Chief Commissioner of State Revenue v Brown Cavallo Pty Ltd

Jurisdiction to hear appeal and grounds of appeal

1. An internal appeal from a Tribunal decision to the Appeal Panel is available as of right on any question of law (s.80(2)(b) Civil and Administrative Tribunal Act 2013(CATA)).
2. An internal appeal on any other grounds is available with the leave of the Appeal Panel (s.80(2)(b) CATA).
3. The Chief Commissioner in this case propounds six grounds of appeal on what he says are questions of law.
4. Further the Chief Commissioner seeks the leave of the Appeal Panel to appeal various factual findings in the decision.
5. Due to a miscalculation of dates (as explained in an affidavit) the Chief Commissioner's appeal was lodged slightly out of time. No prejudice was suffered by the respondent taxpayer. Leave was granted at the hearing for the appeal to be lodged out of time.
6. The grounds upon which the Chief Commissioner relies to found his appeal on questions of law were finally stated in his second amended notice of appeal filed 28 April 2017 as follows (matters deleted and withdrawn not shown below): 1. The Tribunal erred in determining each of the matters in (3) below without giving proper or sufficient reasons for any of those determinations. 2. (Withdrawn). 3. The Tribunal erred in concluding that there was any, or any sufficient, evidence to prove: 1. on the balance of probabilities that the Cattle Operations undertaken on the Land as at 31 December in each of 2011 to 2014 had: 1. a significant and substantial commercial purpose or character, and 2. been engaged in for the purpose of profit on a continuous or repetitive basis within the meaning of those expressions in s10AA(2) of the Land Tax Management Act 1956, and 1. in not concluding that these matters had not been so proved. 1. The Tribunal erred in regarding the circumstances that Brown Cavallo P/L through no fault of its own, had lost financial and business records the content of which might have been relevant to all or some of the issues in (3) above: 1. as probative of any of those matters, or alternatively, 2. otherwise relevant to its determination of any of those matters. 1. The Tribunal erred in regarding the circumstance that Brown Cavallo P/L had not in respect of the Land been levied to land tax for the 2004, 2005, 2006 and 2007 years: 1. as probative of all or any of the issues in (3) above, or 2. as otherwise relevant to its determination of all or any of those matters. 1. The Tribunal erred in regarding the evidence of Nathan Jennings, in Annexure 'C' to Mr Bennett's affidavit made on 10 March 2016 as to the scale of Cattle Operations in the Northern Rivers area generally, 1. as probative of all or any of the issues in (3) above, or 2. as otherwise relevant to its determination of all or any of those matters. 1. The Tribunal erred in regarding the evidence of the Respondent as to its intentions for the future use of the Land: 1. as probative of all or any of the issues in (3) above, or 2. as otherwise relevant to its determination of "all or any of those matters".
7. The respondent filed a Reply to Appeal that stated that the Chief Commissioner's appeal was misconceived as it was not "on a question of law". Alternatively there was no appealable error involved in the Tribunal's decision. Furthermore the taxpayer submitted that leave to appeal should not be granted as the Chief Commissioner had not made out the required grounds.

Is leave to appeal required?

1. The meaning of a 'question of law' was discussed by the Appeal Panel in Lombard Farms P/L v Chief Commissioner of State Revenue [2013] NSWADTAP 42 at [8]-[23]. The Chief Commissioner's appeal appears to raise the question of whether the facts as found by the Tribunal are capable of satisfying s.10AA LTMA. In Prendergast v Western Murray Irrigators Ltd [2014] NSWCATAP 69 at [13] the Appeal Panel listed a number of examples of errors of law.
2. Ground 1 - insufficient or inadequate reasons, raises a question of law: see Prendergast at [13 (1)]. Leave is not required.
3. Ground 3 - error in concluding the commercial purpose test was satisfied where there was no evidence or no sufficient evidence; 1. in the case of the "no evidence" ground raises a question of law: Prendergast at [13 (7)]; and 2. otherwise the question of sufficiency of evidence is a matter for which leave is required: see The Australian Gas Light Company v The Valuer-General 40 SR (NSW) 126 at 138 - rule (3). 3. Consequently, other than the "no evidence" ground, leave is required.
4. Grounds (4) - (7) - relying on irrelevant evidence or evidence which is not probative of the matter to be determined raises a question of law; The Australian Gaslight Company case at 138 - rule (4). Leave is not required.

