Miocevic v Chief Commissioner of State Revenue

Cases Cited: BBLT Pty Ltd v Commissioner of State Revenue [2003] NSWSC 1003
Commissioner of Land Tax v Pacific Acceptance Corporation Ltd (1970) 92 WN (NSW) 392
Commissioner of Taxation v Ryan (2001) 201 CLR 109
EK Anderson Investments Pty Ltd ATF Cacs Property Trust v Chief Commissioner of State Revenue [2012] NSWADT 13
Glenn and Ors v The Federal Commissioner of Land Tax (1915) 20 CLR 490
Griglio v Chief Commissioner of State Revenue [2024] NSWCATAD 212
Laviva Nominees Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 84
Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133
Mentink v Chief Commissioner of State Revenue [2007] NSWADT 34
Monisse v Chief Commissioner of State Revenue [2023] NSWCATAP 27
New South Wales Aboriginal Land Council v Chief Commissioner of State Revenue [2004] NSWADT 58
Oamington Pty Ltd (Receiver and Manage Appointed) & Anor v Commr of Land Tax & Anor 98 ATC 5051
Valencia v Chief Commissioner of State Revenue [2017] NSWCATAD 261
Whitehaven Coal Mining Limited v Chief Commissioner of State Revenue [2025] NSWSC 488

Texts Cited: Butt’s Land Law (7th Ed)

Category: Principal judgment

Parties: Iljko Miocevic (First Applicant)
Louise Miocevic (Second Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation: Counsel:
A Bell (Respondent)
Solicitors:
First Applicant (Self-represented)
Second Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s): 2025/00437328

Publication restriction: Nil

REASONS FOR DECISION

1. These proceedings arise out of a dispute between Iljko and Louise Miocevic (“Applicants”) and the Chief Commissioner of State Revenue (“Respondent”) over an assessment of land tax for 2024.

2. The Applicants claim that the land tax assessed should not be payable. The Respondent, however, says that the land tax is assessable.

3. The matters for determination include whether the Applicants were “owners” of the relevant land and if so, whether the land subject of assessment was exempt from land tax as a principal place of residence.

Background

4. The Applicants were the registered proprietors of certain land in Bellevue Hill, NSW since 2021.

5. As at May 2023, a third party had a registered mortgage over the property at Bellevue Hill and two other parties had caveats over the property.

6. On 15 July 2023, the Applicants entered into an agreement to sell the property at Bellevue Hill.

7. In August 2023, the Applicants vacated the property in anticipation of settlement, scheduled for 15 September 2023.

8. On 9 October 2023, the mortgagee declined to release its registered mortgage to allow settlement to occur.

9. On 13 October 2023, the mortgagee took possession of the Bellevue Hill property and disclaimed the agreement for sale.

10. On 23 October 2023, the Applicants and the purchaser rescinded the agreement for sale.

11. As at 31 December 2023, the Applicants remained the registered proprietors of the property in Bellevue Hill.

12. The Respondent on 23 January 2024, issued an assessment of land tax in relation to the Bellevue Hill property for the 2024 year. He applied the exemption available for a principal place of residence.

13. On 5 March 2024, the mortgagee entered into an agreement for sale of the Bellevue Hill property. That agreement settled on 16 April 2024. A land tax “clearance” certificate was issued by the Respondent before settlement.

14. On or about 25 April 2022, the Applicants had settled the purchase of a farm at Crescent Head in NSW. On 5 February 2025, the Applicants submitted a land tax variation return which nominated that property as their principal place of residence. They nominated a start date of 1 August 2023.

15. The Respondent issued a land tax assessment on 10 April 2025 for a number of years including 2024. He disapplied the principal place of residence exemption for 2024 for the Bellevue Hill property.

16. The assessment of 10 April 2025 applied the principal place of residence exemption to the Crescent Head property owned by the Applicants for the 2024 and 2025 land tax years.

17. Following further correspondence between the Applicants and the Respondent, on 5 August 2025, the Applicants lodged an objection to the land tax assessment of 10 April 2025. The objection made submissions as to why the Applicants should not be liable for land tax in circumstances where a mortgagee had come into possession. In other words, these were matters going to the assessment of land tax for the 2024 land tax year.

