Australian Investment and Development Pty Ltd (ACN 060 609 289)

Australian Investment and Development Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2017] VCAT 1418

1. The 2011 land tax assessment (no. 67708897) issued by the Commissioner on 13 June 2013 is varied to excise the property at 2-180 Davis Road, Diggers Rest and reduce the amount payable by $17,270.69.
2. In relation to each of the remaining applications, the assessment of the respondent is confirmed.

1. On 19 April 2016, the Commissioner of State Revenue (Commissioner) referred five applications to the Tribunal at the request of the applicant, Australian Investment and Development Pty Ltd (AID), under section 106 of the Taxation Administration Act 1997 (Vic) (TA Act).
2. AID seeks review of the Commissioner's decision[1] to disallow AID's objection[2] to the Commissioner's assessments of land tax under the Land Tax Act 2005 (Vic) (LT Act) in respect of a property owned by AID at 2-180 Davis Road, Diggers Rest (Relevant Property) as follows:-

1. AID contends that the tax payable under the assessments should be reduced by the removal of the Relevant Property or the reduction of its taxable value to nil on the basis that the Relevant Property was exempt from land tax:
   1. in respect of each of the 2009 to 2013 land tax years, as the Relevant Property was located outside 'greater Melbourne' and was being 'used primarily for primary production';[3] or
   2. in the alternative, if the Relevant Property[4] was wholly or partly in greater Melbourne:
      1. the Relevant Property was 'used primarily for primary production' and none of it was within an 'urban zone' for each of the 2009 to 2012 land tax years;[5] and
      2. the Relevant Property was 'used solely or primarily for the business of primary production' for the 2013 land tax year, the principal business of AID was 'primary production of the type carried on on the land' and the ordinary shares in AID were wholly owned by Mr David Apswoude who was at the relevant time 'engaged in a substantially full time capacity in the business of primary production'.[6]
2. As AID's objection to the assessments was based on the single ground that the Relevant Property was exempt from land tax pursuant to section 67 of the LT Act, leave was sought under section 109 of the TA Act to add the grounds of review based on sections 65 and 66 of the LT Act.
3. The Commissioner's case is that the assessments should be confirmed on the basis that:

1. section 65 of the LT Act cannot apply as the VCAT is bound to follow the decision of the Victorian Court of Appeal in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd[7] (EHL Burgess) and find that the Relevant Property was within greater Melbourne; 2. in relation to each of the 2009 to 2012 land tax years, the Relevant Property was not used primarily for primary production purposes; and

1. in relation to the 2013 land tax year, the Relevant Property was not used solely or primarily for the business of primary production, the principal business and main undertaking of AID was not primary production of the type carried on on the property and Mr Apswoude was not normally engaged in a substantially full-time capacity in the business of primary production.
2. The Commissioner did not oppose the granting of leave for AID to raise the ground of review under section 66 of the LT Act and conceded that, for the purposes of applying that provision, the Relevant Property was not in an urban zone during the 2009 to 2012 land tax years.[8]
3. However, the Commissioner contended that leave should not be granted in respect of the ground of review under section 65 as it was 'hopeless' in light of the decision in EHL Burgess.
4. At the hearing, AID tendered the following evidence:
   • the Tribunal Book, comprising 6 lever arch folders, as compiled by the Commissioner;
   • three witness statements of Mr David Apswoude dated 28 October 2016, 6 February 2017 and 24 July 2017;[9]
   • three witness statements of Mr Davide Coppolino dated 17 October 2016, 29 November 2016 and 21 July 2017;
   • one witness statement of Ms Particia Hardacre dated 28 October 2016;
   • one witness statement of Mr Andrew Clarke dated 29 November 2016; and
   • one witness statement of Mr Patrick Reddan dated 31 October 2016.
5. Mr Apswoude, Mr Coppolino and Ms Hardacre gave evidence at the hearing and were cross-examined on behalf of the Commissioner. Mr Clarke and Mr Reddan were not required by the Commissioner for cross-examination.
6. The Commissioner did not tender any evidence.

1. The LT Act imposes land tax in respect of each year on all taxable land in Victoria, with the owner of taxable land being liable to pay land tax.[10]
2. A taxpayer is to be assessed for land tax on the total taxable land of which it was the owner on midnight on 31 December immediately preceding that year.[11]
3. Taxable land is defined in the Act to mean all land that is not exempt land.[12]
4. Division 2 of Part 4 of the LT Act sets out the exemptions available for primary production land that, so far as relevant, reads as follows:

(a) cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state); or

(b) the maintenance of animals or poultry for the purpose of selling them or their natural increase or bodily produce; or

(e) the cultivation or propagation for sale of plants seedlings mushrooms or orchids;

65 Exemption of primary production land outside greater Melbourne

(1) Land outside greater Melbourne that is used primarily for primary production is exempt land.

66 Exemption of primary production land in greater Melbourne but not in an urban zone

Land is exempt land if the Commissioner determines that the land comprises one parcel -

(a) that is wholly or partly in greater Melbourne; and

67 Exemption of primary production land in an urban zone in greater Melbourne

(1) Land is exempt land if the Commissioner determines that -

(iii) used solely or primarily for the business of primary production; and

(b) the owner of the land is a person specified in subsection (2).

(b) a proprietary company (not acting in the capacity of trustee of a trust) -

(i) in which all the shares are beneficially owned by natural persons; and

(ii) the principal business of which is primary production of the type carried on on the land; or

(3) For the purposes of subsection (2)(b)(ii), the principal business of a proprietary company is not primary production of the type carried on on the land unless -

(a) the main undertaking of the company is primary production of that type; and

(ii) if no dividends were declared during the relevant period, ordinary shares representing more than 60% of the paid up capital of the company (excluding shares entitled to a fixed rate of dividend) have been beneficially owned for the relevant period by persons normally engaged in a substantially full-time capacity in the business of primary production.

1. While the relevant time to assess the exemptions is as at midnight on 31 December of the year preceding the relevant land tax year, it is appropriate to have regard to activities occurring "during a period not overlong and not over short within which [the relevant time] falls".[13]
2. In his trial decision in CDPV Pty Ltd v Commissioner of State Revenue (CDPV),[14] Croft J usefully summarises some of the key principles to be applied in relation to a claim for the primary production exemption (in that case, under section 66 of the LT Act) in the following terms:

First, it is clear from the provisions of s66(c) of the Act that the land must be used "primarily" for primary production in order to attract the exemption. It follows that the exemption requires a conclusion that the land was used "primarily" for primary production. Such a conclusion does, however, not necessarily follow if part of the land is used for primary production and the rest of the land unused or if a primary production use of the land is the main or predominant use among multiple uses. Moreover, the relevant activities must be capable of imparting to the whole parcel of land the necessary character. Consequently, the relevant activities must not be minimal, slight, spasmodic or token, but must have some degree of substance and intensity to them.