Submissions

1. The submissions of the appellant can be summarised as follows: 1. There were no relevant findings by the Tribunal about the use of the land nor do the reasons otherwise record why the requirements of the commercial purpose test were satisfied. 2. The commercial purpose test had two aspects, both of which needed to be satisfied. The first was that the Tribunal must be satisfied there was a significant and substantial commercial purpose. The second was that the Tribunal must be satisfied that the business had been engaged in for the purpose of profit on a continuous or repetitive basis. 3. There was no evidence to support the conclusion that the commercial purpose test was satisfied. 4. Of the five issues dealt with by the Tribunal, three (being business plan, past land tax assessments and lost records) were irrelevant to resolving whether the commercial purpose test was satisfied. Otherwise, the evidence concerning the source of income for the Bennett family and the comparison of beef production systems in the local area were not sufficient to do so. 5. The test to be applied is "stringent", in that the commercial purpose or character must be significant and substantial. The Tribunal made no necessary findings about these matters. 6. The findings in relation to other beef production systems in the New South Wales North Coast region and their relativity to the operation of the respondent did not establish a commercial purpose or character that was significant and substantial. 7. The Tribunal failed to explain why the findings in relation to man hours spent in the overall operation affected the commerciality of that operation and misdirected itself in connection with its treatment of the subject land. 8. The evidence did not support a conclusion that the relevant enterprise had been carried on for the purpose of profit. Rather, an analysis of the financial evidence demonstrates the operations were not profitable, a matter supported by the fact that Mr Bennett and his wife needed "off-farm" jobs. 9. Further, the gross income of the operation was itself "too small to suggest the possibility of significant and substantial commerciality". In this regard the appellant relied on the decision of White J in Vartuli v Chief Commissioner of State Revenue [2014] NSWSC 768.
2. In oral submissions, the appellant developed his arguments concerning the financial analysis of the operation and referred to the evidence in respect of those matters.
3. The appellant also referred to the decision of Gzell J in Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 23.
4. In short, the appellant submitted that the Tribunal's ultimate conclusion at [66] was made for reasons not disclosed and/or in the absence of relevant facts to support the conclusion.

Consideration

1. The commercial purpose test in s10AA(2) (LTMA) was discussed in Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 23 at [77] - [91] and on appeal to the Court of Appeal [2013] NSWCA 408 at [48]-[60]. It was further elaborated in Vartuli v Chief Commissioner of State Revenue [2014] NSWSC 678 particularly at [108]-[119], and [129].; upheld on appeal in Vartuli v Chief Commissioner of State Revenue [2015] NSWCA 372. In these cases the Courts undertook significant analysis of the expression "significant and substantial" which imposed a more stringent test by inclusion of the words "and substantial": eg per Leeming JA in Maraya on appeal at [82].
2. To summarise, in considering whether the use of the Land was within the commercial purpose test of s10AA(2) LTMA it is necessary to consider the evidence about the following factors:
3. The intensity of the operation being conducted, including the size and carrying capacity of the Land.
4. The herd number, and its quality.
5. The resources committed to the operation including the land, the man hours, plant and equipment etc.
6. The profitability or expectation of profit including the history of the operation, and reasons for any lack of profit.
7. The rate of return on capital value- which may or may not be useful. It was not regarded as useful in Vartuli [2014] NSWSC 678 at [88], [90] and [137].
8. Whether any profit contributed to the user's income in a "real and not trifling way" (Vartuli [2014] NSWSC 678 at [129]). It should be noted that the Court of Appeal in Vartuli at [92] - [94] made clear that this examination does not introduce "a 'novel' test focusing on the (enterprise's) other sources of income" but rather was a factor in the overall determination in whether the "commercial purpose or character… was significant and substantial".
9. There appears no dispute about the principles to be applied.
10. The Chief Commissioner's case is based on what was said to be an insufficiency of reasons given in the decision below and upon evidentiary matters.
11. The Chief Commissioner also relies on an assertion that the Tribunal took into account certain irrelevant factors in reaching its decision (being the loss of financial records, land tax treatment of the taxpayer in prior year, and the taxpayer's group Business Plan that extended beyond the land tax years in dispute).
12. We should also note at this point that the Chief Commissioner ran the matter at first instance as an onus of proof case. As noted above, there was a gap in the financial evidence due to loss of records by water damage and malicious deletion of electronic records at the former accountant's office. Rather than rigorously testing the fairly considerable body of other evidence, and subjecting Mr Bennett to more extensive cross-examination, the Chief Commissioner submitted below that "in a nutshell" (transcript page 9, line 47 and respondent's submissions below at paragraph 38) the evidence before the Tribunal was insufficient to meet the "stringent" requirements of s10AA(2) LTMA (see Maraya on appeal at [64] and[82]).

