the Applicant had taken some relevant further step between 24 November 2014 and 31 December 2014 that this could not have constituted the taking of possession. But no such step took place. And this leads to the third and most significant flaw in the Applicant's analysis.

81 Thirdly, neither at the Tribunal nor in this Court, has the Applicant pointed to any action taken by the vendor or the purchaser of any of the Clyde North Properties that would constitute the taking of de facto possession. It is true that in Oakbee, Ginnane J did not set out exhaustively what such a step must be. But that does not relieve a person of the obligation of identifying a relevant step. The two actions that the authorities establish can constitute the taking of possession are the taking of physical possession and the taking of possession by a tenant, that is becoming the lessor of the property and thus entitled to its rents and profits. There may be other actions beyond these two - such a possibility was not foreclosed by Ginnane J - but the mere operation of a clause by which the purchaser agrees to take possession is not sufficient. Agreeing to take possession is not the taking of possession.[109]

82 Concluding in relation to this ground the Respondent made further, particular, submissions identified in relation to Ground 2:[110]

(52) Sub‑paragraph (a) is that the Tribunal erred in finding that it is impossible for a purchaser to take any action in relation to land which is the subject of an unregistered plan of subdivision prior to the registration of the plan of subdivision. This issue has largely been dealt with above. The Court need not determine this issue. Success would not avail the Applicant because there was a period after registration of the plan of subdivision but before the assessment date and the Tribunal did not say that it would have been impossible for the Applicant to have taken de facto possession in that period.

(53) Sub‑paragraph (b) is that the Tribunal erred in finding that a purchaser who undertakes a binding obligation to take possession of land the subject of an unregistered plan of subdivision upon registration of the plan of subdivision, has not taken any action that result [sic] in the purchaser taking possession of that land upon registration. The Tribunal did not express itself in those terms but the principle said to be in error is correct. The mere agreement by a purchaser and vendor of land to give and take possession on and from the registration of a plan of subdivision would not, without more, constitute the taking by the purchaser of de facto possession.

(54) Sub‑paragraph (c) is that the Tribunal erred in finding that s 16(1)(a) of the LTA cannot be satisfied if the purchaser's actions that cause it to take possession of land on or after registration of the plan of subdivision are the direct result of actions taken prior to the registration of the plan of subdivision. The Commissioner does not understand this sub‑paragraph. The Tribunal did not make the alleged error attributed to it.

(55) Finally, and contrary to what is said at [4] of the Applicant's Written Outline of Submissions, the Tribunal did not find that the Possession Clause "must fail for uncertainty".

As indicated in the preceding reasons, this issue does not arise as there had not, in my view, been any taking of possession for the purposes of s16(1)(a) of the LTA.

83 In my view the Applicant has failed to have regard to the statutory language of the provisions now contained in s 16(1)(a) of the LTA which now uses the expression "taken possession" rather than "obtained possession". The distinction and effect of the distinction was, in my view, made clear by Ginnane J in Oakbee which, in the present context, means that a mere contractual right to possession or an obligation to take possession at some time in the future does not amount to a position where it can be said that the purchaser in whose favour or obligation such a provision exists can be said to have "taken possession" without more. In the present circumstances there is no evidence of anything in the nature of further steps of this nature or any action taken by the vendor or the purchaser of any of the Clyde North Properties that would constitute the taking of de facto possession.

84 I accept the submissions of the Respondent on the basis of the reasons advanced in those submissions and for the further reasons I have indicated more particularly in the preceding discussion and consideration of those submissions. Moreover the Applicant's position is not assisted, in my view, by resort to arguments with respect to issues of business efficacy in the construction of contracts where, as in the present circumstances, this is merely to cloak a preferred construction as indicative of the contractual intention of the parties, where this is not clearly supported by the actual terms of the contract, construed as a whole according to ordinary principles of construction, or any mutuality of intention by both parties to the contract. Additionally, it cannot be said that the construction as found by the Tribunal leaves the contracts void, uncertain or meaningless.

85 Appeal Grounds 3 and 4 seek to challenge the finding that the Applicant had not established that the Sunbury Properties were used primarily for primary production. There are two distinct challenges to the result in the Tribunal. The first, in Ground 3, is that the Tribunal erred in not finding that the whole of the Sunbury Properties were exempt under s 65 of the LTA. The second, in Ground 4, raises the question of apportionment, and alleges that the Tribunal erred in failing to determine that the Sunbury Properties were partly exempt.

86 Section 65(1) of the LTA provides that "land outside greater Melbourne that is used primarily for primary production is exempt land".