18. On 12 September 2025, the Respondent disallowed the objection.

19. On 11 November 2025, the Applicants sought review of the Respondent’s assessment of land tax to which they had objected, by the Civil and Administrative Tribunal (“Tribunal”). This is the application for administrative review before the Tribunal in these proceedings.

Applicants’ right of review

20. Where tax has been assessed, s 86 of the Taxation Administration Act 1996 (NSW) (“Administration Act”), allows rights of objection to a taxpayer dissatisfied with an assessment. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act).

21. A taxpayer who is dissatisfied with the Respondent’s determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (“NSW”) (“ADR Act”) of the decision of the Chief Commissioner of State Revenue subject to the objection.

22. These circumstances have arisen in the present matter as set out in the background above, so bringing the matter within the jurisdiction of the Tribunal.

23. The onus of proving their case lies with the Applicants (s 100(3) of the Administration Act).

24. The Tribunal, dealing with the taxpayer’s application, may do one or more of the following under s 101 of the Administration Act:

“(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit.”

Hearing

25. The hearing of these proceedings took place on 29 May 2026. The Applicants were self-represented. Mr A Bell of Counsel instructed by the Crown Solicitor represented the Respondent.

26. After the hearing of the matter, the Tribunal made orders allowing the Applicants to make further written submissions and for the Respondent to make written submissions in reply. Both parties made further written submissions pursuant to the orders of the Tribunal. The Applicants then replied to the Respondent. The reply was received on 30 July 2026.

27. The Applicants in their submission raised a number of new matters. They claimed exemption for the Bellevue Hill property as a principal place of residence. Previously, they had made their claim on different bases, including that after a mortgagee came into possession, the Applicants were no longer the owners liable for land tax in relation to the Bellevue Hill property.

28. They also claimed that the Crescent Head property was exempt from land tax as land used for primary production. Previously, this property had been assessed as being exempt from land tax on the basis that it was a principal place of residence.

29. The Respondent has not accepted that exemption could apply on any of the bases claimed, subject to further consideration of certain matters.

30. The Tribunal has taken account of the further submissions of both parties in the determination of this matter, in addition to the material before the Tribunal at the hearing and the oral submissions made at the hearing.

Consideration

31. The questions placed before the Tribunal for determination include the following;

32. whether the Applicants were “owners” of the Bellevue Hill property for the purposes of the LTMA in circumstances where a mortgagee had been in possession of the property at the relevant liability date

33. whether the Applicants were permitted to have more than one residence and maintain the exemption they claimed for the Bellevue Hill property

34. whether the Applicants’ property at Crescent Head was exempt from land tax as land used for primary production

35. whether the assessment of land tax could be set aside for unfairness

36. whether the Respondent was estopped from collecting the land tax in issue

37. whether considerations of hardship allowed for the assessment in dispute to be set aside

38. whether the land tax assessed could be written off?

Liability of “owners” for land tax

32. Land tax is to be levied and paid on the taxable value of all land situated in New South Wales which is “owned” by taxpayers, other than land which is exempt from taxation under the L**and Tax Management Act 1956 (NSW) (“LTMA”) (s 7). The rates of land tax payable are set out in the Land Tax Act 1956 (NSW). The “owner” is liable for the land tax payable.

33. The initial question for determination was whether the Applicants were the “owner” of the Bellevue Hill property for the 2024 year, in circumstances where a mortgagee was in possession.

34. Section 3 of the LTMA defines who is the “owner” in the following terms:

“Owner includes—

(a) in relation to land, every person who jointly or severally, whether at law or in equity—

(i) is entitled to the land for any estate of freehold in possession, or

(ii) is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession, or otherwise,

(b) (Repealed)

(c) in relation to any leasehold estate in land, whether legal or equitable (other than under any lease to which section 21C or 21D applies), a person, or a person who is a member of a class or description of persons, prescribed for the purposes of this paragraph, and

(d) a person who, by virtue of this Act, is deemed to be the owner”.

35. The term “estate of freehold in possession” set out in paragraph (a)(i) of the definition of “owner” is well accepted as meaning the first of two successive estates, the later of the successive estates known as “estates in remainder” or “estates in expectancy”. An “essential element of an " estate in possession " is, …. , that the owner of it has a present right of beneficial enjoyment, whether accompanied by physical possession of the land or not” (Glenn and Ors v The Federal Commissioner of Land Tax (1915) 20 CLR 490, at p 498).

