Commissioner of State Revenue v Harrison [2019] QCA 50

SUPREME COURT OF QUEENSLAND

CITATION: Commissioner of State Revenue v Harrison [2019] QCA 50

PARTIES: COMMISSIONER OF STATE REVENUE (applicant) v FRANCIS LISTER HARRISON (respondent)

FILE NO/S: Appeal No 6980 of 2018 / QCATA No 72 of 2018

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2018] QCATA 75

DELIVERED ON: 26 March 2019

DELIVERED AT: Brisbane

HEARING DATE: 24 October 2018

JUDGES: Morrison and Philippides JJA and Davis J

ORDERS: Leave to appeal is refused.The parties have leave to deliver written submissions within fourteen days on the question of whether the Chorley exception applies to enable the respondent to claim professional costs.

CATCHWORDS: APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the applicant applies for leave to the Court of Appeal to appeal a decision of the QCAT Appeal Tribunal – where the identification of an error of law is not sufficient, of itself, to warrant a grant of leave – where leave will be granted where a substantial injustice has been sustained or an important principle arises – where the applicant applies on the sole basis that the appeal raises issues of public importance – whether leave to appeal ought to be granted / TAXES AND DUTIES – LAND TAX – LIABILITY FOR LAND TAX – where the respondent and his wife have three adult children – where the respondent was the registered owner of three residential properties other than his own residence – where he was assessed as liable for land tax in each of the 2014 and 2015 years calculated on the aggregate value of the three properties – where the QCAT Appeal Tribunal found the value of the properties should not be aggregated for the purposes of land tax calculation – whether the Appeal Tribunal erred / EQUITY – TRUSTS AND TRUSTEES – DISCRETIONARY TRUSTS – CREATION AND EFFECT GENERALLY – where the respondent contended that each property was held by him as trustee for one of his children – where the QCAT Appeal Tribunal found that each child had agreed to rent each property from their father on the basis that their parents would make mutual wills leaving each property to the relevant child – whether the Appeal Tribunal erred / Land Tax Act 2010 (Qld), s 8, s 10, s 19, s 20 / Taxation Administration Act 2001 (Qld), s 63, s 67, s 68, s 69 / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 25, s 26, s 27, s 142, s 150 / Barns v Barns (2003) 214 CLR 169; [2003] HCA 9, followed / Bown v Lee [2018] QCA 13, cited / Cachia v Hanes (1994) 179 CLR 101; [1994] HCA 14, cited / Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10, cited / Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd [2004] SASC 161, considered / London Scottish Benefit Society v Chorley (1884) 13 QBD 872, cited / Murphy v Legal Services Commissioner (No 2) [2013] QSC 253, considered / Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150, considered / Pickering v McArthur [2005] QCA 294, cited

COUNSEL: M Brennan QC, with M Conrick, for the applicant / The respondent appeared on his own behalf

SOLICITORS: Crown Law for the applicant / The respondent appeared on his own behalf

1. MORRISON JA: I have had the benefit of reading the draft reasons prepared by Davis J. I have respectfully come to a different conclusion from his Honour as to the outcome of this application. As mine is the minority view I shall express my reasons in as short a form as possible.

2. Subject to what follows I am able to adopt the general outline of the facts from the reasons of Davis J.

3. The decision of the QCAT Appeal Tribunal proceeded upon the basis that there was only one agreement between the respondent and each relevant child in respect of the purchase of the property in which that child was entitled to live, the payment of rent by that child, and the making of mutual wills leaving that property to that child.¹That was an error of law. There were separate, though related, agreements. One was that whereby the respondent would buy a property in his own name, borrowing and mortgaging the property for that purpose, but the relevant child would be entitled to occupy upon payment of rent. The second was for the making of mutual wills by the respondent and his wife.