Grounds raising questions of law

1. It is convenient to first deal with those matters which raise questions of law and for which leave is not required.

Ground 1- Inadequate reasons

1. As said by the majority in Minister for Immigration and Ethnic Affairs v Liang and Ors (1996) [1996] HCA 6;185 CLR 259 at [30]-[31] (citations omitted): 30. When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". 31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.
2. In the present case, the Tribunal identified the evidence that had been filed, the principles to be applied and made findings that the commerciality test was satisfied as a matter of fact. While the Tribunal did not minutely comb through all evidence, it is clear the Tribunal accepted Mr Bennett's evidence which the Tribunal found was unchallenged.
3. In these circumstances, we do not accept the reasons were inadequate or insufficient.

Ground 3- No evidence (as distinct to insufficiency ground)

1. The appellant submitted that evidence and findings in relation to three of five matters (namely the business plan, past assessments and loss of business records) were irrelevant in a determination of whether the commercial purpose test was satisfied. Implicitly, this means that the evidence and findings on the other two aspects, namely comparative beef production systems and an analysis of the Bennett's income and its sources, was relevant.
2. There is no suggestion there was not, in fact, evidence about these matters. It follows that this ground fails.

Ground 4- Loss of financial records irrelevant

1. The respondent taxpayer bears the onus of proof in satisfying the Tribunal that the commercial purpose test was satisfied: s100(3) Taxation Administration Act 1996.
2. The fact that formal business records are not produced is a relevant consideration to determining whether the secondary evidence of the financial circumstances of the taxpayer should be accepted and whether the onus of proof has been satisfied.
3. Obviously, the fact financial records have been lost cannot prove the commercial purpose test is satisfied. However, an explanation for non-production of those records is relevant in deciding if other evidence about those matters should be accepted in the absence of the primary business records.
4. Accordingly this ground fails.