87 The Tribunal made reference to the evidence adduced by the Applicant as to the extent of primary production but was not satisfied as to the extent of primary production use:[111]

1. While Mr Steeper and Mr Curnow give some evidence that would allow the extent of primary production use to be assessed, in the absence of evidence from Mr Atwell regarding matters such as the revenue (if any) generated from any sale of the wheat crop, or the income and expenditure associated with the use of the property as a rubbish dump, I am not satisfied - on the balance of probabilities - that the primary production use represented a sufficiently chief use at the relevant time so as to impart a primary production character to the whole of the land.

88 In relation to s 65 of the LTA, the Applicant submits that, unlike s 67 of that Act, there is no requirement that a business of primary production be carried out on the relevant land; s 65 requires only that the land be "used". A commercial element is introduced by the definition of primary production in s 64 of the LTA. In that context where, as in the case of the Sunbury land, the land is cropped, primary production will occur where there is:

Cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state).[112]

89 Nevertheless, the Applicant submits that this is a threshold condition and does not require that the produce of the land be sold and nor does it require a business to be conducted. It is said that the statutory requirements are satisfied as long as the purpose of cultivation was the sale of the relevant crop, hence the threshold condition is satisfied and "primary production" is being carried on. Thus, it is said, having satisfied itself that the threshold definition of primary production is satisfied, the focus must shift to the question of whether the crop is being grown for the purpose of sale, to the exclusive question of whether the land is primarily "used" for cropping. In this context, reference is made to the statement of Lush J in Abbott v Commissioner of Land Tax[113] where his Honour said:[114]

In construing the word "primarily" in its application to a case where a parcel of land is divided into two parts, one of which is devoted to an exempt use and one not, it must be remembered that the question is whether the whole of the parcel is primarily used for the exempt purpose .... The predominance must be of such a degree as to impart a character to the parcel as a whole.

90 Having regard to these matters, the Applicant contends that the Tribunal erred in effectively holding that determination of the primary use of land necessarily requires a review of the relative economic performance of different activities taking place on the land. Thus it is said that where land is quite obviously used predominantly for primary production, the decision maker need not investigate any further in order to determine whether the land was primarily used for that purpose.

91 In Greenville v Commissioner of Land Tax[115] Helsham CJ said, of a provision that required determination of whether the land was "land used primarily for - (a) the cultivation thereof for the purpose of selling the produce of such cultivation":[116]

It would probably not be sufficient to look merely at the financial return from the cultivation; the fact that there was none would not of itself warrant a finding that the land was not used primarily for cultivation, nor would the existence of a more rewarding cottage industry carried on by the owner on the land at the same time.[117]

Thus, it is said, that there will be cases where the question of the economic return from different activities cannot affect the conclusion that one is predominant so that an inability to determine the relative economic returns will not prevent the decision maker from finding that the land is primarily used for the obviously predominant purpose. In Abbott, 83 acres of a parcel of land was used as a golf course and 126 acres was used for grazing and raising animals for sale. It was not readily apparent which, if any, use predominated. In determining that the farming activities could not be said to be the predominant use of the land, Lush J considered, as indications of the intensity of the two uses, whether more money and effort had been expended on one use rather than another, a comparison of the income generated from the competing uses, and the priority with which the land was allocated to those uses (in terms of the position and area allocated to each use).[118] It is said, however, that Abbott is a case far removed from the present case where 99.45% of the arable land was used for cropping. It is contended that a finding that there was no financial return at all from that cropping would not warrant a finding that the land was not used primarily for primary production. Nor would a finding that a cottage industry, such as the conduct of an illegal rubbish dump, conducted on 0.55% of the land was very rewarding, negate the fact that the land was primarily used for cropping.

92 Consequently, in the circumstances of this case, it is submitted by the Applicant that the Tribunal made an error of law in finding that the absence of economic data precluded it from finding that wheat cropping imparted a primary production character to the whole of the land.[119]

93 With respect to the application of s 65(2) of the LTA, raised in Ground 4, it is submitted that the Tribunal, standing in the shoes of the Respondent, the Commissioner, is required to make the correct or preferable objection decision.[120] Thus it is said that it follows that the Tribunal may make an error of law if it ignores an important issue of relevance to the decision under review, even if the parties make no submissions on that issue. In this respect reliance was placed on the decision in Transport Accident Commission v Bausch.[121] However any general obligation of this kind must be read subject to the statutory environment in which the decision making of the Tribunal is being conducted. In particular any general duty cannot transcend statutory provisions, such as s 109 of the Taxation Administration Act 1997 ('TAA') which regulates objections and other processes which determine the live issues which remain for determination by the Tribunal. Further, it is said that where an appellant seeks to raise a new question of law that is reasonably arguable, the Court may grant leave to do so absent case management or other vitiating considerations.[122]

94 On these bases it is contended that the Tribunal should have applied s 65(2) of the LTA which provides that:

If part of any land outside greater Melbourne is used primarily for primary production that part is exempt land even if an activity other than primary production is carried on on any other part of the land.