Moving to the meaning of the expression "primary production" in the context of s 66(c), the first point to be made is that it is apparent from the definition of that expression in sub-s 64(1) that a purpose needs to be shown if this definition is to be satisfied, namely, "the purpose of selling". It follows that not all cultivation of land is carried out for such a specific commercial purpose.

The critical aspect of requirement of the definition of "primary production" is that "cultivation" takes place on the land. As the word "cultivation" is not defined in the Act, it follows that the word should be taken to be used in its ordinary sense. Consequently, some assistance is provided by the dictionary definitions of the word "cultivation". The Shorter Oxford English Dictionary defines "cultivation", insofar as relevant, to mean "the action of cultivating". It defines the word "cultivate", so far as is relevant, to mean "prepare and use (soil) for crops; bring (land) into a state of cultivation; break up (ground) with a cultivator; give attention to (a plant) to promote growth, improve fertility, etc; produce or raise by agriculture or horticulture". Similarly, the Macquarie Dictionary defines the word "cultivate", insofar as it is relevant, to mean "to work (land) in raising crops; to dig, turn over (earth); to encourage the growth or development of; to grow".

Having regard to these dictionary definitions, the provisions of s66 of the Act and the definition of "primary production" being considered together with the authorities discussed in the reasons which follow, the meaning of the word "cultivate" in the context of these provisions would, in my view, extend to activities that precede the sowing of crops, which activities include the preparation of the soil for crops and the bringing of the land into a state of cultivation. Moreover, it is submitted by the Appellants that it is not necessary that the activities be profitable, provided that they are carried out for the purpose of sale of the produce of "cultivation". They also contended that there is nothing in s 66 that mandates an operation - cultivation - in the nature of business. The Appellants also submitted that the scale of the activity is not relevant, save and except to show that the relevant cultivation was genuine and not merely colourable. In my view, for the reasons which follow, I think these submissions by the Appellants correctly state the position.

I turn now to the nature of cultivation more specifically and the nature of primary production. Land may be cultivated in some instances by breaking up the soil, as by ploughing, or in other instances by activities that may or may not be associated with the breaking up of the soil. It is the land, not the soil alone, which is the subject of cultivation. This, it was said in Safety Beach Estate Pty Ltd v Commissioner of Land Tax (NSW) ("Safety Beach"), may be achieved by improvement to the water supply to plants, by fertilizing, by spraying plants with insecticides and fungicides, and by the establishment of wind breaks. ...

It is also clear from the authorities that this question is to be determined "looking at all the activities together with the surrounding circumstances ... of the taxpayer's ... evident purpose in carrying out those activities"... [15]

1. As will become apparent below, one of the disputed issues is whether AID acquired the Relevant Property for farming or for development and sale.
2. In this regard, the judgment of the Court of Appeal of the Supreme Court of New South Wales in Chief Commissioner of State Revenue v Metricon Qld Pty Ltd[16] (Metricon) makes it clear that 'there is a distinction however, between the purpose for which land is acquired, on the one hand, and the purpose for which it is currently being devoted to use, on the other'[17] and that 'the inquiry directed by [the primary production provisions] is as to current tangible and physical deployment and its purpose, not the purpose of acquisition'.[18]
3. In Amazon Property Group Pty Ltd v Commissioner of State Revenue,[19] Senior Member Davis decided that he should follow the earlier trial decision of White J in Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (No.2)[20] and disregard 'land banking' as a use.[21] Likewise, I consider VCAT ought to follow the Court of Appeal decision in Metricon and focus on the physical use of the land at the relevant time, rather than any future intended use(s).
4. However, in the present case, the Commissioner did not seek to contend that AID was using the property for land banking, but rather that 'all of the activity undertaken on the Property needs to be understood through the lens of this development intention'.[22] In that respect, it is relevant to observe that the purpose for which plants are cultivated is explicitly or implicitly an element of the definitions in both paragraphs (a) and (e) of 'primary production' in section 64 of the LT Act. Similarly, this is also the case in respect of primary production constituted by the maintenance of animals in paragraph (b) of that definition.
5. Relevantly, McLeish JA (with whom Tate and Santamaria JJA agreed) observed in his decision in the CDPV Appeal that:

Cultivation may be undertaken for different purposes, including to grow crops for sale, to grow crops in order to obtain seed for re-sowing, to produce other agricultural inputs such as feed for animals or ... to prevent weeds from growing. The legislation provides for an exemption only where the purpose of the cultivation is 'selling the produce of cultivation'. There is therefore a quite distinct inquiry to be made as to the purpose of the cultivation. ...

...the question of 'purpose' in para (a) of the definition of 'primary production' which looks to the purpose of the use itself, directs attention both to the activities constituting the use and to the purpose of the person or persons engaging in that use.[23]

1. McLeish JA went on to confirm that there was no reason that evidence of a taxpayer's subjective intention should not be taken into account, although 'such evidence is not determinative because it must be evaluated along with the other evidence as part of the objective evaluation of the purpose of the use to which the land was put'.[24] He also observed that the 'prospect of sale may be merely incidental to a different purpose, so that the land is properly characterised as being used primarily for cultivation for that other purpose'.[25]
2. McLeish then concluded that the 'evidence revealed so little attention to the prospect of deriving any profit that the [trial] judge was right to conclude that it had not been shown that the purpose of cultivating the land was to sell the produce'.[26] Rather, the 'overall impression left is that the prospect of sale of the crops was ... at best one possible outcome of cultivation, rather than its purpose'.[27]
3. Of course, many primary production cases involve more than one use of the relevant land. This was an issue in Abbott v Commissioner of Land Tax (Abbott),[28] where one third of a farming property had been converted to a golf course. In this regard, Crockett J posed and answered his own rhetorical question about how to approach this issue:

But is it sufficient, when each of two uses is substantial, to determine the matter by saying that one of those uses is, as between the two of them, the main or principal one? I think not. It is not enough to say of two genuine and substantial uses that one is - perhaps only marginally - when compared with the other, the 'chief' use. It must be a sufficiently 'chief' use as to give its character to the whole of the land.[29]

