1. The Applicant, a land developer, was incorporated on 28 May 2002.[6] Mr Souhail Mondous has been the sole director, secretary and shareholder at all relevant times.
2. The subject matter of this dispute relates to four land tax assessments, relating to each of the 2006, 2007, 2008 and 2009 land tax years. It is common ground that each assessment falls under the LTA 2005 and the TAA.
3. The Applicant was the registered owner of the subject Lots. The Applicant entered into a number of contracts to sell such Lots and was subsequently assessed for land tax as follows:
   • (a) By notice dated 10 February 2006 totalling $88,106.01 in respect of the 2006 tax year;[7]
   • (b) By notice dated 9 February 2007 totalling $135,260.30 in respect of the 2007 tax year;[8]
   • (c) By notice dated 22 August 2008 totalling $92,155 in respect of the 2008 tax year;[9] and
   • (d) By notice dated 13 February 2009 totalling $57,870 in respect of the 2009 tax year.[10]
4. All four assessments fall under the LTA 2005 read together with the TAA_._ The Applicant objected to the inclusion of certain Lots in each assessment. The grounds of each objection were essentially that:
   • (a) the Lots had been sold/disposed of prior to 31 December in the relevant year;[11] and/or
   • (b) the Lots were sold and possession given to the relevant purchaser before 1 January of the relevant year and/or at the date of the contract.[12]
5. The Applicant claimed that it was not the owner of the Lots for land tax purposes because:
   • (a) each Lot was the subject of a contract of sale;
   • (b) each contract gave the purchaser an entitlement to immediate possession of the Lot; and
   • (c) either 15% of the purchase money had been paid by each purchaser or compliance with that requirement should be excused by the Respondent.
6. The Respondent asked the Applicant for documentary evidence establishing its claim.[13] The documents provided by the Applicant were included in the T documents. In addition, on the first day of the hearing, the Applicant produced a bundle of contracts which purported to be original documents.
7. In relation to the contractual documentation provided by the Applicant, the Tribunal notes that:
   • (a) There are no complete original contracts;
   • (b) The majority of contracts are copies with handwritten particulars; and
   • (c) Many contracts bear handwriting of more than one person.
8. During the course of the hearing, the Applicant withdrew its objections to the following assessments:
   • (a) for the 2006 year in respect of Lots 330 and 2 [also known as Lot E];
   • (b) for the 2007 year in respect of Lots 213, 334 and 2 [also known as Lot E]; and
   • (c) for the 2008 year in respect of Lots F, 404 and 410.
9. During the course of the hearing the Respondent confirmed that objections have or will be allowed in part as follows:
   • (a) assessments for the 2006 year in respect of Lots 248, 339 and 340;
   • (b) assessment for the 2008 year in respect of Lot 213; and
   • (c) assessment for the 2009 year in respect of Lot 213.
10. Consequently, no reference will be made in these Reasons to the subject matter of those objections which have been withdrawn or allowed.

1. The Applicant's primary submission is that, notwithstanding that less than 15% deposit was paid in each case, it answers the criteria in paras 16(3)(a) and (b) in respect of each Lot and this of itself suffices for the discretion to be exercised. That is, para 16(1)(b) does not import the requirement of possession in para 16(1)(a) such that sub-s 16(3) is to be read on its own and does not require the taking of possession. On this basis, it is contended that the Applicant was not liable for land tax for the years assessed.[14]

1. If the Tribunal determines that the taking of possession in para 16(1)(a) is required, the Applicant submitted that the reference to possession requires an entitlement to possession only. Most contracts conferred a contractual entitlement to go onto the Lot from payment of the deposit, namely Lots 249, 328, 306, 308, 312, 313, 331, 401, 405, 441, 443, 445, and 446.
2. Each purchaser of the above Lots was contractually granted de-facto possession and the right to assume possession. Each purchaser had possession delivered to it, either on the day the contract was made or when the initial deposit was paid (as applicable).
3. Counsel further submitted that it is irrelevant whether each purchaser actually went onto the Lot. Each purchaser took possession of the relevant Lot in the sense contemplated by ss 15 and 16 of the LTA 2005, even if it did not take actual physical possession. All that is required is de-facto possession or the right to assume possession. In some cases purchasers took actual possession.
4. In relation to Lots 306, 316, 317, 321, 322, 330, 337, 338, 333 and 335 Counsel referred to a copy of a contract between Pioneer Homes Pty Ltd ('Pioneer') and Dalmont Bay Pty Ltd,[15] which Mr Mondous said was a replica of the contract relied upon by the Applicant. By virtue of Pioneer (or Devine Pty Ltd for Lot 321) being the effective owner of each of these Lots as at 31 December 2006, the Applicant submitted that the requirements in paras 16(3)(a) and (b) were satisfied. Accordingly, the Tribunal should deem the Applicant not to be the owner of each Lot for the 2007 year.

1. The Respondent submitted that the following legal framework flows from an application of the relevant statutory provisions.
2. First, the provisions operate where, on or before the taxing date, there is in force 'a contract of sale' with a 'vendor' and 'purchaser'.
3. Secondly, the purpose of the provisions is that the vendor should remain liable for the land tax payable on the land until possession has passed to the purchaser under a genuine and not 'dummy'[16] contract. Hence the requirement that at least 15% of the purchase money be paid, which is directed primarily at:[17]

the prevention of nominal sales by a large landholder for the purpose of escaping the higher rate of taxation. If the seller was a large landholder, then he is deemed to remain the owner of the land... not only until possession has been obtained by the purchaser... but until at least 15 per centum of the purchase money has been paid.

1. Thirdly, in respect of sub-s 15(1) and para 16(1)(a) of the LTA 2005, the phrase 'the purchaser has taken possession of the land' contemplates more than the purchaser merely 'becoming entitled to possession'.[18]
2. Fourthly, it is implied that possession must be obtained by the purchaser 'as purchaser'; that is, 'pursuant to the contract of sale':[19]

[W]hen a person is spoken of as being in possession as purchaser it is but a colloquial method of indicating the particular right under which possession is maintained.[20]

1. Fifthly, s 9AD of the Sale of Land Act 1962 provides that the purchaser under a contract to buy a Lot on an unregistered plan of subdivision is not entitled to possession of the Lot before registration of the plan. Such a purchaser therefore will not be deemed to be the owner of the Lot before registration of the plan.
2. Sixthly, in the absence of any provision to the contrary in the contract of sale, the purchaser is not entitled to possession until payment of the purchase price in full.[21]
3. Where completion of the contract has occurred after the relevant date, for the assessment of land tax, the Applicant must prove:
   • (a) that there is a provision in the contract giving the purchaser an entitlement to early possession; and
   • (b) that the purchaser took possession pursuant to such entitlement.
4. Where the land, the subject of a contract of sale, comprises a Lot on an unregistered plan of subdivision, for example Lot 443, then the Applicant's assertion that entitlement to possession passed immediately upon signing the contract is prohibited by s 9AD of the Sale of Land Act 1962.
5. In cases where the contract purported to give the purchaser an entitlement to possession upon payment of the deposit, there is no evidence of the occurrence of such payment.
6. The Applicant did not call any purchaser to give evidence.

1. The taxpayer carries the burden of proving its case to the Tribunal.[22]
2. Respondent's Counsel submitted that the burden of proof is especially important in a case such as the present one that involves transactions entered into by the taxpayer of which the Respondent has no direct knowledge.

1. The Respondent seeks orders of the Tribunal pursuant to sub-s 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 to the effect that:
   • (a) In proceeding T23/2012, (2006 land tax year), the Respondent's decision[23] allowing the Applicant's objections in part is varied to the extent that the objections are allowed also to the lands known as Lots 339, 340 and 248;
   • (b) In proceeding T22/2012, (2007 land tax year), the Respondent's decision[24] allowing the Applicant's objections in part is affirmed;
   • (c) In proceeding T21/2012, (2008 land tax year), the Respondent's decision[25] disallowing the Applicant's objections is varied to the extent that the objection is allowed in part as to the land known as Lot 213; and
   • (d) In proceeding T20/2012, (2009 land tax year), the Respondent's decision[26] disallowing the Applicant's objections is varied to the extent that the objection is allowed to the land known as Lot 213.

1. Respondent's Counsel identified the following legal issues to be determined by the Tribunal.

1. Was there in force a valid contract of sale in respect of each Lot? This question encompasses allegations of backdating, authenticity and illegality.
2. In the Tribunal's view, an examination of the contractual documentation provided by the Applicant exposed serious questions as to the authenticity and/or enforceability of a number of contracts. These concerns are detailed below under each Lot.

1. If there was a valid contract in force, did the contract give the purchaser a right to take possession early, that is before payment of the purchase price in full?
2. In the Tribunal's view, many contracts of sale contain a Special Condition or provision in the Particulars of Sale which purport to entitle the purchaser to deemed possession as at the Day of Sale. In many instances the contracts also relate to a Lot on an unregistered plan; and in most instances the sales relate to vacant land upon which a house is to be constructed prior to actual occupation by the purchaser or settlement.
3. The nature and effect of the provisions conferring a right to early possession will be examined below.

1. If the contract gave a right to the purchaser to take possession early, had the purchaser in fact 'taken' possession early pursuant to such a contractual right?
2. In the Tribunal's view, there is no evidence that a purchaser in fact occupied the relevant Lot as at the Day of Sale or at any time prior to the construction of a home, in the case of the sale of vacant land, or final settlement, in any other case.
3. Is it sufficient that the contract gives the purchaser a right or entitlement to take possession?
4. The nature of entitlement to possession will be examined below.

1. Had the purchaser paid at least 15% of the purchase money?
2. There is no issue that in every case, less than 15% deposit was paid by the relevant date.

1. Was the contract made in good faith and not to escape land tax?
2. In the Tribunal's view, the relevant contracts fall into two broad categories:
   • (a) Contracts in favour of intermediaries who were never intended to retain or take possession of the subject Lot. In these cases the Tribunal has drawn the only reasonable inference that a primary purpose of such contract was to shift liability for land tax; and
   • (b) Contracts in favour of genuine purchasers. In these cases, the question focuses upon the meaning and effect of any provision which purports to convey an entitlement to early possession. The Tribunal has concluded that the primary purpose of these provisions was to shift liability for land tax and not to create a genuine or enforceable right to early possession.

1. In any event, should the discretion in sub-s 16(3) be exercised favourably to the Applicant so as to relieve it of its land tax liability?
2. In the Tribunal's view, for reasons more fully developed below, the answer is No.
3. Is any discretion conferred by the word 'may' in sub-s 16(3)?
4. In the Tribunal's view, for reasons more fully developed below, the answer is Yes.

Section 16(3)

1. Is Oakbee[27] correct in interpreting sub-s 16(3) as operating independently from sub-s 16(1)?
2. In the Tribunal's view, for reasons more fully developed below, the answer is No.

1. Generally, has the Applicant discharged its burden of proving that the assessments are wrong and that the purchasers are the ones liable for the land tax?
2. In the Tribunal's view, for reasons more fully developed below, the answer is No.

Land Tax Act 2005 ('LTA 2005')

1. Land tax is an annual tax payable by each owner of taxable land in Victoria in respect of all land owned at midnight on 31 December of the year immediately preceding the land tax year.[28]
2. The definition of 'owner' so far as it is relevant to this application, includes:[29]

(a) a person entitled to land for a freehold estate in possession;

(e) a person deemed by this Act to be the owner of land.

1. Land that is the subject of a contract of sale is dealt with by ss 15 and 16 of the LTA 2005:

(1) For the purposes of this Act, a purchaser under a contract of sale of land is deemed to be the owner of the land (but not to the exclusion of any other person) if the purchaser has obtained possession of the land.

(2) Subsection (1) applies whether or not the contract of sale has been completed by the transfer of the land.

(1) For the purposes of this Act, the vendor of land under a contract of sale of land is deemed to be the owner of the land (but not to the exclusion of any other person) until-

(a) the purchaser has taken possession of the land; and

(b) subject to subsection (3), at least 15% of the purchase money has been paid.

(2) Subsection (1) applies whether or not the contract of sale has been completed by the transfer of the land.

(3) The Commissioner may determine that the vendor is deemed not to be the owner of land despite the fact that 15% of the purchase money has not been paid if the Commissioner is satisfied that-

(a) the contract of sale was made in good faith and not for the purpose of evading the payment of land tax; and

(5) If the vendor and the purchaser are both deemed to be the owners of land under this Part, there is to be deducted from any land tax payable on the land by the vendor any land tax payable on the land by the purchaser.

1. Section 98 of the TAA places the burden of proof on the taxpayer:
   1. Onus of proof on objection

On an objection, the objector has the onus of proving the objector's case.