In this context, it is submitted that the evidence established that one hectare of the subject land was used for an activity other than primary production[123] and the remaining area was used primarily for primary production. The Tribunal, having found that it was unable to determine the character of the land use overall for purposes of s 65(1) ought, it is said, then have applied s 65(2) effectively dividing the land into two parts and applying the exemption to the part used primarily for primary production.

95 This, it is contended, was the "correct or preferable" decision in relation to the Sunbury land, and it was the one that the Tribunal was, by law, required to make. Hence it is said that if the Ground of Appeal 3 fails and there was no error in the Tribunal's finding that it could not be satisfied that the primary production use represented a sufficiently chief use at the relevant time so as to impart a primary production character to the whole of the land,[124] the Tribunal ought then have applied s 65(2) to determine that one hectare area of the Sunbury Land was taxable land and the remaining 183.71 hectares[125] was exempt.[126]

96 A point on procedural and evidentiary matters was raised at the outset by the Respondent in its submissions. The Respondent observes that the Assessment included the Sunbury Properties in the Statement of lands and did not treat them as exempt. The Applicant's Objection was brief and, after listing six rural properties, stated that each was "used for primary production and should be exempt from land tax". It concluded that the Applicant "should not be subject to land tax on the properties above". The Determination[127] concluded that the evidence provided by the Applicant did not establish that the Sunbury Properties were used primarily for primary production. It made reference to the failure by the Applicant to provide documentation requested by the Commissioner and noted that, other than a farming licence, there was no other evidence to establish that primary production activities were carried on on the land. The Determination noted that contemporaneous aerial imagery showed that parts of the Sunbury Properties were physically unused. Neither the Objection nor the Determination raised the possibility that part only of the Sunbury Properties might be exempt under s 65 of the LTA. Neither made any reference to s 65(2).

97 The Applicant filed written contentions in the Tribunal proceeding.[128] The Sunbury Properties were addressed in those contentions[129] and referred to evidence that sheep had been run over the entirety of the area.[130] These contentions relied on s 65(1) but made no reference to s 65(2). Nor did they otherwise raise an argument that the Sunbury Properties might be partially exempt from land tax. Although the contentions do not address the orders the Applicant asked the Tribunal to make, it is implicit that the submission was that the Tribunal should make orders to the effect that each property the subject of the proceeding was to be treated as wholly exempt. Had the Applicant wished to raise a partly exempt argument before the Tribunal, it would have required leave under s 109(a) of the TAA. No such leave was sought. Consequently the Respondent contends that there is no ground of appeal (and nor could there be) that the Tribunal erred in not granting leave when none was sought.

98 When the matter was heard by the Tribunal, counsel for the Applicant opened its case. He did not seek leave under s 109 of the TAA, did not say that the Applicant would rely on s 65(2) of the LTA, and did not make any reference to the Sunbury Properties being partly exempt. Three witnesses gave evidence in relation to the Sunbury Properties: Mr Steeper gave evidence that his father had previously owned the Sunbury Properties and continued to farm the neighbouring land; Mr Curnow gave evidence that he agisted sheep on the Sunbury Properties; and Mr Mondous, the general manager of the Applicant, gave evidence about his attempts to obtain a witness statement from the tenant who farmed the Sunbury Properties and exhibited an aerial photograph. All three were cross‑examined by counsel for the Commissioner.

99 In closing, counsel for the Applicant addressed s 65(2) of the LTA for the first time. He said the following:[131]

And then we have the issue of the rubbish on the land, and we have Mr Mondus's [sic] evidence at paragraph 10 and 11 supported by photographs that the rubbish occupied 0.55 percent of the land. One hectare out of 100, and I asked, a hectare, I think it's common knowledge it's 10,000 square metres, 2,700 - (indistinct) 07.44. Which comes to a comparison with 184 hectares comes to 1 over 185. I had asked - Mr Curnow had given evidence in cross‑examination that there was a dam there and the rubbish was being thrown into the dam and I had asked him if he would agree was about a hectare and he did. So, the point being that the presence of a rubbish dump on a relatively very small area of the land doesn't affect the conclusion that the land was primarily used for primary production. That was the primary use of it.