36. Whether the limits upon the rights of a registered proprietor, consequent upon a mortgagee taking possession, prevent the registered proprietor from holding the rights of an “owner” within the meaning of s 3 of the LTMA fell for consideration in New South Wales Aboriginal Land Council v Chief Commissioner of State Revenue [2004] NSWADT 58. The argument was put to the Administrative Decisions Tribunal that a registered proprietor who did not have possession or was not entitled to rent and profits was not an owner within (a) of the definition of “owner”.

37. Judicial Member Bloch said, at [29]:

“On reflection there is on a prima facie basis something odd about a suggestion that a registered proprietor is not an owner; there are references in sections 23 (1) and section 25 which incline me to the view that a registered proprietor cannot be regarded otherwise. It is perhaps (marginally) relevant also that although Kestral as registered proprietor of the subject land had lost possession it still retained an equity of redemption and even though that asset appears to have had little, if any, value. I propose to assume for the purposes of this decision that the Applicant was an owner through para (a) (i) of the definition … ”.

38. I am in agreement that the rights held by a registered proprietor whose land is in the possession of a mortgagee, allows the registered proprietor to remain an “owner”, at least within the meaning of paragraph (a)(i) s 3 of the definition of “owner” in the LTMA.

39. Butt’s Land Law (7th Ed), at [11.180] describes what a registered proprietor whose land is mortgaged, has under the Torrens system of title by registration:

“It is common to describe the Torrens title mortgagor's interest as an “equity of redemption”. This is acceptable insofar as it recognises the mortgagor's right to seek equity's aid in enforcing rights analogous to those enjoyed by a mortgagor of old system title land, including the right to redeem after the contractual date for payment has passed. But in fact the Torrens title mortgagor has more than a mere equity of redemption: he or she remains the registered proprietor of the land – the owner, not only in equity but also at law. This means that not all of the principles applicable to the equity of redemption in its classical, old system, form can be carried over into the Torrens system. For example, a Torrens title mortgagor can pass the “legal” title to the land to a purchaser. Also, a second or subsequent mortgage of Torrens title land is not a mortgage of a mere equitable interest. Nevertheless, the totality of the rights that constitute the fee simple interest in the land are effectively diminished by registration of the mortgage. This includes the consequence that, as the mortgage is a security over the whole of the mortgagor's rights as registered proprietor at the time the mortgage is registered, any interests granted by the mortgagor after registration of the mortgage cannot affect the mortgagee's security”.

40. Whatever the effective diminution in the rights of a registered proprietor consequent upon the grant of a registered mortgage, they remain the owner of the land in law and equity. They have more than what an equity of redemption gives a mortgagor under general principles of equity, for the reasons set out by Professor Butt.

41. It also appears that s 23 (considered below), in deeming both a mortgagor and mortgagee to be owners of land in the circumstances in which that provision applies, contemplates a statutory scheme under which both the registered proprietor and the mortgagee in possession remain “owners” for the purposes of the LTMA.

42. For the reasons set out above, I am satisfied that the Applicants, as registered proprietors of the Bellevue Hill property, were its “owners” within the meaning of s 3 of the LTMA. This is because they were the holders of an estate of freehold in possession as described at [35] above, regardless of the mortgage upon that land.

43. The LTMA goes on to make certain specific provision for who bears the liability for land tax where the land in question is subject to a mortgage. Section 22, first of all, provides that no deduction from the land value of any land shall be allowed in respect of any mortgage. It also says that a mortgagor is to be assessed and liable for land tax as if they were the owner of an unencumbered estate. In other words, s 22 leaves the “owner” where they are a mortgagor as being liable for land tax in the full amount of the liability, regardless of the existence of a mortgage upon land.