1. Mr Souhail Mondous ('Mr Mondous') gave evidence for the Applicant. He is a director of the Applicant and described himself as a land developer.
2. Mr Mondous confirmed that:
   • (a) In relation to each disputed assessment, he relies upon the relevant contract of sale; statement of adjustments; and Notices of Acquisition and Disposition;
   • (b) He treated the day of sale as the relevant date to convey a right to possession;
   • (c) Most contracts of sale were a 'house and land package' whereby the price included the sale of vacant land and a house to be constructed;
   • (d) The house was normally constructed within about 6 months from the date of the contract, at which time the purchaser would take occupation;
   • (e) Less than 15% of the purchase money was payable or paid by way of deposit for each of the Lots by 31 December in the relevant year; and
   • (f) Accordingly, for all Lots under review, the Applicant requires the Tribunal to exercise its discretion under sub-s 16(3) of the LTA 2005 and determine that the Applicant is deemed not to be the owner of the relevant Lot for the land tax year in question.
3. In the case of ten Lots, Mr Mondous sought to rely upon an Option Agreement between the Applicant and Pioneer.[30] The Option Agreement was not produced; and no contract of sale between the Applicant and Pioneer was produced.
4. The Tribunal will deal with the Pioneer contracts below.
5. Mr Mondous presented as a somewhat difficult witness. He frequently gave non-responsive or evasive answers and was inclined to become argumentative with Respondent's Counsel, even where he had no factual dispute.
6. Following is an overview of Mr Mondous' evidence, including a summary of documents produced to the Tribunal.

1. Lot 135 is the subject of land tax assessments for the years 2006, 2007, 2008 and 2009.[31] Accordingly, the Applicant must prove that it no longer owned Lot 135 as at any of the relevant dates being 31 December in each of the years 2005 to 2008 inclusive.
2. The contract of sale relied upon by the Applicant provided as follows:
   • (a) Vendor's Statement dated: 30 August 2004;
   • (b) Contract Day of Sale: 30 August 2004;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: B V Trikos or Nominees;
   • (e) Purchaser's Solicitors: Northwest Conveyancing;
   • (f) Price: $351,300;
   • (g) Deposit: $5,000 'has been paid';
   • (h) Finance Condition: Not applicable;
   • (i) Settlement Due: 11 March 2008 or 14 days from the approval of the plan of subdivision, whichever is the later.
3. Settlement did not occur under the Trikos contract by the due date, 11 March 2008, or any later date. Lot 135 was subsequently sold under a further contract of sale dated 15 April 2009.
4. When asked whether Mr Trikos was an estate agent, Mr Mondous replied:[32]

He present himself consultant, estate agent, finance brokers, deal with builders...So I am not sure if he's a registered estate agent.

1. However, the Particulars of Sale are endorsed with the words 'No Commission' and it appears that in a previous hearing before the Tribunal, Mr Mondous was well aware that Mr Trikos acted as an estate agent. [33]
2. The Vendor's Statement provided for the payment of the balance of purchase price in 36 repayments incorporating interest at the rate of 7.5%. Neither Vendor's Statement nor the contract of sale specified when such repayments were to commence.
3. Consistent with a number of contracts which have been produced, the following Special Conditions purport to have been included in the contract:
   • (a) Special Condition 5, which appears under the heading: 'Special Condition for Spec Home Builders', provides that the parties agree that the purchaser is deemed to take possession from the day of sale;
   • (b) Special Condition 7 provides that outgoings, including land tax, would be apportioned between the parties as from the date of sale; and
   • (c) Special Condition 8 provides that the date of adjustments and the date of acquisition is to be the date of signing the Contract of Sale, or the date of approval of the Plan of Subdivision, whichever is the later.
4. Mr Mondous gave evidence that Trikos occupied the house once completed and subsequently moved out and the house was leased. The Applicant rescinded the contract or the purchaser (Trikos) abandoned, Mr Mondous was not sure which. Mr Mondous otherwise treated the contract as remaining 'on foot' until the Lot was resold in April 2009.
5. A file note dated 3/12/09, produced by the Respondent and which appears on the letterhead of the State Revenue Office, reads as follows:[34]

Bill Trikos rang. He moved into the property in March 2005 and he left the property in Dec 05 (before 31/12/05).

He did enter into a contract. It was a terms contract. The contract was rescinded around the first quarter 2008.

1. Respondent's Counsel submitted that the sale was prohibited by s 55 of the Estate Agents Act 1980 which provides that an estate agent shall not directly or indirectly purchase or be in any way beneficially interested in the purchase of any real estate or business in which he is commissioned by any principal to sell.
2. The particulars of vendor's estate agent have not been completed in the copy contract of sale produced to the Tribunal. However, the circumstances support an inference that Trikos was indeed acting as the nominated estate agent by reason that:
   • (a) the copy contract is endorsed with the words 'No Commission'; and
   • (b) facsimile transmissions from Trikos to Mr Mondous indicate that he was acting in the sale of Lot 101; and was handling rental monies for Lot 135, which were paid to the Applicant.[35]
3. Respondent's Counsel also identified the following deficiencies:
   • (a) The plan of subdivision number specified in the Particulars of Sale is incorrect;
   • (b) The Respondent ascertained from enquiries,[36] that Northwest Conveyancing did not in fact act as the purchaser's solicitors;
   • (c) The additional vendor's statement, which purports to set out repayments for the balance of purchase price, including interest, has not been signed;
   • (d) It is not apparent which set of Special Conditions apply to the contract as three sets were produced;[37]
   • (e) There is no evidence of the payment of $5,000 deposit;
   • (f) No notice of acquisition was ever lodged; and
   • (g) There is no evidence of any attempted enforcement of the purchaser's contractual obligations.
4. In the Tribunal's view, even putting aside the vagaries of the precise terms of the contract:
   • (a) At most, it appears that Trikos occupied Lot 135 for a period during but prior to 31 December 2005;
   • (b) Rental payments were made to the Applicant, consistent with a continued exercise of the rights of an owner; and consistent with the Applicant never having relinquished possession of the property to Trikos, as a purchaser pursuant to the contract;
   • (c) The Applicant has not proven an intention to give effect to the terms of the contract of sale, beyond shifting land tax liability;[38]
   • (d) There is no evidence that the Applicant sought to enforce the contract; and
   • (e) There is no evidence that the purchaser sought to exercise any rights under the contract or acted in a manner consistent with having taken possession pursuant to a contractual right to do so, as at any of the relevant dates.
5. Accordingly, the Tribunal concludes that the purchaser had not taken possession of the Lot at any of the relevant dates; and the Applicant is deemed to be the owner.

1. Lot 213 is the subject of land tax assessments for the years 2006 and 2007.[39] However, the Applicant withdrew its objection to the 2007 assessment, so that only the 2006 objection needs to be considered.
2. There are a number of unsatisfactory features in the documentation produced.
3. A contract of sale of vacant land in favour of Mr and Mrs Stewart and dated 20 August 2004, was rescinded by Notice of Default and Rescission dated 4 October 2005. Curiously, a further copy contract of sale in favour of Mr and Mrs Stewart was also produced, which appears to be identical, except that the day of sale appears to have been changed from 4 April 2005 to 20 August 2004.[40] In any event, Lot 213 was subsequently the subject of the following contracts of sale:
   • (a) Vendor's Statement: 20 September 2005;
   • (b) Contract Day of Sale: 15 November 2005;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Chalker and/or nominees;
   • (e) Purchaser's Solicitors: Northwest Conveyancing;
   • (f) Price: $325,000;
   • (g) Deposit: $12,000;
   • (h) Finance Condition: Not applicable;
   • (i) Settlement Due: 30 September 2008 or 14 days from the approval of the plan of subdivision whichever is the later.
4. This contract did not settle.
5. The Vendor's Statement is dated nearly 2 months prior to the contract date and otherwise refers to payments commencing on 30/09/2005, being 6 weeks prior to the contract date.
6. The contract, which is handwritten, does not specify when the deposit was payable and there was no evidence as to such payment. Special Conditions refer to a Major Domestic Building Contract to be entered into by the purchaser. There were no special conditions produced which refer to a right to possession prior to settlement.
7. Mr Mondous gave evidence that the purchaser, Chalker, took occupation of the house upon its completion in 2006, although there is no objective confirmation of such occupation.
8. By letter dated 7 April 2006, the Applicant's solicitors gave notice that the Applicant required vacant possession of the property no later than 13 April 2006 and advised the purchaser of amounts owing under the contract which had now been rescinded.[41]
9. Lot 213 was subsequently again sold under a contract of sale dated 4 November 2007, which settled on 4 November 2010.
10. In the Tribunal's view, it is difficult to understand the basis upon which the Applicant maintains its objection given that, on its own evidence, there is no right to early possession under the contract; and the purchaser, Chalker, had not taken possession of the land until the house was completed in 2006.
11. Accordingly, the Tribunal concludes that the purchaser had not taken possession of the Lot at the relevant date; and the Applicant is deemed to be the owner.

1. Lot 249 is the subject of land tax assessments for the years 2006 and 2008 for which objections are still maintained.
2. An initial contract of sale contained the following particulars:[42]
   • (a) Vendor's Statement: 3 May 2005;
   • (b) Contract Day of Sale: 3 May 2005;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Lianna Homes Pty Ltd;
   • (e) Purchaser's Solicitors: Hymans solicitors;
   • (f) Price: $115,000;
   • (g) Deposit: $5,750 on signing hereof;
   • (h) Payment of Balance: 3 May 2007;
   • (i) Finance Condition: Not applicable;
   • (j) Settlement Due: is the date upon which vacant possession or receipt of the rents and profits of the property and chattels must be provided, namely, upon acceptance of title and payments of the price.
3. This contract did not settle.
4. There was no evidence produced as to:
   • (a) the date when the plan of subdivision was registered, which must have been after the further contract of sale because the sale to Rhymney Pty Ltd dated 4 July 2007 still refers to Lot 249 on an unregistered plan of subdivision;
   • (b) whether the deposit was in fact paid;
   • (c) whether the purchaser, or anyone on behalf of Lianna Homes took occupation of the Lot; or
   • (d) when the purchaser abandoned the contract.
5. A further contract of sale reveals the following particulars:[43]
   • (a) Vendor's Statement: not provided;
   • (b) Contract Day of Sale: 4 July 2007;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Rhymney Pty Ltd;
   • (e) Purchaser's Solicitors: Precise Services;
   • (f) Price: $110,000;
   • (g) Deposit: $1,000;
   • (h) Finance Condition: Not applicable;
   • (i) Settlement Due: 180 days from the approval of the Plan of Subdivision;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Statement of Adjustments: provides for a settlement date of 8 January 2008 with adjustments calculated as at 4 July 2007, including land tax;[44]
   • (l) Notice of Acquisition (1):[45] dated 8 January 2008; has been signed by the solicitors for the purchaser; and provides that the date of possession/transfer is 8 January 2008.
   • (m) Notice of Acquisition (2):[46] undated; has not been signed by the solicitors for the purchaser; and bears the facsimile details of the Applicant's solicitors at the head of the page; provides that the date of possession/transfer is the same date as the day of sale, namely 4 July 2007;
   • (n) Notice of Disposition:[47] dated 23 January 2008; has been signed by the solicitors for the vendor; and provides that the date of possession/transfer is the same date as the day of sale, namely 4 July 2007.
6. This contract settled on 8 January 2008.
7. A Title search records a transfer from the Applicant to Rhymney Pty Ltd registered on 18 February 2008 with a further transfer registered on the same date to Conway.[48]
8. There was no evidence produced as to:
   • (a) the date when the plan of subdivision was registered;
   • (b) whether the deposit was in fact paid; or
   • (c) whether the purchaser, or anyone on behalf of Rhymney Pty Ltd took occupation of the Lot prior to settlement.
9. In the Tribunal's view:
   • (a) In the case of the 2006 land tax year:
     • (i) There is no evidence that there was a right to early possession under the contract; and
       • (ii) There is no evidence that anyone on behalf of the purchaser took possession at any stage.
   • (b) In the case of the 2008 land tax year:
     • (i) The unsigned and undated Notice of Acquisition apparently prepared by the Applicant's solicitors is inconsistent with the Notice prepared and signed by the purchaser's solicitors;
     • (ii) The same purchaser has been used as an intermediary in multiple contracts and there is no evidence that the purported right to early possession under the contract was a genuine provision intended to be enforced; and
     • (iii) There is no evidence that anyone on behalf of the purchaser took possession prior to settlement, which was after the relevant date.
10. Accordingly, the Tribunal concludes that neither purchaser had taken possession of the Lot at the respective relevant date; and the Applicant is deemed to be the owner.

1. Lot 301 is the subject of land tax assessments for the years 2006, 2007 and 2008.[49]
2. The contract of sale relied upon by the Applicant provides as follows:
   • (a) Vendor's Statement: 10 November 2004;
   • (b) Contract Day of Sale: 12 November 2004;
   • (c) Property: Vacant Land on unregistered plan of subdivision;[50]
   • (d) Purchaser: Rickwood and/or nominees;
   • (e) Purchaser's Solicitors: Northwest Conveyancing;
   • (f) Price: $360,000;
   • (g) Deposit: $12,000;
   • (h) Finance Condition: Not applicable;
   • (i) Settlement Due: 12 August 2008 or 14 days from Certificate of Occupancy, whichever is the later;
   • (j) Notice of Acquisition: dated 10 August 2004, which curiously predates the date of the contract, otherwise provides that the date of possession/transfer is the same date as the day of sale.
3. Special Condition 8 provided, in part, that:

the date of adjustments and the date of acquisition is to be as at the date of signing the contract of sale, or the date of approval of the plan of subdivision, which ever is the later.