Hypothetically, if that wasn't the case, the s 65(2) does allow the court to break the land up into two parcels of land but, in my submission, where you have a very minor usage of part of the land, that's not the exercise it's engaged in. That's really where you have two substantial uses of land and why I say that is because there could be no end to that. You might have a corner of the land where the tractor is parked, you might have all sorts of very minor uses of the land and, in my submission, the entirety of the land was primarily used for primary production, notwithstanding the dumping of the rubbish in the dam.

100 After the Commissioner made closing submissions, counsel for the Applicant returned to the Sunbury Properties in reply. He said the following:[132]

Sunbury is a rather curious argument here, and that is the rubbish dump argument. I think one needs to consider where would the applicant be if the boot was on the other foot. If there was an exemption, for example, arising - if the land was primarily used as a rubbish dump, and the applicant were to turn up to the tribunal with 180 hectares of land and say, "Look, we've been dumping rubbish in the dam. The entirety of the land has been primarily used as a rubbish dump." I would feel less comfortable running that case than running this case.

So, the first thing is there are competing uses, one might say, but in that competition, use of the land for wheat and for sheep hands down trumps the use of the land as a rubbish dump. So there's no question that the primary use of the land is not where we had a golf course in Abbott occupying a large part of the land and farming occupying a large part of the land, and the court said we don't take measurements and decide where is the larger part of the land, take a more wholistic view. On any wholistic view, the 179 hectares of the land usage is the primary use of the land.

But I should say this: at its highest, the high water mark for the commissioner is that the s 65(2) applies which says that, "If a part of any land outside the greater Melbourne is used primarily for primary production that part is exempt land even if activity other than primary production is carried out on any other part of the land." So, at its best, the commissioner or the tribunal standing in the shoes of the commissioner, will grant an exemption for 179 hectares rather than 180 and apply land tax pro rata to the rubbish dump. But is my submission, that is not the - in these circumstances where one has a very minor usage of the land, that is not the method that should be used.

101 The reference to s 65(2) of the LTA prompted counsel for the Commissioner to speak and the following exchange took place:

MR MORGAN: Sir, I'm sorry to speak again. I hoped I wouldn't need to. My learned friend has raised s65, sub‑s 2. I'm not entirely clear of the purpose of doing that. But if what he is seeking is an order varying the assessment to exclude from the assessment that part of the land the rubbish dump is on - that may not be what he's asking for, I'm not clear - then that's the first time we're hearing of it.

It's not part of the objection. He would need leave under s109, I think it is, of the TAA and in circumstances where I can't cross‑examine any of the witnesses on this point, leave should be refused. I accept that evidence of the size of the rubbish dump is relevant to the question of whether the land was used primarily for primary production, but if my learned friend is seeking an order varying the assessment to exclude 98 per cent of the land so that only land tax is payable on the dump, then I object on the basis that that's not before the tribunal.

MR KORMAN: Sir, if I can just have a moment before I respond, Member. Yes, Member, I'll confine my submissions to - and it wasn't 2 per cent, it was .55 per cent, but I'll confine my submissions to the fact that the use of 99.45 per cent of the land is the primary use of the land.

MR MORGAN: In that case, I can withdraw my objection.

102 Mr Steeper's witness statement[133] addressed the issue of rubbish dumping on the Sunbury Properties. He said that he observed Mr Atwell, the lessee of the Sunbury Properties, allowing "large amounts of rubbish to be dumped on the land."[134] He was not asked any questions about this issue in cross‑examination.

103 Mr Curnow's witness statement[135] also mentioned rubbish dumping. He said that he saw trucks coming onto the land, rubbish being dumped and money changing hands.[136] In cross‑examination he was asked about the rubbish and the money changing hands:[137]

He was also using it as rubbish dump, wasn't he? - - - Yeah, yeah, there was like - yeah, it was quite a strange set up. Because we sort of looked around the place, like went down and inspected it because it had been burnt out the year before, so part of the agreement was we'd fix up the external fences to make it stock proof. And then, yeah, we sort of looked around and then there was just quite a bit of rubbish near a dam in the middle of the property. And then, yeah, there's a few sort of trucks with building waste coming and going, yeah. So that's why I thought well I presumed he must have been the owner, you'd hardly do that if you weren't the owner.

Indeed. And you say in your statement that you saw money changing hands? - - - Well there was - I didn't actually see cash, but there was it looked like an envelope getting passed through the windows whenever these trucks rolled in. Like I was only - I didn't spend a lot of time, we dropped the stock off and we'd come down once a week just to check on stock, so we weren't there a hell of a lot. But we did see - I did see that a few times, yeah.