44. Section 23 of the LTMA makes further provision in respect of mortgagees, setting out certain circumstances in which a mortgagee is taken to be the owner and as a result, carries the liability for land tax as the “secondary taxpayer”. The mortgagor remains liable as the “primary taxpayer”. Section 23 says:

“Mortgages

(1) A mortgagee or other person owning any estate or interest in land by way of security for money shall not be liable to land tax in respect of that mortgage, estate or interest—

Provided that a mortgagee in possession of land, or any other person in possession of land by way of security for money shall, so long as such possession continues (though not to the exclusion of the liability of any other person) be deemed to be the owner of the land; and the mortgagor shall be deemed to be the primary taxpayer, and the mortgagee in possession to be the secondary taxpayer; and there shall be deducted from the land tax payable by the latter in respect of the land such amount (if any) as is necessary to prevent double taxation—

Provided further that the foregoing proviso shall not apply—

(a) to any mortgagee or person in possession whose possession began before the first day of November one thousand nine hundred and fifty-six until a period of three years has elapsed since that date, or

(b) to any mortgagee or person in possession whose possession began on or after the first day of November one thousand nine hundred and fifty-six until a period of three years after he or she has entered into possession.

(2) For the purposes of this section a mortgagee in possession shall include a mortgagee of land who is using such land, or who is in receipt of the rents or profits of such land, or who is in receipt of the income from any business carried on such land, or who has appointed a receiver of the rents or profits of such land.

(3) Nothing in this section affects section 46”.

45. Section 23 begins by saying that a mortgagee or other person owning any estate or interest in land by way of security for money shall not be liable to land tax in respect of that mortgage, estate or interest. It then goes to set out an exception to this position. That exception deems a mortgagee in possession to be an owner so long as possession continues, subject to the qualifications set out in s 23. What follows is that if this exception applies to deem the mortgagee to be an owner, the mortgagee is potentially liable for land tax.

46. However, as it were, s 23 then goes on to set out “exceptions to the exception”. The deeming of the mortgagee as an owner applies only in certain cases, including cases where a period of three years has passed after the mortgagee has entered into possession. What follows is that until that three-year period has passed, the deeming of the mortgagee in possession as owner does not apply.

47. The Supreme Court in Oamington Pty Ltd (Receiver and Manage Appointed) & Anor v Commr of Land Tax & Anor 98 ATC 5051 accepted that a minimum three-year period of possession by the mortgagee was required to fix liability for land tax upon a mortgagee. Hamilton J said, at [5059]

“The only ways in which this could have occurred are, (a) by service of a notice by the Commissioner (§46 of the Act) (which it is agreed has not been done to either Sanwa or ANZ), or, (b) if either of them went into possession as mortgagee and remained in possession for 3 years (§23(1) of the Act). It was at one stage of the argument suggested that Sanwa was in possession of the Vaucluse land as mortgagor and that this was of significance in the determination of the case and evidence was entered into concerning this; indeed the evidence appeared to establish that it did; it did not, however, establish, and in the end it was not seriously argued, that Sanwa was in possession of the Vaucluse land for 3 years. There was no evidence or suggestion that either Sanwa or ANZ was ever given a notice by the Commissioner requiring payment by it of any land tax. On that basis, neither of them could at any time be characterised as an owner of the Vaucluse land and I find, therefore, that no part of the land tax on Oamington's land was ever due as a debt from either ANZ or Sanwa to Her Majesty or the Commissioner”.

48. Hope J (as he then was) earlier had also said: “It seems to me that … [the LTMA] … for some reason exempts mortgagees in possession unless they have been in possession for a continuous period of three years” (Commissioner of Land Tax v Pacific Acceptance Corporation Ltd (1970) 92 WN (NSW) 392, at 395 - 396).

49. The mortgagee in the present case having been in possession for less than three years as at the time the liability for land tax arose is not, as a consequence, made an owner by reason of s 23 of the LTMA. It entered into possession on 13 October 2023 and ceased to be in possession after the property was sold in 2024. In other words, the mortgagee remained in possession for less than a year, well short of the relevant three-year period.

50. In circumstances where the relevant mortgagee had not been in possession of the Bellevue Hill property for three years or more, the mortgagee cannot be a “secondary taxpayer” within the meaning of s 23. The consequence is that the Applicants alone as the registered proprietors, remained liable as “owner” for the land tax assessed for the 2024 land tax year.

51. The Applicants gave evidence that they were under the impression that when a mortgagee repossesses land, this transferred to them obligations to pay land tax. I accept that this is what the Applicants believed.

52. However, for the reasons set out above, the Applicants remained the only “owners” of the Bellevue Hill property and as such, were liable to the land tax assessed.