1. This contract settled on 31 October 2008 and the transfer of land was registered on 10 November 2008.
2. Mr Mondous gave evidence that he could assume that the purchasers took occupation of their completed house on 14 December 2005, being the date from which interest payments commenced. However:
   • (a) It is not apparent when any certificate of occupancy was issued;
   • (b) The contract of sale is not a terms contract;
   • (c) The vendor's statement does not provide any date from which instalments are to be paid and there is no reference in the contract of sale itself to any such instalments;
   • (d) The only evidence produced of the payment of instalments by the purchaser, is a schedule prepared by the Applicant; and
   • (e) There is no objective evidence of when the purchasers occupied their completed home.
3. In the Tribunal's view, there is no evidence that the purchasers took possession under the contract prior to settlement.
4. Accordingly, the Applicant is deemed to be the owner as at the relevant dates.

1. Lot 306 is the subject of land tax assessments for the years 2006 and 2007.[51] The contracts produced in relation to this Lot are irreconcilable and raise the same concerns as the contracts for Lot 330.
2. First, there is a contract of sale in favour of purchaser Tamer Baydar, whose name also appears as the purchaser for Lot 330. The signature of the purchaser on the face of the contract of sale for Lot 330 is markedly different from the signature of the purchaser which appears on the face of the contract of sale for Lot 306. The particulars of this first contract of sale are as follows:
   • (a) Vendor's Statement: None provided;
   • (b) Contract Day of Sale: 14 July 2004;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Baydar;
   • (e) Purchaser's Solicitors: JP Conveyancing;
   • (f) Price: $109,000;
   • (g) Deposit: $500 'which is paid';
   • (h) Finance Condition: Yes;
   • (i) Payment of Balance: 10 August 2004 or 14 days from the approval of the plan of subdivision whichever is the later;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision.
3. This contract did not settle.
4. A further contract of sale was produced in the Applicant's documents whose particulars are as follows:[52]
   • (a) Vendor's Statement: None provided;
   • (b) Contract Day of Sale: 13 December 2004;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Seyoum;
   • (e) Purchaser's Solicitors: JP Conveyancing;
   • (f) Price: $120,000;
   • (g) Deposit: $12,000;
   • (h) Finance Condition: Yes with Approval Date of 21 June 2006;
   • (i) Payment of Balance: 21 July 2006 or 14 days from the approval of the plan of subdivision whichever is the later;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision.
5. This contract did not settle. However, the Applicant relies upon the contract remaining 'on foot' as at 31 December 2005.
6. In the Particulars of Sale the contract purports to give an entitlement to possession to the purchaser 'upon payment of the initial deposit monies and approval of the plan of subdivision.'
7. There was no evidence produced as to:
   • (a) the date when the plan of subdivision was registered;
   • (b) whether the deposit was in fact paid; or
   • (c) whether the purchaser, Seyoum took occupation of the Lot.
8. Mr Mondous gave evidence that Lot 306 was again resold on 2 August 2007 to purchasers De Longville by Pioneer, pursuant to an option agreement between Pioneer and the Applicant, which sale was settled on 10 September 2007.
9. A notice of acquisition dated 5 September 2007 records a contract date of 2 August 2007 and date of possession/transfer of 10 September 2007.
10. A letter from the Applicant's solicitors to Mr Mondous purports to list the Lots which have been sold by Pioneer, including Lot 306.[53]
11. Mr Mondous alleged that Pioneer, under its Option Agreement, assumed liability for land tax from 12 December 2006 and was thereupon in possession and control. However, the Applicant's solicitor's letter dated 18 April 2007[54] confirms that Pioneer did not take possession. Furthermore, Devine Homes, which took over from Pioneer, confirmed that it did not purchase any property from the Applicant.[55] No option agreement or contract of sale in favour of Pioneer, for this or any other Lot, was produced.
12. In the Tribunal's view, the Seyoum contract purports to confer an entitlement to possession upon the purchaser in circumstances otherwise inconsistent with the nature of the contract of sale. In particular:
    • (a) the contract is conditional upon finance and did not become unconditional until 21 June 2006, being after the relevant date; and
    • (b) although there is no information provided about a collateral building contract, the delayed settlement date, which is some 18 months after the contract date, is consistent with the construction of a house.
13. Furthermore:
    • (a) In the case of the 2006 land tax year, there is no evidence that anyone on behalf of the purchaser took possession at any stage; and
    • (b) In the case of the 2007 land tax year:
      • (i) there is no evidence as to the contractual arrangement between the Applicant and Pioneer;
      • (ii) there is correspondence confirming that Pioneer did not take possession but were merely arranging sales; and
      • (iii) any contractual arrangement for assumption of land tax liability as between the Applicant and Pioneer does not affect the Applicant's primary liability under the LTA 2005.
14. Accordingly, the Applicant is deemed to be the owner as at the relevant dates.

1. Lot 308 is the subject of a land tax assessment for the year 2007.[56] The particulars of the contract of sale relied upon are as follows:
   • (a) Vendor's Statement: 20 November 2006 [no Lot number specified];
   • (b) Contract Day of Sale: 20 November 2006;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Hil-De Boer;
   • (e) Purchaser's Solicitors: Freedom Conveyancing;
   • (f) Price: $130,000;
   • (g) Deposit: $6,500 'payable on 20.1.07 of which $50 has already been paid';
   • (h) Finance Condition: Yes;
   • (i) Payment of Balance: 20 January 2007 or 14 days from the approval of the plan of subdivision whichever is the later;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Special Condition 5 further provided that the purchaser is deemed to have taken possession of the property on the date of the contract and all outgoings were to be adjusted as at the date of the contract;
   • (l) Statement of Adjustments dated 10 January 2007 with adjustments calculated as at 20 November 2006;[57]
   • (m) Notice of Acquisition dated 22 January 2007 provides that the deposit paid was $50; the date of the contract was 20 November 2006; and the date of possession/transfer was 22 January 2007;[58] and
   • (n) Notice of Disposition dated 23 January 2007 provides that the deposit paid was nil; the date of the contract was 30 November 2006; and the date of possession/transfer was 2 January 2007.[59]
2. This contract settled in January 2007.
3. It is not apparent when the Plan of Subdivision was registered.
4. The contract for Lot 308 contains an equivalent provision in the Particulars of Sale as the contract for Lot 306, namely, to confer an entitlement to possession upon the purchaser 'upon payment of the initial deposit monies and approval of the plan of subdivision'.
5. In the Tribunal's view, it is reasonable to draw the inference that the principal purpose and intent of such a provision was to shift liability for land tax and not to confer an enforceable entitlement to possession upon the purchaser. In particular:
   • (a) At the date of the contract, the plan of subdivision was unregistered; and the date of registration was not disclosed;
   • (b) There is no commercial reason why entitlement to possession would be conferred upon a purchaser upon payment of a nominal deposit;
   • (c) The terms of the contract are otherwise a standard cash contract of sale, where the purchaser would normally be expected to take possession upon payment of the purchase price in full; and
   • (d) The purchaser in fact did not take possession until settlement.
6. In the Tribunal's view, there is no evidence of a genuine or enforceable entitlement to possession and none was in fact exercised.
7. Accordingly, the Applicant is deemed the owner as at the relevant date.

1. Lot 312 is the subject of land tax assessments for the years 2006, 2007, 2008 and 2009. The documentation produced in relation to this Lot is irreconcilable.
2. Lot 312 was the subject of the following contracts of sale:[60]
   • (a) Vendor's Statement: 10 August 2007;
   • (b) Contract Day of Sale: 9 September 2004;
   • (c) Property: Vacant Land on unregistered plan of subdivision;[61]
   • (d) Purchaser: Durovic, who lodged a caveat on 1 May 2008;
   • (e) Purchaser's Solicitors: blank;
   • (f) Price: $341,000;
   • (g) Deposit: Nil in contract but allegedly $5,700 paid on 7 October 2004 under contract of sale to Lianna Homes Pty Ltd;
   • (h) Finance Condition: Not applicable;
   • (i) Payment of Balance: at the expiration of 2 years from the issue of a Certificate of Occupancy or earlier if agreed;[62]
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision, subject to special condition 7 hereof.
   • (k) Notice of Acquisition: signed on behalf of purchaser's solicitors, is dated 2 May 2008, the total sale price and deposit are both $341,000 with date of possession 9 September 2004.
3. Special Condition 7, referred to in the Settlement Date of the above contract, provides that all outgoings, including land tax, shall be apportioned between the vendor and purchaser as from 1 July 2004. Curiously this date predates the date of sale provided in the contract, namely 9 September 2004.
4. This contract did not settle.
5. Clearly, the date of the vendor's statement and date of the contract do not match, being approximately three years apart.
6. The Applicant relies upon a Notice of Rescission issued by its solicitors by which the contract was rescinded on 7 January 2010.[63]
7. Lot 312 was subsequently sold to purchaser, Sheedy, under a further contract of sale dated 20 April 2010 which settled on 11 June 2010.[64]
8. Curiously, another contract of sale dated 7 October 2004 purports to sell Lot 312 to Lianna Homes Pty Ltd for a price of $115,000 and deposit of $5,700 payable on signing the contract, with a three-year settlement.[65] Lianna Homes Pty Ltd was deregistered on 10 November 2011, having had a liquidator appointed in March 2006.[66]
9. Mr Mondous gave evidence that Lianna Homes nominated Durovic as purchaser, although the Lianna Homes contract does not provide for 'and/or Nominee' alongside the purchaser's name.
10. The Applicant's objection is predicated upon the purchaser, Durovic, being owner of the property at the relevant dates. The Durovic contract of sale produced to the Tribunal on the first day of the hearing, which purports to be an original contract, shows the day of sale as 9.9.04 written in blue biro over writing which has been whited out. Against the light the writing underneath the whiteout clearly reveals the date 10 August 2007, which coincidentally corresponds to the date which appears in the attached vendor's statement.
11. Even more curiously, a further contract of sale bearing date 1 June 2007 was produced, which purports to be a further sale of Lot 312 to Durovic for the same purchase price. The writing on both contracts alongside the name of purchaser; address; chattels; price and deposit; and purchaser's finance; are identical. The additional words '23 Viola Ave' have been added under the address on the 2007 contract and the date for payment of balance, being 1 June 2009, appears exactly the same, but crossed out on the 2004 contract.
12. When confronted with these inconsistencies, Mr Mondous proposed a quite implausible explanation which included the (first) Durovic contract being substituted for another contract because Deanne Durovic did not wish to assume responsibility as the purchaser. The only problem with this explanation is that the subsequent contract was also in the sole name of Deanne Durovic.
13. In the Tribunal's view, the only reasonable inference that can be drawn from an examination of the documents is that there has been a blatant doctoring of these purported contracts.
14. In the Tribunal's view, the Applicant is deemed to be the owner of the Lot for all relevant tax years for the purpose of s 16.

1. Lot 313 is the subject of land tax assessments for the years 2006, 2007, 2008 and 2009. An initial contract of sale provided as follows:[67]
   • (a) Vendor's Statement: 15 October 2004;
   • (b) Contract Day of Sale: 19 October 2004;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Hoogstra & Banis and/or Nominees;
   • (e) Purchaser's Solicitors: Northwest Conveyancing;
   • (f) Price: $325,000;
   • (g) Deposit: $12,000;
   • (h) Finance Condition: No;
   • (i) Special Conditions: None supplied;
   • (j) Settlement Due: 12 August 2008 or earlier by agreement;
   • (k) Notice of Disposition: Prepared by Vendor's solicitors and dated 10 April 2007.
2. This contract did not settle.
3. Mr Mondous gave evidence that the Applicant's record of interest payments received indicate that they commenced on 19 August 2005 which therefore represents the date by which the purchaser had taken possession of the newly constructed house.[68] The purchaser vacated prior to settlement. Mr Mondous did not recall whether there was a rescission notice and treated the contract on foot until the property was again sold on 21 November 2008 to KR Peters Pty Ltd, which is also cited as the selling agent.[69] Although the Peters contract of sale is not signed by the purchaser, Counsel submitted that Peters did become the owner of the Lot and that the contract settled on 13 November 2009.[70]
4. Curiously, the KR Peters contract provides under the Particulars of Sale 'Settlement Date' that ... 'the Purchaser shall be entitled to vacant possession of the property and chattels ...on the 1st July 2008' which date precedes the Day of Sale.
5. Exhibit H comprises invoices which Mr Mondous stated related to the construction of the house. He could not explain why one invoice dated 30 September 2004 pre-dated the contract date and two further invoices were dated within 2-3 weeks of the contract date. Mr Mondous otherwise stated that construction of the house does not commence until the Applicant has a buyer; and the invoices reflect progress payments for work already performed.
6. In the Tribunal's view, the contractual documentation is again unreliable. It is further noted that, in the case of the first contract:
   • (a) Northwest Conveyancing, shown in the contract as the purchaser's solicitors, in fact never acted as such;[71]
   • (b) The contract did not specify when the deposit was payable; and there was no evidence of whether a deposit was in fact paid;
   • (c) Inconsistencies between Exhibit H and other evidence was not explained;
   • (d) The only evidence of payment of instalments under the contract is a schedule prepared by the Applicant; and there is no reference to such payments in the contract; and no date for commencement of such payments in the vendor's statement;
   • (e) No notice of acquisition was lodged;
   • (f) The contract did not confer an entitlement to early possession;
   • (g) All invoices are addressed to the Applicant, as Customer, indicating control; and
   • (h) There is no evidence that the purchaser took possession early pursuant to any contractual right to do so.
7. In the case of the subsequent contract in favour of KR Peters, the contract is not signed by the purchaser; and there is no evidence of when the purchaser took possession.
8. In the Tribunal's view, the Applicant is deemed to be the owner of Lot 313 for all relevant tax years for the purpose of s 16.

