Daoud v Chief Commissioner of State Revenue [2015] NSWCATAD 53 | Case summary

NCAT Administrative and Equal Opportunity|2015-03-26

Background

By an Administrative Review Application form filed in the Tribunal on 9 October 2014 (having been first received on 25 September 2014), the Applicants seek a review of a decision of the Respondent on 15 November 2013 disallowing the Applicants' objection to the payment of land tax on premises at Enmore ("the Enmore property") for the years 2011, 2012 and 2013.
The objection was disallowed for the 2013 year and the objection was treated as not being for the 2011 and 2012 years as they were lodged outside the 60 day period allowed for objections, without an explanation for the delay.
The reason for disallowing the objection for the 2013 tax year was, in accordance with Revenue Ruling No. LT91, that the Applicants charged a tariff of more than $221 per week for each room and accordingly the exemption under s.10Q of the Land Tax Management Act 1956 does not apply.
The Respondent wrote to the Applicants on 12 June 2013 informing them that for the tax year 2013, the exemption for land tax would be disallowed and set out the threshold requirements in respect of the tariff charged on single rooms providing less than full board and lodging.
A land tax assessment notice was issued for the 2013 tax year on 12 June 2013.
The Applicants filed a further Administrative Review Application form on 16 December 2014. By that application, the Applicants seek to challenge the Respondent's decision on the basis that "in calculating a tariff, no consideration should be given to utilities as such is entitled to be charged additionally. Furthermore, the Applicants seek a clear definition of the terms "tariff", "utilities" and "less than full board" and the manner in which these are calculated by the Respondent."
The Applicants require an extension of time within which to file their application for administrative review, it being some 11 months out of time.
For the reasons that follow the Tribunal has determined to refuse the application for an extension of time within which to file the application.

Explanation for Delay

On 13 February 2015, the Applicants filed an affidavit sworn by Robert Daoud on 9 February 2015 providing an explanation for the delay. He provided the following chronology:

20 May 2013 - an application for exemption was filed with the Respondent
mid to late June 2013 - correspondence was received notifying that the exemption had been denied by the Respondent.
July 2013 - he instructed his Accountant to lodge an objection to the decision by the Respondent.
3 September 2013 - the Accountant prepared an objection, which was subsequently signed by him.
Mid-late November 2013 - the Accountant informed him of the correspondence dated 15 November 2013 from the Respondent, disallowing the Applicants' objection.
December 2013, he instructed their solicitors, GA Lawyers, to act for him and to file an Application for Administrative Review and to liaise with the Accountant to obtain the relevant particulars.
On 22 September 2014, unaware of the relevant time period within which to file the Application, he lodged the Application.

In his affidavit, Robert Daoud asserts that from about December 2013 until September 2014, he "had not heard anything" from either his solicitors or his accountant, despite enquiring with them "on many occasions".
On 4 December 2014, the Applicants' accountant, Kerry Loizou, wrote to the Tribunal, setting out the reason for late lodgement of objections in respect of the premises being: "a result of oversight on my part due to the personal problems, and the fact that I had to close my office for long period of time to attend to my father … admitted to hospital … he subsequently passed away on 12 November 2012".

The Respondent's Attitude to an Extension of Time

The Respondent, as set out in a letter to the solicitor for the Applicants dated 25 February 2015, neither objects nor consents to leave being granted to extend time but notes inconsistencies in the Applicants' explanation and a lack of particulars.

Principles Regarding an Extension of Time

Section 41 of the Civil and Administrative Tribunal Act 2013 (NCATA) provides that the Tribunal may by application extend the period of time for the doing of anything under any legislation in respect of which the Tribunal had jurisdiction despite anything to the contrary under that legislation. Such an application may be made even though the relevant period of time has expired.
Accordingly, the discretion to extend time is broad and unfettered. However, it must be exercised judicially and having regard to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. It is also necessary to consider the prospects of the Applicants succeeding in their application. In order to justify the Tribunal extending the time, there must be some material upon which the Tribunal can exercise its discretion: see Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] per McHugh J. and the authorities referred to therein. See also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20].
Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted.
As set out in Jackson v Land and Housing Corporation at [22] albeit in the context of an Appeal, the relevant considerations in deciding whether to grant an extension of time include: 1. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the Applicant Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; 2. The discretion is to be exercised in the light of the fact that the Respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success Jackamarra at [7]; 3. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: 1. The length of the delay; 2. The reason for the delay; 3. The Applicant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the Respondent (to the appeal): Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and 1. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the Applicant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] [59].

Extension of Time to Appeal Consideration

In this matter, the length of delay is approximately 10 months, between November 2013 and September 2014. The explanation for delay is unsatisfactory. In short, the Applicants say that between December 2013 and September 2014, they left the progress of their case in the hands of their solicitor and accountant. Although they assert, that they "had not heard anything" from either their solicitors or accountant, despite enquiring with them "on many occasions", they give no information as to what they did to enquire, whom they enquired of or what response, if any they received. In that time they must have known that the case was not progressing. They assert that they were unaware of the relevant time limits within which to file a review. However, it is noted that they had already been made aware of the expiration of time within which to challenge the 2011 and 2012 assessments and that they were at all material times advised by an account and/or a solicitor. The letter from the Applicants' accountant is equally sparse in its explanation, providing no information concerning the reasons for delay after November 2012, and accordingly not in the relevant time period. There is no explanation from the solicitor.
Accordingly, the Applicants have not adequately explained the delay in the relevant period to explain why the application for review was not lodged within the time limit. The Applicants have been legally represented at all times since December 2013 and there is no suggestion in any of the material that the Applicants were impeded in any way from lodging the Application within time, but rather they did little to ensure the progress of the matter.
Accordingly, there is no basis for the Tribunal to be satisfied that the Applicants have provided an adequate explanation of the delay in lodging the application.
The absence of any proper explanation weighs heavily against the grant of leave to extend time: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
The Tribunal should also consider the Applicants' prospects of success on any application if an extension of time was granted. Without a full hearing, it is suffice to say that although, or perhaps because, "tariff" is not defined in the Land Tax Management Act (including section 10Q relating to low cost accommodation exemptions or reductions), nor in the Office of State Revenue Ruling No. LT091, nor in the Taxation Administration Act, it would be difficult to argue that "tariff" in the Ruling should be construed to allow the division of levies, prices, costs or charges (or however tariff is defined), separating utilities payments for example, to allow for higher payments to be charged by landlords in circumstances where Ruling No. LT091, and section 10Q which underpins it, is directed to exemptions for the provision of low cost accommodation.
Given the other considerations which weigh against an extension of time being granted, the Tribunal considers that the Applicants would have to satisfy it that their case has more substantial merit than merely being fairly arguable: see Jackson at [35] and the cases cited therein. The Applicants have failed to establish such substantial merit, militating against granting an extension of time.
In all the circumstances, the Tribunal finds that refusing to grant leave to extend time would not work an injustice in respect of the Applicants.

Conclusion on Extension of Time and Consequential Matters

For these reasons, the Tribunal has determined that it should not grant the Applicants an extension of time in which to file the application.
The application should be refused, being out of time.

Orders

The Tribunal makes the following order: 1. The application for an extension of time in which to apply for administrative review of the decision made by the Office of State Revenue on 15 November 2013 disallowing the Applicants' objection to the payment of land tax on premises at Enmore ("the Enmore property") for the years 2011, 2012 and 2013 is refused. 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 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: 26 March 2015

Daoud v Chief Commissioner of State Revenue

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