53. The consequences of the Bellevue hill property being the subject of an uncompleted contract for sale in 2023 also require consideration. Relevantly, s 26 of the LTMA addresses the consequences of land under the Real Property Act 1900 being subject to an uncompleted agreement for sale. It says:

“Purchaser and vendor

(1) If land under the provisions of the Real Property Act 1900 is the subject of an agreement for sale that has not been completed by transfer of the land, the person who is registered as the proprietor of the land under the Real Property Act 1900 is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser.

(2) If land, not being land under the provisions of the Real Property Act 1900, is the subject of an agreement for sale that has not been completed by conveyance of the land, the vendor of the land is taken, for the purposes of this Act, to be the owner of the land, to the exclusion of the liability of the purchaser.

(3) However, the purchaser under the agreement for sale is taken, for the purposes of this Act, to be the owner of the land (to the exclusion of the liability of the registered proprietor or vendor) if under the terms of the agreement for sale—

(a) the purchaser is entitled to receive, if the land is let to a tenant, any rents and profits derived from the tenancy, or

(b) the purchaser is entitled to exclusive possession of the land and has taken possession of the land.

(4) In this section—

agreement for sale means an agreement for sale of land that is in force”.

54. The Applicants said that by reason of s 26, the buyer was the owner subject to taxation, because it had equitable entitlement to rents and profits.

55. The Respondent, on the other hand, said that there was no uncompleted contract on foot as at the taxing date, namely 31 December 2023, the contract previously on foot having been rescinded on 23 October 2023. The Respondent also said that the purchaser under the agreement for sale subsequently made in 2024, had neither an entitlement to receive rents nor profits nor exclusive possession until 16 April 2024 when that agreement settled. Therefore, even if there were an uncompleted contract as at the liability date of 31 December 2023, the Respondent said that s 26 would have confirmed that the Applicants remained the owners as registered proprietors.

56. I am in agreement with the Respondent’s submission. There was no agreement for sale in existence as at the relevant liability date, namely 31 December 2023 that could enliven the application of s 26. In other words, there was no person in existence on the liability date answering the description of a “purchaser” to whom a liability for land tax could be shifted. Further, I see nothing in the language of s 26 or the context surrounding it that could allow s 26 to apply because an agreement for sale existed either during the year before or after the relevant liability date. As a consequence, I see no basis on which s 26 of the LTMA could have any application in the circumstances of the case.

57. For the reasons set out above, the Applicants remained the sole owner of the Bellevue Hill property as at the liability date for the 2024 land tax year. As such, they were liable for land tax for that year, absent any exemption.

Multiple residences

58. The Applicants at the hearing made no claim for exemption from land tax for the Bellevue Hill property on the basis that it was their principal place of residence. In their subsequent written submissions, they made such a claim under cl 12 of Schedule 1A of the LTMA.

59. Schedule 1A, cl 12 of the LTMA provides as follows:

“Only one principal place of residence for all members of same family

(1) For the purposes of the principal place of residence exemption, only one place of residence may be treated as the principal place of residence of all members of the same family.

(2) If members of a family own (whether jointly or separately) more than one residence used and occupied by any of them as a principal place of residence, the Chief Commissioner is to treat the one place of residence elected as the principal place of residence of the family as the principal place of residence of all members of the family in respect of a tax year.

(3) Such an election is to be made, by or on behalf of the members of the family, in writing and must be lodged with the Chief Commissioner within the period for the lodging of objections under section 89 of the Taxation Administration Act 1996.

(4) An election may be made, in respect of a tax year, by the end of the period allowed for the lodging of an objection to a notice of assessment of land tax liability (being an initial assessment of land tax liability) for that tax year.

(5) If an election is not made, the Chief Commissioner is to treat the residence that has the highest land value for land tax purposes as the principal place of residence of all members of the family.

(6) For the purposes of this clause, a family consists of the following—

(a) a person and the person’s spouse (if any),

(b) any dependent child or dependent step-child of the person and the person’s spouse (or of either of them) who ordinarily resides with the person or the person’s spouse.

(7) A person is the spouse of another person if—

(a) they are legally married, or

(b) the person is the de facto partner of the other person.