4. When first putting his case to the Commissioner in 2013, the respondent identified the factual basis of the claim to relief.²He referred to the wills which recorded that the respondent and his wife “agreed some time ago … that … [the respondent] would buy a house for each of Amy and Tom”. The respondent then referred to the fact that whilst some changes could be made to the wills they could not be altered in respect of leaving the property to the relevant child, and said:³

“However, we are not entitled to change them insofar as they deal with the house properties, in that we have promised each of the beneficiaries that we will leave their house to them, and they have each accepted that promise. As well, they have each agreed to become our tenants in return for our promise to leave the houses to them in our wills. In so agreeing, they have also accepted the benefit of the agreement between Gailene and me. Tom and Helen did this by selling their previous house, and all of the beneficiaries did so by occupying their houses and paying “rent”, the purpose of which is, among other things, to offset the interest cost of the borrowings I had to make to buy the properties, and to provide us with an income after I retire, and as well by maintaining and in some cases making improvements to the properties.”

5. The contention that the children accepted the benefit of the agreement between the respondent and his wife evidently refers to the fact that the promises to leave the property in the will are separate from the agreement for occupation and rent. Were all those promises in the one agreement there would be no question of accepting the benefit, a concept relevant only to s 55 of the Property Law Act 1974 (Qld).

6. Subsequently, when seeking to object to the land tax assessment the respondent outlined the arrangement:⁴

“Here, the beneficiaries are entitled to succeed to the land on the death of the last to die of me and my wife, but are also obliged by a related contract to pay me, and after my death, my wife, an occupation fee.”

7. In context that statement is plain in its meaning, namely that the agreement under which each relevant child occupies and pays rent is a separate agreement from that which obliges the making of mutual wills.

8. The error may have been generated, in the first instance, from the imprecise way in which the facts were set out by the Member at first instance.⁵And, compounded by the fact that neither party contested the facts as found by the Member.⁶

9. However, the result is that the QCAT Appeal Tribunal has considered the various issues on the basis of an error of law.

10. The respondent’s characterisation of the agreement concerning occupation and rent was that it was merely an alternative method of financing the acquisition of the properties by the respondent’s children as the respondent had the borrowing capacity and they did not.⁷

11. The respondent did not receive the rent in his capacity as trustee, but personally.⁸The purpose of the rent was among other things, to offset the interest cost of the borrowings made to buy the properties⁹and to provide the respondent and his wife with an income after the respondent retired.

12. Because of the error identified above the QCAT Appeal Tribunal did not consider the legal effect of the arrangements on a proper footing. For example, it is arguable that the agreement under which the properties were acquired and the children occupied, paying rent, was not such as would give the children a beneficial interest in the land. It was a right to occupy upon the payment of rent.¹⁰If any child refused to pay the rent there is no reason to conclude that they could nonetheless insist on the continued right to occupy the property.

13. Further, the separate agreement by the respondent and his wife, on the one hand, and the relevant child on the other, was that mutual wills would be made, leaving each property to the relevant child. For the reasons given in Barns v Barns¹¹that agreement, and the mutual wills, did not create a beneficial interest in the children as such an interest does not arise before the death of the last survivor. As was said by Gummow and Hayne JJ in :

“[80] There is no substance in a submission by which the relations between the parties to the Deed were translated from the level of contract to that of trust so as to bind the property of Mr Barns forthwith and in advance of his death. In Central Trust and Safe Deposit Co v Snider, Lord Parker of Waddington, for the Judicial Committee, said:

“A contract to devise a beneficial interest assumes an estate in the person who contracts sufficient to enable the contract to be performed, and it would be contrary to ordinary equitable principles to construe a promise to settle as a present declaration of trust.”

…

[84] It may be accepted that were Mrs Barns, having taken the benefit of her interest in the unadministered estate of Mr Barns, thereafter to depart from her obligations owed to Mr Malcolm Barns in accordance with the Deed not to revoke her will without his written consent, such unconscientious conduct would attract equitable intervention. Birmingham v Renfrew was such a case. The survivor had died leaving a new will and the case, as Latham CJ put it, concerned “a trust which is declared by the law to affect the conscience of his executor and of the volunteers who are devisees or legatees under his will”. In the Supreme Court of Victoria, Gavan Duffy J had declared that the contract in question bound the executors of the will of the survivor and stood over all questions as to the form of further relief. Thereafter, the High Court dismissed the appeal, leaving it to the Supreme Court to formulate the terms of the constructive trust which bound the executors in their administration.