Ground 5- Earlier tax assessments irrelevant

1. In our view, the legislation and the authorities to which we have referred make clear that an annual assessment is required in respect of each year in which an assessment is to be made.
2. It follows that the fact of a determination in an earlier year that a taxpayer satisfied the dominant use or commerciality test or that the Chief Commissioner did not reach a conclusion to the contrary in an earlier year is irrelevant to determining whether the commercial purpose test is satisfied in the tax year in question.
3. However, on a fair reading of the decision, the Tribunal did not reach such a conclusion in the present case.
4. After setting out the history of earlier assessments, the Tribunal set out at [64] of its reasons the evidence of Mr Bennett in which he said at paragraph 93 of his affidavit: The use of [the Land] property as part of my family's business has not changed in any material way over the period since 2004.
5. The Tribunal then said at [65]: I observe that Mr Bennett's sworn evidence in the preceding paragraph was not challenged nor has the Respondent provided any information concerning the tax status of the Land. I accept Mr Bennett's evidence.
6. In our view, the Tribunal was not here saying that the earlier tax year assessments were determinative of the present review. Rather, the Tribunal was accepting the evidence of Mr Bennett that there had been an existing and continuing business that had not in fact changed its nature and character over a number of years and that the dominant use of the land in the year under review "was to maintain cattle for the purpose of sale" and that "the Land has throughout the Relevant Period been used for the purpose of profit on a continuous or repetitive basis and had a significant and substantial purpose or character": Reasons at [66].
7. As reflected in the decisions of the courts concerning s10AA to which we have referred to above, evidence of the business activities and the generation of income and profits over a period time is relevant to determining whether the dominant purpose and commercial purpose tests are satisfied in a particular year: see eg Emmett JA in Maraya on appeal at [57] and White J in Vartuli at first instance at [90]. See also the decision of White J in Leppington Pastoral Co Pty Ltd v Chief Commissioner of State Revenue [2017] NSWSC 9 at [152]-[200].
8. Accordingly this ground of appeal fails.

Ground 6- Comparative operations.

1. The appellant says when looking at comparative businesses that: "It may well be the case those "very typical" operations were insignificant and insubstantial and uncommercial"
2. While that may be correct as a matter of fact, as a matter of law evidence of comparable operations is relevant to the assessment of whether the commercial purpose test is satisfied: As White J said in Vartuli at [110]: In deciding whether the use has a significant and substantial commercial purpose or character it is appropriate to compare the use of the subject land with other primary production activities of the same kind, in this case cattle-raising, and with how land is generally used.
3. Accordingly, this ground of appeal fails.

Ground 7- Business Plan and intentions of future use

1. For the reasons set out above concerning business activities in previous years, in our view a business plan prepared in the relevant year as part of a continuing operation is relevant to determining whether the dominant use and commercial purpose tests are satisfied, whether or not it has been implemented. This is because it may be evidence that a particular use is dominant or that the use has a significant and substantial commercial purpose or character.
2. In any event, in the present case the Tribunal concluded at [58] that the "Business Plan had already commenced operation"