(8) However, if the Chief Commissioner is satisfied that a person—

(a) is legally married to or is in a registered relationship or an interstate registered relationship, within the meaning of the Relationships Register Act 2010, with another person but not cohabiting with that other person, and

(b) has no intention of resuming cohabitation with that other person,

the person is not to be regarded as the spouse of that other person and if a dependent child or dependent step-child of the person has a joint interest in the principal place of residence of the spouse, that interest is to be disregarded.

(9) A person who is the child or step-child of another person is a dependent child or a dependent step-child if the person is under 18 years of age and is not legally married.

(10) Nothing in this clause prevents more than one residence from being treated as the principal place of residence of members of a family under clause 7 (Concession for change to principal place of residence).

60. Clause 12 allows only one place of residence as the principal place of residence of all members of the same family. It goes on to define what a “family” is, to include a person and their “spouse”. A “spouse” of a person in turn includes someone to whom the person is legally married. I did not understand there to be any dispute that the Applicants were married to one and other and as a result, each the other’s “spouse” as at 31 December 2023.

61. I understood the Applicants to say that though married to one another, they were no longer members of the same “family” at the relevant liability date, so that each could claim a different property to be their principal place of residence. The Applicants claimed in particular that subclause (8) of cl 12 applied to them. In other words, they said that there was no relevant cohabitation and no intention of resuming cohabitation as between them, so that they were no longer members of the same “family”.

62. The Applicants’ submission was that they ceased cohabitation in 2023. They said that following that time, there were two residences which were principal places of residence. Mr Miocevic says that his wife and children moved into rental accommodation in Sydney in August 2023 and that he in turn moved into the property at Crescent Head to raise cattle and farm bees.

63. The Respondent, however, said at the hearing that there was no relevant evidence of no cohabitation, including any sworn statement. He also said that there was no evidence that anyone used the Bellevue Hill property as a principal place of residence at the relevant liability date.

64. Even if I were to accept that the Applicants’ circumstances fell within cl 12(8) of Schedule 1A, they must establish that each had a separate principal place of residence and that one of the principal places of residence was the Bellevue Hill property. Their evidence was that Mrs Miocevic resided at a rental property with her children and that Mr Miocevic resided at the Crescent Head property. The evidence also was that they vacated the Bellevue Hill property in August 2023 in anticipation of settlement, after which someone else would be the owner if settlement had proceeded.

65. Without evidence of residence at the Bellevue Hill property as at 31 December 2023 by either of the Applicants, I am unable to be satisfied that it was “used and occupied” by either Applicant as their principal place of residence. Their evidence was that after August 2023, each lived elsewhere. Clause 12 of Schedule 1A cannot, as a consequence, apply.

66. The Applicants say that they intended to occupy the Bellevue Hill property until settlement of its sale. However, the vacated that property in August 2023 and did not return there at any time. Their evidence was that each resided somewhere other than the Bellevue Hill property after vacation of that property.

Land used for primary production

67. The Applicants claimed that their property at Crescent Head was land used for primary production and exempt as such.

68. The Applicants made submissions that the land at Crescent Head had been used for grazing cattle, bee keeping and wild bird habitat preservation. They had previously claimed that the Crescent Head property was their principal place of residence.

69. The Respondent, on the other hand, said that necessary facts showing that the Crescent Head property was used for primary production were not established. He said that this was a matter involving contestable questions of fact which could have been tested at the hearing or met with evidence but were not because the relevant evidence was not before the Tribunal at the time. In any event, the Respondent’s submission was that whatever the status of the Crescent Head property, the use of that property could not affect the liability for land tax for the Bellevue Hill property.

70. The Applicants’ objection and its determination, enlivening the jurisdiction of the Tribunal, addressed the land tax assessed on the Bellevue Hill property and not the Crescent Head property. The objection and its determination did not address evidence as to the land tax status of the Crescent Head property.

71. However, the assessment under review dealt with the Crescent Head property as well as the Bellevue Hill property, assessing the former property as exempt from land tax as a principal place of residence. I understood the Applicants to now seek exemption for the Crescent Head property on a different basis, namely as land used for primary production.

72. The Applicants have made submissions concerning the use of the Crescent Head property and provided some evidence in support of its submissions. The evidence comprises of certain invoices and what appears to be advertising for certain produce. However, this evidence is insufficient to make a determination of the question of what the Crecent Head property was used for, and in particular, whether it was land used for primary production.