1. Lot 316 is the subject of a land tax assessment for the year 2007.[72]
2. A contract of sale dated 3 September 2007 to purchaser Allen was registered on 8 October 2007, both dates being after the relevant date. The Applicant relies upon an alleged sale to Pioneer with effect from 12 December 2006.
3. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.

1. Lot 317 is the subject of a land tax assessment for the year 2007.[73]
2. A contract of sale dated 11 September 2007 to purchaser, Bubb, was registered on 8 October 2007, both dates being after the relevant date. The Applicant relies upon an alleged sale to Pioneer with effect from 12 December 2006.
3. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.

1. Lot 321 is the subject of a land tax assessment for the year 2007.[74]
2. No evidence was given in relation to the outcome of a contract of sale dated 3 December 2004 to purchaser Lianna Homes Pty Ltd. A subsequent Notice of Acquisition dated 29 October 2007, in favour of purchaser Carr, refers to a contract dated 28 August 2007; and a date of possession/transfer of 29 October 2007, both being after the relevant date. The Applicant relies upon an alleged sale to Pioneer with effect from 12 December 2006.
3. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.

1. Lot 322 is the subject of land tax assessments for the years 2006, 2007[75] and 2008.[76]
2. An initial contract of sale, which does not bear the vendor's signature, provided as follows:[77]
   • (a) Vendor's Statement: 24 September 2005;
   • (b) Contract Day of Sale: 26 September 2005;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Jolly and/or Nominees;
   • (e) Purchaser's Solicitors: Northwest Conveyancing;
   • (f) Price: $115,000;
   • (g) Deposit: $12,000;
   • (h) Finance Condition: No;
   • (i) Settlement Due: 6 months.
3. This contract did not settle.
4. On its face the Jolly contract was a cash contract of sale of vacant land which did not settle and did not confer a right to early possession upon the purchaser.
5. There was no evidence produced as to:
   • (a) the date when the plan of subdivision was registered;
   • (b) whether the deposit was in fact paid; or
   • (c) whether the purchaser, Jolly took occupation of the Lot;
6. Mr Mondous gave evidence that he treated the Jolly contract 'on foot' until Lot 322 was subsequently 'sold' to Pioneer on 12 December 2006 pursuant to its Option Agreement with the Applicant.[78] At this point the nature of the legal transactions undertaken by the Applicant are quite incomprehensible. In particular:
   • (a) No Option Agreement or contract of sale in favour of Pioneer was produced;
   • (b) A vendor's statement dated 17 January 2007, which relates to a number of Lots including Lot 322, bears a signature on behalf of the Applicant as Vendor and a signature on behalf of Pioneer, as purchaser, and appears behind the contract of sale in favour of Jolly;
   • (c) Lot 322 was never registered in the name of Pioneer; and
   • (d) A letter from the Applicant's solicitors, dated 18 April 2007, which relates to Lots 306, 316, 317, 321, 322, 330, 337, 338, 333 and 335, confirms that Pioneer has agreed to pay council and water rates and land tax from 12 December 2006 but not take possession of the Lots as they propose to sell same to third parties.[79]
7. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.
8. Lot 322 was the subject of a further sale as follows:[80]
   • (a) Vendor's Statement: 17 January 2007 [which is some 10 months earlier than the contract date provided in the notice of acquisition];
   • (b) Contract Day of Sale: blank;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Ndlovu;
   • (e) Purchaser's Solicitors: Macpherson & Kelley;
   • (f) Price: $105,000;
   • (g) Deposit: Nil;
   • (h) Finance Condition: Yes;
   • (i) Payment of Balance: Blank;
   • (j) Settlement Due: is the date upon which the purchaser shall become entitled to vacant possession;
   • (k) Notice of Acquisition: signed by purchaser's solicitors and dated 29 January 2008, provides that the deposit paid was nil; the date of the contract was 19 November 2007; and the date of possession/transfer was 29 January 2008.[81]
9. This contract settled.
10. A title search indicates that a transfer to Ndlovu was registered on 15 February 2008.
11. On its face the Ndlovu contract was a cash contract of sale entered into in November 2007, which settled in January 2008, being after the relevant date; and did not confer a right to early possession upon the purchaser.
12. In the Tribunal's view, the Applicant is deemed to be the owner of Lot 322 for all relevant land tax years.

1. Lot 328 is the subject of land tax assessments for the years 2006, 2007, 2008 and 2009.[82]
2. The contract of sale relied upon by the Applicant provides as follows:
   • (a) Vendor's Statement: 20 November 2004;
   • (b) Contract Day of Sale: 24 November 2004;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Hovell;
   • (e) Purchaser's Solicitors: Northwest Conveyancing;
   • (f) Price: $370,000;
   • (g) Deposit: $12,000;
   • (h) Finance Condition: Not applicable;
   • (i) Settlement Due: 29 July 2008 or earlier by mutual agreement;
   • (j) Notice of Disposition: dated 10 April 2007 provides that the date of possession/transfer is the same date as the day of sale.[83]
3. Additional Special Condition 5 provided that the purchaser is deemed to have taken possession of the property on the date of the contract and all outgoings were to be adjusted as at the date of the contract.
4. This contract did not settle.
5. Mr Mondous gave evidence that he could assume that the purchasers took occupation of their completed house on 28 July 2005, being the date from which interest payments were made and that such payments continued until 23 April 2008.[84] Mr Mondous believed there was a rescission notice and the contract was terminated in March 2008.
6. The Respondent produced a file note taken on behalf of the Respondent, which indicates that the purchaser, Hovell, confirmed that he took possession on 29 July 2005, left possession in March 2008, and the contract was rescinded around March 2008.[85]
7. Lot 328 was sold again under a contract of sale dated 19 March 2009.[86] Mr Mondous stated that the earlier contract of sale remained on foot until then.
8. In relation to the 2006, 2007 and 2008 land tax years, in the Tribunal's view:
   • (a) It is not apparent when the Plan of Subdivision was registered or when any certificate of occupancy was issued;
   • (b) The vendor's statement does not provide any date from which instalments are to be paid and there is no reference in the contract of sale itself to any such instalments;
   • (c) There was no objective evidence produced of the payment of instalments by the purchaser, other than a statement prepared by the Applicant;
   • (d) No Notice of Acquisition was lodged; and
   • (e) There is no evidence that any steps were taken to enforce the contract.
9. In relation to the 2009 land tax year, there is no evidence that any party, other than the Applicant, was the owner of the Lot.
10. In the Tribunal's view, the Applicant is deemed to be the owner of Lot 328 for all relevant land tax years.

1. Lot 330 was the subject of land tax assessments for the years 2006 and 2007.[87] The Applicant's objection to the 2006 assessment was withdrawn during the hearing.
2. The documentation produced in relation to Lot 330 is most unsatisfactory. Two contracts, which are no longer relevant, in favour of two different purchasers (Baydar[88] and then Seyoum[89]) bear a contract day of sale of 8 July 2004 and 13 December 2004 respectively. Neither apparently settled.
3. In the Tribunal's view, the signature of the purchaser in the Baydar contract is identical to the signature of the purchaser in the Seyoum contract.[90]
4. Lot 330 was apparently sold under two further contracts:
   • (a) To Lealasala, under a contract of sale dated 30 April 2005, which was due to settle on 30 October 2005. It did not settle, but solicitors for Lealasala sought a swap for Lot 344 on the basis that Lot 330 was no longer suitable;[91] and
   • (b) To K & P Price, to whom a transfer of land was registered on 1 November 2007.[92]
5. Mr Mondous alleged that Pioneer, under its Option Agreement, assumed liability for land tax from 12 December 2006 and was thereupon in possession and control. However, the Applicant's solicitor's letter dated 18 April 2007[93] confirms that Pioneer did not take possession. Furthermore, Devine Homes, which took over from Pioneer, confirmed that it did not purchase any property from the Applicant.[94] No option agreement or contract of sale in favour of Pioneer, for this or any other Lot, was produced.
6. In the Tribunal's view, the Applicant is deemed to be the owner of Lot 330 on the relevant date.

1. Lot 331 is the subject of a land tax assessment for the year 2007.[95]
2. The contract of sale relied upon by the Applicant provides as follows:
   • (a) Vendor's Statement: 25 January 2005;
   • (b) Contract Day of Sale: 24 January 2005;
   • (c) Property: Vacant Land on unregistered plan of subdivision;[96]
   • (d) Purchaser: Voumard;
   • (e) Purchaser's Solicitors: None provided;
   • (f) Price: $110,000;
   • (g) Deposit: $11,000 of which $500 paid as deposit and $400 per week until June 2005;
   • (h) Finance Condition: No;
   • (i) Payment of Balance: 24 August 2005 or 14 days from the approval of the plan of subdivision whichever is the later;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Notice of acquisition: No.
3. The vendor's statement makes no reference to payment of interest by instalments. An additional undated vendor's statement refers to payments of interest in a manner which is unclear from a poor copy document. However, this document is otherwise inconsistent with the terms of the contract of sale and cannot be taken to be incorporated into the contract.
4. This contract did not settle.
5. Mr Mondous gave evidence that the contract of sale in favour of Voumard remained on foot until the Lot was subsequently sold under a contract of sale dated 27 November 2007, which provides for possession on the same date.[97]
6. However:
   • (a) It is not apparent when any certificate of occupancy was issued;
   • (b) The vendor's statement does not provide any date from which instalments are to be paid and there is no reference in the contract of sale itself to any such instalments;
   • (c) There was no evidence produced of the payment of instalments by the purchaser, as contemplated by the additional vendor's statement;
   • (d) There is no evidence of whether or when the purchasers occupied their completed home; and
   • (e) There is no evidence that any steps were taken to enforce the contract.
7. In the Tribunal's view, there is no evidence that the purchasers took possession under the contract, at any stage.
8. In the Tribunal's view, the Applicant is deemed to be the owner of Lot 331 on the relevant date.

1. Lot 333 is the subject of a land tax assessment for the 2007 year.[98]
2. A contract of sale dated 29 August 2007 to purchaser, Chesson, was registered on 25 September 2007, both dates being after the relevant date. The Applicant relies upon an alleged sale to Pioneer with effect from 12 December 2006.
3. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.

1. Lot 335 is the subject of a land tax assessment for the 2007 year.[99]
2. A contract of sale dated 17 July 2007 to purchaser, Chung, was after the relevant date. The Applicant relies upon an alleged sale to Pioneer with effect from 12 December 2006.
3. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.

1. Lot 337 is the subject of land tax assessments for the years 2007 and 2008.[100]
2. The Applicant produced a contract of sale dated 20 April 2008 to purchaser, Aik Lin Hii; and a Notice of Acquisition dated 28 August 2008 to purchaser, De Courcy, which refers to a contract dated 25 June 2008 and date of possession/transfer of 29 August 2008. Whichever transaction is correct, both dates are after the relevant dates. The Applicant relies upon an alleged sale to Pioneer with effect from 12 December 2006.
3. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.

1. Lot 338 is the subject of a land tax assessment for the 2007 year.[101]
2. A contract of sale dated 17 January 2007 to purchaser, Alfaro, was produced. In addition, a Notice of Acquisition dated 8 August 2007 to purchasers, Campillay and Diaz, refers to a contract dated 8 June 2007 and date of possession/transfer of 11 October 2007. Whichever transaction is correct, both dates are after the relevant date. The Applicant relies upon an alleged sale to Pioneer Homes Pty Ltd with effect from 12 December 2006.
3. In the Tribunal's view, there is no basis upon which the Applicant can rely upon Pioneer having taken possession of the Lot, for the purpose of s 16.