[85] That outcome in Birmingham does not support the proposition for which the first respondent contends on this appeal. The contention (rejected in most academic writing on the subject) is that, in these cases, a beneficial interest of the survivor in the assets of the first testator to die arises before the death of the first testator and the due administration of that first estate; the consequence is the withdrawal of the subject matter from that estate. What is particularly significant for present purposes are the points emphasised in Birmingham and in other decisions. The propositions are: (i) it is the disposition of the property by the first party under a will in the agreed form and upon the faith of the survivor carrying out the obligation of the contract which attracts the intervention of equity in favour of the survivor; (ii) that intervention is by the imposition of a trust of a particular character; (iii) the subject-matter is “the property passing [to the survivor] under the will of the party first dying”; (iv) that which passes to the survivor is identified after due administration by the legal personal representative whereupon “the dispositions of the will become operative”; (v) there is “a floating obligation” over that property which has passed to the survivor; it is suspended during the lifetime of the survivor and “crystallises” into a trust upon the assets of the survivor at death.”

14. The respondent’s submissions to this Court conflated the two agreements and on that basis it was contended that Barns was distinguishable.¹³

15. As Davis J has pointed out, the identification of an error of law is not sufficient, of itself, to warrant a grant of leave. Pickering v McArthur¹⁴is authority for the proposition that leave will be granted where a substantial injustice has been sustained, or some other important point of principle arises. When the court in Pickering referred to a substantial injustice, the example given was from the decision in Hockley v Sowden,¹⁵where the amount at issue was for damages for personal injuries of about $7,000, but on questions affected by discretionary areas upon which different minds might form different impressions. That is not the case here. The amount of land tax is an annual sum of about $17,000¹⁶and, subject to the resolution of the legal issues, is not the subject of considerations such as were attendant in Hockley v Sowden. Moreover, given that the respondent’s arrangements may continue for some time, the overall monetary impact on the applicant assumes some importance.

16. Further, this court has held that where a party’s real case has not been considered that is a ground for leave.¹⁷Here the QCAT Appeal Tribunal has not considered the real case.

17. Finally, I am unpersuaded that the arrangements made by the respondent with his family members are necessarily a “unique set of facts that are unlikely to be repeated precisely”.¹⁸The concept of an agreement, for whatever reason, to purchase an asset for a relative to use until it is conveyed to them upon the death of the purchaser, cannot be solely attributed to the creative abilities of the respondent. There exists the possibility that similar circumstances will arise.¹⁹

18. With that possibility alive, the result of the decision below is one that may in fact be of the kind to enliven a wider application than to simply the particular facts of this case.

“… the present case involved the giving of specific consideration on the part of the children, not only their promises under the agreement but in one case selling an existing property to take up occupation. Furthermore, it was accepted that each of the children had performed the part of the agreement by paying the so-called ‘rent’ on the property.”

30. Further, I agree for the reasons given by Davis J that irrespective of whether an error of law was established as contended for by the applicant, no substantial injustice was shown, nor was an important point of principle raised to warrant the granting of leave. While the applicant made some oral submissions in reply directed to the quantum of the dispute between the parties, that was not the basis on which the amended notice of appeal was framed. Rather, it was that the decision of the Tribunal had wide ranging implications of general application. However, the Tribunal’s decision was concerned with the particular factual circumstances arising in the case before it, as is evident from the judgment of the Tribunal. I agree with Davis J that the circumstances are unique in the sense that they are particular to this case.

31. Accordingly, I join with the orders proposed by Davis J.

32. DAVIS J: This is an application by the Commissioner of State Revenue for leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) in its appellate jurisdiction (the Appeal Tribunal).

Background

33. Mr Harrison and his wife have three adult children, Amy, Tom and Matthew. Mr Harrison was the registered owner of three residential properties other than his own residence. He was assessed as liable for land tax in each of the 2014 and 2015 years calculated on the aggregate value of the three properties. He objected to the assessment. Mr Harrison’s argument, put simply, is that each property was held by him as trustee for one of his children, and therefore the value of the properties should not be aggregated for the purposes of land tax calculation. The Commissioner disallowed the objections.