1. The last important principle to address is that, in the review of a tax decision, it is the taxpayer that bears the onus of proof,[30] on the balance of probabilities.[31] In this context, Croft J observed in CDPV that:

the Appellants carry the onus of proving their case - that the land was, at midnight on 31 December [preceding the relevant land tax year], used primarily for cultivation for the purpose of selling the produce of cultivation. It is clear that the burden of proof can be an important aspect of primary production cases. Moreover, in that regard, self-serving, non-contemporaneous statements made by taxpayers must be treated with caution - especially statements that are "general, vague and lack[ing] detail required" to prove the facts in issue.[32]

The Commissioner is, as observed in the Commissioner's submissions, at an evidentiary disadvantage inasmuch as those who are seeking an exemption have within their control almost all of the evidence in relation to what is occurring on the Land and why things were or were not done on the Land. The Commissioner can only really point to objective circumstances with a view to determining the position. Consequently, I accept that, when the Court is faced with a case of this nature, and particularly where, as in this case, the Court is faced with very uncertain evidence, a focus must be maintained on whether the onus has been met.[33]

1. AID was incorporated by Mr Apswoude, its sole shareholder and director, in around June 1993.
2. Particularly between 1998 and 2002, its activities involved acquiring properties or interests in properties and reselling those properties or interests for profit.[34]
3. AID acquired the Relevant Property on 7 June 2004. It comprises Lot 1, a triangular piece of land abutting the Calder Freeway to the north of Davis Road and Lot 4, a square piece of land to the south of Davis Road. Lot 1 is approximately 100 hectares, and Lot 4 is approximately 70 hectares.[35] The Relevant Property is divided into 15 fenced paddocks, with paddocks 1 to 8 on Lot 1 and paddocks 9 to 15 on Lot 4.[36]
4. Mr Apswoude said that AID acquired the Relevant Property because he wanted to farm.[37] He had an interest in farming because his family had owned, and lost, a farm on the Mornington Peninsula, although this had occurred prior to his birth.[38]
5. At the time it was acquired, the Relevant Property was zoned rural.[39]
6. In his first witness statement, Mr Apswoude states that, at the time of purchase, his 'initial intention for the use of the farm was to plant crops and run livestock'.[40] In this regard, a document entitled 'Reconstructed Business Plan from 2004' (Acquisition Business Plan) was attached to his first witness statement.[41]
7. The Acquisition Business Plan is a 12 page document. It is undated. The document references Mr Apswoude and Mr Justin Taylor as contacts. Among other things, it assesses the economic viability of using the farm to grow barley, canola and wheat, and for the grazing of sheep and indicates that those activities could generate a profit of $148,050 per year. It also includes a reference to 'future implemented uses' being use for 'hothouse veg' which could produce a profit of $13.1 million over 3 years.
8. Mr Apswoude was extensively cross-examined on this document. Mr Apswoude explained that the plan was cobbled together and reconstructed because the original documents had been lost in a fire.[42] He conceded that it had been prepared by Mr Justin Taylor, who had not been involved in preparation of the original plan it purports to reconstruct, and was prepared in the context of investigations by the State Revenue Office.[43]
9. Under cross-examination, Mr Apswoude was unable adequately to explain the basis for the yields and prices adopted in assessing the economic viability of the different activities proposed to be carried out on the farm or how they reconciled to information earlier in the report.[44] Despite this, he did not accept the proposition put by Mr Morgan that the figures, and particularly those relating to the hothouse vegetables were 'pure fantasy'.[45] However, he did accept that the returns for future implemented uses were 'ambitious', and that the growing of hothouse vegetables was 'not really entirely practical but it was something that was feasible, but not practical'.[46]
10. In response to the proposition put by Mr Morgan that AID bought the land because it was on the edge of the urban growth boundary, and that the intention was to develop and sell the land, Mr Apswoude conceded that 'certainly I was hoping for the land to increase in value so I would - I would acknowledge that, certainly'.[47] However, he did not accept Mr Morgan's suggestions that any farming conducted was 'token farming that you thought you had to do in order to get the land tax [exemption]'[48] or that 'it was always your intention that when you could, as soon as you could, you would develop [the Relevant Property] by putting up residences and subdividing and selling them'.[49]
11. The Acquisition Business Plan cannot be accepted as a fulsome explanation of AID's intention in purchasing the Relevant Property given:
    • it was not a contemporaneous document;
    • it was prepared by a person who was not involved in the original acquisition;
    • the projected gross profit from the proposed farming activities (adopting optimistic assumptions) of $148,050 per annum would barely cover the loan servicing costs of $135,000 per annum; and
    • the evidence that the growing of 'hothouse veg', which might have allowed for repayment of the acquisition debt, was 'not really entirely practical'.
12. Consistent with the concessions made by Mr Apswoude under cross-examination, the objective evidence suggests that at least part of the intention was to develop and sell the Relevant Property in the future. Of course, based on the decision of the New South Wales Court of Appeal in Metricon, that intention is not to be regarded as a use.
13. Sometime before 2012, the land was brought into the 'green wedge'.[50] A precinct structure plan incorporating the property was approved in 2012, potentially allowing the land to be used for residential development, following which the value of the Relevant Property significantly increased as reflected in the higher land tax assessment raised for 2013.
14. The evidence suggests that there was some attempt by AID to subdivide a small portion of the Relevant Property with a view to selling that portion to pay down debt, and a later attempt to sell that lot or the entire farm.[51] However, as at the date of hearing, the Relevant Property had not been subdivided or sold.[52]
15. The Relevant Property was affected by severe drought from around 2006,[53] which Mr Apswoude characterised as a 'Millennium Drought'.[54] This affected the manner in which the Relevant Property could be used.
16. As a consequence, in May 2007, Mr Apswoude engaged Bill and Lisa Mollison to provide a report on the prospects for utilising the "permaculture" techniques developed by Mr Mollison to address the issues with the land.
17. Following a visit to the site, Bill and Lisa Mollison provided a letter to Mr Apswoude dated 18 June 2007 (Mollison Plan).[55] That letter stated that water analysis had indicated the presence of high salinity content in the bore water on the Relevant Property and that further testing of the soil was required as, if the soil also contained high concentrations of salt, 'this condition alone may make the whole site unsuitable for agriculture or development' (emphasis added). Mr and Mrs Mollison indicated that, in their opinion:

And that is to use salt remediation and extensive salt tolerant tree planting to remove the salt and restore viability to the site.'