Leave to appeal

1. The Tribunal was obviously satisfied that the taxpayer had met its onus of proof to the requisite standard and that it was entitled to the exemption.
2. However, only some of the evidence was explicitly mentioned in the Tribunal's decision. The documentary evidence and transcript were included in the appeal papers. In determining the leave issue we see utility in setting out relevant parts of the evidence in more detail.
3. A review of the evidence which was before the Tribunal (which was largely unchallenged by the Chief Commissioner) and the parties' submissions below reveals a number of matters relevant to the commercial purpose test in s10AA(2) (LTMA). Not all of these matters are reflected in reasons for decision of the Tribunal.
4. The general principles regarding the grant of leave to appeal on the merits are summarised in Collins v Urban [2014] NSWCATAP 17 at [84]. There the Appeal Panel said: In order to be granted leave to appeal, the applicant must demonstrate something more than the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact.
5. In Collins at [84] the Appeal Panel also said that one circumstance where it may be appropriate to grant leave to appeal is in matters that involve issues of principle, and/or questions of public importance, or matters of administration or policy which might have general application. Here the Tribunal decision does not involve an issue of unsettled legal principle. The Tribunal came to a finding of fact which had the result that the taxpayer was exempt from land tax.
6. Further, there appears to be no commercial principle which overlaps with questions of public importance.
7. The evidence of Mr Nathan Jennings the Senior Land Services Officer (Agricultural Advice - Livestock) North Coast Local Lands Services (a NSW Government Agency) (Affidavit of Mr G E Bennett 10/3/2016 (GEB1); Annexure."C") which is referred to in paragraph 27 of the Tribunal decision, was that the Northern Rivers District of NSW represents 10.6% of NSW cattle producing properties (and 3.7% of Australian cattle properties). Mr Jennings says that the Northern Rivers cattle production is "primarily from small breeding herds of less than 100 head...my point is that herd sizes on the North Coast are typically small..." (p.384.5).
8. While we infer from this that there could be quite a number of North Coast cattle producers (and other smaller producers across the state) in a similar position to the Bennett family operation who would potentially be affected by a decision that they did not meet the commercial purpose test in s10AA(2) LTMA, the use of comparative information in determining whether the relevant tests in s10AA of the LTMA are satisfied has been dealt with in the decisions to which we have referred.
9. The only other question raised in Collins that is relevant here is whether there is an injustice which is reasonably clear, in the sense of going beyond merely what is arguable: an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand or a factual error that was unreasonably arrived at and clearly mistaken.
10. In assessing this question, it must be borne in mind that the present examination concerns the facts regarding the user of the three parcels of land, Tallawudjah, which conducted the cattle breeding operations thereon. The evidence established that Tallawudjah used all three parcels of land in its beef operation, being land: 1. at Shipman Road, Glenreagh (101 hectares); 2. at Tallawudjah Creek Road, Glenreagh (138 hectares) (see GEB1 paragraph 6); and 3. the subject land at Woolgoolga (3 hectares) (GEB1 paragraph 18).
11. The Shipman Road property had been in the Bennett family since 1983 and the Tallawudjah Creek Road property since 1966; (GEB1 Paras 1 and 6); and the Woolgoolga property since 1974 (GEB1 para 20). Mr Bennett's father had conducted the business initially, and gradually retired as Mr Bennett took over from 1990 (GEB1 para 43), and he and Mr Bennett have made their living from farming operations (GEB 1 paras 70-72).
12. Mr Bennett, his wife and children have had their family home (farm house) on the Tallawudjah Creek Road property since 1975.
13. The two Glenreagh properties normally carry 120 breeding cattle (including old and young cows, plus their progeny (GEB1 para 60).
14. The Woolgoolga property can support four to six cattle and is used to fatten up older cows. (GEB1 paras 64 to 65).
15. With a normal size herd, the turn off of cattle for sale would be around 80 head per annum, but were lower than that in 2012-2014 (GEB1 para 81).
16. There is no direct evidence of the carrying capacity of the Glenreagh properties but Mr Bennett does say he manages the stock levels to ensure they are optimised according to prevailing pasture conditions in accordance with the training he has received in this field (GEB1 para 62). There is also indirect evidence of Mr Nathan Jennings (GEB1 Annexure 'C') concerning Northern Rivers cattle producers mentioned earlier, and correspondence from Mr Ray Donovan dated 2 December 2015, the Bennett stock and station agent, who states that the Bennett family run "approximately 100 breeders" (GEB1 Annexure 'J').
17. The evidence of man hours worked by Mr Bennett and his family mentioned later suggest that they could not feasibly run many more cattle on the consolidated property, so we can infer they are being run to full capacity according to conditions.