104 The final witness to give evidence about rubbish was Mr Mondous, the Applicant's general manager. He was the only witness to give evidence about the percentage of the Sunbury Properties that was used for rubbish dumping. In his supplementary statement, Mr Mondous said this:[138]

I accessed Google Earth in order to obtain an aerial photograph of the area of the land at 45‑65 Deverall Road Sunbury that would show the rubbish that Mr Atwell had allowed to be dumped on the land. Google Earth has a facility that allows areas to be measured. Annexure 6 to this statement shows that the areas of the dumped rubbish are 2,750 square metres and 7,244 square metres.

Annexure 7 to this statement comprises two property reports, showing that the total area of the Sunbury land is 184.71 hectares.

The area occupied by the dumped rubbish thus occupied 00.55% of the area of the Sunbury land.

105 Annexure 6[139] comprises two aerial photographs. Neither is dated, nor does the supplementary statement of Mr Mondous state when they were taken, or even when he accessed Google Earth to produce them. No evidence was given about the income earned from the use of the Sunbury Properties as a rubbish dump. Mr Mondous was cross‑examined but was not asked any questions about this evidence. The Tribunal referred to the aerial photograph and to Mr Mondous' submission that the ground used for dumping rubbish comprised 0.55% of the total area of the Sunbury Properties, but no finding of fact was made.[140]

106 Turning more specifically to Ground 3 and s 65(1) of the LTA, the Respondent observes that this ground of appeal is that the Tribunal erred in holding that s 65 of the LTA was not satisfied in relation to the Sunbury Property. The Respondent submits that this ground does not raise a question of law and, in a proceeding under s 148 of the VCAT Act, is therefore incompetent. As Leeming JA said in Booth v Fourmeninapub Pty Ltd,[141] "[a]n appellant cannot convert a challenge which is wholly or partly factual to one which is on a 'point of law' merely by including those words in the formulation of a ground" and as the Court of Appeal confirmed in Commissioner of State Revenue v STIC Australia Pty Ltd:[142]

[t]he right of appeal conferred by s 148 is of a limited nature only. ... Parliament, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 148, has disclosed an intention to limit the role of the Court on an appeal from the Tribunal and to limit the capacity of the Court to re‑determine facts or re‑exercise discretions. The legislative purpose of s 148 is to discourage parties from challenging the correctness of a decision of VCAT, except where legal error is demonstrable. An appeal before the Court under s 148 is not a merits review nor is it an appeal that merely involves a question of law. The matter comes before the Court solely by way of judicial review for the Court to correct errors of law by the Tribunal but not to examine the record of the Tribunal to determine whether some different decision could have been made.

107 As to the principles for distinguishing questions of fact and questions of law reference is made to the propositions in this respect expounded by Phillips JA in S v Crimes Compensation Tribunal, propositions which have been widely relied upon since:[143]

The first proposition is this:

1. What is the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant's success or failure is a question of law.

...

The second proposition, which has just been foreshadowed, is this:

1. Once the task of construction is over, the question whether the claimant's particular circumstances fall within the relevant statutory description is essentially a question of fact.

...

That brings me to the third proposition, which qualifies the second:

1. Nevertheless if, in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact‑finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law; and the question whether it arrived at a conclusion which was not open to it is a question of law.

Humphrey Earl Ltd. v Speechley [1951] HCA 75; (1951) 84 CLR 126 at 134 per Dixon J.; Nicolia; McPhee v S. Bennett; Australian Gas Light Co.; Hope v Bathurst City Council; Azzopardi; Bowen‑James; Savage at 100.

108 On this basis the Respondent submits that in the present case there is no question of the proper meaning of s 65(1) of the LTA. The task of the Tribunal was solely to determine whether the Applicant's circumstances fell within the description provided for in those provisions. It was, it is contended, a pure question of fact. It is not alleged that the conclusion reached by the Tribunal was not open to it and nor could it be, it was submitted. It follows, it is said, that to the extent that paras (a) and (b) of Ground 3 are said to point to questions of law, they do not. The Tribunal did not make the error alleged in para (a). It did not find that s 65 is not satisfied by pointing to a qualifying primary production activity conducted on the land that gives the land the character of being mainly used for that activity. What the Tribunal relevantly did is find that the primary production activity relied on by the Applicant was not sufficient to give to the Sunbury Properties the character of being used primarily for primary production in all the circumstances of the case. As to para (b), it is submitted that this ground relies on a finding of fact that was not made. Moreover, the Tribunal did not find that the requirement could not be satisfied unless evidence was adduced establishing the revenue generated from the sale of the wheat crop and the income and expenditure associated with the operation of the rubbish dump. What the Tribunal relevantly did was find that, on all of the evidence led by the Applicant, it had not established that the Sunbury Properties were used primarily for primary production. It had no occasion to make the sweeping generalised finding that is alleged in para (b). Thus, it was submitted that there being no question of law, the Court has no jurisdiction in respect of Ground 3 which must, accordingly, fail.