1. The Mollison Plan went on to indicate that 'broad scale remediation is necessary if you intend developing the site or using it for agriculture' (emphasis added) and suggested the establishment of an on-site plant nursery because 'the site needs trees to reduce the effects of salting, help soil regeneration, re-establish nutrients and reduce the effect of wind'.
2. Although the Mollison Plan included references to development, the impact of soil salinity on brick and cement and the holding of an architectural competition to provide energy and space efficient housing designs at a future stage, Mr Apswoude refuted the suggestion that he had told Mr and Mrs Mollison that he had planned to develop the Relevant Property,[56] or that he had town planners and urban designers for the site.[57]
3. I note that neither Mr nor Mrs Mollison were called as witnesses as Mrs Mollison had ceased her involvement early on (in September 2007),[58] and Mr Mollison had passed away prior to the hearing. While a colleague of Mr Mollison, Tony Watkins, assisted Mr Apsoude to undertake certain of the activities proposed in the Mollison Plan, AID did not call Mr Watkins as a witness.
4. Nevertheless, I accept that the Mollison Plan is contemporaneous evidence of the poor state of the Relevant Property in 2007, and reflected a need for remediation of the site whether the land was to be used for agricultural or development purposes. However, I do not accept Mr Apswoude's evidence that Mr and Mrs Mollison would have referred to development, bricks and cement or housing designs in the Mollison Plan, if it had not been suggested to them that AID intended to develop the land at some stage.

1. For most of the applicable years, one significant aspect of primary production on which AID seeks to rely is the preparation of the land for, and the propagation and growing, of a plant, the botanical name of which is cassinia arcuata (cassinia),[59] for the purpose of sale.
2. In his first witness statement, Mr Apswoude says that, in 2008, following the receipt of the Mollison Plan, he developed a business plan regarding the use of cassinia on the farm, which was 'formalized and consolidated in 2016' (Cassinia Business Plan).[60] A copy of the Cassinia Business Plan was attached to Mr Apswoude's first witness statement.[61]
3. The Cassinia Business Plan is a 9 page document. It is undated, apart from a reference to '08/2008' on the footer of each page. There is no indication of its author. It purports to '[assess] the commercialisation of Cassinia as an alternative, beneficial and viable utilisation of my Diggers Rest farm', and includes information on 'potential product demand and uses' and an 'income generation strategy' which suggests that the growing of cassinia could generate gross income of $172,000 annually.
4. Mr Apswoude was extensively cross-examined on this document. Under cross-examination, Mr Apswoude conceded that the Cassinia Business Plan was prepared in 2016 by a consultant named Grant Burns[62] and was not a reconstruction of an existing written document, but rather was a 'compendium of all of the cassinia work we had done up to date at 2016 when it was prepared'.[63] He did not, however, accept the proposition, put by Mr Morgan (based on the failure to refer to cassinia in the objection and associated correspondence with the State Revenue Office), that he had no plan to grow cassinia in 2008 or that it was a recent invention.[64]
5. The Commissioner submits that the Tribunal should find that Mr Apswoude 'intended to mislead the Commissioner by producing a document that he wanted the Commissioner to rely on, and that materially misrepresented its date'.[65]
6. For the purposes of these proceedings, it is not necessary to go so far. However, Mr Apswoude accepted that the document was prepared in 2016, and it has clearly been prepared with the benefit of hindsight. For example, the Cassinia Business Plan notes 'the only plant agricultural activity that has proven to be successful has been the propagation of 80ha of the plant Cassinia Arcuata', despite the evidence of Mr Coppolino that no cassinia had been propagated prior to December 2009.[66]
7. There is no objective material to support the contention that it represents a plan that Mr Apswoude had developed in 2008. The most likely explanation for the failure to refer to cassinia in the objection was that, even as late as August 2013 (by which time the cassinia forest had been well-established),[67] there was no plan to commercialise it. Effectively, the Cassinia Business Plan represents the kind of 'self-serving, non-contemporaneous statements made by taxpayers' that Croft J has indicated must 'be treated with caution'.[68] Accordingly, I give it little weight.
8. Rather, considering the objective evidence in its totality, I find that a rather different picture emerges regarding the development of cassinia on the Relevant Property.
9. It is clear that, by 2007, drought conditions had resulted in both the water and soil being so significantly affected by salinity that it required extensive remediation in order for the Relevant Property to be used, whether for farming or land development purposes. The Mollison Plan called for 'salt tolerant tree planting'. Mr Apswoude gave evidence that he and Mr Watkins experimented with the planting of various trees, eg. oak and nut trees, which were largely unsuccessful.[69] In the meantime, there was the spread of noxious weeds (particularly serrated tussock)[70] and some cassinia had self-sown on the property.[71] Further experimentation was conducted and this showed that cassinia could be successfully grown.[72] This was implemented on a larger scale in order to remediate the Relevant Property,[73] as well as to keep the weeds at bay.[74] I do not accept that, through the relevant time period (ie. from 2008 to 2012) AID had any plan to sell the cassinia as a commercial crop. To adopt the phrase used by Croft J in CDPV, the limited cassinia sales that are recognised in AID's financial statements for the financial year ended 30 June 2013[75] was at best a 'mere side benefit'.[76] Alternatively, adopting the words of McLeish JA in the CDPV Appeal, the 'overall impression left is that the prospect of sale of the crops was ... at best one possible outcome of cultivation, rather than its purpose'.[77] In either case, this is not sufficient to support a finding that the land was being used primarily for primary production purposes for the purposes of the LT Act.

Application for leave to add additional grounds of review

1. On the morning of the first day of hearing these proceedings, I considered AID's application for leave to add the additional grounds of review.
2. In relation to the ground of review under section 66 of the LT Act, I granted leave for the additional ground to be relied upon having regard to the fact that the Commissioner's determination of AID's objection had been based on consideration of section 66 of the LT Act for the 2009 to 2012 land tax years and that the Commissioner did not object to leave being granted.
3. In relation to the ground of review under section 65 of the LT Act, and after considering the decisions of Pagone J in Conder Towers Pty Ltd v Commissioner of State Revenue[78] and Hollingworth J in Harry One Pty Ltd v Commissioner of State Revenue,[79] I granted leave for the additional ground to be relied upon having regard to the following matters:-
   • ample notice of the additional ground had been given to the Commissioner by the Applicant's Statement of Legal Contentions filed on 2 November 2016, several months before the hearing;
   • the Commissioner conceded there was no prejudice caused to it in relation to the additional ground;
   • there might be detriment to AID in not being able to rely on the additional grounds in terms of pursuing any appeal; and
   • the issue is purely a legal one and there was no need for additional evidence beyond the expert evidence of Mr Clarke filed by AID in relation to the council boundaries concerned.

Is the Relevant Property exempt under section 65 of the LT Act?