18. Mr Bennett's evidence is that the size of the herd declined and the profitability of the business did also during the land tax years in question. Profitability is a factor to be considered in evaluation of the significance and substance of the commercial purpose or character of the operation in question.
19. In Vartuli White J said at [129]: [F]or the use of the land to have a significant and substantial commercial purpose or character, the use must have a character such that it generates, or can reasonably be expected to generate, profit that contributes in a real and not trifling way to the user's income, or a purpose of generating such profit.
20. His Honour also said at [118]-[119] : Although it is impossible to say how many of the small cattle operations whose financial results are summarised in the publications referred to at [77]-[82] would individually satisfy a test of use of the being for a significant and substantial commercial purpose or character, it is clear from the statistics that there are thousands of beef cattle farms of a comparable size to the cattle operations [of the beef growers in Vartuli] and that, on average, small beef producers made losses in the financial years ended 30 June 2007, 2008, 2009, 2010, and 2012. 2011 seems to have been the only good year across the industry. These facts are relevant in assessing whether one should infer an absence of commercial purpose, or of a significant and substantial commercial purpose, from the lack of profits.
21. On appeal in Vartuli the Court of Appeal explained that profitability is only one of a number of factors to be considered at [126], and that a taxpayer could have difficulty satisfying s.10AA(2)(a) of the LTMA if no profits or very small profits are made spanning many land tax years (and that this would be relevant to s.10AA(2)(b) as well) (at [138].)
22. Mr Bennett provided evidence of the family making a living from farming (GEB 1 paras 70-73); and an explanation for the problems the business suffered in GEB1 para 63, which include drought in 2011 and 2012; floods in 2013; more drought in late 2013 and 2014; low conception rates; stock deaths; poor pasture; and incursion by other animals (wild dogs and kangaroos). The live cattle export ban in 2011 meant more stock was available on the domestic market and consequently lower prices (GEB1 para 84).
23. There was no direct evidence concerning the quality of the herd of cattle during the land tax years in question but it is possible to infer from evidence about weight gain of cows kept on the subject land that they were of superior value at market (GEB 1 par23 and Annexure I).
24. The evidence concerning the resources devoted to the business was quite comprehensive.
25. The Tribunal below referred at para [54] to the evidence of the human resources and details of the work done by reference to the man hours spent by Mr Bennett and his father working in the cattle business (Mr Bennett 2,600 hours per annum at Glenreagh; and Mr Bennett and his father 600 to 800 hours per annum at Woolgoolga) (GEB1 paras 56 and 57). The rest of Mr Bennett's family assisted in managing the cattle business as well (GEB1 para 9).
26. With this amount of work required in addition to a part-time teaching job for Mr Bennett and an off-farm job for his wife, this was obviously not a hobby or sideline for the Bennett family.
27. The fixed assets on the properties, in addition to the family farm house at Glenreagh, included at Glenreagh:
28. Three storage sheds and two sets of cattle stockyards (GEB1 para 12).
29. A bore for water.
30. Stock troughs and other water infrastructure.
31. Fencing (GEB1 paras 13 and 14).
32. and at Woolgoolga:
33. A shed.
34. One set of cattle stockyards.
35. A small nursery block of bananas (a legacy of a time when bananas were growing there commercially).
36. Watering facilities (not specified) (GEB1 paras 26 to 28).
37. Fencing (Affidavit of Mr G E Bennett of 4/8/2016 (GEB3) para 9).
38. The major items of equipment used in the cattle breeding business included:
39. Four tractors.
40. A slasher.
41. Two table-top trucks.
42. Attachments for tractors.
43. Motor bikes, horses and working dogs.
44. A specialised cattle crush.
45. Various other items for handling and treating cattle (GEB1 para 34).
46. The pastures may have been improved on all the three parcels but the details were scant (Tallawudjah's profit and loss statement for year ended 30 June 2008 mentions fertiliser expense as does the P&L for 1989 (GEB 1 Annexure L)).
47. As mentioned earlier, Mr Bennett stated that he took over the family cattle business from his father progressively from 1990 onwards but the business has been in the family for over 50 years. Mr Bennett gave further evidence of his involvement in a co-operative meat marketing business with six other producers (The Big River Beef Operation) (GEB1 para 58(b)); and various other local and producer organisations relevant to the beef cattle business (GEB1 para 58).
48. There was also evidence of the productivity of the subject land by reference to weight gain of cattle averaging 432 kg/ha/pa in 2011-12 and 350kg/ha/pa in 2013-14 (GEB1 Annexure I). By comparison, evidence in Vartuli at first instance at [60] was that benchmark producers on the northern tablelands and north coast of NSW were producing an average of 257 kilograms per hectare. While this may not be a true 'apples with apples' comparison it indicates the productive capacity of the subject land.