109 Ground 4 is that the Tribunal erred in failing to determine (presumably only in the alternative) that part of the Sunbury Properties was used primarily for primary production. The Respondent submits that it is difficult to understand how it could be said that the Tribunal erred in failing to resolve a new ground where no leave was sought to argue the ground and the Applicant expressly disowned it.

110 The Respondent also submits that had the Applicant sought leave in closing submissions at the Tribunal hearing to make an argument that s 65(2) applied, leave should have been refused and/or the ground should have failed for the following reasons:[144]

(a) the Commissioner would have been prejudiced in at least two ways:

(i) he was unable to obtain (or even consider obtaining) his own evidence about the percentage of the Sunbury Land used as a rubbish dump. For example, the Commissioner could have obtained his own time‑stamped satellite imagery; and

(ii) he lost the opportunity to cross‑examine Mr Steeper, Mr Curnow and Mr Mondous on the question of the percentage of the Sunbury Properties used as a rubbish dump; and

(b) the only evidence that goes to the proportion of the Sunbury Properties used as a rubbish dump is the aerial photographs at Annexure 6 to Mr Mondous' supplementary witness statement. There is no evidence as to when the photographs were taken or how Mr Mondous could conclude from aerial photographs alone where all of the rubbish was, how the rubbish dump was accessed and what area or fencing to exclude any stock was required. In those circumstances, the Tribunal could not have determined what percentage of the Sunbury Properties was used primarily for primary production.

111 Thus it is submitted that Ground 4 should be dismissed.

112 I accept the position contended for by the Respondent in relation to Grounds 3 and 4 for the reasons advanced by the Respondent in his submissions and for reasons otherwise indicated in the consideration and discussion of those submissions and also those of the Applicant.

113 Even accepting the Applicant's submissions on the proper construction and operation of the legislation, the matters raised are factual questions not productive of any basis or bases in the present context of their treatment as an error of law.

114 In relation to s 65(2) of the LTA I accept the Respondent's position that any reliance on these provisions was a matter for its case before the Tribunal and that to seek to apply those provisions now would be to deny the Respondent procedural fairness, as indicated previously.

115 For the preceding reasons leave to appeal on Grounds 1, 2, 3 and 4 is refused.

116 Additionally, for the preceding reasons, if leave to appeal had been granted on any of Grounds 1, 2, 3 or 4 such appeal would have been dismissed.

117 The parties are to bring in orders to give effect to these reasons. I reserve the question of costs and will hear the parties further on this issue.

[1] Frontlink Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2023] VCAT 54 ('Reasons').

[2] Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-6 and Myers v Medical Practitioners' Board (Vic) [2007] VSCA 163; (2007) 18 VR 48 at 55-6 [28].

[3] Boucher v Dandenong Ranges Steiner School Inc [2005] VSC 400; (2005) 145 LGERA 21 at 26 [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275.

[4] (2011) 83 ATR 832 at 833-4 [3].

[5] Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd [2010] VSC 608; (2010) 81 ATR 682 at 687 [10] per Davies J.

[6] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Al‑Hakim v Monash University (unreported, Court of Appeal, Vic, No 3707 of 2003, 28 March 2003); Myers v Medical Practitioners Board (Vic) [2007] VSCA 163; (2007) 18 VR 48.

[7] See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J.

[8] Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 at 333 [21]; [2010] HCA 24; 84 ALJR 528 at 536 [21]; [2010] HCA 24; 267 ALR 231 at 240 [21] per French CJ, Gummow and Bell JJ.

[9] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 475; [1987] HCA 50; 61 ALJR 588 at 597; [1987] HCA 50; 28 A Crim R 48 at 63-64; [1987] HCA 50; 74 ALR 161 at 176-177 per Dawson J; Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335 [10]; [1999] VSCA 117; 15 VAR 360 at 366 [10].

[10] Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-336 [11]; [1999] VSCA 117; 15 VAR 360 at 366 [11] per Phillips JA; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd [2006] VSC 203; (2006) 63 ATR 65 at 69 [20] and 77 [65] per Hollingworth J.