1. Following the grant of leave to AID to rely on section 65 of the LT Act, I considered and dismissed this ground on the basis that, having regard to the decision of Harper J in The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Roy Morgan),[80] I was bound to apply the decision in EHL Burgess.
2. To briefly elaborate, in EHL Burgess, the Court of Appeal held that whether particular land is outside greater Melbourne[81] was to be determined by reference to the boundaries of the councils and shires referred to in the Third Schedule to the Melbourne and Metropolitan Board of Works Act 1958 as at the date immediately before the abolition of the applicable city or shire.
3. In Reply Submissions, AID contended that the Tribunal is not obliged to follow the Court of Appeal decision in EHL Burgess on the basis that it was not based on proper principles of statutory construction and was flawed.
4. I rejected that submission.
5. Save that the decision in EHL Burgess related to a different municipal district[82] to that relevant to the present proceedings,[83] the basis of AID's argument that the Relevant Property was not within greater Melbourne is based on the same arguments considered and rejected by the Court of Appeal.[84]
6. To adopt the language of Harper J in Roy Morgan, the Court of Appeal decision is 'one by which the Tribunal is absolutely bound' and 'it is necessary to recognise that it is not only the decision that binds; it is both the decision and the reasoning behind the decision'.[85]

Is the Relevant Property exempt under section 66 of the LT Act for the 2009 to 2012 land tax years?

1. AID contends that for each of the 2009 to 2012 land tax years, the Relevant Property was being primarily used for primary production.[86]
2. As the primary production activities conducted on the Relevant Property, as contended for by AID, differed from year to year, it is necessary to consider each of the land tax years and associated evidence separately.

1. For the 2009 land tax year, AID contends that the Relevant Property was being used for primary production purposes being 'the maintenance of animals or poultry for the purpose of selling them or their natural increase or bodily produce'.[87] AID contends this occurred through sheep agistment arrangements with third parties, being Mr and Mrs Cocking.[88]
2. AID further contends that the land was also being used for cultivation in terms of preparing the land for the growing of crops, including cassinia[89] and that any purpose of future development was not a current use of the land.[90]
3. The Commissioner says that there was ambiguous corroborating evidence of any agistment of the sheep.[91] Mr Apswoude's first witness statement included a calculation of agistment fees of $1,890 prepared by Mr and Mrs Cocking in respect of the agistment of up to 377 sheep for a period between 1 January to 15 May. However, while Mr Apswoude's first witness statement suggest this related to the 2009 land tax year (from 1 January to 31 December 2008), the financial statements of AID for the year ended 30 June 2009 (for the period 1 July 2008 to 30 June 2009) do not record any agistment income. However, in AID's accounts for the year ended 30 June 2010, an amount of $1,719 is included as agistment income.
4. In any event, the Commissioner suggests the failure to call Mr or Mrs Cocking as a witness to provide evidence that the sheep were held for sale is fatal to AID's claim.[92]
5. In relation to the contentions concerning preparation of the land for cultivation, the Commissioner contends that having regard to section 68 of the LT Act and observations made by Croft J in CDPV about preparatory activities,[93] efforts to prepare land for future cultivation can only be regarded as primary production for the purposes of section 66 of the LT Act, where such activity occurs in temporal proximity to actual cultivation.[94] That is, the definition of primary production does not extend to 'remediating land some years before any planting takes place'.[95]
6. At the hearing, Mr Apswoude gave evidence that he had inherited the arrangements with Mr and Mrs Cocking from the previous owners of the Relevant Property,[96] as a means of providing 'drought relief' to Mr and Mrs Cocking. I accept that evidence.
7. However, there are significant gaps in the evidence for the 2008 calendar year.
8. First, there is no evidence as to the quantity of sheep agisted. No income from agistment was recognised in AID's accounts for the 2008/2009 financial year and the income that was recognised in the 2009/2010 financial year seems to correlates (although not exactly) with the agistment fee calculations provided by Mr and Mrs Cocking for the period 1 January to 15 May, suggesting that the information as to the number of sheep relates to that later year.
9. Second, as the Commissioner contends, there was no real evidence that Mr and Mrs Cocking were maintaining the sheep for the purpose of selling them or their natural increase or bodily produce. The only references to the fate of the sheep were that, prior to coming to the agistment arrangement with the previous owners, Mr and Mrs Cocking were said to have been taking their bloodstock to get slaughtered, and were losing that bloodstock[97] and, sometime in 2009 or 2010, the remaining sheep were returned to Mr and Mrs Cocking.[98] The evidence regarding the slaughtering of sheep was hearsay and, in any event, preceded the relevant period for the 2009 land tax year (ie. mid to late 2008) by a number of years. The evidence of the return of the sheep to Mr and Mrs Cocking is ambiguous. While Mr Apswoude said 'some of them did go to the saleyards, some were sold',[99] there was a lack of detail as to numbers involved. Further, the context in which that was said suggests it was less of a deliberate strategy and more as necessary where it was not possible to take them back to the central Victorian property owned by Mr and Mrs Cocking or to re-agist them elsewhere. So, ultimately, I have no basis to infer whether the sheep were being held for sale of their wool, their meat or for other purposes.
10. As for the contention that the land was being prepared for the growing of crops, including cassinia, it is quite unclear what activity is being referred to in this regard. In any event, I have already found that the activities on the land involving cassinia were directed to the general remediation of the land and control of weeds, without any intention at the time of selling the cassinia. General remediation, which might at some unspecified time in the future allow the growing of crops, does not amount to a present use for primary production within the meaning of section 64 of the LT Act.
11. Having regard to these matters I am not satisfied, on the balance of probabilities, that the Relevant Property was being used primarily for primary production during the relevant period. Accordingly, the exemption pursuant to section 66 was not available for the 2009 land tax year and I confirm the 2009 land tax assessment (no. 55529871) issued by the Commissioner on 13 June 2013.

1. For the 2010 land tax year, AID contends that the Relevant Property was being used for primary production purposes being 'cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state)'. AID contends this results from the preparation of the land for cropping and for the growing of cassinia.[100]
2. The Commissioner contends that the suggestion that AID was propagating cassinia for sale in 2009 is a 'recent fabrication' having regard to the evidence, including that:
   • it was not raised in AID's objection to the assessments;
   • there is a lack of particularisation of the propagation allegedly undertaken from 2009; and
   • a letter from AID's solicitor in November 2013 suggests there was no propagation of cassinia until 2011.[101]
3. The Commissioner submits that the Cassinia Business Plan, purportedly representing a plan that existed in the 2008/2009 financial year, is also a 'recent fabrication' and should be given no weight.[102]
4. I have already set out my findings regarding the Cassinia Business Plan, and the circumstances relating to the development of cassinia on the relevant property.
5. Based on those findings, AID was not cultivating the Relevant Property for the purpose of selling the produce of cassinia and therefore was not using the Relevant Property primarily for the purposes of primary production. Accordingly, the exemption pursuant to section 66 was not available for the 2010 land tax year and I confirm the 2010 land tax assessment (no. 61170915) issued by the Commissioner on 13 June 2013.