49. In our view the cattle business is a serious, full-time business of long-standing. While it has a scale which may be small in the Australia-wide picture, the scale is typical of beef producers in the Northern Rivers area of NSW. Notwithstanding the lack of profits in the land tax years under challenge it has been conducted in a business- like manner with a purpose of generating a profit that will support the Bennett family. We consider it could be reasonably expected to generate a significant profit in the future (according to Affidavit of Mr G E Bennett of 1/7/2016 (GEB2) Annexure A) when economic and environmental conditions improve as it has in previous years (GEB1 paras 70-73). In this regard we note the affidavits were admitted without objection (Transcript p5- appeal bundle p20) and there was no cross-examination on these matters.
50. It follows that the use has a significant and substantial commercial purpose or character.
51. The second part of the commercial purpose test in s10AA(2) (LTMA) is that the use of the Land is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made). As we have said earlier, the evidence is that the Bennett family put significant labour and other resources into the properties over the land tax years in question.
52. The Chief Commissioner summarised the financial position in paragraph 8.4 of his submissions on this appeal. Each of the 5 financial years from 30 June 2011 to 30 June 2015 show annual losses from the beef operations ranging from $39,987.00 down to $599.00. These losses did not take into account interest expenses incurred by Tallawudjah.
53. In Maraya the Court of Appeal said at paragraph [107]: While the absence of a profit does not negate an engagement in a primary production use of land for the purpose of profit, a continuous pattern of a lack of profit may lead the court to question and, in appropriate cases, to reject evidence that the primary production use of the land was engaged in for the purpose of profit.
54. Mr Bennett's evidence provides explanations for this loss making performance as we mentioned in paragraph [71] above (i.e. drought, floods, low fertility, live cattle export ban, wild dogs, kangaroo competition for feed etc.). This evidence was not contradicted.
55. Mr Bennett's claim (GEB1 para 72) that "the family's farming business has provided us with our income and lifestyle during that time [since 1975], at the present and will continue to do so in the future" must be taken with a grain of salt, as must his statement that the farming business was the family's principal source of income (GEB1 para 73).
56. During the relevant loss making land tax years the family farming business seems to have provided a family home and vehicles, and possibly meat and vegetables. Proceeds of stock sales may have been a temporary source of financial support, but off-farm income from part-time jobs held by Mr Bennett and his wife appear to have enabled them to get by. Their three children have their own families and we infer that they are not dependants (GEB1 para 72).
57. The evidence did not address the value of the family farmhouse as rent-free accommodation. The business motor vehicle expenses for the year ended 30 June 2015 (including depreciation) are shown in Tallawudjah's detailed profit and loss account ( GEB2 Annexure 'C') as being over $15,000.00. We infer that the availability of the above accommodation and vehicle benefits did contribute to the maintenance of the Bennetts.
58. As stated above, the business appears to have had a history of profitmaking (see eg GEB 1 paras 70-73).
59. The Chief Commissioner in ground 7 of its second amended notice of appeal claimed the Tribunal erred in having regard to the evidence of the respondent in the appeal as to the intentions [of Tallawudjah not the respondent we note] for the future use of the Land.
60. In his submissions the Chief Commissioner elaborated on this ground, saying that the Tribunal erred by taking into account the adoption of a Business Plan for 2016 to 2021 (GEB2 Annexure 'A' mentioned at paras [57] to [59] of the Tribunal decision) which was designed to make the business more profitable through the cross-breeding of cattle with Wagyu cattle which made the progeny more valuable. Although care must be taken in attributing too much weight to future business plans for years which are not in contention, in our view it is legitimate to take Mr Bennett's development of a Business Plan to improve profitability into account in deciding the second part of the commercial purpose test in s10AA(2) (LTMA). Further, and in any event, the Tribunal found the business plan was already being implemented in the relevant year.
61. When taken as a whole, in our view the findings made by the Tribunal were open to it on the evidence. An analysis of the material provided on appeal and to which we have referred above does not demonstrate any clear and obvious error.
62. The appellant did not provide evidence to contradict the evidence of the respondent and, as we have said above, there was limited cross-examination of the respondent's witnesses by the appellant.
63. In these circumstances we are not satisfied that there is any relevant injustice or that we should grant leave to appeal.

Orders

1. The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is dismissed. 2. Any application for costs must be filed and served within 7 days from the date of these orders.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 19 September 2017 - Date of Orders/Decision corrected to 'September' from 'August' 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. Decision last updated: 19 September 2017