[11] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3).

[12] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at 55 [28], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335.

[13] See Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017) at 871.

[14] The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT Act with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 7th ed, 2022) at 950-4.

[15] Section 63(1) of the Civil Procedure Act 2010 empowers a court to give summary judgment in a civil proceeding if the defence, inter alia, has "no real prospect of success".

[16] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 at 39 [29]. See also Kennedy v Shire of Campaspe [2005] VSCA 47 at [3]-[14].

[17] [2005] HCA 40; (2005) 222 CLR 115 at 136 [64].

[18] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597; cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 348 [74].

[19] (Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.

[20] (1971) 38 LGRA 6 at 18.

[21] (1980) 44 LGRA 65 at 67-8.

[22] (1985) 62 LGRA 346 at 349-50.

[23] The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442 at [59].

[24] [2015] VSCA 350; (2015) 48 VR 715.

[25] [2015] VSCA 350; (2015) 48 VR 715 at 720 at [9]-[11]; and see Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at 186 [22] (CA); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd [2014] VSCA 353; (2014) 45 VR 771 at 782 [41] and 805, [162] and [165] (CA); and Maund v Racing Victoria Ltd [2016] VSCA 132 at [67].

[26] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197 at 199; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at 59 [44].

[27] S v Crimes Compensation Tribunal [1998] 1 VR 83 at 88-93; Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at 59 [44].

[28] LTA s 7.

[29] LTA s 8.

[43] See contracts for Lot 421 and Lot 672, at Supplementary Tribunal Book ('STB') at 31 and 586.

[45] Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 at 551 [16]-[17]; Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at 656-7 [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at 117 [51]; McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 at 589 [22].

[47] JKC Australia LNG Pty Ltd v CH2M Hill Co Ltd [2020] WASCA 112 at [207]. See also Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 at [67(2)]; Exyte Singapore Pte Ltd v Multiplex Constructions Pty Ltd [2019] WASC 34 at [115], citing Lewison and Hughes, The Interpretation of Contracts (5th ed. Thomson Reuters, 2011) at [2.13] ('Lewison').

[48] Bromarin v IMD Investments Ltd [1998] STC 244, cited in Lewison at 68; Casson v P.J. Ostley Ltd [2003] BLR 147, cited in Lewison at 69.

[49] [2008] EWCA Civ 1303 at [101], cited in Credit Suisse AG, Sydney Branch v Springsure Property Holdings Pty Ltd (in liq) (recs and mgrs. apptd) [2017] QSC 142 at [46].

[51] Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99 at 109; Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 at 529 [16].

[52] Each provision of a contract should, if possible, be construed so as to have some operation: George 218 Pty Ltd v Bank of Queensland Ltd (No 2) [2016] WASCA 182 at [88] and the cases cited there.

[53] The Vacant Possession clause should be given its conventional meaning - possession vacant of any person with a competing proprietary interest, such as a tenant.

[57] [1965] HCA 13; (1965) 112 CLR 139 ('Cam & Sons').

[58] [1965] HCA 13; (1965) 112 CLR 139 at 146.

[59] [1965] HCA 13; (1965) 112 CLR 139 at 144.

[60] [1965] HCA 13; (1965) 112 CLR 139 at 145.

[61] [2013] VSC 672; (2013) 96 ATR 619 ('Oakbee').

[62] [2013] VSC 672; (2013) 96 ATR 619 at 631 [52].

[73] [1968] HCA 8; (1968) 118 CLR 429 at 437.

[75] Applicant's Reply Submissions (29 May 2023) at [12]-[21].

[76] Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712 at 715 per Connolly J; Lysaght v Edwards [1876] UKLawRpCh 123; (1876) 2 Ch D 499 at 506.

[77] [1992] HCA 23; (1992) 175 CLR 1.

[78] See Pollock and Wright, An Essay on Possession in the Common Law (Clarendon Press, 1888) ('Pollock and Wright'), 1-42; Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach"[1964] MelbULawRw 17; , (1964) 4 Melbourne University Law Review 476.

[79] Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1 at 207 per Toohey J.

[80] Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach"[1964] MelbULawRw 17; , (1964) 4 Melbourne University Law Review 476 at 489-497; see generally F Cohen, "Dialogue on Private Property," 9 Rutgers LR 357 at 359-374 as set out in MA Neave, CJ Rossiter and MA Stone Sackville & Neave's Property Law: Cases and Materials (5th ed. Butterworths, 1994) at 3-14.