1. For the 2011 land tax year, AID contends that the Relevant Property was being used for primary production purposes being 'cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state)'. AID contends this results from the sowing and harvesting of wheat, barley and canola and the ongoing propagation of the cassinia plant.[103]
2. The Commissioner concedes there is some evidence that a neighbour, Mr Hamish Hurley, planted some canola, wheat and barley on the Relevant Property in 2010 pursuant to a share farming agreement with AID.[104]
3. However, the Commissioner notes that as a result of a failure to call Mr Hurley or tender a copy of the share farming agreement, there is little evidence of the intensity or duration of the crops, other than the income of $6,595 in the 2010/2011 financial year and the evidence of Mr Apswoude that the cropping activities were discontinued after that year because of the impact of rain[105] on the quality of the crops.[106]
4. The Commissioner submits that, in any event, the cropping which took place on about half of the Relevant Property was not such as to render the land used primarily for primary production.[107]
5. The Commissioner contends that, to the extent that cassinia was propagated, the purpose of propagation was to outcompete other weeds and possibly for remediation of the soil, rather than for the purposes of sale.[108]
6. For the reasons already given, I accept the Commissioner's contentions regarding the propagation of the cassinia.
7. In relation to the share farming arrangements with Mr Hurley, I am satisfied on the balance of probabilities that, despite the limited income generated for AID, these were substantial activities that qualify as primary production within the definition in section 64 of the LT Act.
8. On Mr Apswoude's evidence, these activities were conducted in paddocks 1, 2, 5, 8 and 11, representing around 100 hectares. There is evidence of the sale of those crops, although AID's share was a small amount (around $6,500). The real question is whether these activities were conducted with sufficient intensity to enable a conclusion that the land was being used primarily for primary production purposes at the relevant time, particularly in circumstances where they ceased shortly after the end of the relevant year.
9. The cases indicate that where land is used for multiple purposes, it is a matter of drawing an overall impression, rather than using a formula based on factors such as land area or income generation. Here, more than half of the land was being used for primary production purposes for the majority of the year. The remainder was largely being used for remediation and weed control, with a purpose of either future development or other primary production activities.
10. On balance, I find that the cropping activity was a 'sufficiently "chief" use as to give its character to the whole of the land'[109] and the Relevant Property should be considered to be used primarily for primary production purposes for the 2011 land tax year. Accordingly, the 2011 land tax assessment (no. 67708897) issued by the Commissioner on 13 June 2013 should be varied to excise the Relevant Property and reduce the amount payable by $17,270.69.

1. For the 2012 land tax year, AID contends that the Relevant Property was being used for primary production purposes being 'cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state)' and 'the maintenance of animals or poultry for the purpose of selling them or their natural increase or bodily produce'. AID contends this results from the sowing and harvesting of wheat, barley and canola, the growing of cassinia and cattle agistment for a neighbour, Pat Esse. [110]
2. The Commissoner's contentions in relation to the cassinia and cropping activities has already been set out in relation to the 2011 land tax year.
3. The Commissioner contends that there is no corroborating evidence of any cattle agistment in 2011 and no evidence of payment for agistment until 2013.[111]
4. The Commissioner further submits that photos produced by Ms Hardacre and purportedly taken in 2011 were in fact shown to have been taken in 2013 and, in any event, show no more than 11 cattle and do not support the agistment activities having the necessary level of intensity.[112]
5. In any event, the Commissioner submits the failure to call Mr Esse as a witness to provide evidence that the cattle were held for sale is fatal to AID's claim.[113]
6. I have already set out my findings in relation to the growing of cassinia. For the reasons given, I do not accept that the growing of cassinia in the relevant period for the 2012 land tax year amounts to primary production as defined.
7. In relation to the 2012 land tax year, the evidence suggest that any remaining crops of wheat and barley had been removed and sold by April 2011. While there are references in Mr Apswoude's first witness statement to the harvesting of canola in November 2011,[114] this is inconsistent with the absence of any farming income recognised in AID's financial statements for the year ended 30 June 2012.[115] I do not consider the evidence sufficient to characterise the Relevant Property as a whole as being used for primary production purposes for the 2012 land tax year.
8. The objective evidence does not support the assertion by Mr Apswoude that large parts of the land were being used for the agistment of cattle that were being held for sale. No agreement with Pat Esse has been produced and he has given no evidence. There was no income from agistment during the relevant year, and the explanation for its absence (eg. that equipment was provided in lieu) is unconvincing given my expectation that there would need to be some recognition of such income for either or both accounting and tax purposes. Many of the photos which had been provided by AID to the Commissioner in support of the agistment activities in 2011 were accepted by Mr Apswoude to have been taken in 2013 and, in any event, only show a small number of cattle. Pat Esse was not called to give evidence regarding the number of cattle or that the cattle were being held for sale, and while Mr Apswoude suggested that there were over 200 cattle on the Relevant Property from May 2011 to late 2014,[116] that is not corroborated by any other record and he did not (and likely could not) give evidence as to the purpose for which Pat Esse was holding the cattle. Indeed, when Mr Grace asked him 'do you know what happened with their cattle?', Mr Apswoude responded by talking about circumstances in which they came to be on the Relevant Property rather than their eventual fate.[117]
9. In all those circumstances, while there may have been some primary production activities carried on in the relevant period for the 2012 land tax year, I am not satisfied that the Relevant Property was being used primarily for primary production in that year. Accordingly, the exemption pursuant to section 66 was not available for the 2012 land tax year and I confirm the 2012 land tax assessment (no. 72282377) issued by the Commissioner on 13 June 2013.

Is the Relevant Property exempt under section 67 of the LT Act for the 2013 Land Tax Year?