73. There was insufficient evidence concerning the uses of the land, such as what the dominant use was (a residence also being located on the land), the relative area of the land applied to each use, the capital invested in each use and the intensity with which activity on the land is directed to each use. I am unable, in these circumstances, to determine whether or not exemption for land tax applies to the Crescent Head property on the basis that it is land used for primary production.

74. If the Applicants wish to seek a reassessment of land tax on the Crescent Head property on the basis that it was land used for primary production, this is a matter for the Applicants to do at a later time, having put before the Respondent relevant evidence.

75. I am also in agreement with the Respondent’s submissions that the status of the Crescent Head property under the LTMA, does not, in the circumstances of the case, bear upon the question of whether or not the Bellevue Hill property is exempt from land tax as a principal place of residence. I have found for the reasons set out above that the Bellevue Hill property is not so exempt.

Unfairness

76. The Applicants submitted that the assessment of land tax raised against them was unfair.

77. Questions of fairness of the outcomes under a taxation law were considered by the High Court in Commissioner of Taxation v Ryan (2001) 201 CLR 109. The High Court said:

“But the question for decision is what are the circumstances in which an amended assessment may lawfully be issued? That question is not answered by asserting the existence of any “policy” or “general intention” unless that policy or intention is to be found reflected in the provisions of the Act. Appeals to general notions of “fairness” or “justice” do no more than attempt to mask the absence of any foundation in the legislation for the conclusion which is asserted.”

78. The Tribunal has applied this principle in numerous cases, confirming that there is no discretion to relieve a taxpayer of a tax liability on grounds of unfairness (see Griglio v Chief Commissioner of State Revenue [2024] NSWCATAD 212, at [40]-[41]).

79. The Tribunal hears the Applicants on what they say about fairness. However, in the absence of jurisdiction to allow them relief on the grounds of unfairness, the Tribunal has no power to set aside the assessment of land tax under review on the basis of unfairness.

Estoppel

80. The Applicants say that there was a failure on the part of the Respondent to advise them of the steps they had to take to manage land tax and that they relied on what the Respondent told them as to their liability for land tax. They said the advice from interactions with the Respondent had been “inconsistent”

81. Even if there were evidence of the Applicants having relied upon advice from the Respondent, it is well accepted that the Respondent cannot be estopped from assessing tax based on any conduct or representation by or on behalf of him (Whitehaven Coal Mining Limited v Chief Commissioner of State Revenue [2025] NSWSC 488, at [94]; BBLT Pty Ltd v Commissioner of State Revenue [2003] NSWSC 1003; Monisse v Chief Commissioner of State Revenue [2023] NSWCATAP 27, at [33]).

82. Regardless of what the taxpayer has been told, the taxpayer bears the responsibility for working out their tax liabilities and compliance (EK Anderson Investments Pty Ltd ATF Cacs Property Trust v Chief Commissioner of State Revenue [2012] NSWADT 13; Laviva Nominees Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 84, at [56]).

83. The Applicants also made submissions based on the consequence of the issue of a land tax clearance certificate at the time of settlement of the sale of the Bellevue Hill property in 2024. I understood the Applicants to say that the issue of such a certificate, could be relied upon to escape liability for land tax.

84. Relevantly, s 47 of the LTMA allows the Respondent to issue a certificate showing if there is any land tax charged on the land, which is “conclusive evidence” of the matter certified, subject to certain exceptions. It says:

“Land tax to be first charge on land

(1) Land tax shall until payment be a first charge upon the land taxed in priority over all other encumbrances whatever, and where the land taxed comprises two or more parcels the land tax payable on the land taxed shall be a first charge on each and every such parcel and notwithstanding any disposition of the land or any part thereof the land or part shall continue to be liable in the hands of any purchaser or holder for the payment of the land tax so long as it remains unpaid.

(1A) The Chief Commissioner—

(a) on the application of any person, and

(b) on payment of a fee determined by the Chief Commissioner (or the making of arrangements satisfactory to the Chief Commissioner for its payment),

is to issue a certificate showing if there is any land tax charged on land the subject of the application.

The Chief Commissioner may include in the certificate the land value of the land and average value of the land in relation to a specified land tax year.

…….