[81] Tay, "The Concept of Possession in the Common Law: Foundations for a New Approach"[1964] MelbULawRw 17; , (1964) 4 Melbourne University Law Review 476 at 490.

[82] Ibid. From the Applicant's submissions "[w]hile this discussion directly concerns physical objects, it will be readily seen that it applies equally to physical occupation. Does a person in possession of a block of land not lose possession the moment he or she is physically absent from the land. Rather, possession is lost when control over the land is lost".

[83] Cll 35.3 and 35.4 are excerpted at Respondent's Written Outline of Submissions (19 May 2023) at [14].

[86] [1931] ArgusLawRp 90; (1931) 47 CLR 191 ('Highlands').

[87] The text of the section is set out in the headnote: Highlands [1931] ArgusLawRp 90; (1931) 47 CLR 191 at 191.

[88] [1931] ArgusLawRp 90; (1931) 47 CLR 191 at 201-2 (footnote omitted).

[89] [1965] HCA 13; (1965) 112 CLR 139.

[90] [1965] HCA 13; (1965) 112 CLR 139 at 144, citing Commissioner of Land Tax v Cam & Sons Pty Ltd (1963) 81 WN (Pt 1) (NSW) 425 at 429.

[91] [2013] VSC 672; (2013) 96 ATR 619.

[92] [2013] VSC 672; (2013) 96 ATR 619 at 629-630 [45].

[93] (1964) 81 WN (Pt 1) (NSW) 425.

[94] [2013] VSC 672; (2013) 96 ATR 619 at 629-630 [45], citing Commissioner of Land Tax v Cam & Sons Pty Ltd (1963) (1964) 81 WN (Pt 1) (NSW) 425 at 429.

[95] [2013] VSC 672; (2013) 96 ATR 619 at 630-1 [48]-[58].

[96] (2016) 52 VR 55 ('Kameel').

[97] (2016) 52 VR 55 at 58 [7] per Warren CJ and Tate JA; see also at 96 [188] per Whelan JA.

[98] (2016) 52 VR 55 at 58 [7], [8] per Warren CJ and Tate JA; Whelan JA, although agreeing in the outcome, did not agree with this analysis.

[99] (2016) 52 VR 55 at 58-60 [10], [13]-[14] per Warren CJ and Tate JA (citations omitted).

[100] (2016) 52 VR 55 at 58-60 [10], [12]-[15] per Warren CJ and Tate JA.

[105] See Reasons at [46], [47] and [49].

[106] See Reasons at [48]; and see above at [60].

[107] Applicant's Written Outline of Submissions (21 April 2023) at [43].

[110] Respondent's Written Outline of Submissions (19 May 2023) at [52]-[55].

[111] Reasons at [99]; cf Reasons at [78] as to the use of land for "all arable land" and the rubbish dump; and Reasons at [74] as to the extent of the land occupied by the rubbish dump.

[112] LTA s 64 (and see the definition of "primary production" in paragraph (a)).

[113] [1979] VicRp 31; [1979] VR 297 ('Abbott').

[114] [1979] VicRp 31; [1979] VR 297 at 302.

[115] (1977) 7 ATR 278.

[116] (1977) 7 ATR 278 at 279.

[117] (1977) 7 ATR 278 at 280.

[118] [1979] VicRp 31; [1979] VR 297 at 302-3.

[120] Mond v Perkins Architects Pty Ltd [2013] VSC 455 at [10]; Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 at [50]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 329 [147].

[121] Transport Accident Commission v Bausch [1998] 4 VR 249.

[122] Beezley v Repatriation Commission [2015] FCAFC 165 at [51]-[53].

[123] Reasons at [74], [75], [97].

[126] Section 22 of the Act requires the Commissioner to determine the taxable value of part of the land by the formula: [area of taxable land / area of whole land] X site value of the whole land.

[127] Tribunal Book ('TB') 13 at 24-25.

[131] VCAT Transcript at 163 line 31 to 164 line 27.

[132] VCAT Transcript at 219 line 16 to 220 line 18.

[137] VCAT Transcript at 47 line 25 to 48 line 13.

[141] [2020] NSWCA 57 at [21] per Bell P and White JA agreeing. See also, in the context of an appeal from a state tribunal in a taxation matter, Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [32] per Leeming JA, Meagher JA and Griffiths AJA agreeing.

[142] [2010] VSC 608; (2010) 81 ATR 682 at 687 [9].

[143] [1998] 1 VR 83 at 88-9.

[144] Respondent's Written Outline of Submissions (19 May 2023) at 27-28 [80].