1. Lot 347 is the subject of land tax assessments for the years 2006, 2008 and 2009. Mr Mondous gave evidence that he inadvertently failed to object to the 2007 assessment.
2. An initial contract of sale dated 2 November 2004, in favour of Anthony & Birch, failed to settle.[102]
3. A subsequent contract of sale purports to sell Lot 347 [on unregistered plan of subdivision] to Veuy Phin on 20 May 2005 for a price of $307,000 and a deposit of $12,000, with settlement due 18 months from the certificate of occupancy.[103] There were no relevant special conditions conferring a right to early possession. This contract also did not settle.
4. The Applicant relies upon the Veuy Phin contract remaining 'on foot' until the Lot was resold on 24 September 2010 with settlement on 29 October 2010.[104]
5. Again, there are a number of deficiencies in the documentation:
   • (a) The Vendor's Statement for each of the above contracts of sale were signed by the purchasers after the date of the contract;
   • (b) It is not apparent when the plan of subdivision was registered;
   • (c) Mr Mondous gave evidence that payments under the Veuy Phin contract were made up until 2010, although no evidence was provided of such payments;
   • (d) A Notice of Acquisition shows the date of possession as 22 June 2007, which the Respondent submitted was consistent with the contract bearing a false date;[105]
   • (e) Solicitors for Veuy Phin raised 'questionable aspects' to the contract;[106]
   • (f) A rescission notice issued by the Applicant's solicitors expired on 20 July 2010;[107]
   • (g) There was no objective evidence as to if and when the purchaser, Veuy Phin, took possession under the contract; and
   • (h) There is no evidence of any attempt to enforce the Veuy Phin contract.
6. In the Tribunal's view the Applicant has not proven that the purchaser, Veuy Phin, had taken possession during the relevant dates.

1. Lot 401 is the subject of a land tax assessment for the year 2008.
2. A contract of sale provided as follows:[108]
   • (a) Vendor's Statement: Not produced;
   • (b) Contract Day of Sale: 13 December 2007;
   • (c) Property: Vacant Land on registered plan of subdivision;
   • (d) Purchaser: Singh and/or Nominee;
   • (e) Purchaser's Solicitors: Gemstone Conveyancing;
   • (f) Price: $125,000;
   • (g) Deposit: $5,000, payable by 11.01.08;
   • (h) Finance Condition: Yes, with approval date by 11.01.2008;
   • (i) Payment of Balance: 12 February 2008;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Statement of Adjustments:[109] as at 13 December 2007 except that 'vendor undertakes to pay land tax';
   • (l) Notice of Acquisition: [110] signed on behalf of the purchaser and dated 17 January 2008, provides that the date of possession/transfer is the same date as the day of sale, namely 13 December, 2007.
3. This contract settled: about 12 February 2008.
4. The Transfer of Land was registered in the name of Singh on 25 February 2008.
5. It is not apparent whether any person on behalf of the purchaser took occupation of the land prior to settlement. On its face, the contract of sale is a simple cash contract of sale, that is, not a terms contract and does not relate to the construction of a house. The finance condition and payment of deposit are both due after the relevant date.
6. In the Tribunal's view, the Applicant is deemed to be the owner at the relevant date.

1. Lot 403 is the subject of a land tax assessment for the year 2008.
2. A contract of sale, which was not signed by the vendor, produced at the hearing, provided as follows:[111]
   • (a) Vendor's Statement: 28 [?11 - unclear] 2007;
   • (b) Contract Day of Sale: 28 December 2007;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Sarkozi;
   • (e) Purchaser's Solicitors: Gemstone Conveyancing;
   • (f) Price: $125,000;
   • (g) Deposit: $6,100;
   • (h) Finance Condition: Yes - 'subject to vendor financing the land and construction of house';
   • (i) Payment of Balance: 29 February 2008 or such earlier date as may be mutually agreed upon;
   • (j) Settlement Date: is the date upon which vacant possession of the property must be provided, namely, upon acceptance of title by the purchaser and receipt of the consideration then due to the vendor under the terms of this contract.
3. No evidence was given as to the circumstances of the above contract, which on its face, appears to be a simple cash contract of sale which does not purport to pass possession prior to settlement.
4. In the Tribunal's view, there is no evidence that the Applicant was not the owner in possession, at the relevant date.
5. In the Tribunal's view, the Applicant is deemed to be the owner at the relevant date.

1. Lot 405 is the subject of a land tax assessment for the year 2008.
2. A contract of sale, provided as follows:[112]
   • (a) Vendor's Statement: not produced;
   • (b) Contract Day of Sale: 23 November 2007;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Rhymney Pty Ltd;
   • (e) Purchaser's Solicitors: Precise Services;
   • (f) Price: $125,000;
   • (g) Deposit: $1,000;
   • (h) Finance Condition: No;
   • (i) Payment of Balance: 120 days from contract date;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Statement of Adjustments: adjusts outgoings as at 23 November 2007; land tax adjusted for 2008 calendar year;
   • (l) Notice of Acquisition (1):[113] dated 16 June 2008 and signed on behalf of the purchaser provides the date of possession/transfer as 16 June 2008;
   • (m) Notice of Acquisition (2):[114] undated and bearing a different signature but with the facsimile header of the Applicant's solicitors at the top of the page provides the date of possession/transfer as 23 November 2007;
3. This contract settled on 16 June 2008.[115]
4. A title search indicates that Lot 405 was registered to Rhymney Pty Ltd and then to Bradley & Russell on the same date namely, 2 July 2008.[116]
5. It is not apparent whether any person on behalf of the purchaser took occupation of the land prior to settlement. On its face, the contract of sale is a simple cash contract of sale, that is, not a terms contract and does not relate to the construction of a house.
6. This contract is typical of a number of contracts in favour of Rhymney which appears to be acting as an intermediary. More particularly, as with the contracts involving Lianna Homes, there is no evidence of an intention to occupy or otherwise manage the property, other than to immediately on sell.
7. The Particulars of Sale include in the 'Settlement Date' a provision which purports to entitle the purchaser to early possession:

...the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision.

1. In the Tribunal's view, the only reasonable inference to draw from the inclusion of a deemed possession provision is that such provision was intended to shift liability for land tax and not to confer a genuine or enforceable entitlement to possession, prior to payment of the full purchase price.
2. Accordingly, in the Tribunal's view, the Applicant is deemed to be the owner at the relevant date.

1. Lot 441 is the subject of a land tax assessment for the year 2008.
2. A contract of sale, provided as follows:[117]
   • (a) Vendor's Statement: none produced;
   • (b) Contract Day of Sale: 4 July 2007;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Rhymney Pty Ltd;
   • (e) Purchaser's Solicitors: Precise Services;
   • (f) Price: $110,000;
   • (g) Deposit: $1,000;
   • (h) Finance Condition: No;
   • (i) Payment of Balance: 180 days from contract date;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Statement of Adjustments: adjusts outgoings as at 4 July 2007, including land tax;
   • (l) Notice of Acquisition (1):[118] dated 15 January 2007 [query should read 2008] and signed on behalf of the purchaser provides the date of possession/transfer as 15 January 2008;
   • (m) Notice of Acquisition (2):[119] undated and unsigned provides the date of possession/transfer as 4 July 2007;
   • (n) Settled: date uncertain. Letter from Precise Services dated 5 October 2009 refers to settlement of Lot 441 on 16 June 2008, however purchaser cited as Lakewood Properties Pty Ltd who on sold to Jones.[120] The date of settlement of 16 June 2008 does not accord with the registration of transfer to Rhymney and then Jones on 18 January 2008.
3. A title search indicates that the Lot 441was registered to Rhymney Pty Ltd and then to Jones on the same date namely, 18 January 2008.[121]
4. It is not apparent whether any person on behalf of the purchaser took occupation of the land prior to settlement. On its face, the contract of sale is a simple cash contract of sale, that is, not a terms contract and does not relate to the construction of a house.
5. In the Tribunal's view, the same comments apply as for Lot 405 above. Accordingly, the Applicant is deemed to be the owner at the relevant date.

1. Lot 443 is the subject of a land tax assessment for the year 2008.
2. The relevant contract of sale provided as follows:[122]
   • (a) Vendor's Statement: 4 July 2007;
   • (b) Contract Day of Sale: 4 July 2007;
   • (c) Property: Vacant Land on unregistered plan of subdivision;
   • (d) Purchaser: Rhymney Pty Ltd;
   • (e) Purchaser's Solicitors: Precise Services;
   • (f) Price: $110,000;
   • (g) Deposit: $1,000;
   • (h) Finance Condition: No;
   • (i) Settlement Due: 180 days from the approval of the Plan of Subdivision;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Statement of Adjustments states that contract of sale was dated 4 July 2007; and land tax adjusted for period 1 January to 31 December 2007 [that is for a period prior to contract of sale];
   • (l) Notice of Acquisition: two signed Notices of Acquisition were produced both dated 16 January 2008; both record contract of sale dated 4 July 2005; both record date of possession/transfer as 16 January 2008; and both are signed on behalf of purchaser - one under the name of McCluskys and one under the name of Precise Services;
   • (m) Notice of Acquisition: undated and unsigned, with name 'Comito Iacovino & Co [Vendor's solicitors] endorsed under Notice of Acquisition but bearing name of Precise Services under transferee's solicitors, records date of possession as 4 July 2007.

1. This contract settled on 6 January 2008.
2. It is not apparent when the Plan of Subdivision was registered or if and when any deposit was paid or whether any person on behalf of the purchaser took occupation of the land prior to settlement. On its face, the contract of sale is a simple cash contract of sale, that is, not a terms contract and does not relate to the construction of a house.
3. The Transfer of Land was registered in the name of Rhymney Pty Ltd on 22 January 2008.
4. In the Tribunal's view, the same comments apply as for Lots 405 and 441 above. Accordingly, the Applicant is deemed to be the owner at the relevant date.

1. Lot 445 is the subject of a land tax assessment for the year 2008.
2. The relevant contract of sale provided as follows:[123]
   • (a) Vendor's Statement: not produced;
   • (b) Contract Day of Sale: 8 November 2007;
   • (c) Property: Vacant Land on registered plan of subdivision;
   • (d) Purchaser: Grey;
   • (e) Purchaser's Solicitors: Blank;
   • (f) Price: $120,000;
   • (g) Deposit: $6,000, of which $500 has been paid and balance of $5,500 to be paid by 29/11/2007;
   • (h) Finance Condition: Yes;
   • (i) Settlement Due: 8 January 2008;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Statement of Adjustments:[124] adjusts outgoings as at the day of sale, namely 8 November 2007, although there is no mention of land tax;
   • (l) Notice of Disposition, appears to have been altered to Disposition: not signed or dated but records date of contract and date of possession/transfer both as 8 November 2007;
   • (m) Notice of Acquisition (1),[125] contains the same details as the Notice of Disposition, but curiously has not been signed by the solicitors for the purchaser and bears the facsimile details of the Applicant's solicitors at the head of the page;
   • (n) Notice of Acquisition (2),[126] records the same particulars of sale except the date of possession/transfer is 8 January 2008, that is the date of settlement; and the Notice is signed on behalf of the purchaser's solicitors and dated 22 November 2007.
3. This contract settled on 8 January 2008[127] and the Transfer of Land was registered in the name of Grey on 13 February 2008.
4. It is not apparent whether any person on behalf of the purchaser took occupation of the land prior to settlement. On its face, the contract of sale is a simple cash contract of sale, that is, not a terms contract and does not relate to the construction of a house.
5. In the Tribunal's view, the same comments apply as for Lots 405, 441 and 443 above. Accordingly, the Applicant is deemed to be the owner at the relevant date.

1. Lot 446 is the subject of a land tax assessment for the year 2008.
2. The relevant contract of sale provided as follows:[128]
   • (a) Vendor's Statement: not produced;
   • (b) Contract Day of Sale: 23 November 2007;
   • (c) Property: Vacant Land on registered plan of subdivision;
   • (d) Purchaser: Rhymney Pty Ltd;
   • (e) Purchaser's Solicitors: Precise Services;
   • (f) Price: $125,000;
   • (g) Deposit: $1,000;
   • (h) Finance Condition: No;
   • (i) Payment of Balance: 120 days from contract date;
   • (j) Settlement Date: is the date upon which the purchaser shall become entitled to vacant possession of the property and chattels must be provided, namely upon payment of the initial deposit monies and approval of the plan of subdivision;
   • (k) Statement of Adjustments:[129] adjusts outgoings, including land tax, as at the day of sale, namely, 23 November 2007;
   • (l) Notice of Acquisition,[130] records 1 May 2008 as the date of possession/transfer, that is the date of settlement; and the Notice is signed on behalf of the purchaser's solicitors and dated 2 May 2008.
3. This contract settled on 9 May 2008[131] and the Transfer of Land was registered in the name of Rhymney Pty Ltd and then Lygnos both on 20 May 2008.
4. It is not apparent whether any person on behalf of the purchaser took occupation of the land prior to settlement. On its face, the contract of sale is a simple cash contract of sale, that is, not a terms contract and does not relate to the construction of a house.
5. In the Tribunal's view, the same comments apply as for Lots 405, 441, 443 and 445 above. Accordingly, the Applicant is deemed to be the owner at the relevant date.

1. Each of the Lots 306, 316, 317, 321, 322, 330, 337, 338, 333 and 335 is relevant for the 2007 year. In addition, Lots 306, 322 and Lot 337 are also before the Tribunal for other years, as indicated above.
2. Although the evidence of Mr Mondous was somewhat confused in this area, Counsel, in his final submissions, sought to clarify that the Applicant claims that each of these Lots was the subject of a contract by which Pioneer (or Devine Homes for Lot 321) became the owner of each Lot on 12 December 2006. These Lots were supplied to Pioneer/Devine who would endeavour to sell them. A letter from the Applicant's solicitor[132] noted as follows:

Pioneer has agreed to pay council and water rates and land tax from 12 December 2006 but do not take possession of the Lot as they propose to sell the same to third parties. Accordingly we cannot file notices of disposition, however Pioneer has agreed to pay land tax based on the value of all 10 Lots and not on a single holding basis.

1. The evidence of Mr Mondous revealed inconsistencies in the documents relied upon and significant concerns as to his credibility. In particular, the Tribunal notes with concern the following apparent deficiencies in the Applicant's documentation, which have been identified in more detail above:
   • (a) The original signed contracts of sale and vendor's statements have not been produced in full or at all to the Tribunal;
   • (b) Many of the copy contracts were incomplete or had accompanying documents whose details did not match;
   • (c) No building contracts were produced although most contracts of sale were for the sale of vacant land, where the price included the cost of construction of a house;
   • (d) Most contracts make no reference to an associated or contemporaneous major domestic building contract;
   • (e) Most contracts were in the form of a cash contract of sale with a payment of a deposit and balance of purchase price by a settlement date, although Mr Mondous described such contracts as terms contracts;
   • (f) A Vendor Statement is missing from many contracts; and some Vendor Statements or Additional Vendor Statements make reference to a schedule of payments which is not otherwise reflected in the contract of sale;
   • (g) Many contracts bear amendments which have not been signed or initialled by the parties;
   • (h) Some contracts bearing the names of different purchasers also bear strikingly similar signatures;
   • (i) In many contracts it is unclear which special conditions, if any, apply;
   • (j) There are serious questions about the authenticity of some of the hand written particulars and amendments on the documents produced. In particular, more than one contract has been produced in favour of the same purchaser for the same Lot, but bearing a different Day of Sale;
   • (k) In most cases there is no evidence of payment of any deposit; in some cases no deposit was payable; and in other cases, a token deposit was purportedly payable, sometimes with no date specified for payment;
   • (l) In some cases, for example Lots 405, 441, 443, and 445, a Notice of Acquisition appears to have been prepared by the Applicant's solicitors for land tax purposes, which records a different date as the 'date of possession' to the notice of Acquisition prepared by the purchaser's solicitors; and
   • (m) Many of the contracts were in favour of parties who were apparently in the business of buying and selling properties or were otherwise being used by the Applicant as an intermediary, pending identification of a genuine purchaser. Such parties included Rhymney Pty Ltd,[133] Lianna Homes Pty Ltd[134] and possibly Trikos.
2. In many cases of incomplete documents, it is impossible to know the precise contractual terms. Furthermore, in most cases there is no objective evidence of the purchaser taking occupation other than a schedule of interest payments prepared by the Applicant.
3. The Tribunal further notes that the Contracts of Sale relied upon by the Applicant were generally in the same format where the purchase price encompassed vacant land and a house to be built. The terms of the contract generally were a deposit of 10% with the balance of the purchase price payable in 2 to 3 years. Interest was apparently payable from the date when the purchaser assumed occupation of the newly built house. However, as indicated above, the contract did not contain such obligation for payment and the Applicant appears to have relied upon a payment schedule set out in the Vendor's Statement. Even where such Vendor Statements have been provided, they do not always specify a commencement date for payment of interest.
4. A number of contracts were ultimately rescinded, either expressly by the Applicant, or by implication, when the purchaser failed to settle.
5. Where a contract has not settled but a formal rescission notice has not been produced by the Applicant, it was asserted on behalf the Applicant that the contract remained on foot until the date when the relevant Lot was resold. In the Tribunal's view, there was no evidence produced to support this assertion. In particular, the Applicant did not prove any continued intention to enforce the contract.
6. Where special conditions of a contract of sale have been produced, generally they have provided for an adjustment between the parties for outgoings, including land tax, to be effected from the date of sale. In the Tribunal's view, any provision for adjustment of rates and outgoings does not of itself confer any entitlement to possession.
7. In addition, in the contracts specified above, a special condition or the Settlement Date in the Particulars of Sale purported to confer a right to possession on the Day of Sale or later approval of the Plan of Subdivision.
8. In the Tribunal's view, as indicated above, the presence of such a deemed possession provision was not consistent with the nature and intent of the contract of sale, and it is reasonable to draw the inference that the principal purpose and intent of such a provision was to shift liability for land tax and not to confer an enforceable entitlement to possession upon the purchaser. In particular:
   • (a) On the Day of Sale of many of the contracts, the plan of subdivision was unregistered; thus precluding any effective deemed possession;
   • (b) There is no commercial reason why entitlement to possession would be conferred upon a purchaser upon payment of a nominal deposit;
   • (c) Many contracts fall into the category of a standard cash contract of sale, with settlement provided within 60, 90 or 120 days, where the purchaser would normally be expected to take possession upon payment of the purchase price in full. Furthermore, in such cases, there is no evidence that any purchaser did in fact occupy or otherwise deal with the subject Lot prior to settlement;
   • (d) In other contracts with a delayed settlement of 2 to 3 years after the Day of Sale, where the purchase price and settlement was predicated upon the construction of a house, a deemed entitlement to early possession upon payment of a bare deposit, has not been proven to constitute a genuine entitlement. In particular:
     • (i) The Applicant has failed to disclose the complete picture comprising the contractual obligations between the parties, as no related building contracts have been tendered; and
     • (ii) Whether and upon what date a purchaser has taken occupation of a Lot, upon completion of a house, has not been proven.
9. In the Tribunal's view, either:
   • (a) there is no evidence of a genuine or enforceable entitlement to possession and none was in fact exercised, as at the relevant date; or
   • (b) where a purchaser has taken occupation of a house, completed under the contract, prior to settlement, the timing of such occupation has not been satisfactorily proven and the legal nature of such occupation remains uncertain.
10. In the case of 10 Lots, identified above, the Applicant relied upon an alleged option agreement between the Applicant and Pioneer pursuant to which Pioneer apparently arranged sales to third parties. The option agreement was not produced; its terms were not explained; and the precise legal implications for the role purportedly performed by Pioneer were not apparent.
11. In the Tribunal's view:
    • (a) The evidence on behalf of the Applicant concerning the arrangement with Pioneer was wholly unsatisfactory and in fact impossible to comprehend;
    • (b) Whatever contractual arrangement there may have been whereby, as between the Applicant and Pioneer, liability for land tax was assumed by Pioneer, such arrangement does not impact upon the position of the Applicant under s 16 of the LTA 2005 as the deemed owner of the land; and
    • (c) There is no evidence that Pioneer had 'taken possession of the land' pursuant to a contract of sale for any of the subject Lots.
12. No witnesses other than Mr Mondous, were called on behalf of the Applicant. In view of the obvious deficiencies in the documentation and the serious concerns raised in these reasons as to the authenticity of certain documents and the purpose and intent of the deemed possession provisions, the Applicant's case is significantly weakened by the absence of any objective corroboration from any purchaser of a relevant Lot.
13. The Tribunal infers from the failure of the Applicant to produce any relevant related documentation for the construction of homes, associated with the sale of many Lots; and the decision of the Applicant not to rely upon any other witnesses, that the Applicant's case would not have been assisted by such additional evidence.

Legal Issues - Requirement for the taking of possession - interpretation of s 16(3)

1. The Applicant contends that, notwithstanding that less than 15% deposit was paid in each case, the discretion given to the Commissioner in sub-s 16(3) of the LTA 2005 does not import the requirement for the purchaser to have taken possession of the land as contained in para 16(1)(a). Therefore sub-s 16(3) should be considered alone.[135] If there is a contract of sale made in good faith (s 16(3)(a)) and the contract is still in force (s 16(3)(b)) the Commissioner may determine that the vendor is deemed not to be the owner of the land.
2. A series of recent decisions of the Tribunal, all heard and determined by Member Glover,[136] have supported the Applicant's contention. In Oakbee Member Glover stated:[137]
   1. The Act's s-s16(3) discretion has no other condition. It does not require the purchaser to have taken possession of the land. If the Tribunal were to construe the provision standing alone, it would seem that the Applicant has satisfied the requirements of (sic) that the subsection imposes.
   2. However, the preceding paragraph 16(1)(b) the Act qualifies a requirement that "15% of the purchase money has been paid" with the expression "subject to subsection (3)". This is part of a formulation that a vendor of land is not deemed to be the owner of and if certain matters are satisfied. Paragraph 16(1)(b) is the second 'of s-s16(1)'s two requirements. The first requirement, in paragraph 16(1)(a), is that "the purchaser has taken possession of the land".
   3. There may be an implication from the words, "subject to subsection (3)" in paragraph 16(1)(b) of the Act that the paragraph 16(1)(a) requirement is imported and applicable when the paragraph 16(1)(b) requirement is referred to in s-s 16(3). Subsection 16(3) then requires the purchaser to have taken possession of the land as an additional condition. An ellipsis may have occurred. But the construction is not obvious.
3. It was noted in Oakbee that sub-s 49(2) of the repealed Land Tax Act 1958, which corresponds with sub-s 16(3) of the LTA 2005 included an explicit condition that possession of the land be delivered to the purchaser. In contrast, sub-s 16(3) LTA 2005 does not include an explicit possession requirement.[138] Member Glover stated:
   1. The Acts differ in this respect. Subsection 16(3) of the 2005 Act does not include a "purchaser has taken possession of the land" condition correlating to the same condition in paragraph 16(1)(a). Reference to "subject to subsection (3)" in paragraph 16(1)(b) qualifies the condition in that paragraph and not the s-s 16(3) discretion. It does not, in terms, add anything to s-s 16(3).
   2. Perhaps the person drafting the 2005 legislation meant to replicate the terms of the 1958 Act in different but equivalent language. However, it is doubtful whether it is a legitimate interpretive technique for courts (and tribunals) to "read in" words to legislation where words are believed to be omitted, I am not prepared to interpret s-s16(3) of the Act other than by giving effect to its literal terms. (footnote omitted)
4. In Oakbee, the Tribunal apparently reached its construction without the benefit of submissions on the question from either party.[139] Consequently, in the subsequent matter of KM Developments v Commissioner of State Revenue[140] the interpretation of s 16 was the subject of extensive debate.
5. The respondent in KM Developments sought to have the interpretation of sub-s 16(3) reconsidered. It was argued that the paragraph 16(1)(a) condition, that the purchaser must have taken possession of the land, remains as a requirement to be met in order to enliven the Commissioner's discretion in sub-s 16(3).
6. The Tribunal, in KM Developments, acknowledged that there were:

signs that the words "subject to subsection (3)" in paragraph 16(1)(b) of the Act may have been intended to import the paragraph s 16(1)(a) condition and make it generally applicable to s-s 16(3).[141]

1. However, consistent with the finding in Oakbee, the Tribunal went only so far as to say that 'perhaps an ellipsis has occurred'.[142] It was not willing to imply the possession requirement in para 16(1)(a) into sub-s 16(3), for the purpose of aligning with parliamentary intentions, instead reasoning that:

Courts (and Tribunals) are bound to give effect to the clear language of a statute even if the result is considered to be anomalous or unfair.[143]

1. The decision in Kameel Pty Ltd v Commissioner of State Revenue[144] was the third decision that considered sub-s 16(3). In Kameel, the Tribunal refused to exercise the discretion in sub-s 16(3) principally because it was not satisfied that the conditions in para 16(3)(a)[145] were met, namely, that the contracts of sale were made in good faith and not for the purposes of avoiding land tax. However, it is implicit that the Tribunal's views in Kameel, regarding the s 16(3) discretion, are the same as and symmetrical with its decisions in Oakbee and KM Developments. The decision confirms the consistent approach that the Tribunal has taken in construing sub-s 16(3).
2. It is obviously desirable for the Tribunal to be consistent in its decision-making. However, in this instance, I do not agree with the interpretation of sub-s 16(3) as expressed in Oakbee, KM Developments and implicitly in Kameel. Such departure from prior decisions of the Tribunal is regrettable. However, I am duty bound not to compound an error of law where, in my view, the previous reasoning and statutory interpretation is plainly wrong.
3. The above construction treats para (1)(a) as if it said 'subject to subsection (3)'. That is, it treats the whole of sub-s (1) as being 'subject to subsection (3)'. Therefore, sub-s (3) of s 16 was construed as overriding both paragraphs of sub-s (1). In other words, where the two matters listed in sub-s (3) are satisfied, then, as well as overriding the requirement in paragraph (b) of sub-s (1) that the purchaser has paid at least 15% of the purchase money, sub-s (3) was construed as overriding the requirement in paragraph (a) of sub-s (1) that the purchaser has taken possession of the land. As indicated, in my view, such a construction is plainly wrong.
4. Subsection (3) must be read in context with the section in which it lies. Subsection 16(1) contains two requirements: (a) and (b); the second of which is 'subject to subsection (3)' and the first of which is not. It is not necessary to 'read in' or imply any words to come to the conclusion that sub-s 16(3) is a proviso to para 16(1)(b) alone. There is no question, as submitted by Applicant's Counsel, that the High Court has stated that the task of statutory construction must begin with a consideration of the text itself.[146] However, in my opinion, there is no inherent ambiguity in the words of the section and there is no need to refer to extrinsic sources to aid interpretation.
5. The section would have been drafted quite differently if sub-s 16(3) were intended to qualify the whole subsection. For instance:
   • (a) the words 'subject to subsection 3' in para 16(1)(b) would have been within the preamble to sub-s 16(1), it would not have been attached to para 16(1)(b) only; or
   • (b) if sub-s (3) was intended to override sub-s (1) it could have been included in a new section altogether and said 'notwithstanding sub-s 16(1), the commissioner may still determine that the vendor is deemed not the owner ..'.
6. It is not necessary to speculate on how the provision could have been drafted in order to provide the meaning which the Applicant contends. I only make the point that it would have been easy to do so. The meaning of s 16, in its current form, in my opinion, contains no ambiguity.
7. For completeness, when considering s 16 in a broader context, my findings are reinforced. There is nothing in extraneous documents such as the second reading speech or any other authority that would indicate there was ever meant to be a change from the 1958 Act to the 2005 Act. It would have been a significant policy change for this to have taken place.
8. I note that if there were any doubt about whether the above construction should be preferred to the Oakbee and KM Developments construction, then that doubt is resolved by s 35(a) of the Interpretation of Legislation Act 1984 which requires one to prefer the construction that would promote the purpose or object underlying the Act:

In the interpretation of a provision of an Act or subordinate instrument -

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object.

1. The construction reached in Oakbee and KM Developments not only does not 'promote the purpose or object underlying' the Act, it can produce consequences which undermine such purpose. Specifically, the interpretation adopted in Oakbee and KM Developments can result in neither vendor nor purchaser being liable to land tax on the taxable land. In other words, no one may be liable. That was the result in Oakbee itself. Parliament's intention from s 16 is to allocate liability between a vendor and purchaser so that the vendor is liable until the purchaser is deemed liable. It is clearly not an exemption provision drafted to create a tax lacuna whereby no liability for land tax exists.
2. The Oakbee construction produces a further incongruity: if the purchaser has paid at least 15% of the purchase money, then the vendor remains liable unless it can prove that the purchaser has taken possession of the land; whereas if the purchaser has paid less than 15% of the purchase money, then, under the Oakbee construction, the vendor does not need to prove that the purchaser has taken possession and can rely simply on the contract having been made in good faith and being still in force. In other words, the vendor is subject to a greater proof if the purchaser has paid more of the purchase money.
3. Finally, it is worth making brief reference to the Highlands case, where Rich J articulated the separate purposes for the requirements for possession and payment of minimum deposit thus:

Sec. 37 of the Land Tax Assessment Act 1910-1926 has its origin in legislation in New Zealand, which is expounded by Hosking J. in Yule v. Commissioner of Taxes[1]. The expression "so soon as he has obtained possession of the land" in sec. 37 (1) (a) refers to possession in the character of purchaser. As Hosking J. says, at p. 896, when a person is spoken of as being in possession as purchaser it is but a colloquial method of indicating the particular right under which possession is maintained. "To give effect to the object of preventing dummy sales possession ought to be given the wider rather than a narrower meaning which might lead to evasion." The wider meaning results under our legislation in the liability of the buyer accruing as soon as he secures that control of the land which enables him to enjoy its profitable use or its returns. The Revenue is protected against the seller relieving himself at the expense of the buyer by the provision in sec. 37 (1) (b) which retains the seller's liability until at least 15 per cent of the purchase-money has been paid.

1. In conclusion, the proviso under para 16(1)(b) and the exercise of the Commissioner's discretion under sub-s 16(3) can only be invoked once para 16(1)(a) has been satisfied.

1. Sub section 45(1) of the Interpretation of Legislation Act 1984 states:

(1) Where in this Act or any Act passed or subordinate instrument made on or after the commencement of this Act the word "may" is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.

1. The Applicant submitted that, notwithstanding sub-s 45(1) of the Interpretation of Legislation Act 1984, in prescribing the conditions to be met in order for the discretion to be exercised in sub-s 16(3), the Parliament has set out the requirements that, if met, should result in the discretion being exercised.[147] The Applicant states that 'it would be utterly pointless to set out two conditions that must be met in order for the discretion to be exercised, hypothetically find both those requirements and then to refuse to exercise the discretion'.[148] Doing so would expose the decision-maker to accusations of taking into account irrelevant considerations.
2. The Applicant provided selected quotes from the decision of Pagone J in Challenger Listed Investments Ltd v Commissioner of State Revenue including:[149]

...In particular it is not clear how s 45(1) might permit the Commissioner not to exercise the power if the only considerations permitted by the conferring statute to be taken into account have been satisfied.

1. Having considered the above quote in context, it is clear that His Honour did not contend that no residual discretion survived in these circumstances. The concern expressed by Pagone J, in the context of interpreting s 30(3)(a) of the Taxation Administration Act 1997 (Vic), was that sub-s 45(1) of the Interpretation of Legislation Act 1984 'leaves uncertain the basis on which the power 'may not be exercised...'. His Honour concludes that 'Nonetheless, the effect of s 45(1) upon s 30(3) of the Administration Act would appear to be to confer upon the Commissioner a discretion not to exercise the power...'.
2. In the present case, there are a number of identifiable considerations potentially relevant to the exercise of the discretion beyond the threshold criteria contained in paras 16(3)(a) and (b). I discuss these further below.
3. I therefore accept Respondent Counsel's submission to the effect that s 45 of the Interpretation of Legislation Act 1984 applies and its effect is clear: 'may' means may, 'shall' means must and any rule of construction to the contrary is abrogated.[150]
4. On this issue, I concur with the reasons of Member Glover in the decision of KM Developments:[151]

The word 'may' is facilitative and implies a discretion when used in Acts to which the section applies. This includes the Land Tax Act 2005, which commenced after the Interpretation of Legislation Act 1984. In my view, federal taxation precedents cited by Mr Tisher for the applicant do not undermine the existence of the respondent's discretion in situations where the conditions in s-s16(3) of the Act are satisfied.

1. I note that the Applicant also relies on the majority decision of the High Court in Finance Facilities Pty Ltd v Federal Commissioner of Taxation.[152] This is a decision made prior to the enactment of the Interpretation of Legislation Act 1984. It does not consider the effect of sub-s 45(1) and so does not assist the Applicant.
2. In this case, the Tribunal has found that the Applicant is deemed to be the owner of the respective Lots on the relevant dates and accordingly resort to the discretion under sub-s 16(3) does not arise. However, for completeness, the Tribunal will consider the question of whether the discretion in sub-s 16(3) should be exercised favourably to the Applicant so as to relieve it of its land tax liability?
3. The Tribunal stands in the shoes of the Commissioner for the purposes of reviewing the exercise of the discretion.[153] The equivalent sub-s 49(2) of the Land Tax Act 1958 stated that 'the decision of the Commissioner shall be final and conclusive'. There is no such equivalent in s 16 of the LTA 2005, nor is there an equivalent provision in the Taxation and Administration Act 1997.
4. When factors are not listed, what are relevant and irrelevant factors are guided by the purpose and context of the legislation. If considerations are relevant and consistent with the purpose of the Act, then the discretion is exercised according to law.[154]
5. In general terms, there are a number of considerations potentially relevant to the exercise of the discretion beyond those contained in the LTA 2005, including:
   • (a) Whether an applicant is in the business of selling land, such as a land developer or merely a vendor in a sole transaction;
   • (b) Whether there have been sales to prohibited purchasers (such as the selling agent) or other associated business entities;
   • (c) Whether no deposit had been paid or a deposit close to 15%; and
   • (d) Whether the contractual documentation is in order or raises concerns as to its authenticity.
6. In this case, as indicated in more detail under each Lot above, one or more of the following circumstances existed:
   • (a) The Applicant was a major land developer in the business of selling land, including land and house and land packages;
   • (b) All of the contracts provided for no more than 10% deposit and in some cases less or no deposit;
   • (c) Many sales related to Lots on a plan of subdivision which had not yet been approved;
   • (d) At least two sales were apparently in favour of the selling agent and other sales were in favour of business entities which appeared as the purchaser in multiple contracts;
   • (e) In some cases it was not proven that the contract remained on foot at the relevant date; and
   • (f) The circumstances in which the Applicant has sought to rely upon a deemed possession provision are more consistent with an intention to evade the payment of land tax.
7. Accordingly, the Tribunal would decline to exercise a discretion under sub-s 16(3) to deem the Applicant not to be the owner of the land.

Buyer in Possession - Effect of the Contract of Sale

1. In light of the above interpretation, in order for the Commissioner's discretion in s 16(3) to be enlivened, the Applicant must show that for each of the Lots the 'purchaser has taken possession of the land' pursuant to para 16(1)(a) of the LTA 2005. Accordingly, it is appropriate to now consider what is meant by the term 'taken possession'.
2. Sections 48 and 49 of the LTA 1958 were the predecessors to ss 15 and 16 of the LTA 2005. The following differences in drafting appear:
   • (a) Under the LTA 1958 Act, the buyer would be liable for land tax 'so soon as he has obtained possession of the land' (s 48) and the seller would be liable until 'possession of the land has been delivered to the purchaser' (s 49);
   • (b) Under the LTA 2005, the same language is used in both s 15 and s 16. A purchaser is deemed to be the owner of the land if 'the purchaser has taken possession of the land' (s 15) and the vendor is deemed to be the owner of land until 'the purchaser has taken possession of the land' (s16).
3. The issue is whether the language used in the LTA 2005 changes the test of what amounts to possession under the LTA 1958. The Applicant contended that there is no meaningful distinction about how the words are to be construed and that case law interpreting the meaning of possession under the LTA 1958 remains equally relevant under the LTA 2005.
4. The Tribunal has previously recognised a meaningful distinction in the wording of the two Acts. In Oakbee, Member Glover found that the purchaser never took possession of the land:[155]

Becoming "entitled" to possession was insufficient for the Applicants to "take possession" in the sense required by paragraph 16(1)(a) of the Act.

1. The decision in Oakbee was followed in the subsequent decision of KM Developments. Member Glover stated in KM Developments that the wording in the 2005 Act introduced a 'difference of mood' and that a purchaser must now do something in order to obtain possession. Merely becoming entitled to possession cannot suffice.[156]
2. It is common ground that 'possession' under both the LTA 1958 and the LTA 2005 means possession pursuant to the contract of sale.[157] The parties diverge when it comes to whether or not anything more than a contractual entitlement is required. The Applicant contends that entitlement is all that is required,[158] whereas the Respondent contends that at a minimum there must be a right to possession under a contract,[159] it then must be asked whether the purchaser has taken possession.
3. In Cam & Sons[160] in the context of a slightly differently worded provision, Sugerman J also suggests that taking possession connotes an act by the recipient:

The words of paragraphs (a) and (b) of s 26(1) are "obtained possession of the land", and "possession of the land has been delivered to the purchaser".[161] It is not in terms required by the paragraphs that the purchaser should have taken or entered into possession or that the vendor should have put him physically into possession... One takes or enters into possession solely by one's own act, but one "obtains" it in this context by the act of another in "delivering" it.