(1C) A certificate issued by the Chief Commissioner under this section is conclusive evidence of the matter certified against the Chief Commissioner and in favour of any person (whether or not the person is the person to whom the certificate was issued) except a person who—

(a) had notice, when the certificate was issued, of land tax charged on the land that the certificate failed to disclose, or

(b) was an owner of the land (other than a genuine purchaser for value who has not obtained possession of the land) when the certificate was issued”.

85. The Respondent said that a certificate issued under s 47(1A) merely records that there is no charge on the land and goes no further. Further, he said that the issue of a certificate did not provide “conclusive evidence” of the matter certified in favour of a person who was the “owner” of the land when the certificate was issued. He said that a certificate would provide protection to the incoming purchaser but not the Applicants who were the owner at the time of issue of the certificate.

86. In Mentink v Chief Commissioner of State Revenue [2007] NSWADT 34, the Administrative Decisions Tribunal said, at [30] that a certificate issued under section 47 of the Act cannot operate as evidence against the Respondent in favour of a person who was an owner at the relevant time.

87. I am in agreement that a certificate issued at a time when the Applicants were the owners of the Bellevue Hill property cannot protect the Applicants from liability for land tax. This is an outcome that accords with the plain meaning of s 47.

88. I am unable, in the circumstances, to find that any advice given to the Applicants as to their obligations to pay land tax or the certificate issued prior to settlement of the sale of the Bellevue Hill property in 2024, allow for the assessment under review to be impugned.

Hardship

89. The Applicants said that the imposition of land tax on them caused hardship. I accept the evidence of hardship provided by the Applicants.

90. The Tribunal, however, does not have jurisdiction to determine the matter on the basis of hardship (Loomes v Chief Commissioner of State Revenue [2014] NSWCATAD 133). Division 5 of Part 10 of the Administration Act establishes and empowers a Hardship Review Board to deal with cases in which the exaction of the full amount of tax would result in serious hardship for the relevant person or the person's dependants. However, a review of this kind is not within the jurisdiction of the Tribunal.

Writing off tax

91. Section 110 of the Administration Act gives the Respondent a power to write off the whole or any part of any unpaid tax if satisfied that action, or further action, to recover the tax is impracticable or unwarranted. The Applicants sought exercise of this power in their favour.

92. Section 110(2), however, provides that the writing off of tax does not affect the liability of the taxpayer to pay the tax or the power of the Chief Commissioner to recover it. In circumstances where the writing-off of tax does not affect the Applicants’ liability to pay the land tax assessed, I do not see how action on the part of the Respondent to write off the tax can assist the Applicants (see Valencia v Chief Commissioner of State Revenue [2017] NSWCATAD 261, at [77]).

93. In these circumstances, I do not need to consider whether the power under s 110 to write off tax should be exercised.

Interest

94. The assessment under administrative review for 2024 included an amount of interest in the amount of $ 675.40. In the absence of submissions or evidence going to matters relevant to the remission of interest, I make no determination in respect of the assessment of interest.

Conclusions

95. The Applicants, being the owners of the Bellevue Hill property as at the relevant liability date, namely 31 December 2023, and not having shown that this property was the principal place of residence of either of them after August 2023, the assessment under review must stand, unless exemption applies.

96. The Applicants rely on the provisions of cl 8 of Schedule 1A of the LTMA under which a person is taken, for the purpose of the principal place of residence exemption, to continue to use and occupy land formerly used and occupied by the person as a principal place of residence, after the person ceases to so use and occupy the former residence, if the Chief Commissioner is satisfied of certain matters.

97. This is a new basis for the Applicants’ claim for exemption set out in their submission in reply to the Respondent made on 30 July 2026. It engages new evidence not before the Tribunal at the time of hearing, including matters going to whether or not the Applicants remained in co-habitation and where Mrs Miocevic resided after vacating the Bellevue Hill property. The Respondent has not responded to the Applicants’ evidence.

98. In these circumstances, I am unable to determine whether or not cl 8 of Schedule 1A has application in respect of the Bellevue Hill property. The appropriate course is for the decision under review to be remitted to the Respondent for reconsideration having regard to cl 8 of Schedule 1A of the LTMA.

Orders

1. The decision under review is remitted to the Chief Commissioner of State Revenue for reconsideration in accordance with these reasons under s 65(1) of the Administrative Decisions Review Act 1997 (NSW).
2. The proceeding is listed for directions on 24 November 2026 at 11.30 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar