Victorian Civil and Administrative Tribunal|2013-01-22

The applicant failed to establish essential terms of a contract for the sale of lot 901 between itself and the purchaser as required by s-s16(1) of the LTA 2005. Uncertainty and informality marred the transaction. It is inappropriate, in these circumstances, to re-exercise the respondent's s-s16(3) discretion favourably to the applicant.

The main problem with the applicant's case is that, at different times, the applicant advanced two inconsistent contracts. Mr Mondous gave evidence that he "relied on" a photocopy of part of a contract dated 5 August 2005, in which the purchaser's name was obscured or had been deleted. This was the instrument provided to the respondent in 2006 at assessment objection stages of the appeal. Later, the applicant responded to the Tribunal's order made on 22 August 2012 to produce "any other documents on which it seeks to rely" by forwarding a contract for the sale of lot 901 dated 4 December 2005. In the later contract the purchaser was identified as "Francis Mifsud and or nominee". Mr Mondous attempted to explain the existence of the inconsistent contract as "history" of the transaction. I find this explanation opportunistic and reject it.

Collateral documents for this sale of land are inconsistent with the validity of the 5 August 2005 contract. For instance, a "Notice of acquisition of an interest in land" lodged with the Registrar of Titles by the purchaser's solicitor and dated 25 August 2006 described the date of the contract of sale as 4 December 2005. Mr Mondous explained this inconsistency by saying that he did not complete the document. It is hard to see what motive the purchaser's solicitor could have had to falsify the document. I reject this explanation.

Lot 901 was a "house and land package", Mr Mondous explained. A "Land and buildings statutory declaration" and "Goods statutory declaration" for the applicant's transfer of lot 901 were prepared for the purposes of assessing the correct transfer duty shortly before the transfer was registered on 6 October 2006. Both documents stated that the date of the contract of sale was 4 December 2005. Strangely, the Goods declaration also stated that "97.37%" of the house in the "house and land package" was to be completed after the date of the declaration.

The state of contractual and related documents for lot 905 resembles the state of the contractual and related documents for lot 901. The applicant failed to establish essential terms of a contract between itself and the purchaser in the sense required by s-s16(1) of the LTA 2005. Uncertainty and informality marred the transaction. It is inappropriate, in these circumstances, to re-exercise the respondent's s-s16(3) discretion favourably to the applicant.

The photocopy of part of a contract upon which the applicant relied was a sale of "the land together with improvements" being lot 905 on the relevant plan of subdivision to Vith Phin dated 1 December 2005. This document was supplied to the respondent at the assessment objection stages of the appeal. It was accompanied by two vendors Statements, the second of which was appropriate to a terms sale of land and dated 20 December 2005. In the second vendor's statement, the purchaser acknowledged receipt of that statement on 20 December 2005, by a signature which is manifestly not that of "Vith Phin". Appropriately for a terms contract of sale of land, the 1 December 2005 contract described a settlement date almost three years after the contract date on 5 October 2000.

Again the applicant responded to the Tribunal's order made on 22 August 2012 to produce "any other documents on which it seeks to rely" by forwarding a different contract for the sale of lot 905. This was a contract dated 1 July 2005. The contract nominated the same purchaser, but with handwritten rather than typed particulars. Mr Mondous explained these discrepancies as part of the "history" of the transaction, an explanation which I reject as opportunistic. Collateral documents for the sale of lot 905 transaction relative to the assessment of transfer duty also contained various inconsistencies with the 1 December 2005 contract, as Mr Kotros for the respondent demonstrated.

The state of contractual and related documents for lot 906 resembles the state of the contractual and related documents for lot 901. The applicant failed to establish essential terms of a contract between itself and the purchaser in the sense required by s-s16(1) of the LTA 2005. Uncertainty and informality marred the transaction. It is inappropriate, in these circumstances, to re-exercise the respondent's s-s16(3) discretion favourably to the applicant.

The photocopy of part of a contract upon which the applicant relied purported to effect a house and land package sale by the applicant to Scott Watson Fitzsimmons dated 1 July 2005. The document was supplied to the respondent at the assessment objection stages of the appeal. Attached to it was a Vendor's Statement dated 2 July 2005, the receipt of which was acknowledged by Mr Fitzsimmons on 2 July 2005. Dated prior to the vendor's statement, the contract was prima facie voidable pursuant to the s-s32(5) Sale of Land Act 1962. However, there was no evidence that the contract had been avoided and this discrepancy was not material.

The applicant responded to the Tribunal's order made on 22 August 2012 to produce "any other documents on which it seeks to rely" by forwarding a different contract for the sale of this lot. This was a contract on different terms dated 1 July 2004. Land sold in that contract was described as "Lot 906 on Plan of Subdivision 520114K". The annexed Vendor's Statement referred to an "unregistered plan of subdivision" and was dated and acknowledged on 2 July 2004.

Mr Kotros for the respondent asked Mr Mondous to explain how the 1 July 2004 contract could refer to Plan of Subdivision 520114K when that plan was not registered until 20 May 2005. Mr Mondous said that this was a typing error. The error can only have related to the dating of the contract and not the insertion of the unknown number of a future plan of subdivision. The dating error was repeated in two deliberate longhand entries on the Vendor's Statement. I do not accept the explanation.

Both the 1 July 2005 and the 1 July 2004 contracts contained "Specaial Conditions" (sic). Special condition 1 was headed "Price apportionment". The purchaser in the 1 July 2005 contract agreed that the value of improvements on the property at the time of sale was nearly $15,000 less than the value agreed to by the 1 July 2004 purchaser. Asked to explain this, Mr Mondous said that "the price was more because the house cost more". I do not understand this explanation. It does not appear to explain the discrepancy.

The state of contractual and related documents for lot 911 resembles the state of the contractual and related documents for lot 901. The applicant failed to establish essential terms of a contract between itself and the purchaser in the sense required by s-s16(1) of the LTA 2005. Uncertainty and informality marred the transaction. It is inappropriate, in these circumstances, to re-exercise the respondent's s-s16(3) discretion favourably to the applicant.

Applicant relies on a photocopy of part of a contract dated 31 October 2004, whereby vacant land "being Lot 911 on proposed Plan of Subdivision No PS 520114k" (sic) was sold to Steven Malcolm Landells for $105,000. A handwritten note indicated that he initial price was $110,000. The document was supplied to the respondent at the assessment objection stages of the appeal.

On its face, the 31 October 2004 contract is both impossible and illegal. Impossible, because the land sold is described by reference to the number of a plan of subdivision which had not been registered with a number at the date which the contract bears. It will be remembered that Plan of Subdivision No PS 520114K was not registered until 20 May 2005. The contract was illegal because the 31 October 2004 contract amounts to the sale of land in a plan of subdivision before the plan has been registered by the Registrar contrary to s-s9AA(1) of the Sale of Land Act 1962.

The applicant responded to the Tribunal's order made on 22 August 2012 to produce "any other documents on which it seeks to rely" by forwarding a different contract for the sale of this lot. Also dated 31 October 2004, this additional document purported to evidence the sale of similarly described land for the different price of $220,000. The price was more than double that of the first 31 October 2004 contract upon which the applicant relies. Mr Mondous explained this by saying that the purchaser decided to buy vacant land only and retain his own builder. I find this explanation plausible, but insufficient. A Notice of acquisition of an interest in land dated 7 June 2007 is consistent with the 31 October 2004 contract for the lesser sale price. More evidence is needed to indicate that the earlier contract had been terminated.

The state of contractual and related documents for lot 912 is totally unsatisfactory. Clearly, the applicant failed to establish essential terms of a contract between itself and the purchaser in the sense required by s-s16(1) of the LTA 2005. Uncertainty and informality marred the transaction. It is inappropriate, in these circumstances, to re-exercise the respondent's s-s16(3) discretion favourably to the applicant.

Until the week before hearing, the applicant supplied no contractual document evidencing a sale of lot 912. Nearly 8 years elapsed between when the applicant received the respondent's 2006 assessment dated 10 February2006 in respect of the land and the time when the applicant produced this document.

The "contract" was a fragment only. Specifically, a photocopy of the particulars from a contract which purported to effect a 5 December 2004 sale of lot 912 to Phillip Alan and Louise Carmel Treverton for $220,000. The land was described in the particulars as "being Lot 912 on proposed Plan of subdivision No PS 520114k" (sic).

The same problems of impossibility and illegality arise in relation to contract particulars for lot 912 as arose for lot 911. Contracting parties could not have known the registered number of a plan of subdivision which was unregistered at the time of their contracting on 5 December 2004. Also, the Sale of Land Act 1962 prohibits the sale of property described as it was in the particulars for the contract to effect the sale of lot 912 - with the consequence that the contract was either unenforceable or void for illegality.

Civil and Administrative Tribunal Act 1998

Kameel Pty Ltd v Commissioner of State Revenue (Taxation) [2013] VCAT 703 (22 January 2013)

Deputy President Macnamara in Re Landro Pty Ltd and the Commissioner of State Revenue [2004] VCAT 1337; (2004) 56 ATR 363 recited these provisions and, at [37], drew the conclusion that because of the "final and conclusive" description of the Commissioner's decision in s-s49(2) of the LTA 1958 the Tribunal did not "stand in the shoes" of the Commissioner and could not re-exercise the s-s49(2) power.

Kameel Pty Ltd v Commissioner of State Revenue

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Judgment (20 paragraphs)

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Kameel Pty Ltd v Commissioner of State Revenue (Taxation) [2013] VCAT 703 (22 January 2013)