1. For the 2013 land tax year, AID contends that the Relevant Property was being used for primary production purposes being 'cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state)' and 'the maintenance of animals or poultry for the purpose of selling them or their natural increase or bodily produce'. AID contends this results from the propagation and cultivation of cassinia and cattle agistment with Pat Esse.[118]
2. AID further contends that the growing of cassinia for sale, in its raw state or as a processed product (eg. brush fencing), was the only business or business undertaking of AID at the time, with a view to one day making a profit from that business undertaking, and that its sole shareholder Mr Apswoude was engaged substantially full time in that business.[119]
3. In relation to AID's business, the Commissioner submits that the characterisation of that business, as 'land development of subdivision', in contemporaneous tax returns submitted by AID should be accepted.[120]
4. The Commissioner also submits that, as no primary production was carried on on the property at the relevant time, it is not possible for its principal business and main undertaking to be primary production of the type carried on on the property.[121]
5. Lastly, in relation to the question of whether Mr Apswoude (as the sole owner of the shares in AID) was normally engaged in a substantially full time capacity in the business of primary production, the Commissioner argues that, as the Relevant Property was not used primarily for primary production, it follows that this precludes finding that Mr Apswoude was engaged full time in such a business. Further, the Commissioner says that even if some of the activities were primary production, there was insufficient evidence about how Mr Apswoude spent his time to enable a conclusion that he was engaged in those in a substantially full-time capacity.[122]
6. The evidence, particularly that of Mr Coppolino, does support the contentions that, by 2012, there was a significant amount of cassinia which had been propagated in Lot 1 of the Relevant Property (paddocks 1 and 2, and to an extent in paddock 5).[123] If all or most of this cassinia was being cultivated for sale, then it might support a finding that there were primary production activities being carried on on the land, and that those primary production activities represented the principal business and main undertaking of AID at the time. However, the evidence that all or most of the cassinia was being cultivated for sale is vague and unconvincing.
7. At paragraph 139 of his first witness statement dated 28 October 2016, Mr Apswoude suggests that:

We also started looking at the potential of building a sustainable nursery. Shortly thereafter we began building the nursery for the Cassinia sales as well as other plants incorporating the permaculture philosophy. I intended to sell these plants alongside the Cassinia. Attached hereto and marked DA-53 is a draft business plan for the Farm.

1. Apart from observing that this paragraph appears under a heading 'activity on the farm' in respect of the period from 1 January 2012 to 31 December 2012, there is no evidence provided as to the timing of construction of that nursery.
2. More concerning, the so-called draft business plan included as Exhibit DA-53 to Mr Apswoude's first witness statement is undated, but indicates that it is a business plan 'reconstructed following fire on 6 May 2007'. It refers to a plan 'to utilise vacant land located at Lot 4 and Lot 1 Davis Road, Diggers Rest, Victoria as a plant nursery incorporating the Permaculture philosophy'. Having regard to my previous findings regarding the propagation of cassinia at the Relevant Property, I do not accept that sometime prior to May 2007, AID had already had a plan to build a nursery to sell that cassinia some 5 years later.
3. Further, if this had indeed been its business plan and, in 2012, steps were being taken to implement it as AID's main undertaking, then I would have expected to see some updated financial analysis of the likely revenue to be generated, associated costs and how this would assist in covering the significant interest on the debt associated with the purchase of the Relevant Property (being some $816,415 for the year ended 30 June 2013).
4. Mr Apswoude gave evidence in chief that there are some 850,000 to a million cassinia trees on the Relevant Property, which 'correlates to about 90 - I'd better get this right - 90,000 metres of native brush fencing'.[124] Under cross-examination Mr Coppolino, who was called by AID to give evidence as to the commercial uses for cassinia, was unable to indicate how much cassinia is sold in Victoria each year, how much a mature cassinia plant sells for or how much it costs to produce.[125]
5. If Mr Apswoude's evidence is accepted, there would be enough cassinia on his property alone to build a fence all the way from Melbourne to Kyneton. In light of Mr Coppolino's evidence, there is simply no credible evidence before the Tribunal to suggest there is a market for this quantity of cassinia, even if there wasn't competition from other producers of brush fencing.[126] This almost inevitably leads to an inference that the cassinia has not been cultivated for the purpose of sale.
6. While cassinia sales of $18,182 were recorded in AID's accounts for the year ended 30 June 2013,[127] there was no evidence of how much cassinia was sold or in what condition or for what purpose. Further, it is unclear whether those sales occurred in the latter half of the 2012 calendar year or the first half of the 2013 calendar year.
7. In those circumstances, I am not satisfied on the balance of probabilities that the principal business or main undertaking of AID at 31 December 2012 can be said to have been cultivating cassinia for sale. Again, I find that the purpose of cultivating the cassina was to remediate the soil for future use and to keep weeds at bay, with any sales being merely a side benefit or a possible outcome from the cultivation of cassinia for that other purpose.
8. I note there was also an amount of agistment income of $3,024 recognised in AID's financial statements for the year ended 30 June 2013 which is said to relate to the agistment of Pat Esse's cattle. There is a vague suggestion by Mr Apswoude that 'were a lot of cattle agisted in (sic) 2013 financial year' and that 'we traded livestock agistment for use of machinery'.[128] This evidence falls short on details of the number of cattle, whether or not the cattle (or their natural increase or bodily produce) were being held for sale, and as to any income generated from the barter trading of agistment for machinery.
9. Further, as indicated in Shanahan v Chief Commissioner of Land Tax,[129] in the context of the NSW exemption for land used for primary production in the course of carrying on a business of primary production:

if a property owner used his land solely for the purpose of allowing other persons' animals to come onto the land to graze ultimately being removed by their owners for the purposes of sale by them such land would not fall within the exemption.[130]

1. While section 67 of the LT Act is worded a bit differently, in my view the principle is equally applicable.
2. As such, this does not change the conclusion that there is insufficient evidence to support a conclusion that the principal business or main undertaking of AID was one or more of the relevant primary production activities set out in section 64 of the LT Act.
3. I also accept the Commissioner's contention that even if it were to be accepted that AID's principal business and main undertaking was primary production, there is insufficient evidence - beyond his bare assertion - for me to form the conclusion that Mr Apswoude was engaged in a substantially full time capacity in that business. There was simply no detail provided as to how Mr Apswoude spent his time in the relevant period.
4. Accordingly, the exemption pursuant to section 67 was not available for the 2013 land tax year and I confirm the 2013 land tax assessment (no. 79240520) issued by the Commissioner on 13 June 2013.

[2] By letter from Crowe Horwarth to the Commissioner dated 9 August 2013.

[4] AID accepts that although the Relevant Property comprises land on two separate titles, and is divided by Davis Road, it represents one parcel of land for land tax purposes.

[7] [2015] VSCA 269.

[8] This is consistent with the position taken by the Commissioner in Land Tax Bulletin LTX 09/2011, 'Treatment of Land Recently Brought into Melbourne's Urban Growth Zone'.

[9] The Commissioner objected to the admission of the third witness statement given it was only produced on the day prior to the start of the hearing and the material it contained, relating to activities on the Relevant Property in 2016 and 2017, was not relevant.

[13] Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 at 660; Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue (2010) 80 ATR 68 at 70.

[14] [2016] VSC 322. His honour's decision was the subject of an appeal (CPDV Pty Ltd v Commissioner of State Revenue [2017] VSCA 89 (CDPV Appeal)), which was dismissed.

[15] Ibid [16]-[22]. Footnotes and paragraph numbering omitted.

[16] [2017] NSWCA 11.

[19] [2016] VCAT 1439.

[20] [2016] NSWSC 332.

[21] [2016] VCAT 1439 [74]-[75].

[22] Respondent's Closing Submissions [36].

[28] [1985] VicRp 15; [1985] VR 164.

[31] Rainn Pty Ltd v Commissioner of State Revenue [2016] VCAT 402 [8].

[32] [2016] VSC 322 [35]. Footnotes omitted.

[34] There were a couple of properties acquired and sold in later years.

[35] Transcript, 25 July 2017, [90], lines 23-36.

[36] Transcript, 25 July 2017, [64], lines 19-31; [65], lines 1-7.

[37] Transcript, 25 July 2017, [93], lines 18-28.

[38] Transcript, 25 July 2017, [92], lines 24-26.

[39] Transcript, 26 July 2017, [227], lines 16-20.

[40] Mr Apswoude's first witness statement of 28 October 2016 [21].

[42] Transcript, 25 July 2017, [108], lines 1-6.

[43] Transcript, 25 July 2017, [108], line 25; [110], lines 6-8 and [111], lines 17-20.

[44] Transcript, 25 July 2017, [113]-[123].

[45] Transcript, 25 July 2017, [123], lines 21-30; [126], lines 9-17; [130], lines15-17.

[46] Transcript, 25 July 2017, [125], lines 6-9.

[47] Transcript, 25 July 2017, [132], lines 19-30; [133], lines 1-3.

[48] Transcript, 25 July 2017, [133], lines 13-16; [147], lines 21-29.

[49] Transcript, 26 July 2017, [152], lines 5-13.

[50] Transcript, 25 July 2017, [118], line 31; [119], lines 1-7.

[51] Mr Apswoude's first witness statement of 28 October 2016 [34]-[36], [38]-[43].

[52] Transcript, 25 July 2017, [229], lines 11-18.

[53] Expert witness statement of Mr Patrick Reddan dated 31 October 2016, at 11.

[54] Transcript, 25 July 2017, [75], lines 16-18; [127], lines 4-25.

[55] Exhibit DA-12 to Mr Apswoude's first witness statement of 28 October 2016.

[56] Transcript, 26 July 2017, [144], lines 17-25.

[57] Transcript, 26 July 2017, [151], lines 5-29.

[58] Exhibit DA-26 to Mr Apswoude's first witness statement of 28 October 2016.

[59] At the hearing, there was some debate as to whether cassinia should be referred to by its common name, Chinese shrub, or is regarded by some as a weed. I don't consider either issue to be relevant.

[60] First Witness statement of Mr Apswoude dated 28 October 2016 [32].

[62] Transcript, 26 July 2017, [157], lines 4-7.

[63] Transcript, 26 July 2017, [156], lines 17-29.

[64] Transcript, 26 July 2017, [169], lines 19-21.

[65] Respondent's Closing Submissions [14(b)].

[66] Third Witness statement of Davide Coppolino dated 21 July 2017, Exhibit DC-6 [15].

[68] [2016] VSC 322 [35].

[69] Transcript, 26 July 2017, [145], lines 27-31; [146], lines 1-2.

[70] Transcript, 26 July 2017, [140], lines 15-27.

[71] Transcript, 26 July 2017, [154], lines 21-24.

[72] First witness statement of David Apwsoude, 26 October 2016 [85].

[73] Transcript, 26 July 2017, [142], lines 9-12; First witness statement of Mr David Apswoude, 28 October 2016 [150].

[74] Transcript, 26 July 2017, [244], lines 15-18; First witness statement of Mr David Apswoude, 28 October 2016 [150].

[75] Exhibit DA-50 to Mr Apswoude's first witness statement.

[76] [2016] VSC 322 [57].

[78] [2012] VSC 107 [33].

[79] [2007] VSC 13 [30]-[31].

[80] [2005] VSC 136.

[81] This being a necessary integer for section 65 of the LT Act to be engaged.

[82] In that case, the Shire of Whittlesea.

[83] Originally the Shire of Melton, later Melton Shire Council and more recently the City of Melton.

[84] It is noted that counsel for AID was the junior counsel for the taxpayer in EHL Burgess.

[85] [2005] VSC 136 [12].

[86] There was no contention, on behalf of the Commissioner, that the requirements of paragraphs (a) and (b) of section 66 of the LT Act had not been satisfied.

[87] Applicant's Outline of Closing Submissions [7].

[91] Respondent's Closing Submissions [22].

[93] [2016] VSC 322 [20].

[94] Respondent's Closing Submissions [40]-[42].

[96] Transcript, 24 July 2017, [61], lines 13-27.

[97] Transcript, 25 July 2017, [61], lines 22-24.

[98] Transcript, 25 July 2017, [66], lines 14-22.

[99] Transcript, 25 July 2017, [66], lines 21-22.

[100] Applicant's Outline of Closing Submissions [14].

[101] Respondent's Closing Submissions [17]-[18].

[103] Applicant's Outline of Closing Submissions [17].

[104] Respondent's Closing Submissions [26].

[105] After the breaking of the drought.

[106] Respondent's Closing Submissions [26].

[109] Abbott [1985] VicRp 15; [1985] VR 164 at 166.

[110] Applicant's Outline of Closing Submissions [19].

[111] Respondent's Closing Submissions [23].

[114] First witness statement of Mr Apswoude dated 28 October 2016 [106] and [109].

[116] Transcript, 25 July 2017 [69], lines 7-9.

[117] Transcript, 25 July 2017 [70], lines 25-31 and [71], lines 1-9,

[118] Applicant's Outline of Closing Submissions [24].

[120] Respondent's Closing Submissions [39] and [54].

[123] Third witness statement of Davide Coppolino, 21 July 2017, Exhbit DC-6 [23]. See also First witness statement of David Apswoude, 28 October 2016 [129].

[124] Transcript, 25 July 2017 [80], lines 24-27.

[125] Transcript, 26 July 2017 [241], lines 1-23.

[126] Mr Apswoude referred to inferior brush fencing imported from China being sold at Bunnings: Transcript, 26 July 2017 [168], lines 25-31.

[127] The original financial statements were included as Exhibit DA 50 to Mr Apswoude's first witness statement dated 28 October 2016. Amended financial statements were included as Exhibit DA-61 to Mr Apswoude's second witness statement dated 6 February 2017.

[128] Mr Apswoude's first witness statement dated 28 October 2016 [126].