Bursill v Chief Commissioner of State Revenue

Land and Environment Court (NSW)|2001-08-27|Before: Cowdroy J, Lloyd J, Mr P

This matter has had a somewhat complicated history. In effect there are three assessments for land tax in respect of which Mr William Bursill seeks to appeal to this Court. Leave would be required in only one of those matters, namely the appeal in respect of the assessment raised for the 1998 year under the Land Tax Management Act 1956 ("the 1998 assessment").

Mr Bursill is the owner of a property known as 2B Dumaresq Road, Rose Bay ("the property"). The 1998 assessment was served upon him in respect of the property. On 23 February 1998 Mr Bursill responded to the 1998 assessment stating, inter alia:- I wish to object to this tax, and I strongly object to paying interest.

On 18 June 1998 the respondent stated that he had reviewed the objection, but that the valuation relating to the property could not be altered.

The critical question in respect of the 1998 assessment is whether Mr Bursill's letter of 23 February 1998 constituted an objection under the Land Tax Management Act.

To my mind the letter is so vague in its terms that it could not be construed as an objection as required pursuant to the provisions of the Act. It does not object specifically to the assessment, but rather the objection is a generalised objection referring to the tax as a whole not as it had been assessed. It provides no detail of a basis for the objection. It provides no details of any comparison, or other matters from which it could be construed as an objection under s 87 of the Act. For these reasons the court is satisfied that the letter of 23 February 1998 does not constitute an objection.

On 1 July 1999 a further assessment was issued in respect of the subject property. According to the evidence a letter was written to Mr P C Cunningham, the New South Wales Valuer General, by Mr Bursill, on an unspecified date, which specifically raised matters of objection in respect of the valuation assessment which was dated 1 July 1999.

Up to this point it appears that Mr Bursill had not received the benefit of any legal advice.

On 7 April 2000 Mr Bursill, having had the benefit of legal advice, retained Mr Robins to write to the Commissioner of State Revenue specifying objections to the 1998, 1999 and 2000 assessments.

On 4 July 2000 the Commissioner of State Revenue responded to such letter. In that letter he referred to the objections and indicated that the valuations were correct.

However, approximately six weeks later on 25 August 2000 the Valuer General wrote a letter to Mr Bursill which disagreed with the conclusion as to the valuation as stated by the respondentin his letter of 4 July 2000. The Valuer General acknowledged that the value was too high, and that the value as based at 1 July 1999 should be reduced. There is accordingly a clear conflict between the letter of the respondent and that of the valuer general.

It appears that the valuations, although being separate assessments for each year, are nevertheless interlinked. Accordingly the court considers that, albeit the Court has not granted leave in respect of the objection which Mr Bursill seeks to take to the 1998 assessment, all three assessments can be made the subject of an application to this court for leave to appeal.

The provision for appeal is contained in s 96 of the Taxation Administration Act 1996 which provides that the taxpayer may appeal to the Supreme Court if dissatisfied with the Chief Commissioner's determination. Pursuant to s 38A of the Land Tax Management 1956 such appeal is made to this court in respect of an assessment under the Land Tax Management Act. Section 19(B)(1) of the Land Tax Management Act invests this court with jurisdiction under s 98 of the Taxation Administration Act 1996 in relation to land value.

Pursuant to s 98 of the Taxation Administration Act 1996 the Supreme Court may allow a person to appeal after a 60 day period. In this case the appeal is, as I have said, brought to this court, and accordingly this court may entertain an appeal after 60 days.

Mr Newhouse, who appears for the respondent, has pointed out certain shortcomings in relation to the objections and their formulation. He has pointed out that an objection must state fully, in detail and in writing, the circumstances and the reasons for the failure to lodge an objection within the 60 day period.

The court agrees that the evidence concerning the failure of the taxpayer to provide reasons are barely adequate. However, the court notes the following in the exercise of its discretion: firstly, the taxpayer is 86 years of age; secondly, he did not apparently receive any legal advice until the year 2000; thirdly, the court accepts that although the 1998 assessment made reference to the fact of an objection and the requirements that it be lodged within 60 days, Mr Bursill was apparently confused because he inquired of the local council to whom an objection should be made and he was informed that the appropriate person was the Valuer General.

The applicant has established that albeit his understanding was muddled he has clearly wished to object to all of the valuation assessments, and that this desire was clearly evidenced by the letter of 7 April 2000.

There are certain principles which have been established concerning the court's practice in relation to applications where extensions of time and leave are sought. In Australand Holdings Pty Limited v Hornsby Council (Lloyd J, NSWLEC, 10338 of 1997; 30078 of 1997, unreported) Lloyd J established clearly the principle which requires the court to consider the delays and various other factors as set out in pp 7 - 9 of the judgment. However, the court considers that the overriding matter is that considered by the Court of Appeal of the Supreme Court of New South Wales in Danny Kidron and Andrew Spale Architects Pty Limited v Garrett and Anor (1994) 35 NSWLR 572. The headnote succinctly summarises the principle, which I shall state, as follows: On an application for an extension of time within which to appeal a due exercise of discretion requires that an extension of time be granted if the delay in the institution of an appeal has been small an appeal is not hopeless and no relevant prejudice will be caused by an extension of time. To refuse to grant an extension in such circumstances solely because of lack of satisfaction with the reasons for delay may demonstrate a failure to take into account other highly relevant factors and result in a miscarriage of the discretion.

As to the question of whether the appeal is hopeless there is evidence before the court contained in an affidavit of Geoffrey Keith Perkins, sworn on 23 September 2001, which suggests that there may be some discrepancy in the assessments.

The court also takes note of the discrepancy between the respondent's conclusion and that of the Valuer General in their correspondence to the applicant. It is not necessary for the court, on an application such as this, to determine whether the discrepancies are of any substance or whether they are significant. The court is only required at this stage to assess whether, prima facie, there is a matter which merits investigation, and the court is satisfied that those two factors merit the appeals being considered further.

Lastly, as to the question of prejudice the respondent has not suggested that any prejudice would be caused if a grant of leave were made. In all of these circumstances the court is satisfied that leave to appeal in respect of the 1998 assessment, although out of time, should be granted.

In respect of the notice of motion of the applicant which sought various relief the court grants leave to appeal in respect of the 1998 assessment.

The court is of the view that leave was essential in order for the applicant to pursue its proceedings. Insofar as the applicant has caused that state of affairs and the respondent's actions in putting on this motion has remedied a defect in the applicants case, the court considers that the applicant should bear the costs of such motion insofar.

The court therefore orders the applicant to pay the respondent's costs of the motion of 27 August 2001 in respect of the application for leave to appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Bursill v Chief Commissioner of State Revenue [2001] NSWLEC 298 revised - 30/01/2002 APPLICANT Samuel William Bursill PARTIES : RESPONDENT Chief Commissioner of State Revenue

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