Decleah Investments Pty Ltd v Commissioner of State Revenue

Decleah Investments Pty Ltd v Commissioner of State Revenue - [2013] VCAT 1002 - VCAT 2013 case summary — Zoe

[3]

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.
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.
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]
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]
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.
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.
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.
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.
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.
Consequently, no reference will be made in these Reasons to the subject matter of those objections which have been withdrawn or allowed.

[45]

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.
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]
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.
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.
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.

[46]

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.
There are a number of unsatisfactory features in the documentation produced.
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.
This contract did not settle.
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.
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.
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.
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]
Lot 213 was subsequently again sold under a contract of sale dated 4 November 2007, which settled on 4 November 2010.
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.
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.

[47]

Lot 249 is the subject of land tax assessments for the years 2006 and 2008 for which objections are still maintained.
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.
This contract did not settle.
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.
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.
This contract settled on 8 January 2008.
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]
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.
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.
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.

[51]

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.
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.
This contract did not settle.
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.
This contract did not settle. However, the Applicant relies upon the contract remaining 'on foot' as at 31 December 2005.
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.'
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.
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.
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.
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]
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.
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.
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.
Accordingly, the Applicant is deemed to be the owner as at the relevant dates.

[52]

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]
This contract settled in January 2007.
It is not apparent when the Plan of Subdivision was registered.
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'.
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.
In the Tribunal's view, there is no evidence of a genuine or enforceable entitlement to possession and none was in fact exercised.
Accordingly, the Applicant is deemed the owner as at the relevant date.

[53]

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.
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.
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.
This contract did not settle.
Clearly, the date of the vendor's statement and date of the contract do not match, being approximately three years apart.
The Applicant relies upon a Notice of Rescission issued by its solicitors by which the contract was rescinded on 7 January 2010.[63]
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]
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]
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.
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.
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.
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.
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.
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.

[54]

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.
This contract did not settle.
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]
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.
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.
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.
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.
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.

[58]

Lot 322 is the subject of land tax assessments for the years 2006, 2007[75] and 2008.[76]
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.
This contract did not settle.
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.
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;
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]
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.
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]
This contract settled.
A title search indicates that a transfer to Ndlovu was registered on 15 February 2008.
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.
In the Tribunal's view, the Applicant is deemed to be the owner of Lot 322 for all relevant land tax years.

[59]

Lot 328 is the subject of land tax assessments for the years 2006, 2007, 2008 and 2009.[82]
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]
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.
This contract did not settle.
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.
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]
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.
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.
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.
In the Tribunal's view, the Applicant is deemed to be the owner of Lot 328 for all relevant land tax years.

[61]

Lot 331 is the subject of a land tax assessment for the year 2007.[95]
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.
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.
This contract did not settle.
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]
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.
In the Tribunal's view, there is no evidence that the purchasers took possession under the contract, at any stage.
In the Tribunal's view, the Applicant is deemed to be the owner of Lot 331 on the relevant date.

[69]

Lot 405 is the subject of a land tax assessment for the year 2008.
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;
This contract settled on 16 June 2008.[115]
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]
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.
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.
The Particulars of Sale include in the 'Settlement Date' a provision which purports to entitle the purchaser to early possession:

[75]

Lot 445 is the subject of a land tax assessment for the year 2008.
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.
This contract settled on 8 January 2008[127] and the Transfer of Land was registered in the name of Grey on 13 February 2008.
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.
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.

[79]

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.
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.
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.
A number of contracts were ultimately rescinded, either expressly by the Applicant, or by implication, when the purchaser failed to settle.
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.
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.
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.
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.
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.
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.
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.
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.
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.

[81]

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.
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.
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)
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.
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).
The Tribunal, in KM Developments, acknowledged that there were:

[85]

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).
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.
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.
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.
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 ..'.
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.
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.
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:

[97]

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.
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?
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.
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]
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.
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.
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.

[103]

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.
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]
In my view, I am not persuaded that any perceived 'difference in mood' is an adequate basis for a purposeful change in legislative intent.
'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'.
I am not convinced that there is any meaningful distinction to be applied between the two Acts by reason of the changed wording.
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.
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.
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.
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.
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.
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.
His Honour noted:

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Decleah Investments Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2013] VCAT 1002 (14 June 2013)