1. Respondent's Counsel suggested that in the vast majority of cases there is not going to be a material difference.[162] Delivery of possession, obtaining possession and taking possession will in many cases occur simultaneously. However, on occasions, there may be transactions in which possession has been delivered and obtained but not taken.
2. The decision in Oakbee was cited as one such example of when a purchaser may be 'entitled' to possession but has not 'taken' possession. The Tribunal in Oakbee did have the benefit of extensive submissions on this question. It decided that the terminology differed materially from the old Act (LTA 1958, ss 48 and 49) and that 'taking possession' contemplated more than merely 'becoming entitled to possession' or having possession 'delivered' by the vendor.[163]
3. In my view, I am not persuaded that any perceived 'difference in mood' is an adequate basis for a purposeful change in legislative intent.
4. 'Obtain' and 'take' both connote an active and conscious act. The Concise Oxford Dictionary gives the following meanings:
   • (a) 'Obtain' means 'acquire or secure',
   • (b) 'Take' means 'lay hold of with one's hands' or 'reach for and hold' or 'occupy'.
5. I am not convinced that there is any meaningful distinction to be applied between the two Acts by reason of the changed wording.
6. In my view, an alternative analysis is preferable and does not rely upon any material change in meaning between the two Acts. The primary focus should be upon the nature and intent of the rights conferred upon the purchaser and whether they equate to rights normally associated with ownership.
7. In my view, the cases clearly demonstrate that the expression in s 48 of the LTA 1958 'has obtained possession of the land' does not require physical occupation by the purchaser but equally does not equate to mere occupation. These two scenarios are clearly demonstrated in the following two cases.
8. In the Highlands case, the appellant was, on a construction of the contract which the parties acted upon, entitled to possession of the land before a certain date. The issue in the case was whether the appellant purchaser under the contract, had obtained possession of the land, notwithstanding that it was still used for grazing by the vendor's tenant.
9. In that case, the tenant's lease agreement had expired before the relevant date but continued to roll over on a month-to-month basis until such time as the grazier was asked to leave by the appellant. Despite not occupying the land, the appellant had exercised dominion and control by erecting signs advertising the land for sale, registering the subdivision with council and had sold a number of the lots. The case merely acknowledged that possession of the land extended to a buyer who obtains entitlement to receipt of the rents and profits. In this case, the issue is a more fundamental one, namely, whether the deemed possession provision was genuine and capable of being enforced in any meaningful way.
10. In Sandhurst Golf Estates Pty Ltd v Commissioner of State Revenue,[164] His Honour Judge Bowman made a very concise analysis of the phrase 'buyer in possession.' In that case, while a contract of sale had been signed, the plan of subdivision was not registered; the contract had not settled; and a transfer had not been signed. Nevertheless the parties agreed that, at the relevant time, the purchaser had taken possession under a separate lease agreement.
11. The facts,[165] which were not disputed, were that contemporaneously with the execution of the contract of sale the appellant entered into a lease with SHA in respect of the golf course land. The lease commenced on the date of the contract of sale, and continued until the date the land was transferred to SHA, or the contract of sale was otherwise terminated. Again, contemporaneously with the execution of the contract of sale, SHA entered into a construction agreement in relation to buildings on the golf course land with two companies and an agreement for lease with Sandhurst Club Limited, whereby SHA would become the owner or lessee of the land and carry out construction works and, upon completion of the works, the parties agreed to enter into a lease of the land.
12. His Honour noted:

24 The fundamental principle which has existed at least since the decision of the High Court of Australia in Highlands is that, for the purposes of the relevant provisions of the Act, possession must be possession in the character of purchaser pursuant to a contract of sale. In Highlands Starke J expressed the view that the possession required was de facto possession referrable to the agreement for the sale of land. Dixon J interpreted it as possession as purchaser obtained in intended execution of the agreement of sale. A similar approach was adopted in Cam & Sons.

25 In the present case, the fact that SHA entered into possession is the starting point of enquiries and not the conclusion. The question of fact to be determined is "What was the true intent of the documents executed by the parties?"

1. Pausing at this point, the purpose and intent of the provision in the various contracts in this case, purporting to confer deemed early possession as from the Day of Sale, was more consistent with shifting liability for land tax than conferring any genuine enforceable entitlement.

35 The key question is whether possession has been provided to the purchaser pursuant to the provisions of ss 48 and 49 of the Act. The cases establish that this is a question of fact. They also establish that the enjoyment of the land, being referrable to a contract of sale, is the enjoyment that would be expected by an owner, and not simply by a lessee in an ordinary lessor/lessee situation. That applies in the present case. There will only be the dominion and control of an owner if there is some relevant relationship as purchaser and vendor, and something more than a lessor/lessee relationship. SHA has de facto possession and is exercising that dominion.

1. His Honour found that the contract and the lease were inextricably linked:

45 In summary, I am quite satisfied that SHA has de facto possession of the land and that such possession is referable to the agreement for the sale of the land and that SHA has been enjoying that control of the land that one would expect to be enjoyed by an owner.

1. The Tribunal endorses His Honour's analysis. The reference to 'the agreement for sale of the land or any intended execution thereof' contemplates a valid contract of sale for land where the possession is taken pursuant to or, as in Sandhurst's case, otherwise consistent with and as a consequence of, the terms of the contract. The contractual arrangements for the sale, lease and construction were all entered into on the one day, in contemplation of each other.
2. By contrast, in this case the deemed possession conferred under the various special conditions and/or the Particulars of Sale purports to confer possession as at the date of the day of sale or upon payment of initial deposit monies and approval of the plan of subdivision. It is not always referable to any payment of deposit and not referable to payment of the balance of purchase money or physical occupation of a completed home. The purported deemed entitlement to possession did not convey with it any expressed or implied incidents of ownership or control over the subject Lot. In the Tribunal's view, the only purpose and intention of such a deemed provision is to shift liability for land tax and not to confer any genuine entitlement to possession under the contract.

1. On the basis of the reasons given, the Tribunal summarises its principal findings as follows:
   • (a) Mr Mondous was neither a credible nor reliable witness;
   • (b) The contracts produced to the Tribunal are beset with errors and inconsistencies and in many instances raise serious doubts as to their authenticity;
   • (c) Sub-section 16(1)(a) of the LTA 2005 must be satisfied before the discretion under sub-s 16(3) can be invoked;
   • (d) The discretion of the Commissioner or the Tribunal under sub-s 16(3) is not limited to the matters enumerated under paras (a) and (b) thereof;
   • (e) Even if the Applicant were found not to be in possession of any of the Lots on a relevant date, the Tribunal declines to exercise its discretion pursuant to sub-s 16(3) of the LTA 2005 so as to waive the requirement for payment of a minimum deposit of 15%; and
   • (f) The Applicant is deemed to be the owner of the respective Lots as at the relevant dates, for the purpose of the land tax assessments made by the Respondent.
2. The Tribunal will make final Orders in accordance with those sought by the Respondent.
3. The objections of the Applicant will be otherwise dismissed.
4. The assessments of the Respondent will be otherwise affirmed.

[14] Counsel relied upon earlier decisions of the Tribunal [per Dr Glover) in Oakbee Pty Ltd v Commissioner of State Revenue T15/2011 at [14] (on appeal to the Supreme Court of Victoria); Kameel Pty Ltd v Commissioner of State Revenue T27-T29 of 2012 at [19]; KM Developments Pty Ltd v Commissioner of State Revenue T26/2012 at [39] to [56].

[16] See Highlands Ltd v Deputy Federal Commissioner of Taxes (SA) [1931] HCA 38; (1931) 47 CLR 191 at 196 per Rich J, quoting Yule v Commissioner of Taxes [1918] NZGazLawRp 162; [1918] NZLR 890 at 894, 896 per Hosking J; Second Reading, Land Tax Bill 1910 (Cth), Mr Watt, Treasurer, 22 November 1910, Hansard, p 2464; Commissioner of Land Tax v Cam & Sons Pty Ltd [1964- 5] NSWR 589 at 592 per Sugerman J; K M Developments Pty Ltd v Commissioner of State Revenue (VCAT, Glover M, 16 October 2012) at [32].

[17] Yule v Commissioner of Taxes [1918] NZGazLawRp 162; [1918] NZLR 890 at 894.

[18] KM Developments Pty Ltd v Commissioner of State Revenue VCAT 18 October 2012 Member Dr Glover at [48].

[19] Cam & Sons Pty Ltd v Commissioner of Land Tax [1965] HCA 13; (1965) 112 CLR 139 at 146 per Kitto, Taylor and Owen JJ, at 148 per Menzies J ('possession under the contract of sale'), at 150 per Windeyer J ('possession... by virtue of the contract').

[20] Highlands Ltd v Deputy Federal Commissioner of Taxes (SA) [1931] HCA 38; (1931) 47 CLR 191 at 196 per Rich J (see also Dixon J at 201).

[21] Cam & Sons Pty Ltd v Commissioner of Land Tax [1965] HCA 13; (1965) 112 CLR 139 at 147-8 per Menzies J citing Strahorn v Strahorn [1905] NSWStRp 49; (1905) 5 SR (NSW) 382 and Lysaght v Edwards (1876) 2 Ch D 499; see also at 149 per Windeyer J and at 146 per Kitto, Taylor and Owen JJ.

[22] Sections 110 and 127(b) of the Taxation Administration Act 1997.

[27] Oakbee Pty Ltd as trustee for the Notreen Investment Trust v Commissioner of State Revenue (Taxation), [2012] VCAT 1984.

[28] See sub-s 3(1) definition of 'owner'; and ss 7, 8, 36(1), and 10 of the LTA.

[29] Section 10.

[30] Which Mondous said was subsequently taken over by Devine Pty Ltd.

[33] In KM Developments Pty Ltd as trustee for the SS Mondous Family Trust v Commissioner of State Revenue VCAT 16 October 2012 at paragraph 13 there is reference to: 'Mr Mondous said that Kitell Pty Ltd [an estate agent broker controlled by Trikos] through the agency of Mr Trikos was an "active estate agent"...'

[38] Consistent with the finding of the Member in K M Developments at [28] and [32].

[42] SM53 [2 pages only], contract of sale produced on first day of hearing.

[50] In fact, the Plan of Subdivision was registered on 15/9/2004.

[61] Plan of Subdivision registered 15/9/2004.

[62] SM12 contains a letter addressed to the Applicant from its solicitors confirming settlement due on 21 August 2009 in respect of the Durovic contract.

[63] SM13, Solicitors letter refers to Notice which has not been produced.

[67] T74-77, SM16-19, R24A-24B, R25-27.

[75] The 2007 objection was not mentioned in the Applicant's final submissions.

[96] Plan of Subdivision registered on 15/9/2004: R3.

[103] SM23. Vendor's statement signed by the purchaser on 23 May 2005. R33.

[105] Counsel referred to R34 where Mondous is quoted as saying 'This is also a vendor's terms contract dating back to 2007...'

[112] T132-135, SM7, R50-51. An earlier Contract dated 9 July 2007 was produced on first day of hearing.

[115] SM 7, according to Vendor solicitors letter dated 17 June 2008.

[122] T112-116, SM1, R44, contract produced on first day of hearing.

[123] T117-121, SM2, R45. Contract of sale produced on first day of hearing.

[127] R45 contains a letter from purchaser's solicitors which refers to settlement on 11 January 2009, which must be a reference to 2008.

[131] SM3 letter dated 12 May 2008 from Applicant's solicitors refers to settlement for Lot 446 on 9 May 2008.

[133] Lots 249, 405, 441, 443 and 446.

[136] Oakbee Pty Ltd as trustee for the Notreen Investment Trust v Commissioner of State Revenue (Taxation) [2012] VCAT 1984, KM Developments Pty Ltd as trustee for the SS Mondous Family Trust v Commissioner of State Revenue (Taxation) [2012] VCAT 1985; and Kameel Pty Ltd as trustee of the Mondous Family Trust v Commissioner of State Revenue (Taxation) [2013] VCAT 703.

[138] There is no reference to this change in the second reading speech.

[140] [2012] VCAT 1985. Refer [39] to [56].

[142] KM Developments at 41 see also Oakbee at 25.

[143] Citing Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 per Dawson J.

[144] [2013] VCAT 703.

[145] That the contract of sale was made in good faith and not for the purpose of

[146] Applicant's submission at 25 and cases cited therein.

[147] Applicant's submissions at paragraph 30.

[149] [2010] VSC 464 at [33].

[150] The Respondent referred the Tribunal to the Commissioner's submissions in KM Developments from 1-2.

[151] [35] to [38], in particular at paragraph 37.

[152] [1971] HCA 12; (1971) 127 CLR 106.

[153] Taxation Administration Act 1997 s 111.

[154] Peko-Wallsend v Minister for Aboriginal Affairs (1985) 5 FLR 532.

[157] Cam & Sons Pty Ltd v Commissioner of Land Tax [1965] HCA 13; (1965) 112 CLR 139 at 146 per Kitto, Taylor and Owen JJ, at 148 per Menzies J ('possession under the contract of sale'), at 150 per Windeyer J ('possession... by virtue of the contract').

[158] Applicant's submissions paras 33-35.

[160] Commissioner of Land Tax v Cam & Sons Pty Ltd [1964- 5] NSWR 589 at 591 (Walsh J agreeing at 596 and Kitto, Taylor and Owen JJ agreeing on appeal in Cam & Sons Pty Ltd v Commissioner of Land Tax [1965] HCA 13; (1965) 112 CLR 139 at 144).

[161] In this aspect ss 26(1)(a) and (b) of the Land Tax Management Act 1956 (NSW) (as they existed at the time of Cam & Sons) were the same as ss 48 and 49(1) of the Land Tax Act 1958 (Vic). The present s 26 of the NSW Act refers to the following (relevantly, emphasis added): 'the purchaser is entitled to exclusive possession of the land and has taken possession of the land'.

[164] VCAT 31 March 2005 per Vice President Judge Bowman.