34. Mr Harrison applied to QCAT for a review of the decision to disallow the objections. That application was dismissed.³⁸

35. From that decision, Mr Harrison appealed to the Appeal Tribunal. In the Appeal Tribunal there was no factual contest. The Tribunal said:

“[8] For the purposes of the appeal, we proceed on the basis of the uncontested findings of fact made by the member below. The following findings may be extracted from the reasons.

[9] The appellant is married to Gailene Harrison. They have three children. For ease of identification, adopting the same practice as the tribunal below, we shall refer to them as Amy, Tom and Matthew.

[10] Some time before April 2008, the appellant and Mrs Harrison made agreements with Amy and Tom, and some years later, a similar agreement with Matthew, to the effect that:

(a)the appellant would buy a house near his home, in which Amy and her family would live;

(b)the appellant would buy a house near his home, in which Tom and his family would live;

(c)Tom and his wife would sell the house which they currently owned;

(d)the appellant would buy a house near his home, in which Matthew would live;

(e)for the purpose of buying those houses, the appellant would borrow funds from his bank, which would take a mortgage over each property, and the appellant would make the repayments on those loans;

(f)each of Amy, Tom and Matthew would pay a reasonable rent for their respective houses to the appellant while he lives and, if he pre-deceases Mrs Harrison, after his death to her while she lives;

(g)the purpose of the rent in each case was to defray the costs of the mortgages and then to provide a source of income for the appellant and Mrs Harrison in their retirements; and

(h)the appellant and Mrs Harrison would make mutual wills, under which they would leave each of the houses to the survivor of them and the survivor would leave to Amy, Tom and Matthew respectively the house in which each child lives.

[11] Later, to give effect to those agreements:

(a)in April 2008, the appellant bought a property in Paddington, into which Amy and her family moved, where they have since lived and in respect of which Amy pays an agreed rent to the appellant;

(b)in or around June 2008, the appellant bought a property in Bardon, into which Tom and his family moved, where they have since lived and in respect of which Tom pays an agreed rent to the appellant;

(c)at about the same time as (b) happened, Tom and his wife sold their former home;

(d)in about December 2011, the appellant bought another property in Paddington, into which Matthew moved, where he has since lived and in respect of which Matthew pays an agreed rent to the appellant;

(e)in October 2011, in anticipation of completion of the purchase of the property for Matthew, the appellant and Mrs Harrison made mutual wills, in which they referred to the arrangements that they had made with their children concerning the properties and they provided for the properties to be left to each of the respective children on the death of the survivor; and

(f)the appellant and Mrs Harrison have since made new wills, but in relevant respects they contain the same terms of the wills referred to in paragraph (e).

[12] In their wills, the appellant and Mrs Harrison also made the following statements in the course of explaining the background to the gifts of the properties to their children (quoting from the appellant’s will):

For their better security, and to achieve flexibility and reduce the cost, including of any applicable taxes, if any of them wanted to sell their houses and buy another, I agreed (by exchange of emails) with each of Amy and Tom, and has [sic] agreed orally with Matthew, such agreement to be confirmed by an exchange of emails, to sell them their house for the price that I paid for it, with it being understood that if such a sale were completed, that they would continue to make payments commensurate with the rent previously paid.”³⁹

36. Mr Harrison was successful in the Appeal Tribunal. The Commissioner seeks to appeal by leave to this Court from that decision.

Relevant provisions of the Land Tax Act 2010 (Qld)

37. Section 8 of the Land Tax Act 2010 (Qld) provides as follows:

“8 Who is liable to pay land tax

The owner of taxable land when a liability for land tax arises is liable to pay the tax.”

38. Section 8 refers to the “owner” of land and that term is defined by section 10. That provides:

“10 Meaning of owner

(1)The owner of land includes the following—

(a)a person jointly or severally entitled to a freehold estate in the land who is in possession;

(b)a person jointly or severally entitled to receive rents and profits from the land;

(c)a person taken to be the owner of the land under this Act.

(2)The fact that a person is the owner of land under a provision of this Act does not prevent another person also being the owner of the land.

(3)This section is subject to sections 12 to 14, 22 and 23.”

39. Section 19 provides that for the purposes of the calculation of land tax, the value of the different parcels of land is aggregated, while section 20 provides special rules in relation to the assessment of land tax on land held on trust. Sections 19 and 20 provide as follows:

“19 General principle—taxable land is aggregated

(1)A taxpayer’s liability for land tax must be assessed on the total taxable value of all taxable land owned by the taxpayer when the liability arises.

Example—

An individual owns 2 properties that are both taxable land. The properties each have a taxable value of $500,000. The taxpayer’s liability for land tax is worked out using the total taxable value of $1,000,000.

(2)This section is subject to sections 20 and 21.

20 Separate assessment of trust land

(1)The liability for land tax of a taxpayer who is a trustee of a trust must be separately assessed on the taxable land that is subject to the trust, as if that land were the only land owned by the taxpayer as a trustee.

(2)However, subsection (1) does not apply if—

(a)the taxpayer is trustee of more than 1 trust; and

(b)the interests of the beneficiaries of 2 or more of the trusts are, when the taxpayer’s liability for land tax arises, the same.

(3)If subsection (1) does not apply, the taxpayer’s liability for land tax as trustee of the trusts mentioned in subsection (2)(b) must be assessed on the total taxable value of all taxable land that is subject to those trusts.”

40. Section 20 contains the terms “beneficiary” and “trustee”. Those terms are defined in schedule 4 of the Land Tax Act as follows:

“beneficiary, of a trust, means a person entitled to a beneficial interest in land or income derived from land that is the subject of the trust.

Note—

See also section 24 for deciding who is a beneficiary of a discretionary trust when a liability for land tax arises.

trustee includes—

(a)a person appointed or constituted trustee by any of the following—

(i)act of parties;

(ii)order or declaration of a court;

(iii)operation of law; and

(b)an executor or administrator, guardian, committee, receiver or liquidator; and

(c)a person—

(i)administering or controlling land affected by an express or implied trust; or

(ii)acting in a fiduciary capacity; or

(iii)possessing, controlling or managing the land of a person under a legal or other disability.”

Relevant provisions of the Taxation Administration Act 2001 (Qld)

41. Section 63 of the Taxation Administration Act 2001 (Qld) gives a taxpayer a right to object to an assessment of tax imposed under different statutes. This is the right that Mr Harrison exercised. There is no doubt that section 63 applies to decisions made by the Commissioner to assess land tax.⁴⁰ Section 63 is as follows:

“63 Right to object

(1)A taxpayer who is dissatisfied with an original assessment, other than a compromise assessment, may object to the assessment.

(2)Also, a taxpayer who is dissatisfied with a reassessment increasing a taxpayer’s liability for tax, or a reassessment under section 18(b) decreasing a taxpayer’s liability for tax, may object to the reassessment.

(3)However, the right of objection to the reassessment is limited to the changes for the particular matters for which the reassessment is made.

(4)A decision or conduct leading up to or forming part of the process of making an assessment is subject to objection only as part of an objection to the assessment.”

42. Sections 64, 65 and 66 are, in essence, machinery provisions. Sections 67 and 68 then provide as follows:

“67 Deciding objection

(1)The commissioner must allow the objection completely or partly or disallow it.

(2)If the assessment to which the objection relates was made by a delegate of the commissioner, the delegate must not decide the objection.

68 Notice of decision

(1)The commissioner must give written notice to the objector of the commissioner’s decision on the objection.

(2)If the objection is allowed in part or disallowed, the notice must state the following—

(a)the decision;

(b)the reasons for the decision;

(c)the taxpayer has a right to—

(i)appeal to the Supreme Court; or

(ii)apply, as provided under the QCAT Act, to QCAT for a review of the commissioner’s decision;

(d)how, and the period within which, the taxpayer may appeal or apply for the review.”

43. Section 69 provides a right of review of the decision of the Commissioner on an objection. This is the section upon which Mr Harrison founded his application to QCAT. It provides:

“69 Right of appeal or review

(1)This section applies to a taxpayer if—

(a)the taxpayer is dissatisfied with the commissioner’s decision on the taxpayer’s objection; and

(b)the taxpayer has paid the whole of the amount of the tax and late payment interest payable under the assessment to which the decision relates.

(2)The taxpayer may, within 60 days after notice is given to the taxpayer of the commissioner’s decision on the objection—

(a)appeal to the Supreme Court; or

(b)apply, as provided under the QCAT Act, to QCAT for a review of the commissioner’s decision.

(3)QCAT may not, under the QCAT Act, section 61(1)(a), extend the period under subsection (2) within which the taxpayer may apply to QCAT for the review.”

44. Mr Harrison chose to challenge the Commissioner’s decision through the avenue provided by s 69(2)(b).

Relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

45. Chapter 2 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) concerns “jurisdiction and procedure”. Section 9 provides as follows:

“9 Jurisdiction generally

(1)The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

(2)Jurisdiction conferred on the tribunal is—

(a)original jurisdiction; or

(b)review jurisdiction; or

(c)appeal jurisdiction.

(3)Without limiting the Acts Interpretation Act 1954, section 49A, an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter.

(4)The tribunal may do all things necessary or convenient for exercising its jurisdiction.”

46. There is no doubt that the Taxation Administration Act is an “enabling Act”. Section 10 of the QCAT Act provides:

“10 Generally

(1)The tribunal’s original jurisdiction is—

(a)the jurisdiction conferred on the tribunal by section 11; and

(b)the jurisdiction conferred on the tribunal under an enabling Act to decide a matter in the first instance.

(2)The tribunal’s original jurisdiction under subsection (1)(b) includes jurisdiction conferred on the tribunal under an enabling Act to review a decision of the tribunal made under the enabling Act.”⁴¹

47. Mr Harrison’s application to QCAT in its original jurisdiction was made pursuant to section 10(2)

48. Sections 25, 26 and 27 concern the appeal jurisdiction of QCAT and provide as follows:

“25 Generally

The tribunal’s appeal jurisdiction is—

(a)the jurisdiction conferred on the tribunal by section 26; and

(b)the jurisdiction conferred on the tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act.

26 Jurisdiction for decisions of the tribunal

The tribunal has jurisdiction to hear and decide an appeal against a decision of the tribunal in the circumstances mentioned in section 142.

27 When appeal jurisdiction exercised

The tribunal may exercise its appeal jurisdiction if a person has, under this Act or an enabling Act, appealed to the tribunal against a decision for which it has appeal jurisdiction.”⁴²

49. Section 26 refers to section 142. That section is as follows:

“142 Party may appeal

(1)A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.

(2)However, a party to a proceeding can not appeal to the appeal tribunal against the following decisions of the tribunal—

(a)a decision under section 35;

(b)a decision to set aside a decision by default under section 51;

(c) a cost-amount decision.

(3)Also—

(a)an appeal under subsection (1) against any of the following decisions of the tribunal may be made only if the party has obtained the appeal tribunal’s leave to appeal—

(i)a decision in a proceeding for a minor civil dispute;

(ii)a decision that is not the tribunal’s final decision in a proceeding;

(iii)a costs order; and

(b)an appeal under subsection (1) on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the appeal tribunal’s leave to appeal.”⁴³

50. The decision made by QCAT here in its original jurisdiction was made by a tribunal not constituted by judicial member.

51. An appeal from the Appeal Tribunal is provided by s 150 of the QCAT Act. Section 150 provides:

“150 Party may appeal—decisions of appeal tribunal

(1)A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.

(2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—

(a)a cost-amount decision;

(b)the final decision.

(3)However, an appeal under subsection (1) or (2) may be made—

(a)only on a question of law; and

(b)only if the party has obtained the court’s leave to appeal.”

52. The application by the Commissioner for leave to appeal is made under s 150(2). This Court then only has jurisdiction to hear an appeal on a question on law. Exercise of the jurisdiction is at the discretion of the Court; the Commissioner must obtain leave.

The decision of the Appeal Tribunal

53. Before the Appeal Tribunal, Mr Harrison argued that the three trusts arose in one of four ways:

(i)estoppel by representation;

(ii)common intention constructive trust;

(iii)trust arising from promises to leave property by will; and

(iv)trust sub modo.

Estoppel by representation

54. The Appeal Tribunal found that there was a representation by Mr Harrison to his children that the property would be left to them if they participated in the arrangements to take up occupation and paid rent. The appeal tribunal held:

“[46] The evidence here demonstrates that the agreement was one to leave the property to the children, and was not merely a promise to make a will in a particular form to do so at some other time.

[47] We accept that the present case involved the giving of specific consideration on the part of the children, not only their promises under the agreement but in one case selling an existing property to take up occupation. Furthermore, it was accepted that each of the children had performed the part of the agreement by paying the so-called “rent” on the property.

[48] In our view, the learned Member erred in failing to conclude that there was evidence of sufficient detriment to establish a constructive trust based upon the arrangements in place between the parties. The result is that at the time of the relevant assessments, the appellant held each of the three relevant properties on trust individually for each of those adult children.”⁴⁴

Common intention constructive trust

55. It was argued by Mr Harrison that even if there was no relevant and operative representation by him to his children, he and his children held a common intention that would give rise to a trust. The Appeal Tribunal proceeded on the basis that for such a trust to arise, detriment would have to be demonstrated. The Appeal Tribunal concluded, on this point:

“[52] In our view, in any event, there was sufficient detriment to enable a conclusion to be reached that the appellant held each of the properties on constructive trust based on the common intention of the parties.”⁴⁵

Trust arising from promises to leave property by will

56. The Appeal Tribunal analysed the decision of the High Court in Barns v Barns,⁴⁶ and then concluded:

“[65] It follows from Barns that the mere execution of the wills, even containing a promise to leave specific property, did not involve a transfer of the beneficial ownership of the assets, and would require something more to create a present declaration of trust.”⁴⁷

Trusts sub modo

57. Mr Harrison’s argument to the Appeal Tribunal was that a trust arose from the promise to convey an interest in land. That submission was rejected by the Appeal Tribunal.⁴⁸

58. Other matters were considered by the Appeal Tribunal which are not relevant to the present application.

59. The Appeal Tribunal therefore found in favour of Mr Harrison on the basis that a constructive trust has arisen either as a result of representations or the formation of a common understanding converted then to an interest by the Harrison children acting to their detriment.

The points of law said to arise

60. The amended notice of appeal contained two grounds. Ground 1 alleges that the Appeal Tribunal erred when finding that a trust arose as a result of estoppel by representation. The question of law said to arise from that is:

“Does A, being a person who holds legal title to specific real property and who by representation or agreement causes another, B, to expect that he or she will be given an interest in that real property on the death of A and his spouse, hold that real property as trustee on trust for B, notwithstanding that A has adhered to the representation or agreement and has not resiled from it in any way?”

61. Ground 2 of the notice of appeal alleges that the appeal tribunal erred in finding a constructive trust based on a common intention. The point of law said to arise on that ground is as follows:

“Does A, being a person who holds legal title to specific real property and who enters an agreement with B that on A’s and his spouse’s death that specific real property will be left to B, hold that real property as trustee for B from the time of the agreement by virtue of a common intention constructive trust?”

The factors attracting a grant of leave to appeal

62. The Commissioner submits that leave should be granted because:

“3. This appeal raises issues of public importance with respect to:

a. the administration of the Land Tax Act 2010 (LTA);

b. the state revenue and the incidence of land tax;

in that the decision of the Appeal Tribunal has the result that –

i. any registered owner of land who enters into an agreement with another to devise that land by will to the other may be held to be a trustee of that land and entitled to be assessed to land tax on that land as a “trustee” under the LTA;

ii. any registered owner of multiple parcels of land who enters into agreements with others may be held to be a “trustee” under the LTA of a separate trust of each such separate parcel and entitled to have land tax assessed without aggregating the value of such parcels of land.

It is fairly arguable that the Appeal Tribunal erred with respect to each of the questions of law raised in the amended notice of appeal.”

Discussion

63. Mr Harrison submits that the two “questions of law” identified in the notice of appeal are in fact questions of mixed fact and law. It would follow, then, that the Court has no jurisdiction to hear the appeal.

64. Here, the Tribunal in its original jurisdiction found facts. The decision of the Appeal Tribunal was based on those facts. The Commissioner does not challenge any of findings in the present application. The Commissioner submits that on the facts found by the Tribunal and adopted by the Appeal Tribunal, the legal conclusion that constructive trusts had arisen was wrong. That is a matter of law. Whether the legal questions as framed actually arise from the decision of the Appeal Tribunal is another matter, but not one I need decide given that I would not grant leave to appeal in any event.

65. The identification of a question of law is not sufficient to justify a grant of leave. Once a question of law is identified, an applicant still requires leave to appeal and that raises a question of discretion.⁴⁹

66. Leave to appeal would usually be granted where a substantial injustice had been inflicted upon an applicant,⁵⁰or some important point of principle arises.

67. Revenue statutes give rise to special considerations. It is hardly a “substantial injustice” that the State has not recovered what is, in context, a modest sum from Mr Harrison. The real issue is whether or not the appeal raises some question of principle which has importance beyond the confines of the present case.⁵¹The Commissioner here apparently accepts that is the correct approach. In the Commissioner’s written submissions, leave is sought on the basis that the appeal “raises issues of public importance …”. The Commissioner had not sought leave on any other basis. The Commissioner’s articulation of the factors justifying a grant of leave are as set out in full at paragraph [62].

68. I reject the submission that the appeal raises issues of public importance with respect to “the administration of the Land Tax Act”. There was no argument before this Court about the construction of any provision of the Land Tax Act. The parties proceeded on the basis that if Mr Harrison was not a trustee of the three properties, then the land tax was calculated on an aggregation of value, and if he was the trustee, it wasn’t calculated upon an aggregation.

69. I reject the submission that the appeal raises issues of public importance with respect to “the state revenue and the incidence of land tax”.As already observed, the case does not raise issues as to the proper construction of any provisions of the . Further, the case raises no questions as to the proper construction of any provisions of the The case raises no issue as to the construction of any provisions in the or any question as to the rights of review of either the Commissioner or a citizen of decisions made concerning land tax liability.

Costs

73. The respondent is a barrister and he seeks an order for costs entitling him to recover not only out of pocket expenses but also professional costs.

74. The general rule is that a successful self-represented litigant cannot by an order for costs recover compensation for work done personally by the litigant in the case.⁵⁴An exception exists where the self-represented litigant is a solicitor. In those circumstances, it is recognised that the self-represented solicitor may recover professional fees for work done in his or her own case.⁵⁵

75. There has been a difference of judicial opinion as to whether the Chorley exception applies to enable a self-represented barrister to claim professional costs.⁵⁶In the written outlines, the respondent asserts reliance upon the Chorley exception and the appellant submits that the Chorley exception does not extend to self-represented barristers. Neither party made detailed submissions on the point, either in writing or orally. The appellant though has submitted that there are any reasons why costs should not follow the event if the Chorley exception applies in the respondent’s favour.

76. I would reserve the question of costs and give the parties leave to file and serve written submissions within fourteen days on the sole question of whether the Chorley exception applies to enable the respondent to claim professional costs.

Footnotes

1. Harrison v Commissioner of State Revenue [2018] QCATA 75, at [46]-[47], [50]-[52] and [55]-[56]. ↩

2. Letter dated 11 March 2013; AB 180; emphasis added. ↩

3. AB 180-181. ↩

4. AB 176; letter dated 19 March 2015; emphasis added. ↩

5. Harrison v Commissioner of State Revenue [2016] QCAT 150, at [6]-[8]. ↩

6. Harrison v Commissioner of State Revenue [2018] QCATA 75, at [8]; AB 278-279. ↩

7. AB 177. ↩

8. AB 166; 171; 200; QCAT reasons at [9], AB 221-222. ↩

9. Secured by a mortgage. ↩

10. Indeed, it was described as an “occupation fee” by the respondent. ↩

11. (2014) 214 CLR 169; [2003] HCA 9. ↩

12. Barns at [80] and [84]-[85]; internal citations omitted. ↩

13. Outline filed 28 August 2018, paragraph 20; AB 29. ↩